Rafes v. McMillan ( 2020 )

enivtwl, 06/02/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0226
DA 20-0226
DAVID RAFES and BAIRSTOW,LTD., JUN 0 2 2020
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Plaintiff and Appellant,
v. ORDER
JOSH McMILLAN and RICK L. DAWSON,
Defendants and Appellees.
Through counsel, Appellee Josh McMillan (McMillan) moves this Court for
dismissal ofthis appeal because it is premature. McMillan provides that he contacted self-
represented Appellant David Rafes(Rafes)via email and that Rafes objects to this motion.
Rafes has not filed a written response.
McMillan explains that the Sixth Judicial District Court, Sweet Grass County, has
not rendered a judgment on costs:and attorney fees. M. R. App. P. 4(1)(a). He points out
that Rafes appeals the District Court's April 3, 2020 Findings ofFact, Conclusions ofLaw
and Order, which is not a final judgment here. McMillan states that in this Order the
District Court awarded attorney fees and costs to McMillan. He puts forth that Rafes filed
a Notice ofAppeal with this Court after counsel for McMillan filed an accounting and prior
to the District Court's final determination of the awarded costs and reasonable attorney
fees. M.R. App. P. 6(1); Marez v. Marshall, 2014 MT 333,11138-40, 377 Mont. 304, 340
P.3d 520. McMillan requests this Court dismiss the appeal and remand the matter for
further determination ofthese pending fees and costs.
Upon review of the instant motion and the judgment on appeal, we conclude that
this appeal is improperly before this Court and that dismissal is appropriate. M. R. App.
P. 6(1). As McMillan acknowledges, Rafes may seek an appeal ofthe finaljudgment with
the imposition of attorney fees and costs as determined by the District Court. Therefore,
IT IS ORDERED that the Motion to Dismiss Appeal is GRANTED,and this appeal
is DISMISSED without prejudice. Rafes may seek an appeal with this Court after the
Sweet Grass County District Court enters its final judgment. 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 Sweet Grass County District Court.
The Clerk also is directed to provide a copy of this Order to counsel of record, to
Rick L. Dawson, and to Dqvid Rafes.
DATED this Z,day of June, 2020.
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