Nye Meyer v. Hando

• Court: Montana Supreme Court
• Decided: December 11, 1990
• Docket: 90-402
• Status: Published

Opinion

No. 90-402

IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

NYE & MEYER, P.C., plaintiff and ~espondent, v. EMMA JEAN HAND01 ~efendantand ~ppellant.

APPEAL FROM: District Court of the Thirteenth Judicial District, In and for the County of Yellowstone, The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD: For Appellant: Don Edgar Burris, Esq., Billings, Montana For Respondent: Jerrold L. Nye, Esq., Nye & Meyer, P.C., Billings, Montana

Submitted on Briefs: November 8, 1990 Decided: December 11, 1990 Filed: Chief Justice J. A. Turnage delivered the Opinion of the Court. Emma Jean Hando appeals from an order of the District Court of the Thirteenth Judicial ~istrict, Yellowstone County. That order, entered pursuant to the parties1 stipulation, dismissed this action for lack of subject matter jurisdiction. Nye & Meyer, P.C., brought this action to recover attorney fees for representing Hando in a claim for Social Security disability benefits. Hando counterclaimed for intentional infliction of emotional distress, abuse of process, and malprac- tice. Both parties moved for summary judgment. At a May 30, 1990, hearing, the parties orally stipulated that this matter was dismissed for lack of subject matter jurisdiction. The court so ordered. Hando then acquired new counsel who attempted to have the order of dismissal reconsidered and now appeals to this Court arguing that the stipulation is not binding and that the case

should be reinstated. Lack of subject matter jurisdiction may be raised at any time. In re Marriage of Cox (1987), 226 Mont. 176, 179, 736 P.2d 97, 99. However, it does not follow that the presence of subject matter jurisdiction may be re-claimed following a stipulation that it is absent and an order of dismissal. We hold that Hando is bound by

her stipulation and the order dismissing this case. Both parties1 requests for sanctions are denied. Affirmed. Let remittitur issue forthwith. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1988 Internal Operating Rules, this decision shall not be cited as

precedent and shall be published by its filing as a public document with the Clerk of this Court and by a report of its result to the West Publishing Company.

Chief Justice 4 We concur: