### No. 80-93 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

GORDON R. JULIAN, Plaintiff and Respondent,

DEARL 

### H. BUCKLEY, and BARBARA M. BUCKLEY, husband and wife, Defendants and Appellants.

Appeal from: District Court of the Eighteenth Judicial District, In and for the County of Gallatin, The Honorable 

### W. W. Lessley, Judge presiding.

Counsel of Record: For Appellants: William L. Pepper, Bozeman, Montana For Respondent: Phillip N. 

### Carter, Bozeman, Montana

Submitted on Briefs: November 26, 

### 1980 Decided: 

# JAN281981

Filed: :fi!j

## 2 

## 1981Mr. Justice John Conway Harrison delivered the Opinion of the Court. Plaintiff-respondent brought this action torecover damages forbreach of contract. Following a nonjury trial, the 

### ~istrict Court of the Eighteenth Judicial District, 

### all at in County, entered judgment infavor of plaintiff. Defendants-appellants filed 

### a motion for reconsideration and later a motion to alter and amend the judgment. They then filed a notice of appeal. Thereafter the DistrictCourt amended 

### its findings of fact and conclusions of law on two separate occasions. Respondent filed a notice of appeal, and appellants filed a notice of cross-appeal. In 1975 respondent, asbuyer, and appellants, as sellers, entered intonegotiations topurchase and sell a tractof land. These negotiations consummated into

### a contract in which appellants agreed to construct 

### a roadway from the existing Bear Canyon Road to the eastproperty lineof the tractof land respondent

### was purchasing. The road was tobe

a minimum of twenty feetwide and be composed of 

### a minimum of nine inches of pitrun gravel, properly placed and compacted so that it could be used under allweather conditions. The road was tobe completed by July 

### 1, 1976. During 1976 and 1978 appellants hired Kardash Construction tobuild the road. Appellants alleged that in 1976 six inches of shalematerial

### wasplaced on the road and an additional four inches of material 

### was placed on the lower one-half to two-thirds of the road. In 1978, afterbeing reassured repeatedly by appellants that the road would be completed, respondent began construction of his home on theproperty. Respondent secured a construction loan of $54,500 from Bozeman Federal creditunion. On May 17, 1978, respondent secured a commitment 

### letter from Metropolitan ServiceMortgage Corporation. Metropolitan agreed to loan respondent the sum of $54,500 at 9-3/4 percent interest, repayable on a monthly basis over thirtyyears. This commitment 

### was conditioned on the road being completed according to the specifications contained in the contract and legal access being obtained from the State of Montana. This commitment expired November 17, 1978. On February 1, 1979, respondent was required to loan to appellants $232 before they would agree to secure the 

### easements from the State of Montana. On April 5, 1979, another commitment 

### letter was obtained from Metropolitan, inwhich Metropolitan again agreed to loan respondent $54,500. This 

### time, however, the only condition was that the road be completed according to the



### same specifications contained in the contract. The legal

access problem had been resolved when respondent loaned appellants themoney so they, appellants, would purchase the easements from the State of Montana. This commitment 

### letter alsoprovided thatrespondent would have topay the current interest rate, 11-1/2 percent, and not 9-3/4 percent as agreed earlier. This commitment 

### letter expired October 5, 1979.Appellants refused tocomplete construction of the road and respondent filed suit. A nonjury 

### trial was held on October 9, 1979. On November 6, 1979, the 

### ~istrict Court filed its findings of factand conclusions of law in favor of respondent. On November 8, 1979, judgment was signed. Also on November 8, 1979, appellants filed their motion for reconsideration and on November 9, 1979, filed theirmotion to alter or amend the judgment. Both motions alleged thejudgment and findings did not conform to the evidence. On November 30, 1979, appellants filed theirmotion for a stay of execution. On December 3, 1979, a hearing was held in DistrictCourt on appellants' motion to

### alter or amend. On December 

### 4, 1979, the DistrictCourt ordered appellants not to 

### sell or inany way encumber their real property. On December 5, 1979, appellants filed their firstnotice of appeal. Thereafter, the following events occurred: (1) December 

### 6, 1979, respondent filed a petition to have the DistrictCourt appoint appraisers. (2) December 10, 1979, the DistrictCourt amended 

### its findings of factand conclusions of law for the first

### time. (3) December 13, 1979, the DistrictCourt ordered a stay of execution and awarded attorney fees to respondent. 

### (4) December 18, 1979, appellants filed their supplemental motion to

### alter or amend the findings of factand conclusions of 

### lawtorequire respondent to use the damages awarded him to complete the road. (5) January 14, 1980, the above motion was heard and the DistrictCourt ordered another hearing tobe held on February 5, 1980. (6) February 5, 1980, a hearing 

### was held on above motions and the DistrictCourt gave both parties twenty days to submit briefs. (7) February 26, 1980, the DistrictCourt amended 

### its findings of factand conclusions of 

### law for the second 

### time and ordered respondent toprepare a judgment. (8) March 21, 1980, respondent filed his notice of appeal and thereafter appellants filed their notice of cross-appeal.

