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 Judicial 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: 

__________________________________________ 

Clerk 
Justice 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, seeking possession of the real property on which 

Lemire was residing plus unpaid “rent,” costs of the suit, and attorney fees. Following a 

jury trial, the Justice Court entered judgment in favor of the Stanleys except on their 

claim for unpaid “rent,” and this judgment was affirmed by the District Court for the 

Eighth Judicial District, Cascade 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 jurisdiction over Lemire’s appeal? 

¶4 2. Did the District Court err in its determination that the Justice Court retained 

subject matter jurisdiction over the Stanleys’ action against Lemire after she asserted a 

claim of title to the real property in dispute? 

¶5 3. Did the District Court err in affirming the Justice Court’s determination that the 

Stanleys were entitled to an award of attorney fees? 

FACTUAL AND PROCEDURAL BACKGROUND 

I. The “Rental Contract” 

¶6 This case arises out of a dispute involving real property located at 1701 13th 

Avenue South in Great Falls, Montana (“the subject property”). In 1997, Marlene Sorum 

sold this property to the Stanleys, allegedly 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, Lemire and the Stanleys entered into a written agreement 

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

The contract entered into below is between 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 month 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 premises at any time 

during this agreement. If tenant violates the provisions of this paragraph 

the agent may immediately take possession 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 liable for any damages or injury of any kind to tenant 

or her family, or of her or her family’s property from what ever cause 

arising from the occupancy of said premises by tenant and or her family. 

It is also understood agent will maintain 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 premises or until her death. If Lillian 

wishes to terminate said agreement she is required to give a 30 day notice 

to vacate. 

 3
In the event Joe or Ida Stanley for whatever reason no longer act as owner 

or agent of this property this agreement will in its entirety be honored by 

the new owner or agent. 

It is also understood that the tenant may continue to reside at the premises 

now and in the future as she 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 amicable relationship for the first few years. 

Then, in August 2001, the Stanleys began holding Lemire’s monthly checks (in other 

words, they did not timely present the checks for payment). Eventually, 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 attempted 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 Cascade County Justice 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 observed 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 

 4
neither of the parties have come to Court with clean hands. The Plaintiffs 

admit that they held the checks tendered by the Defendant 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 Plaintiffs’ problem since she had tendered the checks 

as required. 

¶10 That said, the court denied the Stanleys’ motion for summary judgment and 

granted Lemire’s motion for summary judgment, “find[ing] that a valid rental contract 

exists between the parties and that the Defendant performed her obligations under the 

contract.” Furthermore, 

[t]he Plaintiffs’ actions in retaining the proffered rent checks in an attempt 

to evict the Defendant amounted 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 that 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 checks 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 alleged 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. 

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

fees. 

¶12 A “voluminous flurry of filings” (as the Justice Court characterized them) ensued. 

Of those, the following trace the evolution of Lemire’s characterization 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 Justice Court lacked jurisdiction 

over the Stanleys’ action. 

¶13 First, on January 30, 2004, Lemire filed a motion to dismiss in which she 

characterized her relationship with 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 estate” (a reference to damage to a picnic table 

and a storage shed on the subject property, allegedly caused by Mr. Stanley following the 

termination of Suit #1). She construed the Stanleys’ complaint, which cited no statutory 

provisions, as stating an action under the law of unlawful detainer (§ 70-27-108, MCA) 

and then argued that such an action could not be maintained: 

The law of unlawful detainer, however, 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 Annotated [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, Counterclaims, and Demand for Jury Trial. 

In conformance with her motion to dismiss, she referred to the parties’ contract as a 

“lease agreement” and to the subject property as “the leased premises” and “her leasehold 

 6
estate.” She also asserted, in the Introduction 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 unlawful 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 jurisdiction over the subject matter) nor the words 

“subject matter jurisdiction” is mentioned 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 dismiss 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 interest as such. The Stanleys 

continued: “In truth, Defendant has a written lease, which expires upon the termination 

of the contract. As set forth above, Montana Law allows for the termination of a rental 

agreement when rent is unpaid.” 

¶16 Next in the progression, Lemire filed her Amended Answer and Counterclaims. 

As before, she referred to the 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 she “has valid a [sic] rental 

agreement with [the Stanleys] . . . for the remainder of her natural life.” 

¶17 On March 31, 2004, Lemire filed a document titled Defendant’s Combined 

Opposition to Plaintiff’s Motion to Set Trial Date, and Motion for Pretrial Conference. 

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She asserted that a pretrial conference should be held to address, among other things, 

“jurisdictional matters related 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 claims has not yet been determined. 

[Emphases added.] 

¶18 The Justice Court addressed these arguments 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 action 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 counterclaim as beyond the court’s jurisdiction 

(see § 3-10-301(1)(c), MCA; Montana Justice and 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 dismiss, dismissed her malicious 

prosecution counterclaim, and rejected her “additional jurisdictional concerns,” she 

 8
informed the court that she had refiled her counterclaim for malicious prosecution in the 

District Court (Cause No. CDV-04-401) and had requested that the District Court 

“equitably determin[e] her interests 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 subject matter jurisdiction to determine 

matters involving title to and possession of real property. Mont. Code Ann. 

§ 25-31-101(1). In such matters, the Justice must suspend all further 

proceedings in the action and certify the pleadings from his docket to the 

clerk of the district court of the county. Mont. Code Ann. § 25-31-102(1). 

In her Answer, Ms. Lemire raises counterclaims for trespass, conversion 

based on alleged intrusions and destructions of parts of the premises. 

[Citation to Amended Answer.] To sustain her claims, Ms. Lemire will 

rely on alternative legal theories, among them that she holds a freehold life 

estate under the Rental Agreement. 

Therefore, based on the court’s lack of jurisdiction over questions involving the title to or 

possession of real property, she concluded, “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 subject 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). Seizing on this fact, the Stanleys filed a 

response in which they pointed out that Lemire’s answer and amended answer did “not 

state a defense or a counterclaim for a life estate 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 assertion, arguing in her reply that her 

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

“leasehold estate”—should be construed 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 not have jurisdiction to decide a question of title to real 

property, the court concluded that 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 Defendant 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 cannot 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 Landlord Tenant Act, which is within 

the jurisdiction of this Court. Defendant’s ANSWER and AMENDED 

ANSWER raised no issues (at least legitimate issues) that are beyond the 

jurisdiction of this Court. Defendant 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 Defendant, 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 Defendant 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 counterclaims for breach of agreement and 

breach of the covenant of good faith and fair dealing. (As for her other counterclaims, 

two were dismissed pretrial and three more were dismissed pursuant to a directed verdict 

 10
at 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, 2004” (emphasis omitted). 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 Court, which on August 26, 2005, affirmed 

the judgment of the Justice Court on all issues except the issue of attorney fees and costs. 

The District Court’s reasoning is discussed 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 district 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 reviews any factual findings under the clearly 

erroneous standard, any discretionary rulings for abuse of discretion, and both legal 

conclusions and mixed questions of law and 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 Court review the Justice Court’s factual findings 

 11
for 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 finding 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 standard, its discretionary rulings for abuse of 

discretion, and its legal conclusions and mixed questions of law and fact under the de 

novo standard. Solem v. Chilcote, 274 Mont. 72, 76, 906 P.2d 209, 211-12 (1995); 

Jarvenpaa v. Glacier 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 court acts as an intermediate 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 originally been filed in 

this court.”); Williams v. Williams, 444 A.2d 977, 978 (Me. 1982) (“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 reviewed 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 determination is whether the district 

court, in its review of the trial court’s decision, reached the correct conclusions under the 

appropriate standards of review. 

¶27 In the case at hand, the appropriate standards 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 determine whether we have jurisdiction over 

Lemire’s appeal. As explained below, the facts bearing on this issue implicate both this 

Court’s jurisdiction and the District Court’s jurisdiction over this case. Cf. City of 

Billings v. Costa, 2006 MT 181, ¶ 9, 333 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 

parties3

; nevertheless, for the reasons which follow, it is necessary and appropriate that 

we address it. 

¶30 Jurisdiction involves the fundamental power 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 that the Justice Court erred by awarding 

attorney fees to the Stanleys prior to the expiration of her allotted time for responding to 

their motion also bear on the jurisdictional question we now address, but neither she nor 

the Stanleys identify the potential jurisdictional defect explicitly. 

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

State ex rel. Johnson v. District Court 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 “jurisdictional” with “prescriptions delineating the 

classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) 

falling within a court’s adjudicatory authority” (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 jurisdictional 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 matter 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 question 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 

 14
subject-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 omitted). Accordingly, we will proceed, sua sponte, 

to address the question of our jurisdiction 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-vis 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 awarded.” With respect to the 

former, the Stanleys’ action against 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 counterclaims. The following day (May 13, 2004), 

the Stanleys filed their motion for attorney fees. 

¶34 Pursuant to the Montana Justice 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 with” the Montana Justice and City Court Rules of Civil 

Procedure, govern the practice in all justice and city courts of the State of Montana. 

 15
motion must do so in writing within 10 days of service.” 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, Sundays, 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 begins to run may not be included.” 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 entered 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 response, assumed that Lemire would not be 

responding to the Stanleys’ motion, or concluded that she had implicitly waived such a 

response by filing her notice of appeal on May 18, 2004. In any event, because the 

 5

 In addition, Lemire cites M. J. C. C. R. Civ. P. 6C for the proposition that she 

had an additional three days in which to respond to the Stanleys’ motion. This provision 

provides that “[w]henever a party has the right or is required to do an act or take a 

proceeding within a prescribed 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 Stanleys’ 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 determination 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 which Lemire was entitled 

irrespective of whether the Stanleys served their motion by mail. 

6

 Actually, the Justice Court’s judgment is stamped as filed on May 23, 2004. 

However, May 23, 2004, was a Sunday. Thus, because judicial 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. 

 16
Justice 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 district 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 with 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 established as a court of record” 

(emphasis added). Title 25, Chapter 33, MCA, in turn, sets forth a number of procedures 

governing appeals to district courts from justices’ courts. Section 25-33-101, MCA, 

provides that “[a] judgment or order in a civil action, except 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 court may appeal therefrom to the district 

court of the county at any time within 30 days after the 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 parties 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 constituted 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 for attorney fees. In this regard, it is necessary to clarify 

 17
the difference between a “void” judgment and 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 sometimes characterized as making a 

judgment ‘voidable’. This means that these judgments may be set aside 

upon a timely application in the same proceedings as a matter of judicial 

discretion.” 

Days Inns Worldwide, 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 with this principle, the 

court concluded that “disregarding response times 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 Justice 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 provides that “[a] judge may, 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, inadvertence, 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 good cause for it.” Such was not the case 

here. Rather than filing a motion for relief under M. J. C. C. R. Civ. P. 22A, Lemire 

instead filed an amended notice of appeal. Notably, she did so on May 25, 2004 (the day 

after the Justice Court entered judgment), which was still within the ten-day period 

 18
prescribed 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, therefore, lacked jurisdiction to consider it. 

After a jury found Bonamarte guilty of partner 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 court ordered “conditional 

restitution—Bonamarte would be required to pay restitution only 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; however, 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 the 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 this 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 may be taken by a defendant “ ‘only 

from a final judgment of conviction 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 

 19
concluded that no final judgment of conviction yet existed, Bonamarte, ¶ 8. We 

explained as follows: 

The Municipal Court’s sentencing order imposed restitution on Bonamarte 

only if the State requested it within sixty days of the order and the court 

held a hearing on costs. The State requested 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 hold 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 dismissed 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 position at that point was analogous to the State’s 

position at the time the conditional restitution order was entered by the municipal court in 

Bonamarte—both parties had the ability, within an allotted period of time, to effect 

further proceedings in the trial court or allow the judgment already entered to become 

final by failing to take appropriate action. But unlike the State, which 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 judgment rendered by the Justice Court disposed of all 

pending motions and thus constituted a final determination of the rights of the parties, 

and furthermore because Lemire did not file a timely motion for relief from the judgment 

alerting the Justice Court to the fact that her right to respond to the Stanleys’ motion for 

attorney fees had been infringed, 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 jurisdiction 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 Montana Constitution. Of 

specific relevance to the issue at hand, Article VII, Section 2(1) vests this Court with 

appellate jurisdiction and Article VII, Section 2(3) authorizes us to make rules governing 

appellate procedure. (Such rules of procedure are “subject to disapproval by the 

legislature in either of the two sessions following promulgation.” Mont. Const. art. VII, 

§ 2(3).) Pursuant to this constitutional authority, 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 proceeding 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 district court acting as an intermediate 

appellate court, in turn, is defined by statute. Specifically, a district court reviewing the 

 21
judgment of a justice’s court of record may “affirm, reverse, or amend 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 which 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 set 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 Justice 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 appropriate”; therefore, 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 and to determine the date when the Plaintiffs may re-take 

possession.” Thus, since the District Court affirmed the Justice Court’s judgment in part, 

reversed the judgment in part, and itself “render[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 provides 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 rights of the parties; any 

judgment, order or decree leaving matters undetermined is interlocutory in 

nature and not a final judgment for purposes of appeal. 

