                                                                                       September 23 2008


                                         DA 08-0352
                   IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2008 MT 329
                                       ______________

ESTATE OF EARL M. PRUYN, ACTING THROUGH                  )
THE PERSONAL REPRESENTATIVE JACK MEYER,                  )
                                                         )
          Plaintiff and Appellant,                       )
                                                         )     OPINION
     v.                                                  )       AND
                                                         )      ORDER
AXMEN PROPANE, INC., a Montana corporation,              )
and EDWARD KIMBRELL, individually,                       )
                                                         )
          Defendants and Appellees.                      )
                                         _____________

¶1        On June 27, 2008, the Fourth Judicial District Court, Missoula County, entered its

opinion and order granting summary judgment to Axmen Propane, Inc. (Axmen) and

denying the cross-motion for summary judgment filed by Earl M. Pruyn, who died

shortly before the District Court’s order. The District Court subsequently substituted

Pruyn’s estate (Estate) as the plaintiff. The record contains no indication that either party

served notice of entry of judgment, as contemplated in M. R. Civ. P. 77(d). On July 25,

2008, the Estate, acting through its personal representative, filed a notice of appeal from

the June 27 order and prior orders.

¶2        On August 8, 2008, Axmen moved to dismiss this appeal on grounds that the June

27 order is not a final judgment, as contemplated in M. R. App. P. 4(1)(a), because a

determination remained “regarding an award of attorney fees and costs.”              Axmen

represented it would “be filing its motion for fees in the District Court

contemporaneously” with its motion to dismiss the appeal here. The District Court


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record—which had not yet been transmitted when Axmen moved to dismiss—contains

Axmen’s Motion for Award of Attorneys’ Fees and Costs. On August 18, 2008, the

Estate responded to Axmen’s motion to dismiss the appeal, asserting the judgment was

final and appealable and its notice of appeal divested the District Court of jurisdiction.

¶3     A party may appeal from a final judgment. M. R. App. P. 6(1). A final judgment

conclusively determines the rights of the parties and settles all claims in controversy in an

action or proceeding, including any necessary determination of the amount of costs and

attorney fees awarded or sanction imposed. M. R. App. P. 4(1)(a).

¶4     Axmen filed its bill of costs almost seven weeks after the District Court entered its

summary judgment order, long after the statutory five-day period for filing and serving a

bill of costs had expired. See § 25-10-501, MCA. Given this untimely filing, we

conclude a determination of costs is not “necessary”—as contemplated in M. R. App. P.

4(1)(a)—and Axmen’s request for costs has no bearing on the finality of the judgment.

¶5     Regarding Axmen’s motion for an award of attorney fees, we treat such a motion

filed after entry of judgment as a motion to alter or amend the judgment pursuant to M.

R. Civ. P. 59(g). See Chase v. Bearpaw Ranch Assn., 2006 MT 67, ¶ 18, 331 Mont. 421,

¶ 18, 133 P.3d 190, ¶ 18 (citing Associated Press v. Crofts, 2004 MT 120, ¶ 36, 321

Mont. 193, ¶ 36, 89 P.3d 971, ¶ 36). As provided in M. R. App. P. 4(5)(a)(iv)(3), if a

party files a “timely motion” in the district court to alter or amend a judgment pursuant to

M. R. Civ. P. 59, the time for appeal for all parties runs from the entry of the order on the

motion or, if applicable, from the time the motion is deemed denied after 60 days. A

notice of appeal filed before the disposition of such a motion—either by entry of an order


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or by deemed denial—is treated as filed on the date of such entry or deemed denial. The

district court is not deprived of jurisdiction to enter its order on such a motion by the

premature filing of a notice of appeal. See M. R. App. P. 4(5)(a)(iv)(3).

¶6     In light of M. R. App. P. 4(5)(a)(iv)(3), the dispositive questions before us are: (1)

whether Axmen’s M. R. Civ. P. 59(g) rule is “timely” and, if so, (2) whether the Estate’s

notice of appeal divested the District Court of jurisdiction to consider Axmen’s

subsequently-filed motion. We address these questions in turn.

¶7     With respect to whether Axmen’s motion is “timely,” the period for serving a

motion to alter or amend the judgment is 10 days after the service of notice of entry of the

judgment. See M. R. Civ. P. 59(g). Because neither party served notice of entry of the

judgment as contemplated in M. R. Civ. P. 77(d), the 10-day time period in M. R. Civ. P.

59(g) has not yet begun to run. Thus, we conclude Axmen’s motion relating to attorney

fees is timely.

