No. 05-625 IN THE SUPREME COURT OF THE STATE OF MONTANA 2006 MT 304

JAMES and IDA STANLEY, Plaintiffs and Respondents,

v. LILLIAN LEMIRE, Defendant and Appellant.

APPEAL FROM: The District Court of the Eighth Judici al District, In and For the County of Cascade, Cause No. CDV 2004-564, Honorable Kenneth R. Neill, Presiding Judge

COUNSEL OF RECORD: For Appellant: Helge Naber, Naber, P.C., Great Falls, Montana Steven M. Johnson, Church, Harris, Johnson & Williams, P.C., Great Falls, Montana For Respondent: Steven T. Fagenstrom, Fagenstrom Law Office, Great Falls, Montana

Submitted on Briefs: August 3, 2006 Decided: November 22, 2006 Filed:

__________________________________________ ClerkJustice James C. Nelson delivered the Opinion of the Court. ¶1 James and Ida Stanley (“the Stanleys”) filed suit against Lillian Lemire (“Lemire”) in the Cascade County Justice Court, seek ing possession of the real property on which Lemire was residing plus unpaid “rent,” costs of the suit, and attorn ey fees. Following a jury trial, the Justice Court entered judgment in favor of the Stanle ys except on their claim for unpaid “rent,” and this judgment wa s affirmed by the District Court for the Eighth Judicial District, Cascad e County, on all issues except the award of fees and costs. Lemire now appeals to this Court. ¶2 The issues on appeal are as follows: ¶3 1. Does this Court have juri sdiction over Lemire’s appeal? ¶4 2. Did the District Court err in its dete rmination that the Ju stice Court retained subject matter jurisdiction over the Stanleys ’ action against Lemire after she asserted a

claim of title to the r eal property in dispute? ¶5 3. Did the District Court e rr in affirming the Justice Co urt’s determination that the Stanleys were entitled to an award of attorney fees?

FACTUAL AND PROCED URAL BACKGROUND

I. The “Rental Contract” ¶6 This case arises out of a dispute invol ving real property located at 1701 13th Avenue South in Great Falls, Montana (“the s ubject property”). In 1997, Marlene Sorum sold this property to the Stanleys, allegedl y with the understanding that Lemire (Ms. Sorum’s mother) would be able to live there as long as she wished or for life. However, this understanding was not recorded as part of a deed or contract for sale of the property.

2¶7 On February 2, 1997, Lemi re and the Stanleys entere d into a written agreement

titled “RENTAL CONTRACT.” Th e agreement provided, in its entirety, as follows:

The contract entered into below is be tween Joe and Ida Stanley here after called agent and Lillian Lemire here after called tenant. In consideration of the use and occupancy of the premises as herein specified we mutually agree. Address or property 1701-13 Th. [sic] Ave. So. Great Falls MT. Tenant agrees to rent the subject premises for $100.00 per month payable in advance on the fifth day of each m onth and every month there after.

Pets will be allowed. Tenant will be responsible for the utilities. No more than one person may reside in this house, that person being Lillian Lemire. The tenant shall not transfer her interest in and to this agreement, nor shall the tenant assign or sublet the said premises or any part there of in her absence or otherwise permit others to occupy the prem ises at any time during this agreement. If tenant violates the provisions of this paragraph the agent may immediately take posse ssion of said premises and in the event of litigation, may sue and evict any person or persons occupying said premises. It is expressly understood and agreed that the owner of said premises, or said agent will not be liabl e for any damages or injury of any kind to tenant or her family, or of her or her fam ily’s property from what ever cause arising from the occupancy of said pr emises by tenant and or her family. It is also understood agent will mainta in premises in a condition considered safe for the tenant to occupy.

It is also understood that the term of this agreement is for as long as Lillian Lemire wishes to reside at said pr emises or until her death. If Lillian wishes to terminate said agreement she is required to give a 30 day notice to vacate.

3In the event Joe or Ida St anley for whatever reason no longer act as owner or agent of this property this agreemen t will in its entirety be honored by the new owner or agent.

It is also understood that the tenant ma y continue to reside at the premises now and in the future as sh e has resided in the past. Thereafter, the Stanleys each signed under the heading “Owner/agent” and Lemire signed under the heading “Tenant.”

II. The First Lawsuit ¶8 The parties apparently maintained an amicab le relationship for the first few years. Then, in August 2001, the Stanleys began holding Lemire’s mont hly checks (in other words, they did not timely present the checks for payment). Eventu ally, they did present the checks for payment; however, the bank did not honor any that were over six months old ($800 worth). The Stanleys then attemp ted to terminate the Rental Contract and regain possession of the subject property on the ground that Lemire had failed to pay rent. On December 24, 2002, they filed suit against Lemire in the Cascade County Justice Court (Cause No. J202V3186). For clarification, this is not the case presently before us on appeal. Rather, as explained below, the appeal before us is from a second lawsuit, which the Stanleys filed in the Cas cade County Justi ce Court in 2004. ¶9 In the first lawsuit (“Suit #1”), the Justice Court ruled in favor of the Stanleys, and an appeal was taken to the District Court (Cause No. BDV-03-368) for a trial de novo. 1 Notably, the District Court obser ved in its Amended Order that

1 As of July 1, 2003, appeals from a justice’s court established as a court of record —which the Cascade County Justice Court now is—are “confined to review of the record and questions of law.” Section 3-10-115(1), MCA (2003), and the Compiler’s

4neither of the parties have come to Co urt with clean hands. The Plaintiffs admit that they held the checks tendered by the Defe ndant in an attempt to evict her. In fact, they still want her evicted and are requesting damages. The Defendant, for her part, initially refused to re-issue the dishonored checks deeming it the Plain tiffs’ problem since she had tendered the checks as required. ¶10 That said, the court denied the Stan leys’ motion for summary judgment and granted Lemire’s motion for su mmary judgment, “find[ing] that a valid rental contract exists between the parties and that the De fendant performed her obligations under the contract.” Furthermore, [t]he Plaintiffs’ actions in retaining th e proffered rent checks in an attempt to evict the Defendant amou nted to a breach of the contract on the part of the Plaintiffs. The Defendant shall be allowed to continue rental of the premises under the terms of the rental contract entered into by the parties. At the same time, the Court finds th at the Defendant shall pay to the Plaintiffs the amount of $800.00, plus interest at the rate of ten percent (10%) per annum from the time she was notified that the bank would not honor her checks, to cover the stale ch ecks that were not honored by the bank. Neither party appealed this judgment.

III. The Second Lawsuit ¶11 The Stanleys initiated their second lawsuit against Lemire (“Suit #2,” the case now before us) in the Cascade County Justice Court (Cause No. J204V0232) on January 22, 2004. The Complaint for Possession allege d that Lemire had “breached the rental agreement by withholding part of rent monies ” totaling, as of that date, $40. The

Comments thereto; see also § 25-33-301(3), MCA (2003), and the Compiler’s Comments thereto. Here, it appears from the record that the Cascade County Justice Court was not yet established as a court of record when Suit #1 was tried and that the District Court, therefore, heard the appeal de novo.

5Stanleys sought possession of the premises, un paid rent, costs of the suit, and attorney

fees. ¶12 A “voluminous flurry of filings” (as the Ju stice Court characteri zed them) ensued. Of those, the following trace th e evolution of Lemire’s charac terization of her interest in the subject property from that of a lessee to that of a life tenant, which is an essential element in resolving Lemire’s claim on appeal that the Jus tice Court lacked jurisdiction over the Stanleys’ action. ¶13 First, on January 30, 2004, Lemire fi led a motion to dismiss in which she characterized her relationship w ith the Stanleys as a “landlord-tenant arrangement[].”