 22
B.P., ¶ 15 (emphases added). Accordingly, if a judgment which does not constitute a 

final determination of the rights and obligations of the parties in the action or proceeding 

is nevertheless appealed, both the district court and this Court are without jurisdiction 

over that appeal. The appellate process folds, no decision on the merits may be issued, 

and the case returns to the last court which had 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 affirming 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 appeal to this Court, raised “jurisdictional issues”: 

If the District Court’s order containing 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 token, without a “final judgment”—

including sentencing—in the Municipal Court, Costa’s appeal to the 

District Court would have been premature and the District Court—as well 

as this Court—would lack jurisdiction 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. 

 23
Costa, ¶ 9. As it turned out, however, our review of the record disclosed that the 

municipal court had, in fact, sentenced Costa before 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 “both unnecessary and a nullity” and had “no effect on the 

‘final judgment’ status” of the municipal court’s judgment or the district court’s 

judgment. Costa, ¶¶ 10, 16. Accordingly, we concluded that the district court had 

jurisdiction over Costa’s appeal to that court, Costa, ¶ 10, and that we, likewise, had 

jurisdiction over Costa’s appeal 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 Court’s part to make “a final determination of 

the rights of the parties” (unlike the situation 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 portion of Bonamarte’s 

sentence in fact had not been resolved at the time of his appeal to the district court). 

Indeed, as explained above, the judgment rendered by the Justice Court disposed of all 

pending motions and thus constituted a final determination of the rights of the parties. 

Likewise, the District Court’s judgment constituted 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 judgment or on the “final” 

status of the District Court’s judgment. Accordingly, pursuant to M. R. App. P. 1(b)(1), 

this Court has jurisdiction over Lemire’s appeal. 

 24
¶50 2. Did the District Court err in its determination that the Justice Court retained 

subject matter jurisdiction over the Stanleys’ 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 great 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 controversy involves questions of title to and 

possession of real property.” Yet, not only is this issue not properly 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 Lemire, in fact, has a life estate but, rather, 

whether her assertion of such was 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 only 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 jurisdiction “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 concurrent 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 action is an action for possession under § 70-24-

427” and that it therefore had jurisdiction pursuant to § 3-10-302. The District Court 

agreed with this determination, as do we given the grounds 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 for possession and for rent”—the precise relief 

requested in the Stanleys’ complaint). 

¶55 Next, § 25-31-101(1), MCA (2003), which is one of a number of statutes that 

govern procedure in the justices’ courts, provides: 

The parties to an action in a justice’s court cannot give evidence

upon any question which involves the title or possession of real property 

. . . , nor can any issue presenting such question be tried by such court; 

provided that, in cases of forcible entry and unlawful detainer of which 

justices’ courts have jurisdiction, any evidence otherwise competent may be 

 26
given, and any question properly involved therein may be determined 

[emphases added]. 

¶56 It is evident from this language that the Legislature has 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 hearing evidence on this subject. 

Thus, a plaintiff clearly could not file an action in a justice court to quiet title to real 

property. 

¶57 Probably for this reason, Lemire now argues (contrary to her original theory) that 

the Stanleys’ action was not brought under Title 70, Chapter 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, observed that the Stanleys had “pled that there was a rental 

agreement, that the agreement was breached and how the agreement was breached”—an 

 7

 The historical basis for limiting the jurisdiction 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 concerning real estate was that the justice 

of the peace was not learned in the law, 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 complicated 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). 

 27
assessment of the record with which we agree. Indeed, during the early stages of the 

Justice Court proceedings, as the District Court aptly noted, “[Lemire] 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 current 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 over this case at its outset. 

¶58 Lemire points out that “lack of subject matter 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 interest in the subject property divested the 

Justice Court of its jurisdiction over the case. However, while 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 acknowledged that Lemire’s assertion 

of title to the subject property could have divested it of jurisdiction, had she raised the 

issue in a proper and timely manner; however, because she did not do so, the court 

determined that the action before 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 correctly 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 justices’ courts have civil jurisdiction: 

 28
in actions for damages not exceeding $7,000, exclusive of court 

costs, . . . for injury to real 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 (emphasis 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 effect 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 Court reasoned that “the Justice Court had 

subject matter jurisdiction over this case because 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—deemed 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 defendant 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 statutory scheme suggests 

that waiver is indeed the result of such an omission. Unlike §§ 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 the action will involve the question of the state’s 

 29
liability to make a payment of money, the justice shall sever that issue and 

dismiss the action as to it. If the issue 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 addressed therein differently. The former refers to 

“the answer of the defendant,” whereas the latter refers to “any point in the proceedings.” 

