                               No. 96-555
            IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1997


JIM AULT,
            Plaintiff and Appellant,


STEPHEN WHITNEY, 111 and                                      ?,-.c2
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MARY E. SCHA'LLER,                                   --,-   & : $ip&p
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            Defendants and Respondents.



APPEAL FROM:    District Court of the Fourth Judicial District,
                In and for the County of Missoula,
                The Honorable Ed McLean, Judge presiding.


COUNSEL OF RECORD:
            For Appellant:
                 Mark E. Jones, Attorney at Law, Missoula,
                 Montana
            For Respondents:
                 Mark S. Williams; Williams      &     Ranney, Missoula
                 Montana



                                Submitted on Briefs: January 2, 1997
                                            Decided: March 4, 1997
Filed:                                          .. . ..:.
                                            .    . ,.. .
Justice W. William Leaphart delivered the Opinion of the Court


      Pursuant to Section I, Paragraph 3 (c), Montana Supreme Court
1995 Internal Operating Rules, the following decision shall not be
cited as precedent and shall be published by its filing as a public
document with the Clerk of the Supreme Court and by a report of its
result to State Reporter Publishing Company and West Publishing
Company.
      Jim Ault   (Ault) appeals from the Fourth Judicial District
Court's decision awarding attorney fees and costs, and awarding
punitive damages to respondents, Stephen Whitney and Mary Schaller-
Whitney (the Whitneys) .   The Whitneys counter-claim, and request
attorney fees for the cost of this appeal. We affirm and remand to
the District Court.
      The issues raised on appeal are restated as follows:
I.    Was Ault's Notice of Appeal timely?
11.   Did the District Court err in awarding attorney fees to
      the Whitneys following dismissal of Ault's suit to
      foreclose the construction lien?
111. Should the Whitneys be awarded attorney fees for the cost
      of their appeal?
                             BACKGROUND

      Ault entered into a construction contract with the Whitneys to
construct a small upholstery garage. Ault's original bid for the
project was for just over $19,000. After Ault had worked on the
project for just over one month, the Whitneys paid Ault $11,908.
Ault eventually submitted a final bill for an additional $24,406,
bringing the total to $36,314. The Whitneys refused to pay this
final bill contending that the project had not been completed.        In
response, Ault filed a construction lien against the Whitneys'
property for the $24,946.13 balance.
     In December of 1994, Ault filed a complaint to foreclose on
the construction lien to which the Whitneys filed an answer and
counterclaim seeking both    compensatory and punitive          damages.
Following Ault's failure to comply with two court-ordered discovery
requests, the Whitneys moved for Rule 37, M.R.Civ.P., sanctions.
The District Court granted the Whitneys' motion and dismissed
Ault's complaint without prejudice      and   awarded   the    Whitneys
reasonable attorney fees. The District Court further ordered that
Ault would not be permitted to refile his cause of action without
obtaining leave of court.
     In November of 1995, the District Court granted Ault leave to
re-file his complaint under a breach of contract theory.         A jury
trial was held in April of 1996, and Ault was awarded $25,016 in
damages for breach of contract. The Whitneys were awarded $2,892
based upon their counter-claim for breach of contract.         The court
then allowed the issue of punitive damages to go to the jury which
then awarded the Whitneys $5,000 in punitive damages. Despite the
fact that the court had not yet entered a judgment, Ault filed
three   separate Rule   60(b) motions   for relief      from    judgment
including:   (1) Rule 60(b) Motion For Relief From Judgment, in
which Ault requested relief from the punitive damages award of
$5,000, the award of costs incurred, and the order granting
attorney fees; (2) Motion for Attorney Fees, Costs and Prejudgment
Interest; and (3) Motion to Reinstate Construction Lien. The first
two motions were filed on April 15, 1996, while the third motion
was filed April 17, 1996. The District Court failed to rule on any
of these motions within the time frame provided in Rules 59(d) and
60(c), M.R.Civ.P., thus the first two motions were deemed denied as
of June 14, 1996, while the third motion was deemed denied as of
June 16, 1996, 60 days after they were filed. On July 9, 1996, the
court entered an Opinion and Order recognizing that the post-trial
motions had been deemed denied and awarded the Whitneys $10,000 in
attorney fees related to the lien foreclosure action.   On July 16,
1996, the court entered a judgment for Ault in the net amount of
$7,124 ($25,015 less the Whitneys' contract damages of $2,892, less
the Whitneys' attorney fees of $10,000 and less punitive damages of
$5,000).   Ault appeals from the District Court's July 9, 1996,
denial of his Rule 60(b) post-trial motions.


