Estate of C. Patricia Field

2023 MT 48, 526 P.3d 1085

Opinion

03/21/2023

DA 23-0114 Case Number: DA 23-0114

IN THE SUPREME COURT OF THE STATE OF MONTANA

2023 MT 48

IN RE THE MATTER OF THE ESTATE OF:

C. PATRICIA FIELD,

Deceased.

SCOTT FIELD,

Appellant,

v.

ESTATE OF C. PATRICIA FIELD and GREG FIELD,

Appellees and Cross-Appellants.

APPEAL FROM: District Court of the First Judicial District, In and For the County of Broadwater, Cause No. DDP-2020-04 Honorable Christopher D. Abbott, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Michael L. Rausch, Brian P. Thompson, Browning, Kaleczyc, Berry & Hoven, P.C., Great Falls, Montana

For Cross-Appellant Patricia F. Grosfield:

Norman H. Grosfield, Grosfield Law Firm, Helena, Montana

For Appellee Chris Field:

Amos Rogers Little, III, Attorney at Law, Helena, Montana For Appellee Greg Field:

Kelby R. Fisher, Attorney at Law, Helena, Montana

Decided: March 21, 2023

Filed: ir,-6ta.--if __________________________________________ Clerk

2 Justice Laurie McKinnon delivered the Opinion and Order of the Court.

¶1 Appellee and Cross-Appellant Chris Field, the Personal Representative of the Estate

of C. Patricia Field (Estate), moves to dismiss this appeal because he alleges Appellant

Scott Field (Scott) failed to file a timely Notice of Appeal. Scott opposes the Estate’s

motion, arguing his Notice of Appeal was timely under M. R. App. P. 4(5)(a).

¶2 In the underlying litigation, the District Court issued an Order on Motions on

December 2, 2022, that granted partial summary judgment in favor of the Estate and further

granted the Estate’s Application for Distribution of Personal Property. Under

M. R. App. P. 6(4), certain orders in estate matters are considered final and must be

appealed immediately. The parties to this appeal agree that the December 2, 2022 Order

on Motions falls within Rule 6(4) and is immediately appealable.

¶3 Under M. R. App. P. 4(5)(a)(i), a notice of appeal must be filed within 30 days from

the date of entry of the judgment or order from which the appeal is taken. However, Scott

filed his Notice of Appeal of the Order on Motions 75 days later, on February 15, 2023.

The Estate argues that Scott’s notice was untimely filed and this appeal must therefore be

dismissed.

¶4 Scott argues that his appeal was timely filed because the Estate moved for attorney

fees on December 16, 2022, but did not issue a notice of entry of judgment under

M. R. Civ. P. 77(d), and therefore the time to file an appeal of the Order on Motions did

not begin to run until the motion for attorney fees was deemed denied on February 15,

2023. Scott relies on Estate of Earl M. Pruyn v. Axmen Propane, Inc., 2008 MT 329, 346

Mont. 162, 194 P.3d 650. In that case, the district court entered summary judgment in

3 favor of Axmen on June 27, 2008, but neither party served notice of entry of judgment

pursuant to M. R. Civ. P. 77(d). The Estate of Pruyn (Pruyn) filed a notice of appeal in

this Court on July 25, 2008. Estate of Pruyn, ¶ 1. After Pruyn filed the notice of appeal,

Axmen moved for an award of attorney fees and costs in the district court and it further

moved to dismiss Pruyn’s appeal as premature. Estate of Pruyn, ¶ 2. Consistent with prior

case law, we treated Axmen’s motion for an award of attorney fees as a motion to alter or

amend the judgment pursuant to M. R. Civ. P. 59(g) because it was filed after entry of

judgment. Estate of Pruyn, ¶ 5. Noting that Rule 59(g) provided that a motion to alter or

amend the judgment is timely if served within 10 days after the service of notice of entry

of judgment, we determined that the time period had not yet begun to run and Axmen’s

district court motion for attorney fees was therefore timely because neither party had served

notice of entry of judgment pursuant to Rule 77(d). Estate of Pruyn, ¶ 7.

¶5 Thus under Scott’s reasoning, when the Estate moved for attorney fees on December

16, 2022, this was treated as a motion to alter or amend the judgment pursuant to Rule 59;

furthermore, neither party served notice of entry of judgment pursuant to Rule 77(d).

Therefore, by operation of law, the Estate’s motion for attorney fees was deemed denied

60 days from its filing date when the District Court did not rule upon the motion by

February 14, 2023.

¶6 The Estate argues that Estate of Pruyn is distinguishable because it involved an

appeal from a final order under M. R. App. P. 6(1) whereas this case is an appealable order

in an estate case under M. R. App. P. 6(4), which means the Order on Motions is

“considered final and must be appealed immediately.” The Estate argues that its motion

4 for attorney fees was not a motion to alter or amend judgment under M. R. Civ. P. 59, but

rather was a motion for attorney fees filed in accordance with M. R. Civ. P. 54(d)(2).

