No. 92-396 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DOUGLAS J. PIERCE, 

Plaintiff, Respondent, 

and Cross-Appellant, 

ALSC ARCHITECTS, P.S., 

a Washington professional 

service corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial ~istrict, 

In and for the County of Flathead, 

The Honorable Michael H. Xeedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

I. James Heckathorn, Murphy, Robinson, Heckathorn & 

Phillips, Kalispell, Montana 

For Respondent: 

Roger M. ~ullivan, McGarvey, Heberling, Sullivan & 

McGarvey, Kalispell, Montana 

Filed: 

Submitted on Briefs: April 30, 1993 

Decided: ~uly 20, 1993 
Justice Fred J. Weber delivered the Opinion of the Court. 

This is an appeal by ALSC Architects, P.S., of the Order of 

the District Court of the Eleventh Judicial District, Flathead 

County, which granted plaintiff's motion for judgment 

notwithstanding the verdict and ordered a new trial on the 

remaining issues. We reverse and remand. 

The parties present the following issues for review: 

1. Did the District Court's order granting judgment 

notwithstanding the verdict and ordering a new trial on the 

remaining issues have any force or effect? 

2. Did the plaintiff file a timely notice of appeal? 

Douglas J. Pierce (plaintiff) brought a negligence action 

against ALSC Architects, P.S. (defendant) as a result of personal 

injuries he received when he fell through a false ceiling in the 

Rosauer's store in KaLispell, Montana. On November 1, 1991, after 

a trial, the jury returned a verdict in favor of defendant. On 

November 7, 1991, plaintiff filed timely Rule 50 (b) and 59 (a) posttrial motions for judgment notwithstanding the verdict and for a 

new trial, respectively. On November 8, 1991, counsel for 

defendant presented the District Court with a judgment on the jury 

verdict for the court Is signature. This judgment has never been 

signed by the District Court and, thus, never entered for the 

defendant. 

The District Court did not rule on plaintiffls motions within 

45 days as required by Rule 59 (d) , plaintiff s counsel advised the 

District Court by letter dated December 17, 1992, that the court 

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had not ruled on the plaintiff's motion for judgment 

notwithstanding the verdict or a new trial. On January 14, 1992, 

plaintiff's counsel again sent a letter to the District Court 

advising the court that the motions had not been ruled on and 

defendant's proposed judgment had not been signed. On January 17, 

1992, the District Court issued an order ruling that "judgment 

n.0.v. be entered for the Plaintiff on the issue of Defendant's 

negligence, with a new trial to determine all remaining issues 

raised by the pleadings." 

Without knowledge of the District Court's January 17th order, 

counsel for plaintiff signed plaintiff's Notice of Appeal and filed 

it with the Flathead County Clerk of Court. The notice was stamped 

by the clerk's office at 3:19 p.m. on January 21, 1992. 

Plaintiff's counsel also requested transmittal of the District 

Court record to the Supreme Court, gave a check for the filing fee 

to the Clerk of Court's office and requested that the court 

reporter prepare a trial transcript. 

On January 22, plaintiff's counsel was contacted by the 

clerk's office and informed that the District Court had issued an 

order dated January 17, 1992, granting judgment notwithstanding the 

verdict and ordering a new trial on all other issues raised in the 

pleadings. Plaintiff's counsel was asked if he wished to withdraw 

the Notice of Appeal. Plaintiff's counsel advised the clerk's 

office the following day, January 23, 1992, that the notice of 

appeal could be withdrawn. No motion for withdrawal, notice of 

motion for withdrawal, or order for withdrawal was filed. The 

original Notice of Appeal and counsel's check were returned by the 
clerk's office. The Notice of Appeal was returned with the Clerk 

of Court's "filed" stamp obliterated with correction fluid. 

On January 24, 1992, plaintiff filed a Notice of Entry of 

Judgment and filed a Motion for a Scheduling Order. On January 28, 

1992, counsel forthe defendant filed defendant's Notice of Appeal. 

Subsequently, defense counsel filed a petition for a Writ of 

Supervisory Control when the clerk's office scheduled a scheduling 

conference after he had filed a notice of appeal. This was denied 

on April. 2, 2992. Plaintiff's counsel submitted the returned 

original Notice of Appeal and check for $75.00 to the Clerk of the 

Supreme Court in his appendix to his brief in response to 

defendant's petition for writ of supervisory control. 

