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 HonorableMichael H. Xeedy, Judge presiding.

COUNSEL OF RECORD: For Appellant: I. JamesHeckathorn, 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, 1993Justice 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 

### inKaLispell, Montana. OnNovember 1, 1991,after

a trial, the jury returned a verdict in favor of defendant. On November 7, 1991,plaintiff filed timelyRule 50(b) and 59(a)posttrial motions for judgment notwithstanding the verdict and for a new trial, respectively. On November 8, 1991, counsel for defendantpresented the District Court with 

### a judgment on the jury verdict for the courtIs signature. This judgment has never been signed 

### by the District Court and, thus, never entered for the defendant. The District Court did not 

### rule onplaintiffls motions within 45days 

### as requiredby Rule 59(d) , plaintiff s counsel advised the District Court 

### by letter dated December 17, 1992, that the court 2had 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'sproposed judgmenthad 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 forplaintiff signedplaintiff's Notice ofAppeal and filed itwith the Flathead County Clerk of Court. Thenoticewas 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 SupremeCourt, 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 orderdated January 17, 1992, granting judgment notwithstanding the verdict and ordering a new trial on all other issues raised in the pleadings. Plaintiff's counselwas asked if he wished towithdraw 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 theclerk'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 Judgmentand filed aMotion for a Scheduling Order. On January 28, 1992,counsel forthedefendant fileddefendant'sNotice ofAppeal. Subsequently, defense counsel filed a petition for a Writ of Supervisory Controlwhen the clerk's office scheduled a scheduling conference after he had filed a notice of appeal. Thiswas 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 iswhether 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)

# . Oninitiativeof court. Not later than 10 days after entry of judgment the court of its own initiativemay order a new trial forany reason forwhich it might have granted a new trial on motion of a party. After giving theparties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reasonnot stated in the motion. Plaintiff contends that Rule 59(e), M.R.Civ.P., vests the court with jurisdictionuntil 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 jurisdictionto enter the order and, therefore, the order is of no force or effect. Plaintiff relies on In re Marriage of Kink (1987), 226 Mont. 313,735P.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 argumentwasmade that thecourt lost jurisdiction to rule on themotions because at the time the court amended the findings and conclusions, the 45-day period had expired. ThisCourtconcluded that theDistrictCourt's order, issuedprior to the expiration of the 45-day period, was in factan order for a new trial. 

### Kink, 735 P.2d at 313. Defendant contends that this case isdistinguishable 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, itwould 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). TheDistrict Court's order here specificallystatesthat it is based on the plaintiff's motion: Upon motion of the plaintiff and good cause appearing therefor, IT ISHEREBY ORDERED that judgmentn.O.V. be entered forthe Plaintiff on the issue of Defendant's negligence, with a new trial todetermineall remaining issuesraised by the pleadings. The District Court was without jurisdiction to grant a new trial forreasons stated in theplaintiff'smotion. 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 determineall 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 themerits of plaintiff's appeal from thedenial of hismotion. 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 theDistrict Court record to the SupremeCourt,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 office and informed that Judge Keedyhad 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 counselwas 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 theNotice of Appeal could be withdrawn. No entry in the clerk's permanent record remains to showthe appealwas filed. However, thedocket contains

a blank spacewhich has been corrected to remove an entry.TheNotice of Appeal was returned toplaintiff's counsel with the Clerk of Court's stampsobliteratedwith 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. Ina document filedwith this Court,however, theparties stipulated for purposes of this appeal, that plaintiff would be denominated respondent and cross-appellant and defendantwould be denominated appellant and respondent. Plaintiff now contends that his Notice of Appeal was effectively filedwhen delivered to the Clerk of Court and thathis 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 thenotice 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 SupremeCourt. Plaintiff's appeal has not been docketedby 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 courtdeems appropriate. which may include dismissal of the ameal. (Emphasisadded.)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 theproblems in this case resulted from the conductof 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. Wevacate theOrder of theDistrict Court granting plaintiffIs motion for judgment notwithstanding theverdict 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 

# - I the jury's verdict.July

### 21, 1993 CERTIFICATE OFSERVICE Ihereby certifythatthefollowingorderwassentbyUnited Statesmail,prepaid,tothefollowing named:

I.James Heckathorn Murphy,Robinson,Heckathorn&Phillips P.0. Box759 Kalispell, MT 59903-0759 RogerM.Sullivan McGarvey,Hebeding,Sullivan&McGarvey 745S.Main Kalispell,MT 59901

EDSMITH CLERKOFTHESUPREME COURT