¶7 It appears Scott overlooked that Estate of Pruyn was decided under a previous

version of Rules 54 and 59. At that time, the attorney fee provision that is now in Rule

54(d)(2) did not exist. In In re Marriage of McDonald, 183 Mont. 312, 314-15, 599 P.2d

356, 358 (1979), and subsequent cases, we held that Rule 59(g), which provided in part

that a motion to alter or amend the judgment shall be served not later than 10 days after the

service of the notice of the entry of judgment, applies to petitions for costs and attorney

fees filed after entry of judgment. We applied this principle in Estate of Pruyn when we

decided that case in October 2008.

¶8 However, in March 2010, the Advisory Commission on Rules of Civil and

Appellate Procedure proposed an overhaul of the Montana Rules of Civil Procedure in line

with revisions that had been made to the Federal Rules of Civil Procedure. Among the

proposed revisions was the addition of Rule 54(d)(2)—a procedure for requesting attorney

fees via motion—that incorporated the federal provisions for attorney fees into the

Montana Rules. This revision was included in the package of revisions adopted by this

Court. In the Matter of the Montana Rules of Civil Procedure, No. AF 07-0157, Order

(Mont. Apr. 26, 2011). Thus, the case law that deemed a motion for an award of attorney

fees filed after entry of judgment as a motion to alter or amend the judgment has been

superseded by subsequent amendments to the Montana Rules of Civil Procedure.

¶9 The question in the present case then becomes whether Scott was required to appeal

the District Court’s Order on Motions within 30 days of its entry or whether he needed to

5 await the court’s disposition of the Estate’s motion for attorney fees. M. R. App. P.

4(5)(a)(iii) provides in part that a notice of appeal is premature if it is filed prior to the

district court’s ruling on any necessary determination of the amount of costs and attorney

fees awarded. However, the Estate points out that appeals proceeding under M. R. App. P.

6(4) need not be reduced to a “final judgment” as defined by M. R. App. P. 4(1)(a), and

Rule 4(1)(a) provides that a final judgment includes “any necessary determination of the

amount of costs and attorney fees awarded[.]” It further points out that M. R. App. P.

4(5)(a)(i) provides that a notice of appeal shall be filed within 30 days from the date of

entry of the judgment or order from which the appeal is taken, and argues that this gave

Scott 30 days from December 2, 2022, in which to file his Notice of Appeal. (Emphasis

the Estate’s.) The Estate alleges that a request for attorney fees is irrelevant to when the

time begins to run to appeal an order subject to M. R. App. P. 6(4) as this provision only

applies to final judgments subject to review on appeal pursuant to M. R. App. P. 6(1).

¶10 However, M. R. App. P. 6(3) also provides that certain types of orders may also be

appealed prior to a final judgment so long as the order is the court’s final decision on the

referenced matter. In In re Marriage of Weigand, 2021 MT 128, 404 Mont. 223, 486 P.3d

1272, Appellant Cattaneo appealed from a district court order under M. R. App. P. 6(3)(j),

which provides that a party may appeal from a contempt order or judgment in a family law

proceeding that meets certain criteria even when that order is not a “final judgment” as

defined by M. R. App. P. 4(1)(a). Appellee Weigand moved to dismiss the appeal, arguing

that the order at issue was not appealable under M. R. App. P. 6(3) because the issue of

attorney fees and costs remained unsettled and thus it was not “the court’s final decision

6 on the referenced matter” as the Rule requires. Marriage of Weigand, ¶ 8. We denied the

motion to dismiss because at that time, M. R. Civ. P. 58(e) provided, in part, that a notice

of appeal prematurely filed before the disposition of a motion for attorney fees or costs

would be treated as filed on the date upon which the trial court ruled upon the motion for

attorney fees or costs. Marriage of Weigand, ¶ 12. In other words, we recognized that

Cattaneo’s appeal of an order under M. R. App. P. 6(3) was prematurely filed because the

trial court had not yet disposed of the related motion for attorney fees and costs. Thus, in

this case, it would be inconsistent with our reasoning in Marriage of Weigand to conclude

that Scott’s motion was untimely because he waited to appeal due to a pending motion for

attorney fees and costs.

¶11 We are further cognizant of the fact that Scott’s belief that the motion for attorney

fees and costs has been deemed denied may be incorrect as it is not a motion to alter or

amend judgment under M. R. Civ. P. 59(e) and the motion may in fact remain pending

ruling in the District Court. M. R. App. P. 4(5)(a)(iii) provides:

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 Rule 58(e), M. R. Civ. P.

¶12 This Court frequently exercises its discretion and dismisses premature appeals sua

sponte under this Rule. However, we decline to do so in the present case where the status

of the District Court motion is uncertain and where delaying the resolution of this matter

on appeal would run counter to the purpose in designating these types of orders

7 immediately appealable in estate matters. Should it be necessary to delay disposition of

this appeal until such ruling is made in the District Court, the parties may bring that to our

attention as necessary.

¶13 IT IS THEREFORE ORDERED that the motion to dismiss is DENIED.

DATED this 21st day of March, 2023.

/S/ LAURIE McKINNON

We Concur:

/S/ MIKE McGRATH /S/ JAMES JEREMIAH SHEA /S/ INGRID GUSTAFSON /S/ JIM RICE