Evans v. Fox Island Homeowners ( 2022 )

ORIGINAL 03/15/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 22-0050
DA 22-0050 HUE
MAR 1 5 2022
J.R. "BOB" EVANS, Bowen Greenvv000
Clerk of Supreme Court
State of Montana
Plaintiff and Appellant,
v. ORDER
FOX ISLAND HOMEOWNERS'
ASSOCIATION, INC.,
Defendant, Appellee, and Cross-Appellant.
Defendant, Appellee, and Cross-Appellant Fox Island Homeowners Association,
Inc. (Fox Island HOA), has moved to dismiss this appeal. Appellant J.R. "Bob" Evans
opposes Fox Island HOA's motion.
This case arose after Fox Island HOA prohibited Evans from constructing a fence
on his property within the subdivision Fox Island HOA administers. Evans filed a
Verified Complaint for Declaratory Judgment (Complaint) in the Eighth Judicial District
Court, Cascade County, in November 2020. In the Complaint, Evans requested four
remedies: a declaration that the covenants do not allow Fox Island HOA to regulate the
location of fencing, landscaping, or other grounds improvement; a declaration that
Fox Island HOA' s attempt to prohibit Evans from constructing a fence was unlawful; costs
and attorney fees; and any other relief that the court deems just, including injunctive relief.
In its Answer to Verified Complaint for Declaratory Judgment, Fox Island HOA
raised several affirmative defenses and prayed for the court to: dismiss the Complaint; rule
that Evans take nothing; grant Fox Island HOA its attorney fees and costs; and any other
relief that the court deems just.
On February 9, 2021, the District Court issued a Scheduling Order which ordered,
in relevant part: "[Evans] will file a Motion for Summary Judgment (and [Fox Island
HOA], if a cross-motion) by April 9, 2021[.]" Evans filed a motion for summary judgment
and a brief in support on April 8, 2021. Fox Island HOA responded in opposition, but it
did not file a cross-motion for summary judgment nor did it request summary judgment in
its favor within its responsive brief.
The court heard argument on Evans's motion on September 10, 2021. Pertinent to
the present issue before this Court, the District Court queried the parties about how the case
might proceed if the court denied Evans's motion. First, the parties estimated for the court
how much time a contested hearing would require. The court advised counsel that once
the court reached a decision on Evans's motion, the court would request a proposed order
from the prevailing party and the court preferred that the party "include a slot where I can
set a contested hearing."
As the summary judgment hearing neared conclusion, counsel for Fox Island HOA
suggested that if the court denied Evans's motion based on its interpretation of the
covenants, no contested hearing would be necessary: "I think we're done. . . . And then we
can take it up to the Supreme Court on appeal." The court expressed doubt whether such
a ruling would dispose of the case, asking, "[I]s this in front of me to consider for summary
judgment in favor of the association?" Evans's counsel attempted to respond, but
interjected only "Your Honor," before Fox Thland HOA' s counsel asserted, "Yeah. If you
were to deny his motion, then I think I would be the prevailing party." Prior to
adjournment, the court responded that it would "crack the books" on civil procedure to
determine if it might grant summary judgment in Fox Island HOA's favor and its ruling
would be forthcoming.
On October 25, 2021, the court issued its Order Denying Summary Judgment.
Finding no material facts in dispute, it ruled that Fox Island HOA could regulate the
construction of Evans's proposed fence. It therefore denied Evans's motion and concluded
that he was not entitled to his attorney fees because he was not the prevailing party. The
Order did not explicitly grant summary judgment in Fox Island HOA's favor, nor did it set
a contested hearing. 'Shortly thereafter, Fox Island HOA filed a Memorandum of Costs,
Motion for Attorney Fees and Costs, and a brief and affidavit in support of the motion.
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Evans then filed Plaintiff s Objection to Memorandum of Costs and Motion to Tax Costs,
asserting that Fox Island HOA's motion was premature because Fox Island HOA had not
moved for summary judgment and the court, which could have chosen to grant summary
judgment in Fox Island HOA's favor, had not done so. Evans further filed a separate
objection to Fox Island HOA's motion for attorney fees, arguing that awarding Fox Island
HOA its attorney fees was not warranted under the applicable statutes.
