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: JAN 2 8 1981 

Filed: :fi!j 2 1981 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

Plaintiff-respondent brought this action to recover 

damages for breach of contract. Following a nonjury trial, 

the ~istrict Court of the Eighteenth Judicial District, 

 all at in County, entered judgment in favor 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 District Court 

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, as buyer, and appellants, as sellers, 

entered into negotiations to purchase and sell a tract of 

land. These negotiations consummated into a contract in 

which appellants agreed to construct a roadway from the 

existing Bear Canyon Road to the east property line of the 

tract of land respondent was purchasing. The road was to be 

a minimum of twenty feet wide and be composed of a minimum 

of nine inches of pit run gravel, properly placed and compacted so that it could be used under all weather conditions. The road was to be completed by July 1, 1976. 

During 1976 and 1978 appellants hired Kardash Construction to build the road. Appellants alleged that in 1976 six 

inches of shale material was placed 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, after being reassured repeatedly by appellants 

that the road would be completed, respondent began construction of his home on the property. Respondent secured a 

construction loan of $54,500 from Bozeman Federal credit 
union. On May 17, 1978, respondent secured a commitment 

letter from Metropolitan Service Mortgage Corporation. 

Metropolitan agreed to loan respondent the sum of $54,500 at 

9-3/4 percent interest, repayable on a monthly basis over 

thirty years. 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, in which 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 the money so they, appellants, would purchase the 

easements from the State of Montana. This commitment letter 

also provided that respondent would have to pay 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 to complete 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 fact and 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 their motion 

to alter or amend the judgment. Both motions alleged the 
judgment and findings did not conform to the evidence. On 

November 30, 1979, appellants filed their motion for a stay 

of execution. On December 3, 1979, a hearing was held in 

District Court on appellants' motion to alter or amend. On 

December 4, 1979, the District Court ordered appellants not 

to sell or in any way encumber their real property. On 

December 5, 1979, appellants filed their first notice of 

appeal. Thereafter, the following events occurred: 

(1) December 6, 1979, respondent filed a petition to 

have the District Court appoint appraisers. 

(2) December 10, 1979, the District Court amended its 

findings of fact and conclusions of law for the first time. 

(3) December 13, 1979, the District Court 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 fact and 

conclusions of law to require respondent to use the damages 

awarded him to complete the road. 

(5) January 14, 1980, the above motion was heard and 

the District Court ordered another hearing to be held on 

February 5, 1980. 

(6) February 5, 1980, a hearing was held on above 

motions and the District Court gave both parties twenty days 

to submit briefs. 

(7) February 26, 1980, the District Court amended its 

findings of fact and conclusions of law for the second time 

and ordered respondent to prepare a judgment. 

(8) March 21, 1980, respondent filed his notice of 

appeal and thereafter appellants filed their notice of 

cross-appeal. 
The first issue is whether 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' first notice of appeal 

was filed. 

Since 1954 it has 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. It becomes 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 

reconsideration requesting that the court amend its findings 

of fact and conclusions of law because the same did not 

conform to the evidence. This motion was noticed for hearing on December 3, 1979. 

On November 9, 1979, appellants filed their motion to 

alter or amend the judgment because the same did not conform 

to the weight of the evidence presented 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 stripped 
the District Court of jurisdiction. The District Court was 

without authority and jurisdiction to make or enter any 

further order except in matters embraced in the 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, this Court, in a per curiam order, 

stated: 

". . . Under section 93-8011, R.C.M. 1947, we , have previously held that jurisdiction passes 

from the district court to this Court upon service and filing of the notice of appeal. See 

Benolken v. Miracle, 128 Mont. 262, 273 P.2d 

667; Polson v. Thomas, 138 Mont. 533, 357 P.2d 

349. While this statute has been superseded 

by Rules 6 and 7 of the Montana Rules of Appellate Civil Procedure the former ruling still 

applies and the district court was without 

jurisdiction to make and enter its order . . ." 

513 P.2d at 1320. 

At no time after appellants' notice of appeal was filed 

with the District Court was there a motion to dismiss the 

appeal or to withdraw the notice of appeal. When the District Court amended its findings of fact and conclusions of 

law on December 10, 1979, and again on February 26, 1980, it 

did so without the necessary jurisdiction. Therefore, these 

amendments are null and void, and the original judgment 

stands. 

On a complete review of the record, we find that the 

original judgment awarding respondent damages of $34,068 is 

not justified. There is no basis or evidence in the record 

for such an amount. Respondent concedes this. The District 

Court attempted to correct these findings by the subsequent 

amended findings and judgment. Upon remand of the case, the 

District Court may properly evaluate the damages and amend 

its prior findings and judgment. 
Appellants next argue that the interest damage award 

entered by the District Court in the original judgment is 

speculative and incapable of accurate and reasonable determination as a matter of law. 

The District Court awarded interest damages for the 

difference between the interest paid over a thirty-year 

period on a 9-3/4 percent loan and interest paid over a 

thirty-year period on a 11-1/2 percent rate. Appellants 

contend that should interest rates drop below 11-1/2 percent, respondent could refinance his home at the lower rate 

and never incur this damage. Appellants claim this aspect 

of damages is speculative, remote and prospective in nature 

and respondent has not incurred a present injury. We disagree. 

In Walton v. City of Bozeman (1978), - Mont. 

588 P.2d 518, this Court upheld the District Court's award 

of future or prospective damages: 

"'Prospective damages' are those which are reasonably certain to follow the state of facts 

on which plaintiff's suit is based; such damages have not yet accrued at the time of trial, 

but in the nature [of ] things must certainly 

or most probably result from the state of 

facts found to be existing at the time of 

trial. See State Highway Board v. Coleman 

(1948), 77 Ga.App. 756, 50 S.E.2d 262. 

"Although speculative damages may not be recovered, reasonable certainty that future 

damages will occur 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) , 137 Mont. 439, 352 P.2d 989." 

Walton, 588 P.2d at 522. 

In the present case the amount of damages is not speculative but rather can be determined. Respondent cannot be 

expected to sue appellants every time the interest rate 

changes. There is sufficient certainty in the record to 

make a damage award, after discounting the amount properly. 
We will not here discuss the amount and the accuracy of 

the amount awarded. On remand the District Court will be 

allowed to amend its findings of fact, conclusions of law 

and judgment in determining the interest damage amount, 

discounting properly and awarding such amount. 

Finally, appellants argue that the award of reasonable 

attorney fees in the original judgment was error because the 

District Court failed to allow a hearing on the matter. 

Only in a subsequent hearing, after the original judgment 

was entered, was there an opportunity to address that issue 

and to determine an exact amount. 

Upon remand the District Court shall also enter a 

proper amended finding of fact, conclusion of law and judgment regarding the amount of attorney fees based on findings 

it made on subsequent hearings. Attorney fees should be 

awarded to the prevailing party in this litigation up to the 

time of the original judgment and notice of appeal. However, 

all costs and attorney fees incurred subsequent to the time 

of filing of the notice of appeal shall be paid by each 

party. Any subsequent costs and attorney fees from the 

issuance of this opinion shall be determined by the District 

Court in accordance with the law. 

The cause is remanded to the District Court for further 

proceedings consistent with this opinion. 

n 

We concur: 

?A& Chief Justice dt &'- 

This cause was submitted prior to January 5, 1981.