I. 

Did the District Court's order granting judgment 

notwithstanding the verdict and ordering a new trial on the 

remaining issues have any force or effect? 

We begin our journey through this procedural mire by noting 

that both a Rule 50(b), motion for judgment notwithstanding the 

verdict and a Rule 59(a) motion for a new trial are subject to the 

45-day time limit allowed the district court for ruling on these 

motions by Rule 59 (d) , M.R. C~V. P. The 45-day period is mandatory. 

See, In re the Marriage of Miller (1989), 238 Mont. 108, 111, 776 

P.2d 1218, 1220. Moreover, the 45-day period begins to run from 

the date the motion is filed whether or not the judgment has been 

entered. ~iller, 776 P. 2d at 1220. The ~istrict Court ruled on 

plaintiff's motions 71 days after they were filed, We conclude 

that despite the fact that judgment had not been entered, the 45- 
day period began to run when plaintiff's motions were filed. 

We hold the plaintiff's motions were denied by operation of 

law under Rule 59(d), M.R.Civ.P., when the District Court did not 

rule within 45 days of filing the motion. 

Our next inquiry is whether or not the District Court's order 

dated January 17, 1992 is nonetheless effective under Rule 59(e), 

M.R.Civ.P., as contended by plaintiff. Rule 59(e), M.R.Civ.P., 

provides: 

Rule 59 (e) . On initiative of court. Not later than 

10 days after entry of judgment the court of its own 

initiative may order a new trial for any reason for which 

it might have granted a new trial on motion of a party. 

After giving the parties notice and an opportunity to be 

heard on the matter, the court may grant a motion for a 

new trial, timely served, for a reason not stated in the 

motion. 

Plaintiff contends that Rule 59(e), M.R.Civ.P., vests the court 

with jurisdiction until 10 days after entry of judgment. As noted 

above, the District Court did not sign the judgment submitted by 

defendant. Defendant contends that by granting the motions after 

the 45-day period had expired, the District Court was without 

jurisdiction to enter the order and, therefore, the order is of no 

force or effect. 

Plaintiff relies on In re Marriage of Kink (1987), 226 Mont. 

313, 735 P.2d 311, for his argument that the District Court retains 

jurisdiction to order a new trial until 10 days after entry of 

judgment. In Kink, the district court ordered a further 

evidentiary hearing after both parties moved to amend the findings 

and conclusions. The court's order was within the 45-day time 

period after filing of both motions. An argument was made that the 
court lost jurisdiction to rule on the motions because at the time 

the court amended the findings and conclusions, the 45-day period 

had expired. This Court concluded that the District Court's order, 

issued prior to the expiration of the 45-day period, was in fact an 

order for a new trial. Kink, 735 P.2d at 313. 

Defendant contends that this case is distinguishable from Kink 

because here we had passed the 45-days at the time the court 

granted plaintiff's motion and that if the Kink district court had 

waited until the 45 days expired, it would have lost jurisdiction. 

We agree with the defendant that the expiration of the 45-day 

period affected the District Court's jurisdiction. However, the 

District Court lost jurisdiction for the issue only; it did not 

lose jurisdiction to order a new trial under Rule 59(e). 

The District Court's order here specifically states that it is 

based on the plaintiff's motion: 

Upon motion of the plaintiff and good cause 

appearing therefor, 

IT IS HEREBY ORDERED that judgment n. O.V. be entered 

for the Plaintiff on the issue of Defendant's negligence, 

with a new trial to determine all remaining issues raised 

by the pleadings. 

The District Court was without jurisdiction to grant a new trial 

for reasons stated in the plaintiff's motion. Clearly, the court's 

order, as set forth above, grants a new trial based on plaintiff's 

motion. We conclude that the court lost jurisdiction to grant 

plaintiff's motion for any of the reasons stated in the motion 45 

days after it was filed. 

We hold the District Court's Order granting judgment 

notwithstanding the verdict and granting a new trial to determine 
all remaining issues raised by the pleadings is of no force or 

effect. 

11. 

Did the plaintiff file a timely notice of appeal? 

By vacating the District Court's order granting plaintiff's 

motion, we reinstate the denial of the same by operation of law. 

The question then becomes whether or not this Court will consider 

the merits of plaintiff's appeal from the denial of his motion. As 

explained below, we decline to rule on this issue. 

