Lee Constr. v. Superior Hardwoods

12/27/2021

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0532

DA 21-0532 FILED DARRELL LEE CONSTRUCTION, LLC, DEC 2 7 2021 Bowen Greenwood Third-Party Plaintiff and Appellant, Clerk of Supreme Court Stntc,. nf Mnntana

v. ORDER SUPERIOR HARDWOODS AND MILLWORK, INC. d/b/a GRIZZLY FLOORING INSTALLATION,

Third-Party Defendant and Appellee.

On October 27, 2021, Third-Party Plaintiff and Appellant Darrell Lee Construction, LLC (DLC), filed its Notice of Appeal in this matter. DLC has now moved for a stay because the District Court has not yet ruled on the issue of attorney fees and costs, thus rendering DLC's Notice of Appeal premature. 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 of the amount of costs and attorney fees awarded, or sanctions imposed, is made. The district court is not deprived of jurisdiction to enter its order on a timely motion for attorney fees, costs, or sanctions by the premature filing of a notice of appeal. A notice of appeal filed before the disposition of any such motions shall be treated as filed on the date of such entry.

Under Rule 58(e), the District Court retains jurisdiction to rule upon attorney fees and costs. Once the District Court rules upon those issues, this Court will then treat the Notice of Appeal as filed on the date the District Court enters its ruling. Marriage of Weigand, 2021 MT 128, ¶ 10, 404 Mont. 223, 486 P.3d 1272 (holding that the District Court retains jurisdiction to enter an order on attorney fees and costs and appeal will not proceed until District Court rnakes its determination).

THEREF ORE, IT IS ORDERED that pursuant to Rule 58(e), this Court shall take no further action on this matter until the District Court enters its order determining the amount of attorney fees and costs awarded. IT IS FURTHER ORDERED that DLC's Notice of Appeal will be treated as filed on the date on which the District Court enters its order determining the amount of attorney fees and costs awarded. IT IS FURTHER ORDERED that DLC shall notify this Court within 10 days of the District Court's entry of its order determining attorney fees and costs. Failure to provide such notification may result in disrnissal of this appeal. The Clerk of this Court is directed to provide copies of this Order to all counsel of record, to the Clerk of Court for Missoula County, and to the Hon. John W. Larson, presiding District Court Judge. DATED this e day of December, 2021.

Chief Justice