She asserted that she “has a lease of the subject premises for the rest of her natural life” (emphasis added) and that she had reduced her monthly payments by $20 per month “to

reflect the reduced value of the leasehold estat e” (a reference to damage to a picnic table and a storage shed on the subject property, al legedly caused by Mr. Stanley following the termination of Suit #1). She construed the Stanleys’ complaint, wh ich cited no statutory provisions, as stating an acti on under the law of unlawful de tainer (§ 70-27-108, MCA) and then argued that such an action could not be maintained: The law of unlawful detainer, howeve r, is not applicable in this case because Ms. Lemire’s lease is a residential lease government [sic] by Title 70 Chapter 24 of the Montana Code A nnotated [The Montana Residential Landlord and Tenant Act of 1977], and because Ms . Lemire’s lease is for life. ¶14 A week later, Lemire filed an Answer, C ounterclaims, and Demand for Jury Trial. In conformance with her motion to dismiss, sh e referred to the parties’ contract as a “lease agreement” and to the s ubject property as “the leased premises” and “her leasehold

6estate.” She also asserted, in the Introducti on section of this document, that she had filed

her motion to dismiss “based on this Court’s lack of subject matter jurisdiction, and

failure to state a claim for unlaw ful detainer.” Yet, only M. R. Civ. P. 12(b)(6) (failure to state a claim upon which relief can be granted) is mentioned in her motion to dismiss, and neither M. R. Civ. P. 12(b)(1) (lack of ju risdiction over the subject matter) nor the words “subject matter jurisdiction” is me ntioned at all. Furthermore, she did not identify (in her answer) the grounds on which she had allegedly challenged the Justice Court’s subject matter jurisdiction. ¶15 The Stanleys filed a response to Lemire’s motion to dism iss on February 11, 2004. Among other things, they argued that Lemire “may be trying to mislead the court into believing that Defendant has a life estate”— a prescient interpretation of her argument, given that Lemire had not yet explicitly characterized her inte rest as such. The Stanleys continued: “In truth, Defendant has a written lease, wh ich expires upon the termination of the contract. As set forth above, Montan a Law allows for the termination of a rental agreement when rent is unpaid.” ¶16 Next in the progression, Lemire filed he r Amended Answer and Counterclaims. As before, she referred to th e subject property as having been “leased to her.” In addition, she used the terms “leasehold estate” and “leased premises” repeatedly, referred to the $100 monthly payments as “rent,” and alleged that sh e “has valid a [sic] rental agreement with [the Stanle ys] . . . for the remainde r of her natural life.” ¶17 On March 31, 2004, Lemire filed a document titled Defendant’s Combined Opposition to Plaintiff’s Moti on to Set Trial Date, and Motion for Pretrial Conference.

7She asserted that a pretrial conference shoul d be held to addre ss, among other things, “jurisdictional matters rela ted to Ms. Lemire’s counterclaims.” She continued:

A Justice of the Peace does not have jurisdiction over claims for malicious prosecution, over actions for damages from the taking, detaining, or injuring personal property in excess of $7,000. 00, and over claims arising out of a contract in excess of $7,000.00. Mont. Code Ann. § 3-10-301(1). Ms. Lemire’s counterclaims rest, in part, on breach of contract, damages for conversion of personal property to which she claims title, and malicious prosecution. [Citation to Amended Answer.] Whether or not this Court has jurisdiction to decide on these clai ms has not yet been determined. [Emphases added.] ¶18 The Justice Court addressed these argumen ts in its April 3, 2004 Order Setting Jury Trial, in which it also denied Lemire’s motion to dismiss. The court determined that the Stanleys’ suit was “an actio n for possession under § 70-24- 427” and that the court, therefore, had jurisdiction pursuant to § 3-10-302, MCA, which provides that “[t]he justices’ courts have concurrent jurisdiction with the district courts within their respective counties . . . in actions brought under Title 70, chapter 24.” The court dismissed without prejudice Lemire’s malicious prosecution counte rclaim as beyond the court’s jurisdiction ( see § 3-10-301(1)(c), MCA; Montana Justice a nd City Court Rules of Civil Procedure 7C(1)); however, with respect to Lemire’s assertion that her counterclaims exceeded the $7,000 jurisdictional limitation imposed by § 3-10-301, MCA, the court rejected this

valuation of her counterclaims as not “hav[ing] any basis in reality.” The court observed that “[t]his is a suit over $40 in rent, a homemade wooden picnic table and a shed.” ¶19 On April 30, 2004, Lemire filed a Motion to Stay, and Memorandum in Support. Noting that the Justice Court had denied her motion to dism iss, dismissed her malicious prosecution counterclaim, and rejected he r “additional jurisdictional concerns,” she

8informed the court that she had refiled her co unterclaim for malicious prosecution in the District Court (Cause No. CDV-04-401) a nd had requested that the District Court “equitably determin[e] her intere sts in the premises as a life tenant.” Accordingly, she asserted, “[t]his matter should be halted, and certified for submission to the Clerk of the District Court.” She explained as follows: A Justice Court does not have subj ect matter jurisdiction to determine matters involving title to and possession of real property. Mont. Code Ann. § 25-31-101(1). In such matters, th e Justice must suspend all further proceedings in the action and certify th e pleadings from his docket to the clerk of the district court of the coun ty. Mont. Code Ann. § 25-31-102(1). In her Answer, Ms. Lemire raises co unterclaims for trespass, conversion based on alleged intrusions and destructions of pa rts of the premises. [Citation to Amended Answer.] To su stain her claims, Ms. Lemire will rely on alternative legal theories, am ong them that she holds a freehold life estate under the Rental Agreement. Therefore, based on the court’s lack of jurisd iction over questions involving the title to or possession of real property, she conclude d, “this Court is precluded from fully adjudicating the matters before it.” ¶20 Significantly, this is the first instance in all of the foregoing filings that Lemire explicitly raised the possibility that her interest in the subj ect property was something other than that of a lessee—namely, that “the Rental Agreement was intended to create a life estate in [her] favor” (emphasis added). Seiz ing on this fact, the Stanleys filed a response in which they pointed out that Lemi re’s answer and amended answer did “not

state a defense or a counterclaim for a life es tate in the property.” Thus, the Stanleys suggested, Lemire had waived the life estate issue by not “properly” raising it earlier in the proceedings. Lemire contested this a ssertion, arguing in her reply that her

9pleadings—particularly her references to the subject property in her amended answer as a

“leasehold estate”—should be co nstrued liberally to have properly raised a question of title to the subject property. ¶21 On May 10, 2004, the Justice Court denied Lemire’s motion to stay. Acknowledging that it does no t have jurisdiction to decide a question of title to real property, the court concluded th at the issue of whether Lemire had an ownership interest in the subject property was not before the court because she had not raised it in a timely

manner: [Sections 3-10-301(1)(b) and 25-31-102] require[] the De fendant to raise the issue of a question of title to real property in the vertified [sic] answer

. Defendant has failed to do so. . . . Counsel is correct that jurisdiction ca nnot be granted to the Court where it is precluded by statute. However, this Court has jurisdiction over the issues that have been properly and timely raised

. Plaintiff has initiated an action under the Montana Residential Land lord Tenant Act, which is within the jurisdiction of this Court. Defendant’s ANS WER and AMENDED ANSWER raised no issues (at least legitimate issu es) that are beyond the jurisdiction of this Court. Defendan t NOW wants to raise an issue that involves a question of title to real property that is beyond the jurisdiction of this Court. Unfortunately for Defenda nt, that ship has sailed. Defendant could have timely raised such an issue, but Defendant did not. Both § 3-10- 301[(1)](b) and § 25-31-102 require De fendant to raise this issue in the verified answer. By failing to do so, Defendant has effectively waived this claim. ¶22 Finally, on May 12, 2004, the case went to a jury, which found in favor of the Stanleys on their complaint for possession, but awarded no money damages. The jury also dismissed Lemire’s two remaining co unterclaims for breach of agreement and breach of the covenant of good faith and fair dealing. (As for he r other counterclaims, two were dismissed pretrial and three more we re dismissed pursuant to a directed verdict

10at the close of testimony.) In its judgment, dated May 23, 2004, the Justice Court ordered that “[the Stanleys] [are] granted possession of the premises” and that “[Lemire] shall peacefully vacate the premises . . . by May 30, 20 04” (emphasis omitte d). Lemire was also required to pay $268.00 for the costs of the jury, and the Stanleys were awarded attorney fees in the amount of $2,594.25 and costs of $60.00. ¶23 Lemire timely appealed to the District C ourt, which on August 26, 2005, affirmed the judgment of the Justice Court on all issues except the issue of attorn ey fees and costs. The District Court’s reasoning is disc ussed below in the relevant contexts.