                            DISCUSSION

I.   Was Ault's Notice of Appeal timely?
     In determining the timeliness of Ault's Notice of Appeal, it
is important to note that Ault     is appealing issues from two
separate actions. The first action ended with the District Court's
imposition of Rule 37, M.R.Civ.P., sanctions for failure to comply
with discovery requests.   The District Court's dismissal of that
complaint constituted an end to Ault's lien foreclosure suit
against the Whitneys.   The second action started when the court
allowed Ault to refile and proceed on a breach of contract theory.
Because Ault is appealing issues from two separate actions, we will
apply notice of appeal deadlines that correspond to each action.
Ault appeals five separate issues.    Three of these issues concern
the District Court's decision allowing the jury to award punitive
damages to the Whitneys in the breach of contract claim. The other
two deal with the District Court's award of attorney fees in the
initial construction lien action.    We address the issues relating
to the jury's award of punitive damages first.


     A.   Did Ault file a timely notice of appeal with
          regard to the award of punitive damages?
     Ault appeals from the court's July 9, 1996, denial of his
motion for relief from the punitive damage award. The Whitneys
contend that Ault's appeal in this matter is untimely.         The
Whitneys contend that because the District Court failed to rule on
any of Ault's three motions, those motions were deemed denied 60
days after the motions were filed.    The Whitneys further contend
that once these motions were deemed denied, Ault had 30 days in
which to file his Notice of Appeal.
     The jury verdict for punitive damages was entered on April II,
1996. Ault filed three Rule 60(b) post-trial motions. Ault filed
a Rule 6 0 ( b ) Motion for Relief From Judgment on April 15, 1996,
wherein he requested relief from the punitive damages award of
$5,000 entered on April 11, 1996; the award of costs incurred on
October 23, 1995; and the order granting attorney fees entered on
October 23, 1995. On April 15, 1996, Ault also filed a Motion For
                                 5
Attorney Fees, Costs and Prejudgment Interest. Finally, Ault filed
a Motion to Reinstate Construction Lien on April 17, 1996.           When
the District Court failed to rule on any of these motions within 60
days, they were deemed denied.     Rules 60(c) and 59(d), M.R.Civ.P.
     We note that Ault appeals from the July 9, 1996, order denying
his post-trial motions and awarding attorney fees to the Whitneys;
he does not appeal from the July 16, 1996, Judgment which awards a
net figure to Ault .   Furthermore, although Ault appeals from the
court's July 9, 1996, order deeming his post-trial motions denied,
the fact that the court formally denied the motions after the date
on which they were deemed denied does not extend the time for
filing a notice of appeal. Once the motion is deemed denied under
the self-executing provisions of Rule 59, "any subsequent order by
the district court concerning that motion is outside the district
court's jurisdiction and, consequently, null, void, and without
effect." Leitheiser v. Montana State Prison (1973), 161 Mont. 343,
348, 505 P.2d 1203, 1206. Accordingly, our analysis must focus on
both June 14, 1996, and June 16, 1996, the dates the motions were
deemed denied.
     As this Court explained in Haugen v. Blain Bank of Montana
(Mont. l996), 926 P.2d 1364, 53 St.Rep. 1024,             "   [ulnder Rule
5(a)(4), M.R.App.P., a Notice of Entry of Judgment is not required
to begin the running of the time for filing a Notice of Appeal when
a motion has been made under Rules 50 (b), 52 (b), or 59, M.R.Civ.P."
Hauqerl, 926 P.2d at 1369.       Rule 5 (a)( 4 ) ,   M.R.App.P., further
explains,
      the time for appeal for all parties shall run from the
      entry of the order denying a new trial or granting or
      denying any other such motion, or if applicable, from the
      time such motion is deemed denied at the expiration of
      the [60-day] period established by Rule 59(d), Montana
      Rules of Civil Procedure. . . .
~lthoughRule 5(a)(4), M.R.App.P., does not specifically reference

Rule 60 motions, Rule 60 (c), M.R.Civ.P., explains, " [m]otions
provided by subdivision (b) of this rule shall be determined within
the times provided by Rule 59 . . . . "         Rule 59(d), M.R.Civ.P.,
provides, " [ilf the court shall fail to rule on a motion for new
trial within 60 days from the time the motion is filed, the motion
shall, at the expiration of said period, be deemed denied. . . . "
Applying this rule, Ault's April 15, 1996, Rule 60 (b) Motion for
Relief From Punitive Damages was deemed denied on June 14, 1996.
      After Ault's motions were deemed denied as of June 14, 1996,
and June 16, 1996, the 30-day appeal clock began running.              See
Mortensen v. Burlington No., Inc. (1985), 218 Mont. 415, 417, 708
P.2d 1006, 1007. Thus, the 30-day time period within which to file
an appeal expired as of July 15, 1996, and July 17, 1996.
      In the instant case, Ault filed his Notice of Appeal on August
5, 1996.     Applying the 30-day deadline imposed by Rule 5(a) (4),
M.R.App.P., this filing was 21 and 19 days late.          As this Court
explained in Montana Power Co. v. Fondren (1987), 226 Mont. 500,
737   P.2d    1138   "[tlhe   filing   of   a   notice   of   appeal    is
jurisdictional, and the failure to timely file is a fatal defect
altered only on the most extenuating circumstances." Fondren, 737
P.2d at 1141 (citing Leitheiser, 505 P.2d at 1205).           Therefore,
Ault's Notice of Appeal from the denial of his post-trial motions,
                                   7
including his request for relief from the award of punitive
damages, was not timely and the propriety of that award will not be
addressed by this Court.