Certainly, if the Legislature intended that a defendant be able to raise a question of title to 

real property “at any point in the proceedings 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 determination 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 result in a judgment 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 not 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 dispute as to title is latent at this early stage 

of the proceedings and only develops or becomes apparent as the case progresses. 

Likewise, there are cases in which it appears from the defendant’s answer that the 

determination of the action necessarily 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 jurisdiction—no issue as to title appearing in the defendant’s 

answer—only to discover further down the road that such an issue is necessarily 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 property in the defendant’s 

answer constitutes a waiver of that question 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 raised 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 “preserved the issue of the nature of her 

interest in the premises” by alerting the Justice Court in a number 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 points 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 “advised 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 Mont. Code Ann. § 25-31-102, it suffices if subject matter 

jurisdiction appears to be lacking from the facts stated” and that “[e]ven if the facts 

underlying her challenge of subject matter jurisdiction 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 District Court concluded that Lemire did not

raise the question of title to the subject property in her answer or amended answer. After 

reviewing these documents, the 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 

 31
applicable 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 describes 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 stages 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 the proceedings. Lemire’s claim of title to the 

subject property would have divested the court 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 raised in the defendant’s answer or be deemed 

waived. Lemire failed to do so. Thus, the District Court’s conclusion 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 affirming the Justice Court’s determination that 

the Stanleys were entitled to an award of attorney fees?

¶69 The Justice Court awarded the 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’ discussion of whether res judicata barred 

Lemire from pursuing the question of title to the subject property in Suit #2. 

 32
on three grounds: first, the jury had been instructed that under Title 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 Stanleys any monetary damages (namely, the 

$40.00 in unpaid rent), they were not a “prevailing party”; and third, the Justice Court 

ruled on the Stanleys’ motion for attorney fees before Lemire’s allotted time to respond 

to the motion had lapsed and without conducting 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 question of fact for the jury. 

¶70 The District Court agreed with the Stanleys 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 costs “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 argues 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, Lemire asserts that the District Court erred in affirming 

the Justice Court’s determination that the Stanleys were entitled 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 [Lemire’s] response time had lapsed, the Justice 

 33
Court 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 (1986) (“Attorney fees are allowed when they are provided for by 

statute or contractual provision.”). Here, an award of attorney fees was authorized by 

statute—specifically, § 70-24-442(1), MCA, 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 party 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 issue of whether or not a party is entitled to recover 

attorney fees under the relevant statutory or contractual provision is strictly a question of 

law. Thus, we review a lower court’s conclusions of law pertaining to the recovery of 

attorney fees to determine whether those conclusions are correct. Chase v. Bearpaw 

Ranch Ass’n, 2006 MT 67, ¶ 14, 331 Mont. 421, ¶ 14, 133 P.3d 190, ¶ 14; accord 

National Cas. Co., ¶ 27 (“[A] district court’s underlying determination that legal 

authority exists for an award of attorney fees is a conclusion of law which we review to 

determine whether the court interpreted the law correctly.”). 

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¶74 As noted above, § 70-24-442(1) authorizes an award of “reasonable” attorney fees 

to the “prevailing party.” Subsection (2), in turn, clarifies that “[a]s used in this section, 

‘prevailing party’ means the party in whose favor 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 was “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. Apparently because the Justice 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 for 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 determination 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 attorney 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 the Justice Court’s judgment reflect that the jury found in 

favor of the Stanleys on their complaint for possession and on Lemire’s counterclaims for 

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breach of agreement and breach of the covenant of good faith and fair dealing. However, 

the Stanleys’ complaint also sought “damages for lost rent,” and the jury found in favor 

of Lemire on this claim, awarding “the amount of $0.” Thus, as Lemire 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 party 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 fees 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 parties have mutually breached 

the same contract, the District Court did not err by refusing to grant either party attorney 

fees.”). We therefore reverse the 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 District Court, therefore, had jurisdiction 

over Lemire’s appeal. Likewise, the District 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). 

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¶79 The District Court correctly affirmed the Justice Court’s determinations that it 

initially had subject matter jurisdiction over the parties’ dispute and that it was not 

divested of jurisdiction by virtue of Lemire’s belated claim of title to the subject property. 

Pursuant to §§ 3-10-301(1)(b) and 25-31-102(1), MCA (2003), Lemire waived this issue 

for purposes of the Justice Court proceedings in Suit #2. 

¶80 The District Court, however, erred in affirming 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 Suit #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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