Wilson v. Stamper ( 2023 )

D ORIGINAL 10/17/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0431 DA 23-0431 JULIUS A. WILSON and ANITA M. ANGELO, RILED OCT 1 7 2023 Plaintiffs and Appellants, Bowen Greenwood Clock of Supreme Court State of Montana v. ORDER DOMINICA E. STAMPER; Personal Representative of the Estate of Pricilla A. Graham and THERESA A. PRESLEY and RONALD PRESLEY, Defendants and Appellees. Defendant and Appellee Dominica Stamper moves to dismiss this appeal with prejudice on the ground that it was not filed in accordance with the time requirements of the Montana Rules of Appellate Procedure. Appellants Julius Wilson and Anita Angelo oppose the motion. The order on appeal is the District Court's July 19, 2023 order granting Stamper's motion for summary judgment and holding that she is entitled to recover reasonable attorney's fees incurred defending against this action. The court allowed ten days for Starnper to file a statement of fees and gave the Appellants five days thereafter to request a hearing if they contested the reasonableness of the amount. Stamper filed her statement on July 28, and Appellants offered no objection within the five days allowed. Wilson and Angelo filed their notice of appeal with this Court on August 10, 2023. The following day, the District Court entered its order approving Stamper's request for fees and costs. Stamper filed a notice of entry of judgment on August 14. On September 26, she filed with this Court her motion to dismiss the appeal. Stamper argues that under the plain language of M. R. App. P. 5(a)(iii), because the appeal was taken before the District Court's final order on attorney's fees, it "shall be dismissed upon the rnotion of any party." She maintains further that, having failed to re-file their notice of appeal within thirty days after notice of entry ofjudgment, Wilson and Angelo's appeal is untimely and must be dismissed with prejudice under M. R. App. P. 4(5)(a)(i). Wilson and Angelo respond that Stamper is attempting to "weaponize the recent amendments to the Appellate Rules by waiting forty-six days after the notice of entry of judgment to seek dismissal and then seeking to preclude them from an appeal altogether. They argue that their premature filing of the notice, just one day before the District Court ruled on attorney's fees, did not prejudice Stamper or place an administrative burden on this Court by having to suspend the appeal, which was a driving factor in changing the Rule. Although the notice of appeal was premature, we agree with the Appellants that dismissal with prejudice would be unduly harsh under the circumstances. IT IS THEREFORE ORDERED that the motion to dismiss this appeal is DENIED. Briefing shall proceed in accordance with the Rules of Appellate Procedure. The Clerk is directed to provide a copy of this Order to all counsel of record. DATED this l -1- day of October, 2023. Chief Justice Justices 2