GENERAL STANDARD OF REVIEW ¶24 The Justice Court was a court of record at the time Suit #2 was tried. Accordingly, on Lemire’s appeal from the Justice Court, the District Court functioned effectively as an intermediate appellate court. See §§ 3-5-303 and 3-10-115, MCA. ¶25 Acting within its appellate capacity, a dist rict court is not in a position to make findings of fact or discretionary trial court rulings. Rather, the court is “confined to review of the record and questions of law. ” Section 3-10-115(1), MCA. As does this Court in appeals, the district court revi ews any factual findings under the clearly erroneous standard, any discre tionary rulings for abuse of discretion, and both legal conclusions and mixed questions of law an d fact under the de novo standard. See State v.

Seaman , 2005 MT 307, ¶ 10, 329 Mont. 429, ¶ 10, 124 P.3d 1137, ¶ 10 (“In an appeal from a justice court established as a court of record, the district court functions as an appellate court and the appeal is confined to a review of the record and questions of law. . . . [B]oth the District Court and this C ourt review the Justice Court’s factual findings

11for clear error and its legal conclusions for correctness.”); City of Billings v. Costa , 2006 MT 181, ¶ 7, 333 Mont. 84, ¶ 7, 140 P.3d 1070, ¶ 7 (“As did the District Court, we review a trial court’s denial of a suppression motion based on a find ing of particularized suspicion to determine whether that finding is clearly erroneous and whether the trial court’s conclusions of law are correct.”). ¶26 Consequently, a district court’s review on an appeal from a lower court of record

is no broader than this Court’s review of a lower court judgment . Accordingly, we review the case as if the appeal had originally been filed in this Court. 2 We examine the record independently of the district court’s decision, reviewing the trial court’s findings of fact under the clearly erroneous standa rd, its discretionary rulings for abuse of discretion, and its legal conclusions and mixe d questions of law a nd fact under the de

novo standard. Solem v. Chilcote , 274 Mont. 72, 76, 906 P. 2d 209, 211-12 (1995); Jarvenpaa v. Glacie r Elec. Co-op., Inc. , 1998 MT 306, ¶¶ 12-13, 292 Mont. 118, ¶¶ 12- 13, 970 P.2d 84, ¶¶ 12-13; State v. Warclub , 2005 MT 149, ¶¶ 21, 23, 327 Mont. 352,

2 This standard, or something closely akin, is also applied by the highest courts of a number of our sister states. See , e.g. , Lakloey, Inc. v. University of Alaska , 141 P.3d 317, 320 (Alaska 2006) (“When the superior cour t acts as an intermed iate court of appeal, we review its decision de novo.”); Pyle v. Sayers , 39 S.W.3d 774, 777 (Ark. 2001 ) (“On a petition for review, this court reviews the case as if the appeal had orig inally been filed in this court.”); Williams v. Williams , 444 A.2d 977, 978 (Me. 19 82) (“On this appeal, we attach no presumptive validity to the judgment of the Superior Court. When the Superior Court acts as an intermediate appellate tribunal, we traditionally review directly the initial determination of the adjudicatory body below rather than the decision of the Superior Court.”); Stanton v. Lackawanna Energy, Ltd. , 886 A.2d 667, 675 (Pa. 2005) (“[W]ith respect to this Court’s review of the Superior Court’s discharge of its reviewing function, our standard of review is plenary and non-deferential.”); Eggett v. Wasatch Energy Corp. , 94 P.3d 193, ¶ 9 (Utah 2004) (“We review the court of appeals’ decision for correctness, which turns on whether it accurately review ed the trial court’s decision under the appropriate standard of review.” (internal quotation marks omitted)).

12¶¶ 21, 23, 114 P.3d 254, ¶¶ 21 , 23. Our ultimate determina tion is whether the district court, in its review of the trial court’s deci sion, reached the correct conclusions under the appropriate standards of review. ¶27 In the case at hand, the appropriate st andards of review are identified where applicable in the context of the issues discussed below.

DISCUSSION ¶28 1. Does this Court have jurisdiction over Lemire’s appeal? ¶29 As a threshold matter, we must determ ine whether we have jurisdiction over Lemire’s appeal. As explained below, the fa cts bearing on this issue implicate both this Court’s jurisdiction and the District C ourt’s jurisdiction over this case. Cf. City of Billings v. Costa , 2006 MT 181, ¶ 9, 33 3 Mont. 84, ¶ 9, 140 P. 3d 1070, ¶ 9 (observing that without a final judgment in the municipal court, both this Court and the district court would lack jurisdiction over Costa’s appeal). This issue was not raised or briefed by the parties 3 ; nevertheless, for the reasons which follo w, it is necessary and appropriate that

we address it. ¶30 Jurisdiction involves the fundamental powe r and authority of a court to determine

and hear an issue. State v. Diesen , 1998 MT 163, ¶ 5, 290 Mont . 55, ¶ 5, 964 P.2d 712, ¶ 5; see also Peña v. State , 2004 MT 293, ¶ 21, 323 Mont. 347, ¶ 21, 100 P.3d 154, ¶ 21 (“ ‘Jurisdiction as applied to courts is the power or capacity given by law to a court to

3 The facts underlying Lemire’s argument th at the Justice Court erred by awarding attorney fees to the Stanleys prior to the expiration of her a llotted time for responding to their motion also bear on the jurisdictional question we now address, but neither she nor the Stanleys identify the potentia l jurisdictional defect explicitly.

13entertain, hear and determine the particular case or matter.’ ” (emphasis omitted) (quoting

State ex rel. Johnson v. District C ourt of Eighteenth Judicial Dist. , 147 Mont. 263, 267, 410 P.2d 933, 935 (1966))); Eberhart v. United States , 546 U.S. 12, ___, 126 S.Ct. 403, 405 (2005) (per curiam) (equating “jurisdic tional” with “prescriptions delineating the classes of cases (subject-matte r jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory author ity” (internal quotation marks omitted)). ¶31 As such, we stated in Thompson v. Crow Tribe of Indians , 1998 MT 161, ¶ 12, 289 Mont. 358, ¶ 12, 962 P.2d 577, ¶ 12, that juri sdictional issues “transcend procedural considerations.” Likewise, we noted in Corban v. Corban , 161 Mont. 93, 96, 504 P.2d 985, 987 (1972), that “lack of jurisdiction over the subject ma tter can be raised at any

time and a court which in fact lacks such jurisdiction cannot acquire it even by consent of the parties.” And in In re Marriage of Lance , 213 Mont. 182, 186-87 , 690 P.2d 979, 981 (1984), we observed that once a court determines that it lacks subject matter jurisdiction,

“it can take no further action in the case other than to dismiss it” (citing M. R. Civ. P. 12(h)(3)). Accord In re Marriage of Miller , 259 Mont. 424, 427, 856 P.2d 1378, 1380 (1993). ¶32 Consistent with these principles, we have held in a number of cases that a court may address the questi on of its jurisdiction sua sponte

. State v. Reeder , 2004 MT 244, ¶ 4, 323 Mont. 15, ¶ 4, 97 P.3d 1104, ¶ 4 (citing Losleben v. Oppedahl , 2004 MT 5, ¶ 25, 319 Mont. 269, ¶ 25 , 83 P.3d 1271, ¶ 25, in turn citing Trombley v. Mann , 2001 MT 154, ¶ 6, 306 Mont. 80, ¶ 6, 30 P.3d 355, ¶ 6). Similarly, the United States Supreme Court recently observed that