The procedural facts of this case, as noted above, are quite 

confusing. Plaintiff's Notice of Appeal was signed and delivered 

to the Clerk of Court and stamped by the clerk's office at 3: 19 

p.m. on January 21, 1992. plaintiff's counsel also requested 

transmittal of the District Court record to the Supreme Court, gave 

a check for the filing fee to the Clerk of Court's office and 

requested that the court reporter prepare a trial transcript. 

On January 22, 1992, plaintiff's counsel was contacted by the 

Clerk of Court' s off ice and informed that Judge Keedy had issued an 

order dated January 17, 1992 in favor of plaintiff and granting 

plaintiff's post-trial motion for judgment notwithstanding the 

verdict and ordering a new trial on all other issues raised in the 

pleadings. Plaintiff's counsel was asked if he wished to withdraw 

plaintiff's Notice of Appeal. Plaintiff's counsel advised the 

Clerk of Court's office the following day that the Notice of Appeal 

could be withdrawn. No entry in the clerk's permanent record 

remains to show the appeal was filed. However, the docket contains 

a blank space which has been corrected to remove an entry. 
The Notice of Appeal was returned to plaintiff's counsel with 

the Clerk of Court's stamps obliterated with correction fluid. The 

original Notice of Appeal and counsel's check in the amount of 

$75.00 were then returned by the clerk's office. No motion for 

withdrawal, notice of motion for withdrawal, or order for 

withdrawal was filed. Plaintiff's check and Notice of Appeal were 

included with documents sent to this Court in March of 1992 in 

response to defendant's application for a writ of supervisory 

control. In a document filed with this Court, however, the parties 

stipulated for purposes of this appeal, that plaintiff would be 

denominated respondent and cross-appellant and defendant would be 

denominated appellant and respondent. 

Plaintiff now contends that his Notice of Appeal was 

effectively filed when delivered to the Clerk of Court and that his 

counsel's oral directive to withdraw the Notice of Appeal after it 

had been delivered was insufficient. He further contends that 

only a properly withdrawn notice of appeal will divest this Court 

of its jurisdiction. 

This Court has jurisdiction after the filing of the notice of 

appeal except for the District Court's limited jurisdiction to 

dismiss the appeal when it has not been docketed by the Clerk of 

the Supreme Court. Plaintiff's appeal has not been docketed by the 

clerk as of the date of this writing. 

Rule 4(a), M.R.App.P., provides in pertinent part: 

Failure of an appellant to take any step other than the 

timely filing of a notice of appeal does not affect the 

validity of the appeal, but is qround . - only for such 

action as the supreme court deems appropriate. which may 

include dismissal of the ameal. (Emphasis added.) 
Rule 4(a) allows this Court to dismiss an appeal on appropriate 

grounds. 

We conclude that dismissal of plaintiff's appeal is 

appropriate in this case. We do note that the procedural errors 

which caused the problems in this case resulted from the conduct of 

the District Court Judge and not of either counsel. Counsel for 

defendant presented a proper document to the District Court for 

signature. It was the obligation of the District Court to enter 

judgment promptly upon submission. In addition, plaintiff's 

counsel filed timely motions which were not ruled on during the 

time allowed for these motions under the Rules of Civil Procedure. 

Plaintiff's counsel notified the District Court that the court had 

not ruled on the motions and had not entered judgment. The 

subsequent order filed when the court was without jurisdiction 

caused needless confusion with all concerned. 

Because we conclude that the District Court's order granting 

a new trial was improper and because we direct the entry of 

judgment for defendant in accordance with the jury's verdict, we 

conclude that either party will then have the amount of time 

allowed by law in which to file a notice of appeal from that 

judgment. In view of that conclusion, we do not find it necessary 

to address the issue of the adequacy of the notice of appeal. 

We vacate the Order of the District Court granting plaintiff Is 

motion for judgment notwithstanding the verdict and ordering a new 

trial on remaining issues; and remand to the District Court for an 

order to enter the judgment in favor of the defendant - pursuant to 

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the jury's verdict. 

July 21, 1993 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

I. James Heckathorn 

Murphy, Robinson, Heckathorn & Phillips 

P. 0. Box 759 

Kalispell, MT 59903-0759 

Roger M. Sullivan 

McGarvey, Hebeding, Sullivan & McGarvey 

745 S. Main 

Kalispell, MT 59901 

ED SMITH 

CLERK OF THE SUPREME COURT