                                                                                      November 10 2015


                                          DA 15-0445
                                                                                       Case Number: DA 15-0445

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2015 MT 315



TODD A. KISER,

               Plaintiff and Appellee,

         v.

NOEL D. KISER and MARIE A. MCDOWELL,

               Defendants and Appellants.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DV 15-517(A)
                       Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Evan F. Danno, Danno Law Firm, P.C.; Kalispell, Montana

                For Appellees:

                       Todd A. Kiser, self-represented; Kila, Montana



                                                    Submitted on Briefs: October 21, 2015
                                                               Decided: November 10, 2015


Filed:

                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Noel D. Kiser and Marie A. McDowell (Noel and Marie) appeal from the Eleventh

Judicial District Court’s dismissal of their appeal from the judgment entered against them

and in favor of Todd A. Kiser (Todd) in Flathead County Small Claims Court. The

District Court dismissed their appeal for failure to file their opening brief on time. We

reverse and remand for further proceedings, and address the following issue:

¶2     Did the District Court err by dismissing the appeal from Small Claims Court?

                 PROCEDURAL AND FACTUAL BACKGROUND

¶3     Todd initiated this action by filing a form complaint against Noel and Marie in the

Small Claims Division of Flathead County Justice Court on April 17, 2015. The form

was entitled “COMPLAINT AND ORDER IN THE SMALL CLAIMS DIVISION,

FLATHEAD COUNTY, MONTANA JUSTICE COURT.” Todd alleged that Noel and

Marie owed him $3,445.85 arising out of an asserted agreement among them regarding

their father’s nursing care and cremation costs. The order portion of the form, issued

over the name of Justice of the Peace Mark R. Sullivan by the Clerk of the Small Claims

Division, set a hearing for the complaint on May 22, 2015, and advised Noel and Marie

that they must bring “all books, papers, and witnesses needed to establish any defense to

said claim.” The Order further advised them that “within 10 days of service upon you of

this Complaint and Order, you may remove this action from the small claims court to

Justice Court, and that failure to remove shall constiture [sic] a waiver of your rights to

trial by jury and to representation by counsel.” They were served with the complaint and

summons on April 20, 2015.

                                            2
¶4     Noel and Marie did not remove the matter from Small Claims Court to Justice

Court, and all three of the named parties personally appeared at the hearing as scheduled

on May 22, 2015.       On June 10, 2015, Justice Sullivan entered Findings of Fact,

Conclusions of Law, and Judgment in favor of Todd and against Noel and Marie. On

June 17, 2015, Noel and Marie, then represented by counsel, filed a notice of appeal of

the judgment to the Flathead County District Court.

¶5     On June 25, 2015, the Clerk of the District Court mailed a form letter to Todd and

counsel for Noel and Marie, which stated:

       Pursuant to Rule 10(c) of the Uniform Municipal Court Rules of Appeal to
       the District Court this office is hereby notifying the parties of having
       received the above-entitled action on appeal from the limited jurisdiction
       court of record on June 23, 2015. The Honorable Ted O. Lympus has
       jurisdiction.

       An appeal from a justice court of record to the district court is limited to a
       review of the record and questions of law. § 3-10-115(1), MCA, and
       pursuant to § 3-10-115(4), MCA, the rules governing the appeal are as
       established in the Montana Uniform Municipal Court Rules of Appeal to
       District Court, codified in Title 25, Chapter 30. A copy of Rules 12, 13 and
       14 [setting out the deadlines for this type of appeal] are included with this
       notification.

       No separate briefing schedule will be issued by the court. Please refer to
       the deadlines set forth in Rule 14 (attached). . . .

¶6     Although indicating that “the above-entitled action” had been received, this letter

did not state the record had been transferred to the District Court, and no other notice was

given by the Small Claims Court. Noel and Marie filed their brief in District Court on

July 16, 2015. On July 22, 2015, the District Court dismissed the appeal, reasoning that

the brief had been untimely filed because, pursuant to the 15-day deadline under Rule 14


                                             3
of the Montana Uniform Municipal Court Rules of Appeal to District Court (hereinafter

“Municipal Court Appellate Rules”), codified at Title 25, chapter 30, MCA, the brief was

due on or before July 13, 2015. Rule 14 of the Municipal Court Appellate Rules provides

that the appellant shall file a brief in the district court “within 15 days after the date on

which the record is filed.” Noel and Marie appeal.

                               STANDARD OF REVIEW

¶7     We review a district court’s conclusions of law for correctness.         Petersen v.

Aladdin Steel Prods., Inc., 1999 MT 262, ¶ 5, 296 Mont. 394, 989 P.2d 385 (reviewing

district court’s denial of a motion to dismiss an appeal from a small claims court).

                                      DISCUSSION

¶8     Did the District Court err by dismissing the appeal from Small Claims Court?

