Lee Constr. v. Superior Hardwoods ( 2021 )

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
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