Rall v. Dreyer, Kelly & DNRC

09/06/2022
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0426
DA 22-0426
IN THE MATTER OF APPLICATION TO CHANGE eiLLL.;
WATER RIGHT NO. 41H 30018777 BY DAVID and
CORA RALL SEP 0 6 2022
Bovven Greenwood
Clerk of Supreme Court
StatF, of Montan»
DAVID AND CORA RALL,
Petitioners, Appellees, and Cross-Appellants,
v.
ORDER
CLARICE DREYER, STEVEN KELLY,
Respondents, Appellants, and Cross-Appellees,
and MONTANA DEPARTMENT OF NATURAL
RESOURCES AND CONSERVATION,
Respondent, Appellee, and Cross-Appellant.
Petitioners, Appellees, and Cross-Appellants David and Cora Rall (Ralls) have
moved to dismiss this appeal as untimely pursuant to M. R. App. P. 4(5)(a)(i).
Respondents, Appellants, and Cross-Appellees Clarice Dreyer and Steven Kelly (Dreyer
and Kelly) have responded in opposition to Ralls' motion to dismiss. Respondent,
Appellee, and Cross-Appellant Montana Department of Natural Resources and
Conservation (DNRC) has also responded, asserting that the appeal should be dismissed
without prejudice pursuant to M. R. App. P. 4(5)(a)(iii) on the grounds that it was
prematurely filed because the District Court has not yet ruled upon a necessary
determination of costs and attorney fees.
On March 25, 2022, the Eighteenth Judicial District Court, Gallatin County, entered
its Order on Petition for Judicial Review Reversing DNRC Final Order and Granting
Change Authorization (Order on Petition) in its Cause No. DV-08-704C. In the Order on
Petition, the court ordered DNRC to grant Ralls the authorization to change their existing
water rights. It further stated, "The Court reserves ruling on the Ralls' request for
attorney's fees at this time until after further hearing of the issue."
On April 8, 2022, Ralls served Notice of Entry of Judgment as the prevailing party,
pursuant to M. R. Civ. P. 77(d) and a Motion for Award of Attorney's Fees pursuant to
M. R. Civ. P. 54(d)(2).
On May 6, 2022, Dreyer and Kelly filed a Motion to Alter or Amend Judgment
under M. R. Civ. P. 59(e).
The District Court did not rule on Ralls' April 8, 2022 Motion for Award of
Attorney's Fees and it was deemed denied by operation of law on June 6, 2022, pursuant
to M. R. Civ. P. 59(f).
The District Court also did not rule on Dreyer and Kelly's May 6, 2022 Motion to
Alter or Amend Judgment and it was deemed denied by operation of law on July 5, 2022,
pursuant to M. R. Civ. P. 59(f). In the present motion, Ralls argue that Dreyer and Kelly's
Rule 59(e) motion was untimely; we need not resolve this question as we have determined
that the timeliness of Dreyer and Kelly's Rule 59(e) motion does not affect the outcome of
the motion to dismiss.
Dreyer and Kelly filed their Notice of Appeal in this Court on August 4, 2022. Ralls
contend that this Notice was untimely because it was filed 118 days after the April 8, 2022
Notice of Entry ofJudgment. They argue that neither their April 8, 2022 Motion for Award
of Attorney's Fees nor Dreyer and Kelly's May 6, 2022 Motion to Alter or Amend
Judgment tolled the 60-day time limit of M. R. App. P. 4(5)(a)(i). However, we need not
consider these arguments: As DNRC explains in its response to Ralls' motion to dismiss,
this appeal is premature under M. R. App. P. 4(5)(a)(iii) because the District Court
specifically retained jurisdiction in its March 25, 2022 Order on Petition to rule on Ralls'
claim for attorney fees.
In Bitterroot River Protective Ass 'n v. Bitterroot Conservation Dist., 2011 MT 51,
359 Mont. 393, 251 P.3d 131, the trial court entered judgment in favor of the appellee on
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July 20, 2009, and within its order stated that it "reserves jurisdiction to determine whether
Plaintiffs are entitled to costs and attorney's fees which shall be determined separately."
The court ultimately issued those determinations several months later. BRPA, ¶ 7.
On appeal, the appellants argued that the trial court lost jurisdiction to rule on the
attorney's fee issues after 60 days had passed without ruling by operation of Rule 59(g).
BRPA, ¶ 15. We disagreed, concluding that the court's July 20, 2009 judgment was not a
final order because, by reserving ruling on the attorney's fee issue, the court left matters
undetermined and the judgment was therefore not a final determination of the rights of the
parties to the action. BRPA, ¶ 16 (citations omitted). We held that the July 20, 2009
judgment thus did not trigger the Rule 59 time deadlines. BRPA, ¶ 17.
Similarly here, the District Court's March 25, 2022 Order on Petition is not a final
order for purposes of appeal because the court left matters undetermined by reserving
ruling on the attorney's fee issue.1 Because the Order on Petition is not a final order, the
time for filing notice of appeal has not yet commenced.
Under M. R. App. P. 4(5)(a)(iii), a notice of appeal filed prior to the district court's
ruling on any necessary determination of the amount of costs and attorney fees awarded,
or sanctions imposed, may be dismissed sua sponte and shall be dismissed upon the motion
of any party. The district court is not deprived of jurisdiction to enter its order on a timely
motion for attorney fees, costs, or sanctions by the premature filing of a notice of appeal,
in accordance with M. R. Civ. P. 58(e).
As Rule 4(5)(a)(iii) provides, an appeal filed in this Court prior to the district court's
ruling on any necessary determination of costs and attorney fees shall be dismissed upon
the motion of any party. We therefore find the motion to dismiss well-taken for the reasons
set forth in DNRC's response.
DNRC further points out in its brief that Ralls requested attorney fees in their Petition for Judicial
Review and the issue was briefed, but not ruled upon, prior to the March 25, 2022 Order on
Petition.
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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 L-'day of September, 2022.
Chief Justice
Justices
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