¶9     Noel and Marie argue that the District Court erred by dismissing their appeal

based upon Rule 14 of the Municipal Court Appellate Rules, which they argue are

inapplicable to appeals from small claims courts. Todd responds that the Municipal

Court Appellate Rules apply by virtue of § 3-10-115(4), MCA, which provides that

“[u]nless the supreme court establishes rules for appeal from a justice’s court of record to

the district court, the Montana Uniform Municipal Court Rules of Appeal to District

Court, codified in Title 25, chapter 30, apply to appeals to district court from justice’s

court of record.”

¶10    Small claims court is a forum whose purpose is to “provide a speedy remedy for

small claims and to promote a forum in which such claims may be heard and disposed of

without the necessity of a formal trial.” Section 3-10-1001, MCA; § 25-35-501, MCA.

                                             4
Generally, small claims courts have jurisdiction “over all actions for the recovery of

money or specific personal property when the amount claimed does not exceed

$7,000 . . . and the defendant can be served within the county where the action is

commenced.” Section 3-10-1004, MCA; § 25-35-502, MCA.

¶11    Small claims courts are creatures of statute and the Legislature has provided for

their establishment in two ways. First, § 3-10-1002, MCA, establishes a small claims

court as a division of each justice’s court in the state of Montana. Secondly, § 3-12-102,

MCA, provides that a small claims court “may be created within the jurisdiction of the

district court of any county of the state of Montana . . . .” A small claims court that is

part of a district court must be created by resolution of the board of county

commissioners, or by a county-wide initiative. See § 3-12-103(1), MCA.

¶12    Small claims courts are distinct from justices’ courts under legislation enacted by

the Legislature in response to our decision in North Central Servs., Inc. v. Hafdahl, 191

Mont. 440, 443-45, 625 P.2d 56, 58-59 (1981) (overruled on other grounds), which

determined that the prohibitions on legal counsel and jury trials within small claims

proceedings were violations of due process.       The new statutory scheme granted a

defendant the options of either proceeding in small claims court while waiving these

rights or removing a case from small claims court to the justice’s court. “Failure to

request removal within the time provided . . . constitutes a waiver by the defendant of the

right to a trial by jury and representation by an attorney . . . .” Section 25-35-605(3),

MCA. We upheld this scheme against a due process challenge in Johnson v. Capital

Ford Garage, 250 Mont. 430, 435, 820 P.2d 1275, 1277 (1991), explaining that the new

                                            5
statute “places the responsibility for preservation of that right on the defendant who must

choose between the peace of mind that comes from representation by counsel, and the

quick, affordable justice available in small claims court.”

¶13    Sections 3-10-1001 through -1005, MCA, govern small claims courts generally,

while §§ 25-35-501 through -807, MCA, specifically govern small claims courts that are

divisions of justices’ courts.1     Sections 3-12-101 through -203, MCA, govern small

claims courts established as parts of district courts, but the small claims procedures

provided in §§ 25-35-501 through -807, MCA, are likewise made applicable to these

courts. Section 3-12-107, MCA. The small claims court at issue in this case is a division

of the Flathead County Justice Court.

¶14    Here, Defendants Noel and Marie did not remove the case from Small Claims

Court to Justice’s Court, and the case accordingly proceeded through the entry of

judgment in the Small Claims Court, from which they took an appeal to the District

Court. Had the case been removed to, and proceeded in, the Justice Court, then the

appeal to District Court would indeed have been governed by the Municipal Court

Appellate Rules codified in Title 25, Chapter 30, as provided by § 3-10-115(4), MCA, for

justices’ courts of record. However, because the case was not removed, it proceeded

before and was appealed from the Small Claims Court. That appeal is governed by the

provisions of §§ 25-35-801 through -807, MCA. The letter to the parties from the Clerk



1
 Noel and Marie note that this Court applied these provisions to an appeal from a small claims
court division of justice court to the district court in Petersen v. Aladdin Steel Prods., 1999 MT
262, 264 Mont. 394, 989 P.2d 385.
                                                6
of the District Court and the District Court’s order of dismissal erroneously cited to the

Municipal Court Appellate Rules.

¶15    Section 25-35-803(1), MCA, provides that an appeal from small claims court must

be commenced by giving written notice of appeal to the small claims court and serving a

copy upon the adverse party “within 10 days after entry of judgment.” Noel and Marie

completed    this   on   June   18,   2015,    eight   days   after   entry   of   judgment.

Section 25-35-804(1), MCA, requires the record of the small claims court proceedings to

be transferred to district court within 30 days of that notice, at which time the justice of

the peace is to “notify the parties in writing” that the record has been transferred.

Although it does not appear that the justice of the peace gave this notice to the parties, no

one disputes that the record was transferred. Importantly, these statutory provisions

provide no deadline for the filing of the appellant’s brief in the district court. Any

deadlines would need to be set by adoption of a local rule or by order of the district court.

In any event, the District Court erred by dismissing the appeal on the basis of the briefing

deadline imposed in the inapplicable Municipal Court Appellate Rules.

¶16    Reversed and remanded to the District Court for reinstatement of Noel and

Marie’s appeal and for further proceedings.


                                                  /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ BETH BAKER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT

                                              7