14subject-matter jurisdiction, because it involves the court’s power to hear a case, can never be forfeited or waived. Moreover, courts, including this Court, have an independent obligation to determine whether subject-matter jurisdiction exists, even in the absence of a challenge from any party. Arbaugh v. Y & H Corp. , ___ U.S. ____, ____, 126 S.Ct . 1235, 1244 (emphasis added, citation and internal quotation marks omitte d). Accordingly, we will proceed, sua sponte , to address the question of our ju risdiction over Lemire’s appeal. ¶33 The precise jurisdictional issues before us arise out of the sequence and timing of the Justice Court’s entry of judgment vis-à-vi s the Stanleys’ post-trial motion for attorney fees, and the District Court’s order remanding the case to the Justice Court “to hear and

decide the reasonable amount of fees and costs to be awar ded.” With respect to the former, the Stanleys’ action ag ainst Lemire proceeded to a jury trial on May 12, 2004. That same day, as noted in the facts above, the jury rendered a verdict in favor of the Stanleys on their complaint for possession, but awarded no money damages, and also dismissed Lemire’s two remaining countercla ims. The following day (May 13, 2004), the Stanleys filed their motion for attorney fees. ¶34 Pursuant to the Montana Jus tice and City Court Rules of Civil Procedure (Title 25, Chapter 23, MCA; hereinafter, “M. J. C. C. R. Civ. P.”) and the Montana Uniform Rules for the Justice and City Courts (Title 25, Chapter 24, MCA; hereinafter, “M. U. R. J. C. C.”), 4 Lemire had a set time period in which to respond to the Stanley’s motion. Specifically, M. J. C. C. R. Civ. P. 9B provides that “[a]ny party opposing a

4 Pursuant to M. U. R. J. C. C. 1(a ), the Montana Uniform Rules for the Justice and City Courts, “together w ith” the Montana Justice and City Court Rules of Civil Procedure, govern the practice in all justice and city courts of the State of Montana.

15motion must do so in writing w ithin 10 days of se rvice.” However, M. U. R. J. C. C. 21(b), provides that “[w]hen the period of time prescribed or allowed is ten days or less, intermediate Saturdays, Sunda ys, and legal holidays shall be excluded.” Furthermore, M. J. C. C. R. Civ. P. 6A provides that “the day of the act, event, or default after which the designated period of time be gins to run may not be incl uded.” Thus, given that the Stanleys’ motion was filed on Thursday, May 13, 2004, Lemire had until Thursday, May 27, 2004, to respond thereto. 5 ¶35 Notwithstanding, the Justice Court en tered judgment on May 24, 2004—three days prior to the expiration of Lemire’s response period. 6 It is not clear whether the court miscalculated the deadline for her respons e, assumed that Lemire would not be responding to the Stanleys’ mo tion, or concluded that she had implic itly waived such a response by filing her notice of appeal on Ma y 18, 2004. In any event, because the

5 In addition, Lemire cites M. J. C. C. R. Civ. P. 6C for th e proposition that she had an additional three days in which to res pond to the Stanleys’ motion. This provision provides that “[w]henever a party has the ri ght or is required to do an act or take a proceeding within a prescrib ed period after service of a notice or other paper and the notice or other paper is served by mail , 3 days must be added to the prescribed period” (emphasis added). Asserting that the Stanle ys’ motion for attorney fees was served by mail, Lemire argues that she had 13 days from May 13, 2004—i.e., until June 2, 2004— to respond. It is not clear on the record before us whether the Stanleys’ motion for attorney fees was, in fact, served by mail, since the certificate of mailing attached to the motion is undated and unsigned. However, such a dete rmination is not necessary to resolve the jurisdictional issue before us because, as described below, the Justice Court entered its judgment prior to the expiration of the 10-day period to whic h Lemire was entitled irrespective of whether the Stanle ys served their motion by mail. 6 Actually, the Justice Cour t’s judgment is stamped as filed on May 23, 2004. However, May 23, 2004, was a Sunday. Thus, because judi cial business may not be transacted on Sundays, see §§ 3-10-102, 1-1-216(1)(a ), and 3-1-302(1), MCA, the judgment is deemed filed on Monday, May 24, 2004.

16Justice Court entered its judgment while one of the parties still had time under the Rules to respond to a pending motion, we must determine whether, under the jurisdictional provisions set forth below, that judgment is one from which a party may take an appeal. ¶36 Section 3-5-303, MCA (2003) vests the dist rict courts with appellate jurisdiction “in cases arising in justices ’ courts and other courts of limited jurisdiction in their respective districts as may be prescribed by law and consistent w ith the constitution.” Correspondingly, § 3-10-115(1), MCA, provides that “[a] party may appeal to district

court a judgment or order from a justice’s court es tablished as a court of record” (emphasis added). Title 25, Ch apter 33, MCA, in turn, sets forth a number of procedures governing appeals to district courts from ju stices’ courts. Sec tion 25-33-101, MCA, provides that “[a] judgment or order in a civil action, ex cept when expressly made final by this code, may be reviewed as prescribed in this chapter and not otherwise” (emphasis added), and § 25-33-102, MCA, provides that “[a]ny party dissatisfied with the judgment

rendered in a civil action in a . . . justice’s c ourt may appeal therefrom to the district court of the county at any time within 30 days after th e rendition of the judgment” (emphasis added). Lastly, M. R. Civ. P. 54(a) defines a “judgment” as “the final determination of the rights of the pa rties in an action or proceeding.” ¶37 Here, the judgment rendered by the Justice Court on May 24, 2004, disposed of all pending motions and thus constitu ted a “final determination of the rights of the parties.” However, it was rendered prematurely—before the expiration of Lemire’s time to respond to the Stanleys’ motion fo r attorney fees. In this rega rd, it is necessary to clarify

17the difference between a “void” judgment a nd a judgment which is merely “voidable.” As the Sixth Circuit recently observed: “Certain procedural irregularities, not amounting to lack of jurisdiction over the person or subject matter, are so metimes characteri zed as making a judgment ‘voidable’. This means th at these judgments may be set aside upon a timely application in the same proceedings as a matter of judicial discretion.” Days Inns Worldwid e, Inc. v. Patel , 445 F.3d 899, 907 (6th Cir. 2006) (quoting Abbott v.

Howard , 451 N.W.2d 597, 599 (Mich. App. 1990)). Consistent w ith this principle, the court concluded that “disregarding response tim es set forth in the local civil rules and the

Federal Rules of Civil Procedure . . . rendered the instant judgment merely voidable as to appellant.” Days Inns Worldwide , 445 F.3d at 907. ¶38 Likewise, in the case at hand, the Jus tice Court’s entry of judgment on May 24, 2004—though it was entered prematurely and thereby impinged upon Lemire’s right to respond to the Stanleys’ motion—was at that point merely voidable. Lemire could have filed a timely motion to vacate the judgment and permit her the proper time to respond. Specifically, M. J. C. C. R. Civ. P. 22A prov ides that “[a] judge ma y, on such terms as may be just and on the payment of costs, relieve a party from any judgment taken against the party by mistake, inadvert ence, surprise, or excusable neglect.” However, the Rule further provides that “the application for relief must be made within 30 days after entry of the judgment and upon an affidavit showing go od cause for it.” Su ch was not the case here. Rather than filing a motion for relief un der M. J. C. C. R. Civ. P. 22A, Lemire instead filed an amended notice of appeal. No tably, she did so on Ma y 25, 2004 (the day after the Justice Court entered judgment), which was still within the ten-day period

