Archer v. Tait/Janz

• Court: Montana Supreme Court
• Decided: January 9, 2024
• Docket: DA 24-0010
• Status: Unpublished

Opinion

ORIGINAL 01/09/2024

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 24-0010

DA 24-0010

JAMES G. ARCHER, DENISE F. ARCHER, ROGER WAGNER, ANTOINETTE WAGNER, RUTGER NIERS, LAURA NIERS, GREGORY CHAPMAN, GREGORY SMITH, and LISA BRYANT,

Plaintiffs and Appellants, O RD E R

v. 1:- r GORDON TAIT and MICHELLE JANZ, JAN 0 9 2724 Defendants and Appellees. Bowen Greenwood urt lt

Counsel for Plaintiffs and Appellants James G. Archer, et al., have filed a notice of appeal from the December 5, 2023 Order and Rationale on Motions for Summary Judgment entered in the Eleventh Judicial District Court, in its Cause No. DV-23-640E. In their Notice of Appeal, they assert that the appeal is taken from an order certified as final under M. R. Civ. P. 54(b) Pursuant to M. R. App. P. 4(4)(b), if an appeal is taken after a district court issues certification under M. R. Civ. P. 54(b), the notice of appeal shall state that fact and a copy of the certification order shall be attached to the notice. This Court then reviews the certification order for compliance with M. R. App. P. 6(6). If a court abuses its discretion in certifying an order as final under Rule 54(b), we are without jurisdiction to entertain the appeal. Kohler v. Croonenberghs, 2003 MT 260, 317 Mont. 413. 77 P.3d 531. Thus, even if not raised by a party, we will sua sponte determine if the court's certification order meets the criteria we have set forth in Roy v. Neibauer, 188 Mont. 81, 610 P.2d 1185 (1980), and Weinstein v. University of Montana, 271 Mont. 435, 898 P.2d 101 (1995). Kohler, Til 8-9. In this case, Appellants failed to attach a copy of the certification order to their Notice of Appeal as required under Rule 4(4)(b). We therefore cannot determine if the court's certification order is in substantial compliance with the requirements of Rule 6(6) and our case law interpreting certification orders under Rule 54(b) and this matter cannot proceed on appeal. IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT PREJUDICE. The Clerk is directed to provide copies of this Order to all counsel of record. Dated this cl —day of January, 2024.

Chief Justice

ttioaishas . Justices