Smith v. Kmon

• Court: Montana Supreme Court
• Decided: March 31, 2020
• Docket: DA 20-0106
• Status: Unpublished

Opinion

ORIGINAL 03/31/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0106

DA 20-0106

TERRY P. SMITH,MELISSA J. SMITH, FILED and CASEY P. SMITH, MAR 3 1 2020 Bovven Greenwood Plaintiffs, Counter-Defendants, Clerk of Supreme Court State nf Montana and Appellants, ORDER v.

MATTHEW S. KMON,LLC,

Defendant, Counter-Plaintiff, and Appellee.

On February 20,2020,self-represented Appellants Terry P. Smith, Melissa J. Smith, and Casey P. Smith (collectively, the Smiths) filed a Notice of Appeal of a January 23, 2020 Meagher County District Court Order granting the motion for summary judgment to the underlying Defendant, Matthew S. Kmon,LLC (hereinafter Kmon). Through counsel, Kmon has filed a motion to dismiss appeal. Kmon provides that thisjudgment on appeal is not final. M.R. App. P.4(1). Kmon states that he contacted all of the Smiths and that Melissa objects. M. R. App. P. 16(1). He summarizes the underlying civil proceeding concerning the Smiths' alleged prescriptive easement across Kmon's real property to access mining claims. Kmon further states that, when granting summary judgment,the District Court also dismissed the Smiths' complaint and imposed reasonable attorney's fees and costs. He highlights that the court has not had the opportunity to issue an order addressing the pending fees and costs because the Smiths sought an appeal prematurely. Kmon points to the Montana Rules of Appellate Procedure and case law that the court must first determine the amount of costs imposed prior to an appeal. M. R. App. P. 6(1); Marez v. Marshall, 2014 MT 333, ¶¶ 38-40, 377 Mont. 304, 340 P.3d 520. Kmon requests that this Court dismiss the appeal to allow for such accounting and offers that the Smiths may seek an appeal ofthat final decision. Upon review of Kmon's motion and the judgment on appeal, we conclude that this appeal is not from a final judgment and is improperly before this Court. M. R. App. P. 6(1). As Kmon acknowledges, the Smiths may seek an appeal of the final judgment that includes the imposition of attomey's fees and costs as determined by the District Court. Accordingly, IT IS ORDERED that Kmon's Motion to Dismiss Appeal is GRANTED and this appeal is DISMISSED without prejudice. The Clerk of the Supreme Court is directed to close this case as of the date of this Order and to return the record to the Meagher County District Court. The Clerk also is directed to provide a copy of this Order to counsel of record and to all parties. DATED this 31 day of March, 2020.

Chief Justice

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