18prescribed by M. J. C. C. R. Civ. P. 9B and 6A and M. U. R. J. C. C. 21(b) for her to respond to the Stanleys’ motion for attorney fees. ¶39 This fact distinguishes the case at hand from State v. Bonamarte , 2006 MT 291, ___ Mont. ____, ___ P.3d ____, where we determined that the appeal to the district court was premature and that the district court, ther efore, lacked jurisdic tion to consider it. After a jury found Bonamarte guilty of partne r or family member assault, the Bozeman Municipal Court imposed a one-year sentence with all but thirty days suspended and ordered Bonamarte to pay fines and costs. In addition, the cour t ordered “conditional

restitution—Bonamarte would be required to pay restitution on ly if the State requested it within sixty days and the court held a hearing.” Bonamarte , ¶ 2. The State made such a request within the sixty-day period; ho wever, by the time it did so, Bonamarte had already filed his notice of appeal. Thus, the municipal court transferred the record to the district court, which purported to affirm th e judgment and sentence but remand the issue

of restitution “ ‘for a determination of the total amount to be paid.’ ” Bonamarte , ¶¶ 2, 4-

5. ¶40 On Bonamarte’s appeal to th is Court, we observed that his sentence appeared to be “unresolved” and, therefore, that we needed to address whether we had jurisdiction over the appeal. Bonamarte , ¶ 5. Noting that an appeal ma y be taken by a defendant “ ‘only from a final judgment of convicti on and orders after judgment,’ ” Bonamarte , ¶ 6 (quoting § 46-20-104( 1), MCA), and that in order for a judgment and order to constitute a final judgment of conviction, it must impose a “final sentence,” Bonamarte , ¶ 6, we

19concluded that no final judgment of conviction yet existed, Bonamarte , ¶ 8. We explained as follows: The Municipal Court’s sentencing orde r imposed restitution on Bonamarte only if the State requested it within si xty days of the order and the court held a hearing on costs. The State re quested restitution within sixty days and noted that Bonamarte could request a hearing. Bonamarte appealed his conviction, however, two days before the State had requested restitution and before the Municipal Court could ho ld the required hearing. The fact that Bonamarte’s sentence was pending at the time of his appeal to the District Court prevented Bonamarte from appealing a “final judgment of conviction” under § 46-20-104, MCA. Thus, Bonamarte’s appeal to the District Court was premature, and the District Court had no jurisdiction to consider the appeal.

Bonamarte , ¶ 7. Accordingly, we dismisse d the appeal without prejudice. Bonamarte , ¶ 12. ¶41 The case at hand is a variation on Bonamarte . When the Justice Court entered judgment prematurely, Lemire could have filed a motion for relief under M. J. C. C. R. Civ. P. 22A. Thus, her pos ition at that point was an alogous to the State’s position at the time the conditional restitution or der was entered by th e municipal court in

Bonamarte —both parties had the ability, within an allotted period of time, to effect further proceedings in the trial court or a llow the judgment alread y entered to become final by failing to take appropriate action. But unlike the State, wh ich actually filed a timely request for restitution in Bonamarte , Lemire, as explained above, filed neither a response to the Stanleys’ motion for attorney fees nor a motion for relief from the Justice Court’s premature entry of judgment. Rather, her only action in this regard was to amend her notice of appeal. Thus , unlike the situation in Bonamarte , nothing in the Justice Court appears to be “unresolved.”

20¶42 Accordingly, because the ju dgment rendered by the Justice Court disposed of all pending motions and thus cons tituted a final determination of the rights of the parties,

and furthermore because Lemire did not file a timely motion for re lief from the judgment alerting the Justice Court to the fact that he r right to respond to the Stanleys’ motion for attorney fees had been infringe d, we therefore conclude that the Justice Court’s judgment is an appealable judgment. Concomitantly, we also conclude that the District Court, pursuant to §§ 3-5-303 and 3- 10-115(1), MCA, had jurisdic tion over Lemire’s appeal. ¶43 With respect to this Court’ s jurisdiction over the appeal, we first note that the source of our jurisdiction is Article VII, Section 2 of the Mont ana Constitution. Of specific relevance to the issue at hand, Artic le VII, Section 2(1) ve sts this Court with appellate jurisdiction and Article VII, Section 2(3) authorizes us to make rules governing appellate procedure. (Such rules of pr ocedure are “subject to disapproval by the legislature in either of the two sessions follo wing promulgation.” Mont. Const. art. VII, § 2(3).) Pursuant to this constitutional aut hority, we have adopted the Montana Rules of Appellate Procedure, which govern appeals to this Court from Montana district courts.

See In re B.P. , 2000 MT 39, ¶ 15, 298 Mont. 287, ¶ 15 , 995 P.2d 982, ¶ 15. In particular, M. R. App. P. 1(b)(1) provides that “[i]n civil cases a party aggrieved may appeal from . . . a final judgment entered in an action or special proceed ing commenced in a district court, or brought into a district court from another court or administrative body” (paragraph break omitted). ¶44 The form of the judgment entered by a di strict court acting as an intermediate appellate court, in turn, is defined by statute. Specifically, a district court reviewing the

21judgment of a justice’s court of record may “affirm, reverse, or am end any appealed order or judgment and may direct the proper order or judgment to be entered or direct that a new trial or further proceeding be had in the court from wh ich the appeal was taken.” Section 3-10-115(3), MCA. (The same is true on appeal from a municipal court judgment or order. See § 3-6-110(3), MCA.) Furthermore, § 25-33-302, MCA, provides that “[w]hen a judgment is reversed or se t aside on a question of law arising in the justice’s or city court, the district court must either try the case anew or render a judgment.” ¶45 Here, the District Court affirmed the Jus tice Court’s judgment “on all issues . . . except on the issue of fees and costs.” With respect to the latter, the court concluded that “a hearing on attorneys fees and costs is appr opriate”; therefore, the court ordered that “[t]he case is remanded for the Justice Court to hear and decide th e reasonable amount of fees and costs to be awarded and to determine the date when the Plaintiffs may re-take possession.” Thus, since the District Court af firmed the Justice Court’s judgment in part, reversed the judgment in part, and itself “re nder[ed] a judgment” “direct[ing] that a . . . further proceeding be had” in the Justice Court, its order on appeal constitutes a “judgment” as contemplated by §§ 3-10-115(3) and 25-33-302, MCA. ¶46 However, as we explained in B.P. , Rule 1(b)(1), M.R.App.P., expressly prov ides that an appeal may be taken from a final judgment entered in a district court action. A final judgment is one which constitutes a final determination of the righ ts of the parties; any judgment, order or decree leaving matte rs undetermined is interlocutory in nature and not a final judgme nt for purposes of appeal.

22B.P. , ¶ 15 (emphases added). A ccordingly, if a judgment which does not constitute a final determination of the rights and obligations of the partie s in the action or proceeding is nevertheless appealed, both the district court and this Court are without jurisdiction over that appeal. The appellate process fold s, no decision on the merits may be issued,

and the case returns to the last court which ha d jurisdiction for that court to enter a final judgment. See B.P. , ¶ 15; City of Billings v. Costa , 2006 MT 181, ¶ 9, 333 Mont. 84, ¶ 9, 140 P.3d 1070, ¶ 9; Bonamarte , ¶¶ 7-12. ¶47 In the case at hand, we must determine what effect, if any, the court’s remand

order had on the finality of its judgment. We recently addressed this same question— though under the applicable criminal statutes—in Costa . The district court, on Costa’s appeal from the Billings Municipal Court, had entered judgment affi rming the denial of Costa’s motion to suppress and remanding to the municipal court “for ‘imposition of

sentence.’ ” Costa , ¶ 6. This remand order suggested that the municipal court had not entered a “final judgment,” since a judgment in a criminal case is not “final” if sentence has not yet been imposed. Costa , ¶ 10. Thus, we observed, the district court’s order, combined with Costa’s appe al to this Court, raised “jurisdictional issues”:

If the District Court’s order contai ning the remand is not a “final judgment,” this Court lacks jurisdiction. See Rule 1(d), M.R.App.P.; Section 46-20-104(1), MCA; Reeder , ¶ 7 (citations omitted); State v. Diesen , 1998 MT 163, ¶¶ 3-4, 290 Mont. 55, ¶¶ 3-4, 964 P.2d 712, ¶¶ 3-4 (citations omitted). By the same t oken, without a “final judgment”— including sentencing—in the Municipa l Court, Costa’s appeal to the District Court would have been premat ure and the District Court—as well as this Court—would lack ju risdiction over the appeal. See Rule 5(b)(2), U.M.C.R.App.; § 46-20-104(1), MCA; § 46-1-202(11), MCA; Diesen , ¶ 3.

