Nye Meyer v. Hando ( 1990 )

No. 90-402
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
NYE & MEYER, P.C.,
plaintiff and ~espondent,
v.
EMMA JEAN HAND01
~efendantand ~ppellant.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable William J. Speare, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Don Edgar Burris, Esq., Billings, Montana
For Respondent:
Jerrold L. Nye, Esq., Nye & Meyer, P.C., Billings,
Montana
Submitted on Briefs: November 8, 1990
Decided: December 11, 1990
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Emma Jean Hando appeals from an order of the District Court
of the Thirteenth Judicial ~istrict, Yellowstone County. That
order, entered pursuant to the parties1 stipulation, dismissed this
action for lack of subject matter jurisdiction.
Nye & Meyer, P.C., brought this action to recover attorney
fees for representing Hando in a claim for Social Security
disability benefits. Hando counterclaimed for intentional
infliction of emotional distress, abuse of process, and malprac-
tice. Both parties moved for summary judgment. At a May 30, 1990,
hearing, the parties orally stipulated that this matter was
dismissed for lack of subject matter jurisdiction. The court so
ordered. Hando then acquired new counsel who attempted to have the
order of dismissal reconsidered and now appeals to this Court
arguing that the stipulation is not binding and that the case
should be reinstated.
Lack of subject matter jurisdiction may be raised at any time.
In re Marriage of Cox (1987), 226 Mont. 176, 179, 736 P.2d 97, 99.
However, it does not follow that the presence of subject matter
jurisdiction may be re-claimed following a stipulation that it is
absent and an order of dismissal. We hold that Hando is bound by
her stipulation and the order dismissing this case. Both parties1
requests for sanctions are denied.
Affirmed. Let remittitur issue forthwith.
Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1988 Internal Operating Rules, this decision shall not be cited as
precedent and shall be published by its filing as a public document
with the Clerk of this Court and by a report of its result to the
West Publishing Company.
Chief Justice
4
We concur: