Perkins v. Tile Guys LLC

04/24/2024

rj ORIGINAL Case Number: DA 23-0582 IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 23-0582

PERKINS FAMILY HOLDINGS, LLC FILED Plaintiff and Appellant, APR 2 4 2024 Bowen Greenwood Clerk of Supreme Court State of Montana v. ORDER THE TILE GUYS, LLC, and MARSHAL RAY BUTTERFIELD,

Defendant and Appellee.

Appellant Perkins Family Holdings appeals from the September 12, 2023 Findings of Fact, Conclusions of Law and Order on Motion to Set Aside Entry of Default from the Eleventh Judicial District Court, Flathead County. Perkins filed his Notice of Appeal on October 4, 2023, and timely filed an Opening Brief on January 12, 2024. No parties filed a response, and the case was then submitted to this Court for disposition. Having read the Opening Brief and having reviewed the underlying District Court record, we have determined it is not properly before this Court on appeal. Perkins appeals an order of the District Court setting aside an entry of default against Appellee. "The right of appeal exists only by statute or rule. There is no statute or ruling authorizing appeal from an order setting aside entry of default before judgment is taken." McClurg v. Flathead County Comm'rs, 179 Mont. 518, 519, 587 P.2d 415, 416 (1978) (internal citation omitted). M. R. App. P. 6 authorizes certain specific interlocutory appeals and states that all other interlocutory judgments are not appealable. See M. R. App. P. 6(5)(f). "We have expressly held that an order setting aside a default is not appealable where final judgment has not been entered." McClurg, 179 Mont. at 519-20, 587 P.2d at 416.

Here, Perkins appealed directly after the District Court's order setting aside the entry of default. A final judgment has not been entered in the case. IT IS THEREFORE ORDERED that this appeal is DISMISSED and this matter is REMANDED to the District Court for further proceedings as necessary. Dated thisZLI day of April, 2024.

Chief Justice