### IN THE SUPREME COURT OF THE STATE OF MONTANA DA 20-0116

LINCOLN PROPERTIES,LLC,

Plaintiffand Appellant,

v

### . AMERICAN EQUITY EXCHANGE,INC.,

Defendant and Appellee. 

# FILED JUL 1 4 2020
reenwood rne Court ntana



### ORDER

Appellee American Equity Exchange, Inc. (AEEI), moves this Court to stay the Notice of Appeal and remand this matter to the First Judicial District Court, Lewis and Clark County, for further proceedings in accordance with M.R. Civ. P. 58(e). Appellant Lincoln Properties,LLC (Lincoln),opposes AEEI's motion. At issue is whether Lincoln's Notice ofAppeal was prematurely filed because the District Court had not ruled on AEEI's motion for attorney fees at that time. In the District Court case, AEEI filed a notice of entry of judgment on February 13, 2020. AEEI filed its motion for attorney fees the nextday. Lincoln then filed its Notice ofAppeal
on February 26, 2020,prior to the completion ofbriefing on AEEI's pending motion for attorney fees. Briefing for AEEI's motion for attorney fees was completed March 20,2020,when AEEI filed its reply briefin the District Court. On April 9,2020,prior to any ruling on the motion for attorney fees, the record was transmitted to this Court as part of Lincoln's appeal. According to AEEI,the District Court issued an order on April 16, 2020,in which it ruled thatAEEIwas entitled to attorney fees,but reserved determining the amount ofthe award until it could hear the matter. As ofJune 16, 2020, when AEEI filed the present 07/14/2020

Case Number: DA 20-0116motion to stay and remand in this Court,briefing on the attorney fee amount was ongoing

in the District Court. Because the attorney fee issue remains unresolved below,AEEI moves this Court to stay the present appeal and remand the matter to the District Court. M.R.Civ.P. 58(e) provides: A judgment, even though entered, is not considered final for purposes of appeal under Rule 4(1)(a),M.R.App.P.,until any necessary determination ofthe amount of costs and attorney fees awarded, or sanctions imposed, is made. The district couit is not deprived ofjurisdiction to enter its order on a timely motion for attorney fees, costs,or sanctions by the premature filing of a notice ofappeal. A notice ofappeal filed before the disposition ofany such motion shall be treated as filed on the date ofsuch entry.
In opposition to AEEI's motion,Lincoln maintains thatAEEI's motion for attorney fees was not timely, and thus Rule 58(e) does not apply because the District Court's determination is not "necessary'under M.R.App.P. 4(1)(a). Lincoln argues that AEEI should have requested attomey fees over a year earlier, when the District Court entered judgment against Lincoln. In support of its position, Lincoln relies on Estate of Earl M.Pruyn v. Axmen Propane, Inc., 2008 MT 329, ¶ 4, 346 Mont. 162, 194 P.3d 650,in which this Court held that the determination ofan untimely filing ofa bill ofcosts was not "necessary" as contemplated in Rule 4(1)(a)because ofits untimeliness. In Estate of Pruyn, neither party served a notice of entry of judgment as contemplated by M. R. Civ. P. 77(d) before the Estate filed its notice of appeal. Estate of Pruyn,

## ¶ 1. Nearly two weeks after the Estate filed its notice ofappeal,Axmen moved to dismiss the appeal because the District Court had not yetcletermined an award of costs and attorney fees; however, Axmen not yet filed motions for costs and attorney fees in the District Court. Estate ofPruyn,¶2. This Courtdealtwith the costs and attorney fees issues differently: We determined that the request for costs was untimely as it was filed seven weeks after the dispositive order was issued, while the statutory deadline for filing such was five days, and thus it had no bearing on the finality of the judgment. Estate of Pruyn, ¶4. However,we treated the motion for attorney fees as a motion to alter 2or amend judgment under M.R. Civ.P. 59,and as such it was timely since neither party

had served notice of entry ofjudgment and therefore the period for serving a motion to amendhad not begun to run. Estate of Pruyn,11¶ 5-7. We then remanded the case for a determination of Axmen's entitlement to an award of attorney fees and, if applicable, a determination of the amount of those fees. Estate ofPruyn, ¶ 15. We decided not to dismiss the appeal,but to treat it as iffiled on the date the District Court either denied the rnotion for attorney fees, determined the amount ofattorney fees if awarded, or 60 days from the date ofthe Court's order under Rule 59. Estate of Pruyn,¶ 16.

, In the Opinion and Order, this Court further noted that the entire situation could have been avoided ifeither party_had acted sooner: the Estate could have served notice of entry ofjudgmentprior to filing its notice ofappeal,and Axmen could have filed its motion for attorney fees sooner. Estate of Pruyn,¶ 12. In the present case,both a notice ofentry of judgment and the motion for attorney fees were filed in the District Court prior to Lincoln's notice ofappeal. And while Lincoln asserts thatAEEI's motion for attorney fees
was untimely,the District Court has apparently disagreed,as ithas awarded AEEI attorney fees in an amount to be determined after hearing. If we were to agree with Lincoln's assertion thatAEEI's motion for attorney fees was untimely,we would effectively reverse the District Court without having actually considered its ruling to the contrary. We therefore conclude that, as set forth in M.R. Civ. P. 58(e), this matter is not final for purposes of appeal because the District Court has yet to make the necessary determination of the amount of attorney fees awarded. As we previously held in Estate of Pruyn,and under Rule 58(e),jurisdiction remains with the district court to make this determination and Lincoln's Notice ofAppeal,filed before the disposition ofAEEI's motion, shall be treated as filed on the date ofentry of the District Court's resolution of that motion. • Therefore, IT IS ORDERED that this case is remanded to the District Court for its determination ofthe amount ofattorney fees awarded to AEEI.

### IT IS FURTHER ORDERED that Lincoln's previouslyfiled notice ofappeal will be

treated as filed on the date on which the District Court enters its order determining the amount ofAEEI's attorney fees. The Clerk is directed to provide copies ofthis Order to all counsel ofrecord,to the Clerk ofCourt for Lewis and Clark County,and to the Honorable Mike Menahan presiding Judge. Dated this I 4

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—day ofJuly, 2020.

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