23Costa , ¶ 9. As it turned out, however, our re view of the record disclosed that the municipal court had, in fact, sentenced Costa be fore she appealed to the district court.

Costa , ¶ 10. On this basis, we stated that the district court’s order remanding for imposition of sentence was “b oth unnecessary and a nullity” and had “no effect on the ‘final judgment’ status” of the municipal co urt’s judgment or the district court’s judgment. Costa , ¶¶ 10, 16. Accordingly, we conc luded that the district court had jurisdiction over Costa’s appeal to that court, Costa , ¶ 10, and that we, likewise, had jurisdiction over Costa’s a ppeal to this Court, Costa , ¶ 16. ¶48 Similarly, in the case at hand, we observe that the District Court’s remand order was not due to any failure on the Justice Cour t’s part to make “a final determination of the rights of the parties” (unlike the s ituation we perceived at the outset of Costa , where the remand order implied that the municipal court had not yet imposed sentence on Costa,

and unlike the situation in Bonamarte , where the restitution po rtion of Bonamarte’s

sentence in fact had not been re solved at the time of his appeal to the district court). Indeed, as explained above, the judgment re ndered by the Justice Court disposed of all pending motions and thus constitu ted a final determination of the rights of the parties. Likewise, the District Court’s judgment cons tituted a final determination of the issues presented to it on appeal; in other words, the court left no matters undetermined. ¶49 As we did in Costa , therefore, we conclude that the District Court’s remand order had no effect on the appealable status of the Justice Court’s judgm ent or on the “final” status of the District Court’s judgment. Acco rdingly, pursuant to M. R. App. P. 1(b)(1), this Court has jurisdicti on over Lemire’s appeal.

24¶50 2. Did the District Court err in its dete rmination that the Justice Court retained subject matter jurisdiction over the Stan leys’ action against Lemire after she asserted a claim of title to the subject property? ¶51 Lemire challenges the District Court’s conclusion that the Justice Court had subject matter jurisdiction over Suit #2. She first argues at gr eat length that she in fact holds a life estate in the subject property and that the Justice Court, therefore, “[did] not have subject matter jurisdiction because the c ontroversy involves ques tions of title to and possession of real property.” Ye t, not only is this issue not pr operly before us, given that it was not actually litigated at the trial level, it also is irrelevant. As outlined below, the question we must decide is not whether Lemi re, in fact, has a life estate but, rather,

whether her assertion of such wa s procedurally barred and, if not barred, whether it deprived the Justice Court of subject matter jurisdiction over the Stanleys’ cause of

action. ¶52 Jurisdiction is conferred on the courts onl y by the Constitution or statutes adopted pursuant to the Constitution. State v. Osborne , 2005 MT 264, ¶ 12, 329 Mont. 95, ¶ 12, 124 P.3d 1085, ¶ 12 (citing State ex rel. Johnson v. District Court of Eighteenth Judicial

Dist. , 147 Mont. 263, 266, 410 P.2d 933, 935 (1966)). A court’s determination as to its jurisdiction is a conclusion of law, which is reviewed de novo to determine whether the court’s interpretation of the law is correct. In re Marriage of Christian , 1999 MT 189, ¶ 6, 295 Mont. 352, ¶ 6, 983 P.2d 966, ¶ 6; Koke v. Little Shell Tribe , 2003 MT 121, ¶ 7, 315 Mont. 510, ¶ 7, 68 P.3d 814, ¶ 7; CBM Collections, Inc. v. Ferreira , 2005 MT 170, ¶ 4, 327 Mont. 479, ¶ 4, 115 P.3d 211, ¶ 4.

25¶53 Article VII, Section 5(2) of the Montana Constitution states that justice courts shall have such original ju risdiction “as may be provided by law.” Thus, it is the Legislature’s prerogative, pursuant to this constitutional authority , to provide for the subject matter jurisdiction of the justice courts. State v. Rensvold , 2006 MT 146, ¶ 23, 332 Mont. 392, ¶ 23, 139 P.3d 154, ¶ 23. The Legislature has done so in a number of statutes, four of which bear on the issue of whether the Justice Court had subject matter jurisdiction in the case at hand. ¶54 First, § 3-10-302, MCA (2003), provides: The justices’ courts have concurre nt jurisdiction with the district courts within their respective counties in actions of forcible entry and unlawful detainer and in actions brought under Title 70, chapter 24 [emphasis added].

The Justice Court determined that “this ac tion is an action for possession under § 70-24- 427” and that it therefore had jurisdiction pu rsuant to § 3-10-302. The District Court agreed with this determina tion, as do we given the grou nds for relief stated in the Stanleys’ complaint. See § 70-24-427(1), MCA (recognizing as a landlord’s remedy after termination of a rental agreement “a claim fo r possession and for rent”—the precise relief requested in the St anleys’ complaint). ¶55 Next, § 25-31-1 01(1), MCA (2003), which is one of a number of statutes that govern procedure in the ju stices’ courts, provides: The parties to an actio n in a justice’s court cannot give evidence upon any question which i nvolves the title or possessi on of real property . . . , nor can any issue presenting such question be tried by such court; provided that, in cases of forcible entry and unla wful detainer of which justices’ courts have jurisdiction, a ny evidence otherwise competent may be

26given, and any question properly invo lved therein may be determined [emphases added]. ¶56 It is evident from this lang uage that the Legislature ha s determined that questions of title to real property shall not be decided by the justices’ courts. 7 Indeed, § 25-31- 101(1) explicitly prohibits a justice court from even heari ng evidence on this subject. Thus, a plaintiff clearly could not file an acti on in a justice court to quiet title to real property. ¶57 Probably for this reason, Le mire now argues (contrary to her original theory) that the Stanleys’ action was not brought under Title 70, Chapte r 24, MCA, but, rather, was an action to quiet title: The “Rental Contract”, despite its denomination, conveys a life estate in the Life Tenant [Lemire]. Therefore, Grantors’ [the Stanleys’] action should have been brought as one for quiet title pursuant to Mont. Code Ann. § 70-28-101 et. seq. The District Court, however, ob served that the Stanleys had “pled that there was a rental agreement, that the agreemen t was breached and how the agreement was breached”—an

7 The historical basis for limiting the jurisd iction of the justices’ courts on such questions has been explained as follows: Historically, the essential reason for excluding from the jurisdiction of the justice of the peace cases concer ning real estate was that the justice of the peace was not learned in the la w, and was not, therefore, competent to deal with questions of title often of difficult and intricate nature. Also, the court of the justice of the peace was not a court of record. . . . The obvious purpose of the statute setting up the municipal court and defining its jurisdiction is that of providing a tribunal for the speedy disposition of a large number of small causes. And the trial of cases involving an issue as to title, with attendant difficult and co mplicated questions of real property law, would act as a clog upon the calendar of the court. Schwartz v. Murphy , 112 F.2d 24, 28 (D.C. Cir. 1940) (citations omitted); accord Stephens v. Hammersley , 550 P.2d 1268, 1270 (Alaska 1976).