     B.    Was Ault 's appeal from the award of attorney
           fees timely?
     Because the District Court's October 23, 1995, decision
imposing Rule 37 sanctions and awarding attorney fees to the
Whitneys was entirely separate from Ault's breach of contract
action, the appeal deadlines for that award are different. When a
district court awards attorney fees, the judgment does not become
final until the court determines the amount of the fees.    Ring v .
Hoselton (1982), 197 Mont. 414, 422, 643 P.2d 1165, 1170.    In the
instant case, the District Court did not fix the amount of attorney
fees until its July 9, 1996, order. From the date of this order,
Ault had 30 days to file his Notice of Appeal.     Ault filed his
Notice of Appeal on August 5, 1996, well within this 30-day time
limit.    Therefore, this Court must address whether the District
Court was correct in awarding the Whitneys attorney fees in Ault's
construction lien action.


11. Did the District Court err in awarding attorney fees to
    the Whitneys following dismissal of Ault's suit to
    foreclose the construction lien?
     Section 71-3-124, MCA, requires an award of attorney fees to
a party prevailing in a lien foreclosure action. Section 71-3-124,
MCA, states:
        In an action to foreclose any of the liens provided for
        by parts 3, 4, 5, 6, 8, or 10 of this chapter, the court
        must allow as costs the money paid for filing and
        recording the lien and a reasonable attorney's fee in the
        district and supreme courts, and such costs and
        attorneys' fees must be allowed to each claimant whose
        lien is established, and such reasonable attorneys' fees
        must be allowed to the defendant against whose property
        a lien is claimed, if such lien be not established.
Ault filed his original action to foreclose on the construction
lien against the Whitneys' property.       When Ault failed to comply
with two court-ordered discovery requests, the Whitneys moved for
dismissal of Ault's construction lien claim pursuant to Rule 37,
M.R.Civ.P.      For some inexplicable reason, the court requested
briefs on the issue of attorney fees but then issued an order
before the briefs were filed.         The District Court ruled in the
Whitneys' favor and awarded attorney fees pursuant to      §   71-3-124,
MCA .
        This Court has held that the district court must award
attorney fees to a defendant property owner when a lien is not
established. M     &   R Construction Co. v. Shea (1979), 180 Mont. 77,
81, 589 P.2d 138, 140.        In Simkins-Hallin Lumber Co. v. Simonson
(1984), 214 Mont. 36, 42, 692 P.2d 424, 427, this Court explained
that, "the language of section 71-3-124, MCA is mandatory. . . . "
In the instant case, it is undisputed that Ault's original action
against the Whitneys was a lien foreclosure action which was
dismissed by the court. Despite the court's awarding attorney fees
prior to the filing of briefs on that issue, once the action was
dismissed, the Whitneys were, as a matter of law, the prevailing
party and entitled to fees.        In light of the mandatory nature of
this statute, we affirm the District Court's decision awarding
attorney fees.


111. Should the Whitneys be awarded attorney fees for the cost
     of their appeal?
     Section 71-3-124, MCA, requires the following:
    In an action to foreclose any of the liens provided for
    by parts 3, 4, 5, 6, 8, or 10 of this chapter, the court
    must allow as costs the money paid for filing and
    recording the lien and a reasonable attorney's fee in the
    district and supreme courts, and such costs and
    attorneys' fees must be allowed to each claimant whose
    lien is established, and such reasonable attorneys' fees
    must be allowed to the defendant against whose property
    a lien is claimed, if such lien be not established.
(Emphasis added.) Under the above statute, attorney fees are
recoverable for both the trial and the appeal of lien foreclosure
actions.   Simkins-Hallin, 692 P.2d at 427.     One of the issues
raised by Ault in this appeal is whether the District Court erred
in awarding statutory attorney fees to the Whitneys in the initial
litigation.      Since the Whitneys were successful in defending
against this claim of error, they are entitled to recover their
attorney fees on appeal.    Section 71-3-124, MCA.   We remand this
matter   to the District Court for an award of attorney fees
commensurate with the fees incurred by the Whitneys in defending
the District Court's October 23, 1995, and July 9, 1996, orders
awarding statutory fees
We concur:


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      Chief Justice
