Wells Fargo v. Zinvest ( 2022 )

05/17/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0609
DA 21-0609
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WELLS FARGO BANK, N.A., MAY 1 7 2022
Bowen 0 ,- . .movaoci
Plaintiff, Appellant, and Clerk of Supreme Court
Stata of Mnntana
Cross-Appellee.
v. ORDER
ZINVEST, LLC,
Defendant, Appellee, and
Cross-Appellant.
On December 2, 2021, Plaintiff, Appellant, and Cross-Appellee Wells Fargo Bank,
N.A. (Wells Fargo), filed its Notice of Appeal in this matter. In accordance with
M. R. App. P. 4(4)(c), Wells Fargo indicated that this matter was not subject to the
mandatory appellate alternative dispute resolution set forth in M. R. App. P. 7.
On May 10, 2022, the District Court provided Notice to this Court that, pursuant to
M. R. Civ. P. 58(e), it had resolved outstanding attorney fees and costs issues that had
remained subject to its jurisdiction. Wells Fargo then filed a Supplemental Notice of
Appeal, indicating that its appeal also encompassed the District Court's ruling on attorney
fees and costs. Wells Fargo again indicated that the matter was not subject to mandatory
appellate alternative dispute resolution under M. R. App. P. 7.
On May 11, 2022, Defendant, Appellee, and Cross-Appellant Zinvest, LLC
(Zinvest), filed a response to Wells Fargo's Supplemental Notice of Appeal in which
Zinvest asserted:
1. This appeal is subject to mandatory appellate alternative dispute
resolution under [M. R. App. P. 7(2)(c)]; and
2. Zinvest, LLC hopes that this appeal is subject to the mediation process
required by [M. R. App. P. 7(2)(d)].
M. R. App. P. 7(2) provides that certain categories of appeals shall be subject to the
Rule's mandatory appellate alternative dispute resolution process. These categories
include "[a]ppeals in actions seeking monetary damages/recovery" under
M. R. App. P. 7(2)(c) and "[a]ppeals which the supreme court, in its discretion, designates
as appropriate for mediation."
The matter on appeal in this case is an action seeking a declaratory judgment and is
not an action seeking monetary damages/recovery. It is immaterial that one of the orders
being challenged on appeal awards attorney fees and costs: "[T]he nature of the underlying
action, not the type of order or judgment on appeal, [determines] whether the appeal is
subject to the mandatory mediation requirementsH" Liang v. Lai, 2003 MT 281, ¶ 6, 317
Mont. 524, 78 P.3d 1212. In McDonald v. Cosman, 1999 MT 294, ¶ 1, 297 Mont. 108,
995 P.2d 922, the appellants challenged a final judgment that ordered specific performance
of an option to purchase land pursuant to a lease agreement, and which also awarded
attorney fees to the prevailing party. On appeal, we determined that attorney fees are a
"monetary recovery," but only "incidental to the primary thrust of the action[.]"
McDonald, ¶ 4. We determined that the award did not render the case subject to the
mandatory appellate alternative dispute resolution process. McDonald, ¶ 5. Relying on
McDonald, we held in Hanley v. Lanier, 2001 MT 91, ¶ 4, 305 Mont. 175, 24 P.3d 206that the matter on appeal, an easement dispute, was not subject to the mandatory appellate
alternative dispute resolution process because the "money judgment aspect of the case"
was incidental to and dependent upon upholding or reversing the District Court orders
regarding the substantive issues on appeal.
Zinvest offers no argument as to why we should distinguish the District Court's
order regarding attorney fees and costs in this case from the orders in McDonald and
Hanley for purposes of M. R. App. P. 7.1 Moreover, while Zinvest asserts that it "hopes"
On October 1, 2007, the current Montana Rules of Appellate Procedure superseded those that
were previously in effect. Liang, McDonald, and Hanley relied on Rule 54 of the previous rules;
Rule 54(a)(3) is identical to current Rule 7(2)(c).
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the appeal falls under M. R. App. P. 7(2)(d), this Court has held that for a case to fall under
M. R. App. P. 7(2)(d), the parties must file a joint motion to mediate; unilateral motions to
designate for mediation under M. R. App. P. 7(2)(d), even without noted objection from
opposing counsel, will not be considered. Kuzara v. Musselshell Cty., 2008 MT 124, ¶ 4,
342 Mont. 547, 182 P.3d 739.
IT IS THEREFORE ORDERED that Appellant's Supplemental Notice of Appeal,
including its assertion that this matter was not subject to the mandatory appellate alternative
dispute resolution set forth in M. R. App. P. 7, is ACCEPTED AS FILED.
The Clerk is directed to give notice of this Order to all counsel of record.
Dated this r4- day of May, 2022.
Justices
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