¶8     We next address whether the Estate’s notice of appeal divested the District Court

of jurisdiction to consider Axmen’s subsequently-filed motion.           In Shull v. First

Interstate Bank, 262 Mont. 355, 864 P.2d 1268 (1993), we rejected a party’s contention

that his notice of appeal divested the trial court of jurisdiction to accept or determine the

opposing parties’ M. R. Civ. P. 52(b) and 59(g) motions to alter or amend the judgment,

which were filed after the notice of appeal. In doing so, we construed language in former

M. R. App. P. 5(a)(4) regarding a “notice of appeal filed before the disposition” of a

timely motion to alter or amend a judgment as including “a notice of appeal filed prior to

the expiration of the time allowed” for such a motion. We also reasoned that allowing a


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party desiring to appeal to negate the opposing party’s ability to file timely motions to

alter or amend the judgment would result in a “race to the courthouse” and encourage

parties to file such motions automatically, without an objective and unhurried

examination of the judgment and its basis. Shull, 262 Mont. at 358-59, 864 P.2d at 1270.

We have located no authority to the contrary.

¶9     We acknowledge that the current M. R. App. P. 4(5)(a)(iv)(3) differs from the

former M. R. App. P. 5(a)(4) at issue in Shull. This is especially true insofar as the

former rule provided that a premature notice of appeal would “have no effect” and the

current rule provides that a premature notice of appeal will be treated as filed on the date

the district court decides the motion to alter or amend judgment or the motion is deemed

denied. We rely on Shull only with respect to whether a notice of appeal divests a district

court of jurisdiction to consider a timely subsequently-filed M. R. Civ. P. 59(g) motion,

in light of the “filed before the disposition” language in both the former and current

appellate rules.

¶10    Neither party cites to Shull, but both parties advance other authorities. Axmen

cites to Harding v. Garcia, 2007 MT 120, ¶ 16, 337 Mont. 274, ¶ 16, 159 P.3d 1083, ¶

16, where we determined a judgment in which a district court awarded attorney fees as a

discovery sanction without determining the amount of the fees was not yet final.

Harding is distinguishable insofar as the party moved for discovery sanctions and the

district court awarded attorney fees before the notice of appeal was filed. Thus, Harding

is of little use here.

¶11    The Estate relies on ABC Collectors, Inc. v. Birnel, 2006 MT 148, ¶ 9, 332 Mont.


                                         4
410, ¶ 9, 138 P.3d 802, ¶ 9, for our longstanding rule that, when a notice of appeal is

filed, jurisdiction passes from the trial court and is vested in this Court. The Estate fails

to mention, however, our determination that the “motion for reconsideration” in that case

was not, in form or substance, a M. R. Civ. P. 59(g) motion to alter or amend the

judgment triggering the appellate rule that a notice of appeal would be treated as if filed

on the date of disposition of such a motion. ABC Collectors, ¶¶ 12-18. Unlike the

motion at issue in ABC Collectors, and as discussed above, we construe Axmen’s motion

for an award of attorney fees as a M. R. Civ. P. 59(g) motion. See Chase, ¶ 18.

¶12    We note that either party could have taken action to avoid this situation. For

example, before filing its notice of appeal, the Estate could have served notice of entry of

judgment, as permitted by M. R. Civ. P. 77(d), to start the 10-day period for M. R. Civ. P.

59(g) motions. Axmen, on the other hand, could have filed its motion for an award of

attorney fees earlier. Moreover, either party could have raised the possibility of an

attorney fee award, or lack thereof, during the summary judgment hearing at which the

District Court stated its intent to enter a final judgment so the parties could appeal. The

parties’ inaction has resulted in unnecessary delay and expenditures of resources by their

counsel and this Court.

¶13    We conclude Axmen’s motion for an award of attorney fees is timely. We further

conclude the District Court retains jurisdiction to consider the motion.

¶14    IT IS ORDERED that the District Court record shall be returned to the Clerk of

the District Court.

¶15    IT IS FURTHER ORDERED that this case is REMANDED to the District Court


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for its determination on Axmen’s motion for an award of attorney fees and, if applicable,

for a determination of the amount of those fees.

¶16    IT IS FURTHER ORDERED that Axmen’s motion to dismiss this appeal is

DENIED, and the Estate’s previously-filed notice of appeal will be treated as filed on

whichever of the following dates is applicable in light of the District Court’s action on

remand: (1) the date the District Court enters an order denying Axmen’s motion; (2) the

date on which the District Court, having decided to award attorney fees, enters its order

determining the amount of those fees; or (3) pursuant to M. R. Civ. P. 59(g), 60 days

from the date of this Order.

¶17    The Clerk is directed to provide electronic notice of this Order to the Honorable

Robert L. Deschamps, III, the Clerk of the Fourth Judicial District Court, all counsel of

record, and Edward Kimbrell, followed by notice by mail.

       DATED this 23rd day of September, 2008.



                                                      /S/ KARLA M. GRAY

We concur:

/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ PATRICIA COTTER
/S/ JIM RICE




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