Opinion
DA 21-0535
01-25-2022
FLATHEAD LAKERS INC., a Montana non-profit public benefit corporation, AMY J. WALLER, STEVEN F. MOORE, CYNTHIA S. EDSTROM, ADELE ZIMMERMAN, MARTIN FULSAAS and GAIL A. WATSON-FULSAAS, LAUREL FULLERTON, ALAN and DEIRDRE COIT, and FRANK M. WOODS, Petitioners and Appellees, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Respondent, MONTANA ARTESIAN WATER COMPANY, Respondent and Appellant, WATER FOR FLATHEAD'S FUTURE, Intervenor.
ORDER
Appellees (Flathead Lakers) move to dismiss the appeal of Appellant Montana Artesian Water Company (MAWC). Flathead Lakers assert that MAWC's appeal was filed prematurely because the District Court had not yet ruled on Flathead Lakers' motion . for attorney fees at the time MAWC filed its Notice of Appeal in this Court and therefore the appeal should be dismissed pursuant to M. R. App. P; 4(5)(a)(iii). MAWC has not responded to this motion to dismiss; however Respondent Montana Department of Natural Resources and Conservation (DNRC) opposes the motion, arguing that this appeal is properly before this Court.
On September 30, 2021, the District Court issued an Order on Remand that vacated the final order of a DNRC hearing examiner and remanded the matter to DNRC. MAWC filed a Notice of Entry of Judgment in the District Court on October 1, 2021. MAWC then filed its Notice of Appeal on October 29, 2021.
However, on October 12, 2021-after the filing of the Notice of Entry of Judgment but before the filing of the Notice of Appeal-Flathead Lakers filed a timely motion for attorney fees in the District Court. That motion has since been fully briefed and Flathead Lakers filed a Notice of Submittal in the District Court, as required by that court's Local Rule, on December 15, 2021.
Flathead Lakers argue that its attorney fees motion renders the present appeal premature and this Court should therefore dismiss it. Under M. R. App. P. 4(5)(a), in civil cases, the Notice of Appeal must be filed within 30 days from the date of entry, of the judgment or order from which the appeal is taken. However, Rule 4(5)(a)(iii) provides:
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.
Rule 4(5)(a)(iii), as set forth here, became effective January 1, 2022, At the time MAWC filed this appeal, the procedure in such cases was controlled by M. R. Civ. P. 58(e), which provided inter alia that this Court would treat a notice of appeal filed before the disposition of a necessary determination of attorney fees as if it were filed on the date of the entry of the district court's determination.
DNRC argues, however, that regardless of which Rule applies and regardless of . whether the Notice of Appeal was prematurely filed, the appeal is now properly before the Court because we treat a motion for attorney fees filed subsequent to entry of judgment as a motion to alter or amend the judgment under M. R. Civ. P. 59, and that under Rule 59(f), the District Court's jurisdiction to rule on Flathead Lakers' motion for attorney fees expired on December 13, 2021-60 days after Flathead Lakers filed the motion. DNRC argues that in order for M. R. App. P. 4(5)(a) and M. R. Civ. P. 58(e) to extend a district court's jurisdiction to determine attorney fees, that court's judgment must have either awarded attorney fees or reserved jurisdiction to do so.
DNRC points to Ballou v. Walker, 2017 MT 197, 388 Mont. 283, 400 P.3d 234. In that case, two weeks after the District Court entered its judgment, the prevailing party moved for attorney fees. Ballou, ¶ 23. The District Court ultimately awarded those fees, but did so more than 60 days after the motion was filed. Ballou, ¶ 21. On appeal, we held that the order granting attorney fees was void because the court lacked the jurisdiction to rule after more than 60 days had passed. Ballou, f 23. In so doing, we explained that the motion for attorney fees was treated as a motion to alter or amend the judgment pursuant to M. R. Civ. P. 59 because it was made after the court had entered its judgment. Ballou, ¶ 22. Under Rule 59(f), a motion to alter or amend a judgment is deemed denied if it is not ruled upon within 60 days of its filing date. "Rule 59, M. R. Civ, P., contains a mandatory jurisdictional time limitation, to which this Court strictly adheres." Ballou, ¶ 22 (quoting Associated Press v. Crofts, 2004 MT 120, ¶ 37, 321 Mont. 193, 89 P.3d 971)). Thus, when a district court does not rule on a motion for attorney fees within 60 days of its filing, it loses jurisdiction to rule on the motion. Ballou, ¶ 22.
Here, Flathead Lakers' argument that 20 days passed from the filing of its Notice of Submittal until it moved to dismiss this appeal is inapposite. Under M. R. Civ. P. 59(f), the District Court had 60 days from the filing date of the motion-not from the date of the Notice of Submittal-in which to rule upon the motion or to issue an order extending the time for ruling. Since the District Court did not do so, the motion for attorney fees was deemed denied by operation of Rule 59 and the District Court lost jurisdiction.
IT IS THEREFORE ORDERED that Appellee's Motion to Dismiss is DENIED.
The Clerk is directed to give notice of this Order to all counsel of record.