Fox Island filed a separate Notice of Issue for its motion for costs and motion for
attorney fees. On November 8, 2021, it also filed a "Notice of Entry of Order" regarding
the October 25, 2021 Order Denying Summary Judgment.
On January 31, 2022—after the Motion for Attorney Fees and Costs was fully
briefed but prior to the District Court entering any rulings upon it—Evans filed a Notice of
Appeal in this Court. In the Notice of Appeal, Evans explained:
Although [Fox Island HOA] never sought, and the District Court did not
grant, summary judgment to [Fox Island HOA], out of caution, [Evans] is
going to treat the Notice of Entry of Order as a Notice of Entry of Judgment
for the purposes of this appeal. Since the District Court did not rule on the
Motion for Attorney's Fees under the 60-day time limit under Rule 59 (see
Ballou v. Walker, 2017 MT 197, ¶ 23), [Fox Island HOA's] motion for fees
was deemed denied on January 2, 2022, and this Appeal is therefore timely
filed under [M. R. Civ. P. 58(e) and M. R. App. P. 4(5)(a)(iv)].
On February 11, 2022, Fox Island HOA filed its Notice of Cross-Appeal in this
Court. That same day, it also moved to dismiss Evans's appeal without prejudice. Evans
objects to the motion to dismiss.
Fox Island HOA argues Evans's appeal was premature because the District Court
had not yet mled upon Fox Island HOA's Motion for Attorney Fees and Costs. In this
instance, although Fox Island HOA has moved to dismiss on other grounds, we first raise
a different question: whether this matter should be dismissed because the District Court's
Order Denying Summary Judgment is not a final order for purposes of appeal.
A party may appeal from a final judgment in an action or special proceeding or from
other orders as specified in M. R. App. P. 6. Some judgments and orders are not appealable,
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including orders denying motions for summary judgment. M. R. App. P. 6(5)(b). This
Court may sua sponte raise the issue whether an appeal has come to this Court prematurely
and therefore should be dismissed for lack of jurisdiction. Farmers Union Mut. Ins. Co. v.
Horton, 2003 MT 79, ¶ 19, 315 Mont. 43, 67 P.3d 285 (Gray, CJ, concurring) (citing
Litigation Relating to Riot, 283 Mont. 277, 281, 939 P.2d 1013, 1016 (1997)).
In this case, the District Court denied Evans's summary judgment motion, and it
chose not to enter summary judgment in favor of Fox Island HOA, the nonmovant. We
have held, however, that a court may enter summary judgment in favor of a nonmoving
party under certain circumstances:
Generally, no formal cross motion is necessary for a court to enter summary
judgrnent in favor of the nonmoving party. However, it is critical that the
court ensure the original movant had full and fair opportunity to meet the
proposition, that there is no genuine issue of material fact and the nonmoving
party is entitled to judgement [sic] as a matter of law. The court, therefore,
must afford the original movant with notice and an opportunity to be heard
when it determines whether the case warrants judgment in favor of the
nonmoving party. Further, the parties should be given an opportunity to
present facts concerning the grounds upon which the district court granted
summary judgment.
In re Estate ofMarson, 2005 MT 222, ¶ 9, 328 Mont. 348, 120 P.3d 382 (citing Hereford v.
Hereford, 183 Mont. 104, 598 P.2d 600 (1979) (citations and internal quotations omitted).
Here, Fox Island HOA urged the District Court to grant it, the nonmoving party,
summary judgment if the court denied Evans's motion on legal grounds. The District Court
advised the parties that it would research whether it might be procedurally appropriate for
the court to do so, and ultimately issued an order that only explicitly denied Evans's
motion. Moreover, during the September 10, 2021 hearing, Evans was not given the
opportunity to be heard on whether the case might warrant summary judgment in favor of
Fox Island HOA. As an order denying summary judgment is not directly appealable, the
District Court did not grant summary judgment in favor of the nonmoving party, and the
interlocutory Order Denying Summary Judgment was not certified as final under M. R.
Civ. P. 54(b), this appeal was filed prematurely and it is not properly before this Court.
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IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that this matter is REMANDED to the District Court.
The Clerk is directed to provide copies of this Order to all counsel of record.
Dated this day of March, 2021.
Chief Justice
a. kGe—__, "
Justices
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