### The first issue iswhether the District Court had jurisdiction to amend its findings of fact and conclusions of law,make and enter orders affecting the rights of the parties, and amend its original judgment after December 5, 1979, the date on which appellants' firstnotice of appeal

was filed. Since 1954 ithas been an established rule in Montana that when a notice of appeal has been filed, jurisdiction

over the parties to the controversy and subject matter passes from the District Court and vests in the Supreme Court. Itbecomes the Supreme Court's duty to maintain the status quo of the parties until the controversy can be determined. Benolken v. Miracle (1954),128 Mont. 262, 273 P.2d 667. On November 8, 1979, appellants filed a motion for reconsiderationrequesting that the court amend its findings of fact and conclusions of law because the same did not conform to the evidence. Thismotion was noticed for hearing on December 3, 1979. On November 9, 1979, appellants filed their motion to alter or amend the judgmentbecause the same did not conform to the weight of the evidencepresented at trial. This motion was also noticed for hearing on December 3, 1979. Appellants' memorandum brief in support of their motion to alter or amend the judgment was not signed by appellants' attorney until November 30, 

### 1979, and could not have been filed any earlier than that date. A hearing on these motions was held on Monday, December 3, 1979. On Wednesday, December 5, 

### 1979, and before the court could rule on appellants' motions, appellants filed their notice of appeal. Having done this, appellants strippedthe DistrictCourt of jurisdiction. The DistrictCourt 

### was without authority and jurisdiction tomake or enter any further order except inmatters embraced inthe action and not affected by the order appealed from. Benolken v. Miracle, supra. In Bryant Development Association v. Dagel (1974), 166 Mont. 8, 531 P.2d 1319, thisCourt, ina per curiam order, stated: 

# ".

.. Under section 93-8011, R.C.M. 1947, 

### we 

### , have previously held thatjurisdiction passes from the districtcourt to thisCourt upon 

### service and filingof the notice of appeal. See Benolken v. Miracle, 128Mont. 262, 273 P.2d 667; Polson v. Thomas, 138 Mont. 533, 357 P.2d 349. While this statutehas been superseded by Rules 6 and 7 of the Montana Rules of Appellate Civil Procedure the former ruling 

### still applies and the districtcourtwas without jurisdiction tomake and enter 

### its order 

# . .

# ." 513 P.2d at1320. Atno time after appellants' notice of appeal was filed with the DistrictCourt was there a motion todismiss the appeal or towithdraw the notice of appeal. When the DistrictCourt amended 

### its findings of factand conclusions of law on December 10, 1979, and again on February 26, 1980, it did sowithout the necessary jurisdiction. Therefore, these amendments are null and void, and the originaljudgment stands. On a complete review of the record, 

### we find that the originaljudgment awarding respondent damages of $34,068 

### is not justified. There 

### isno basis or evidence inthe record for such an amount. Respondent concedes this. The District Court attempted tocorrect these findings by the subsequent amended findings and judgment. Upon remand of the case, the DistrictCourt may properly evaluate the damages and amend 

### itsprior findings and judgment.Appellants next argue that the interest damage award entered by the DistrictCourt in the originaljudgment 

### is speculative and incapable of accurate and reasonable determination as a matter of law. The DistrictCourt awarded interest damages for the difference between the interestpaid over 

### a thirty-year period on a 9-3/4 percent loan and interestpaid over a thirty-year period on a 11-1/2 percent 

### rate. Appellants contend that should interestrates drop below 11-1/2 percent, respondent could refinance his home atthe lower rate and never incur thisdamage. Appellants claim this aspect of damages 

### is speculative, remote and prospective innature and respondent has not incurred a present injury. We disagree. InWalton v. City of Bozeman (1978), 

## -Mont. 588 P.2d 518, thisCourt upheld the DistrictCourt's award of future orprospective damages: "'Prospective damages' 

### are those which 

### are reasonably certain to follow the stateof facts on which plaintiff's suitisbased; such damages have not yet accrued atthe time of trial, but inthe nature [of] thingsmust certainly or most probably result from the stateof facts found tobe existing atthe 

### timeof trial. See StateHighway Board v. Coleman (1948), 

### 77 Ga.App. 756, 50 S.E.2d 262. "Although speculativedamages may not be recovered, reasonable certainty that future damages 

### willoccur 

### will sustain an award for future damages. This 

### test

### meets the statutory requirements that such must be reasonable. Section 17-607, R.C.M. 1947. See Cruse v. Clawson (1960)

## , 137Mont. 439, 352 P.2d 989." Walton, 588 P.2d at522. In the present case the amount of damages 

### isnot speculative but rather can be determined. Respondent cannot be expected tosue appellants every 

### time the interestrate changes. There 

### is sufficientcertainty in the record to make a damage award, after discounting the amount properly.We 

### willnot here discuss the amount and the accuracy of the amount awarded. On remand the DistrictCourt

### willbe allowed to amend 

### its findings of fact, conclusions of 

### law and judgment indetermining the interest damage amount, discounting properly and awarding such amount. Finally, appellants argue that the award of reasonable attorney fees inthe originaljudgment was error because the DistrictCourt failed toallow 

### a hearing on thematter. Only ina subsequent hearing, after the originaljudgment



### was entered, 

### was there an opportunity to address that issue and todetermine an exact amount. Upon remand the DistrictCourt shall also enter a proper amended finding of fact, conclusion of law and judgment regarding the amount of attorney fees based on findings itmade on subsequent hearings. Attorney fees should be awarded to the prevailing party inthis litigation up tothe time of the original judgment and notice of appeal. However, allcosts and attorney fees incurred subsequent to the 

### time of filing of the notice of appeal shallbe paid by each party. Any subsequent costs and attorney fees from the issuance of thisopinion shallbe determined by the District Court inaccordance with the law. The cause 

### isremanded to the DistrictCourt for further proceedings consistentwith this opinion.

n

We concur: 

### ?A& Chief Justice 

# dt

# &'-

This cause was submitted prior toJanuary 5, 1981.