Opinion
DA 22-0290
06-21-2022
IN RE THE PARENTING OF: L.O.H. and S.K.H., Minor Children, v. CHAZ M. HYLAND, Respondent and Appellee. CHELSEY S. DREW, Petitioner and Appellant,
ORDER
Appellee Chaz M. Hyland has moved to dismiss this appeal pursuant to M. R. App. P. 4(5)(a)(iii) on the grounds that it was prematurely filed because the District Court has not yet ruled upon a necessary determination of costs and attorney fees.
Appellant Chelsey S. Drew opposes Hyland's motion. She admits the appeal was prematurely filed but urges this Court to treat it as filed on the date the District Court enters its rulings on costs and attorney fees. Drew points to M. R. Civ. P. 58(e) and argues that dismissal is unnecessary because the Court can treat the appeal as filed on a later date. Drew overlooks that Rule 58(e) was revised, effective January 1, 2022, and the language on which she relies was stricken from the Rule. In the Matter of the Montana Rules of Civil Procedure, No. AF 07-0157, Order (Mont. Oct. 12, 2021). M. R. App. P. 4(5)(a) was concurrently revised to specify:
(iii) A notice of appeal filed prior to the district court's ruling on any necessary determination of the amount of costs and attorney fees awarded, or sanctions imposed, may be dismissed sua sponte and shall be dismissed upon the motion of any party. The district court is not deprived of jurisdiction to enter its order on a timely motion for attorney fees, costs, or sanctions by the premature filing of a notice of appeal, in accordance with Rule 58(e), M. R. Civ. P.In the Matter of the Montana Rules of Appellate Procedure, No. AF 07-0016, Order (Mont. Oct. 12, 2021). These revisions were implemented in part to eliminate the administrative difficulties posed by placing premature appeals in a suspended status and to more clearly advise litigating parties as to the disposition of prematurely filed appeals. In the Matter of the Montana Rules of Civil Procedure, No. AF 07-0157, Order (Mont. Aug. 4, 2021); In the Matter of the Montana Rules of Appellate Procedure, No. AF 07-0016, Order (Mont. Aug. 4, 2021).
As Rule 4(5)(a)(iii) provides, an appeal filed in this Court prior to the district court's ruling on any necessary determination of costs and attorney fees shall be dismissed upon the motion of any party. Hy land's motion to dismiss is well-taken.
IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that this matter is REMANDED to the District Court.
The Clerk is directed to provide copies of this Order to all counsel of record.