Smith v. Kmon ( 2020 )

ORIGINAL 03/31/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0106
DA 20-0106
TERRY P. SMITH,MELISSA J. SMITH, FILED
and CASEY P. SMITH,
MAR 3 1 2020
Bovven Greenwood
Plaintiffs, Counter-Defendants, Clerk of Supreme Court
State nf Montana
and Appellants,
ORDER
v.
MATTHEW S. KMON,LLC,
Defendant, Counter-Plaintiff,
and Appellee.
On February 20,2020,self-represented Appellants Terry P. Smith, Melissa J. Smith,
and Casey P. Smith (collectively, the Smiths) filed a Notice of Appeal of a January 23,
2020 Meagher County District Court Order granting the motion for summary judgment to
the underlying Defendant, Matthew S. Kmon,LLC (hereinafter Kmon). Through counsel,
Kmon has filed a motion to dismiss appeal.
Kmon provides that thisjudgment on appeal is not final. M.R. App. P.4(1). Kmon
states that he contacted all of the Smiths and that Melissa objects. M. R. App. P. 16(1).
He summarizes the underlying civil proceeding concerning the Smiths' alleged prescriptive
easement across Kmon's real property to access mining claims. Kmon further states that,
when granting summary judgment,the District Court also dismissed the Smiths' complaint
and imposed reasonable attorney's fees and costs. He highlights that the court has not had
the opportunity to issue an order addressing the pending fees and costs because the Smiths
sought an appeal prematurely. Kmon points to the Montana Rules of Appellate Procedure
and case law that the court must first determine the amount of costs imposed prior to an
appeal. M. R. App. P. 6(1); Marez v. Marshall, 2014 MT 333, ¶¶ 38-40, 377 Mont. 304,
340 P.3d 520. Kmon requests that this Court dismiss the appeal to allow for such
accounting and offers that the Smiths may seek an appeal ofthat final decision.
Upon review of Kmon's motion and the judgment on appeal, we conclude that this
appeal is not from a final judgment and is improperly before this Court. M. R. App. P.
6(1). As Kmon acknowledges, the Smiths may seek an appeal of the final judgment that
includes the imposition of attomey's fees and costs as determined by the District Court.
Accordingly,
IT IS ORDERED that Kmon's Motion to Dismiss Appeal is GRANTED and this
appeal is DISMISSED without prejudice. The Clerk of the Supreme Court is directed to
close this case as of the date of this Order and to return the record to the Meagher County
District Court.
The Clerk also is directed to provide a copy of this Order to counsel of record and
to all parties.
DATED this 31 day of March, 2020.
Chief Justice
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Justices