27assessment of the record with which we agre e. Indeed, during the early stages of the Justice Court proceedings, as the District C ourt aptly noted, “[Lemi re] went out of her way to stress that landlord/tenant law did apply [to her situation with the Stanleys].” Given these considerations, we reject her cu rrent characterization of the Stanleys’ cause of action as one to quiet title. To the contrary, the Stanleys’ pleadings establish that their action was brought under § 70-24-427, MCA, and the Justice Court, therefore, had subject matter jurisdiction ove r this case at its outset. ¶58 Lemire points out that “lack of subject ma tter jurisdiction may be raised by motion

or sua sponte at any time” (citing M. R. Civ. P. 12 (h)(3)). Presumably, this is meant to suggest that her assertion of an ownership in terest in the subject property divested the Justice Court of its jurisdicti on over the case. However, wh ile the question of a court’s subject matter jurisdiction may indeed be raised at any time, Lemire’s argument

overlooks an antecedent issue. The Justice Court acknowle dged that Lemire’s assertion of title to the subject property coul d have divested it of jurisdiction, had she raised the issue in a proper and timely manner ; however, because she di d not do so, the court

determined that the action befo re it did not involve a question of title. The District Court

reached the same conclusion. The pertinent question, therefore, is whether the Justice

Court and the District Court co rrectly determined that the jurisdictional and procedural statutes applicable to justices’ courts mandate that a question of title to property be raised at a particular time or be deemed waived. ¶59 Determinative of this question are §§ 3-10-301(1)(b) and 25-31-102(1), MCA (2003). The former provides that the jus tices’ courts have civil jurisdiction:

28in actions for damages not exceed ing $7,000, exclusive of court costs, . . . for injury to r eal property when no issue is raised by the verified answer of the defendant involving the title to or possession of the real property. Section 3-10-301(1)(b), MCA (e mphasis added). Likewise, the latter statute provides, in relevant part: If it appears from the answer of the defendant , verified by his oath, that the determination of the action will necessarily involve the question of title or possession to real property . . . , the justice must suspend all further proceedings in the action and certify the pleadings and, if any of the pleadings are oral, a transcript of the same from his docket to the clerk of the district court of the county. . . . When the action is certified to the district court, upon the answer of the defendant , he must file an undertaking, to be approved by the justice, to the e ffect that he will pay all costs that may be awarded against him on the trial in the district court. Section 25-31-102(1), MCA (emphases added). ¶60 Based on these provisions, the District C ourt reasoned that “the Justice Court had subject matter jurisdiction over this case beca use Lemire failed to raise her claim of a dispute over an estate in real property in a timely fashion.” From this, it appears that the

District Court—like the Justice Court—deem ed Lemire’s question of title waived for purposes of Suit #2. We agree. ¶61 Sections 3-10-301(1)(b) and 25-31-102(1) require a defe ndant to raise a question of title to real property in her answer. To be sure, neither of these statutes explicitly

threaten waiver if a defendant fails to do so ; nevertheless, the stat utory scheme suggests

that waiver is indeed the re sult of such an omission. Un like §§ 3-10-301(1)(b) and 25- 31-102(1), which refer to the defendant ’s “answer,” § 25-31-102(2) states: If it appears at any point in the proceedings in a justice’s court that the determination of th e action will involve the question of the state’s

29liability to make a payment of money, the justice shall sever that issue and dismiss the action as to it. If the issu e is not severable, the justice shall dismiss the entire action. [ ] 8 [Emphasis added.] ¶62 The difference between subsections (1) and (2) of § 25-31-102 is informative and

shows an intent to treat the two issues addre ssed therein differently. The former refers to “the answer of the defendant,” whereas the latte r refers to “any point in the proceedings.” Certainly, if the Legislature intended that a de fendant be able to rais e a question of title to real property “at any point in the proceedi ngs in a justice’s court,” it could have—and would have—said so, as it did for questions of the state’ s liability to make a payment of money. Instead, the Legislature referred to a defendant’s “answer” as the time for ascertaining whether the determ ination of the action in the justice court will necessarily involve the question of title to or possession of real property. 9

8 Section 25-31-102(2) implements § 3-10-301(2), which provides that “[j]ustices’ courts do not have jurisdiction in civil actions that might re sult in a judgme nt against the state for the payment of money.” 9 Focusing exclusively on the defendant’s answer may result in unintended consequences, since the justices’ courts may no t always be able to determine whether an action necessarily involves a question of title to real property from this document. Certainly there are cases in which a genuine dis pute as to title is latent at this early stage of the proceedings and only develops or becomes appare nt as the case progresses. Likewise, there are cases in which it appe ars from the defendant’ s answer that the determination of the action n ecessarily involves a question of title, but such question ultimately turns out not to be determinative. Under the statutory scheme, therefore, some cases will be dismissed, though there is no genuine issue as to title , simply because it appears from the defendant’s answer that there is. Conversely, there will be cases in which the court will retain juri sdiction—no issue as to title appearing in the defendant’s answer—only to discover further down the road that such an issue is necessa rily involved after all. See Schwartz v. Murphy , 112 F.2d 24, 28-29 (D.C. Cir. 1940) (discussing the pitfalls of “the declaration test” vis-à-vis “the issue test”). That said, the statutory scheme is what it is, and failure to raise a question of title to real proper ty in the defendant’s answer constitutes a waiver of that questi on for purposes of the instant justice court proceedings.

30¶63 Accordingly, we conclude that Lemire’s question of title—i.e., her claim of a life estate in the subject property—had to be rais ed in her answer (or in her timely amended answer) and that if she failed to do so, the question was waived for purposes of Suit #2. ¶64 In this regard, Lemire insists that she “p reserved the issue of the nature of her interest in the premises” by al erting the Justice Court in a nu mber of motions to its lack of subject matter jurisdiction and by means of factual allegations in her motion to dismiss, her answer, and other motions. As to the former, she poi nts out that in her motion to dismiss she “advis[ed] the court ‘that Ms. Lemire’s lease is for life’ ” and that in her reply supporting said motion she “a dvised the Justice Court again that ‘the Plaintiffs granted Ms. Lemire a lease for the remainder of her life.’ ” She implies that these references were sufficient to notify the court that a question of title to the subject property was necessarily involved in the parties’ dispute. As to the factual allegations, she asserts that “[u]nder Mo nt. Code Ann. § 25-31-102, it suffices if subject matter jurisdiction appears to be l acking from the facts stated” a nd that “[e]ven if the facts underlying her challenge of subject matter juri sdiction have not been artfully pled, those facts, including the instrument governing the parties’ relationship, were brought to the

Courts’ attention.” ¶65 Presented with similar arguments, the Dist rict Court concluded that Lemire did not raise the question of title to the subject proper ty in her answer or amended answer. After reviewing these documents, th e court stated as follows: [T]he Court fails to see where Lemire claimed an interest in the premises beyond that of a tenant. In her brief supporting her motion to dismiss, she clearly states that “[t]he law of unlawful detainer, however, is not

31applicable in this case because Ms. Lemire’s lease is a residential lease government (sic) by Title 70 Chapter 24 of the Montana Code Annotated, and because Ms. Lemire’s lease is a lease for life.” [Citation.] In her answers, she simply descri bes the term of the lease as one for life, not a life estate. [Second alteration in original.] ¶66 We agree with the District Court’s assessment and, thus, reject Lemire’s wholly

unrealistic characterizations of her motion to dismiss, answer, and amended answer. Given that she argued throughout the early st ages of the Justice Court proceedings that the Stanleys’ cause of action was governed by landlord-tenant law, the District Court properly rejected her later claim that her use of the terms “leasehold estate” and “lease for life” in her motion to dismiss, answer, and amended answer should have “alert[ed]” the court to a question of title. ¶67 Thus, in summation, the Justice Court had subject matter jurisdiction over the Stanleys’ cause of action at the outset of th e proceedings. Lemire’s claim of title to the subject property would have divested the cour t of jurisdiction had she timely asserted it. However, §§ 3-10-301(1)(b) and 25-31-102(1 ), MCA (2003), require that a question of title to or possession of real property be rais ed in the defendant’s answer or be deemed

waived. Lemire failed to do so . Thus, the District Court’s c onclusion that she waived the issue was correct, and we therefore affirm the court on this issue. 10 ¶68 3. Did the District Court err in affirm ing the Justice Court’s determination that the Stanleys were entitled to an award of attorney fees? ¶69 The Justice Court awarded th e Stanleys attorney fees in the amount of $2,594.25 and costs of $60.00. On her appeal to the District Court, Lemire challenged this award

10 This conclusion moots the Stanleys’ di scussion of whether res judicata barred Lemire from pursuing the question of title to the subject prop erty in Suit #2.

32on three grounds: first, th e jury had been inst ructed that under T itle 70, Chapter 24, MCA, it could award reasonable attorney fees to the prevailing party, but it did not do so; second, because the jury did not award the St anleys any monetary damages (namely, the $40.00 in unpaid rent), they were not a “p revailing party”; and third, the Justice Court ruled on the Stanleys’ motion fo r attorney fees before Lemi re’s allotted time to respond to the motion had lapsed and without conduc ting a hearing. She also disputed the Stanleys’ contention that a party’s right to an award of attorney fees is a question of law for the court and not a ques tion of fact for the jury. ¶70 The District Court agreed with the Stanle ys that the decision to award attorney fees is the province of the judge, not the jury. However, the court determined that a hearing on attorney fees and co sts “is appropriate.” (The basis for this determination is not stated explicitly in the court’s order, but it appears to derive from the court’s immediately preceding observation: “Lemire ar gues that the Justice Court ruled on fees and costs before her time to object expired.”) Accordingly, the court ordered that “[t]he

case is remanded for the Justice Court to hear and decide the reasonable amount of fees

and costs to be awarded.” ¶71 On appeal to this Court, Le mire asserts that the District Court erred in affirming

the Justice Court’s determinati on that the Stanleys were entitle d to an award of attorney fees. In support of this position, she reiterates essentially the same contentions she advanced in the District Court: first, even if the award of attorney fees is a question of law, “the [Stanleys] did not fully recover the relief sought, and are therefore not the prevailing party”; and second, “before [Lemir e’s] response time had lapsed, the Justice

33Court granted [the Stanleys’] Motion and awarded attorney fees . . . without gathering further evidence or conducting a hearing, based on unverified, unsigned invoices of [the Stanleys’] counsel.” ¶72 The general rule in Montana is that absent a statutory or contractual provision, attorney fees are not recoverable. National Cas. Co. v. American Bankers , 2001 MT 28, ¶ 27, 304 Mont. 163, ¶ 27, 19 P.3d 223, ¶ 27; accord Hoven v. Amrine , 224 Mont. 15, 17, 727 P.2d 533, 534 (198 6) (“Attorney fees are allowed when they are pr ovided for by statute or contractual provision.”). Here, an award of attorney fees was authorized by statute—specifically, § 70-24-442(1), MC A, which provides as follows: In an action on a rental agreement or arising under this chapter, reasonable attorney fees, together with costs and necessary disbursements, may be awarded to the prevailing part y notwithstanding an agreement to the contrary. ¶73 By virtue of the word “may,” an award of attorney fees pursuant to this statute is discretionary. We review discretionary rulings for abuse of discretion. National Cas.

Co. , ¶ 27. However, the preliminary i ssue of whether or not a party is entitled to recover attorney fees under the relevant statutory or contractual provis ion is strictly a question of law. Thus, we review a lower court’s conclu sions of law pertaining to the recovery of attorney fees to determine whethe r those conclusions are correct. Chase v. Bearpaw

Ranch Ass’n , 2006 MT 67, ¶ 14, 331 Mont. 4 21, ¶ 14, 133 P. 3d 190, ¶ 14; accord

National Cas. Co. , ¶ 27 (“[A] district court’s unde rlying determination that legal authority exists for an award of attorney fees is a conclusion of law which we review to

determine whether the court in terpreted the law correctly.”).

34¶74 As noted above, § 70-24-442(1) authorizes an award of “reasona ble” attorney fees to the “prevailing party.” Subsec tion (2), in turn, clarifies that “[a]s used in this section, ‘prevailing party’ means the party in whose fa vor final judgment is rendered.” Section 70-24-442(2), MCA. Thus, it is necessary to determine whether the Stanleys were the “prevailing party” and whether the award wa s “reasonable,” as contemplated by the

statute. ¶75 With respect to reasonableness, we have stated that “for attorney fees to be awarded by a trial court, there must be some type of proof of amount and reasonableness

introduced into the record by counsel.” In re Marriage of Mease , 2004 MT 59, ¶ 58, 320 Mont. 229, ¶ 58, 92 P.3d 1148, ¶ 58. Appare ntly because the Justi ce Court had ruled on the Stanleys’ motion for attorney fees before Lemire’s time to respond had expired, the District Court remanded the case precisely fo r the purpose of “hear[ing] and decid[ing]

the reasonable amount of fees and costs to be awarded.” However, while this disposition was otherwise correct under our case law, we conclude that the District Court erred in affirming the Justice Court’s determ ination that the Stanleys were entitled to an award of attorney fees in the first place; thus, a remand to that court for a hearing on reasonableness is unnecessary. ¶76 As the plain language of § 70-24-442(2) makes clear, the “prevailing party” for purposes of an award of reasonable attorn ey fees under the Residential Landlord and Tenant Act is “the party in whose favor final judgment is rendered.” In the case at hand, the jury’s verdict form and th e Justice Court’s judgment refl ect that the ju ry found in favor of the Stanleys on their complaint fo r possession and on Lemire’s counterclaims for

35breach of agreement and breach of the covenant of good faith and fair dealing. However, the Stanleys’ complaint also so ught “damages for lost rent,” and the jury found in favor of Lemire on this claim, awarding “the amount of $0.” Thus, as Le mire maintains, there is no one “party in whose favor final judgment [was] rendered” in the case at hand. Or, stated alternatively, the Stanleys and Lemire both had separate final judgments rendered in their favor, though on different claims for relief set forth in the Stanleys’ complaint. ¶77 Accordingly, because each pa rty prevailed on different issues, neither party was entitled to an award of attorney fees under § 70-24-442, MCA. See Winters v. Winters , 2004 MT 82, ¶ 59, 320 Mont. 459, ¶ 59, 87 P. 3d 1005, ¶ 59 (observing that a contractual provision awarding attorney f ees to the prevailing party is not effective when each party prevailed on different issues (citing In re Marriage of Pfennigs , 1999 MT 250, ¶ 42, 296 Mont. 242, ¶ 42, 989 P.2d 327, ¶ 42)); cf. Empire Development Co. v. Johnson , 236 Mont. 433, 441, 770 P.2d 525, 530 (1989) (“[W]here the par ties have mutually breached the same contract, the District Court did not err by refusing to grant either party attorney fees.”). We therefore reverse th e District Court on this issue.

CONCLUSION ¶78 The judgment rendered by the Justice Court was an appealable judgment as contemplated by § 3-10-115(1), MCA, and the Di strict Court, therefore, had jurisdiction over Lemire’s appeal. Likewise, the Dist rict Court’s judgment constituted a final determination of the issues presented to it on appeal, leaving no matters undetermined, and this Court, therefore, has jurisdiction over this case pursuant to M. R. App. P. 1(b)(1).

36¶79 The District Court correctly affirmed th e Justice Court’s determinations that it initially had subject matter jurisdiction over the parties’ dispute and that it was not divested of jurisdiction by virt ue of Lemire’s belated claim of title to the subject property. Pursuant to §§ 3-10- 301(1)(b) and 25-31-102(1), MCA (2 003), Lemire waived this issue for purposes of the Justice Court proceedings in Suit #2. ¶80 The District Court, however, erred in a ffirming the Justice Court’s determination that the Stanleys were entitled to an award of attorney fees . Because both the Stanleys and Lemire were “prevailing part[ies]” in Su it #2, the Stanleys were not entitled to such

an award. ¶81 Affirmed in part and reversed in part.

/S/ JAMES C. NELSON

We Concur:

/S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ PATRICIA COTTER /S/ JOHN WARNER

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