Moody v. Northland Royalty Co., 97-127

• Decision Date: 12 December 1997
• Docket Number: No. 97-127,97-127
• Parties: James MOODY, Plaintiff and Appellant, v. NORTHLAND ROYALTY CO., Defendant and Respondent.
• Court: Montana Supreme Court

Page 18

951 P.2d 18

286 Mont. 89

James MOODY, Plaintiff and Appellant, v. NORTHLAND ROYALTY CO., Defendant and Respondent.

No. 97-127.

Supreme Court of Montana.

Submitted on Briefs June 12, 1997.

Decided Dec. 12, 1997.

Jeff Lynch, Lynch Law Firm, Great Falls, for Plaintiff and Appellant.

Robert J. Emmons, Emmons & Sullivan, Great Falls, for Defendant and Respondent.

HUNT, Justice.

This is an appeal from the Ninth Judicial District Court, Glacier County. On June 6, 1996, the District Court entered an order dismissing Appellant James Moody's (Appellant) second amended complaint with prejudice. On February 4, 1997, Appellant filed a notice of entry of judgment. From this, Appellant appeals. We reverse and remand with instructions.

The issues raised on appeal are as follows:

1. Does this Court have appellate jurisdiction over this case?

2. Did the District Court err under Rule 2, Uniform District Court Rules, when it granted Respondent's motion to dismiss?

BACKGROUND

The procedural history of this case is convoluted. On March 23, 1995, Appellant filed a complaint against Respondent Northland Royalty Co. (Respondent), alleging he had been wrongfully discharged from his employment. Appellant filed a second amended complaint on April 16, 1996. Respondent moved to dismiss the action on May 6, 1996 On June 6, 1996, the District Court granted Respondent's motion and dismissed the entire complaint with prejudice. It treated Respondent's "answer" as Respondent's brief in support of the motion to dismiss and further noted that Appellant had not responded to the motion. Respondent did not file a notice of entry of judgment.

                but it did not file a supporting brief that same day.  Four days later, on May 10, 1996, Respondent filed a two-page document entitled "Respondent's Answer To Appellant's Second Amended Complaint."   Appellant did not respond to Respondent's motion
                

On June 10, 1996, Appellant filed a motion for reconsideration, requesting that the court either rescind its order or allow Appellant to respond to Respondent's motion. Subsequently, on July 1, 1996, before the District Court had ruled on the motion, Appellant filed a notice of appeal. On January 9, 1997, this Court dismissed the appeal without prejudice. We held that the motion for reconsideration was actually a Rule 59(g), M.R.Civ.P., motion to alter or amend the judgment according to our decision in Miller v. Herbert (1995), 272 Mont. 132, 135-36, 900 P.2d 273, 275. Once Appellant had filed the Rule 59(g) motion, he could not properly appeal until the District Court had either denied the motion or until the motion was "deemed denied" upon failure of the court to rule within 60 days. Appellant's notice of appeal, filed prior to the disposal of that motion, was thus premature and had no effect.

We further noted that although Rule 5(a)(4), M.R.App.P., subsequently amended effective October 1, 1997, provides that an appellant may refile a notice of appeal after the Rule 59(g) motion has been denied or "deemed denied," Appellant could not file such an appeal, because the appeal time had long since run. However, because the Respondent had never filed a notice of entry of judgment with respect to the District Court's dismissal order as required by Rule 77(d), M.R.Civ.P., the time limit for appealing that order had neither begun nor ended. We thus stated that Appellant could refile a notice of appeal.

Respondent still failed to file a notice of entry of judgment. On February 4, 1997, Appellant himself filed a notice of entry of judgment, and filed another notice of appeal. On May 6, 1997, the District Court entered its judgment, dismissing the case with prejudice, and on May 7, 1997, Respondent served a notice of entry of judgment.

ISSUE ONE

Does this Court have appellate jurisdiction over this case?

In our January 1997 order dismissing Appellant's first appeal as premature, we stated that because Respondent had never filed a notice of entry of judgment as required by Rule 77(d), M.R.Civ.P., Appellant could "therefore still properly and timely refile with this Court a notice of appeal of the District Court's dismissal order."

Respondent argues our order was incorrect, because a notice of entry of judgment is never required when a Rule 59(g), M.R.Civ.P., motion has been filed. He contends that the appeal time ran from the date the Rule 59(g) motion was deemed denied. Because no notice of appeal was timely filed after the disposal of that motion, this Court lacks appellate jurisdiction.

We need not resolve the Respondent's argument, because our January 1997 order is law of the case, even if incorrect. The law of the case doctrine "expresses the practice of courts generally to refuse to reopen what has been decided. It expresses the rule that the final judgment of the highest court is the final determination of the parties' rights." Scott v. Scott (1997), 283 Mont. 169, ----, 939 P.2d 998, 1001-02, 54 St.Rep. 548, 550 (citing Fiscus v. Beartooth Electric Cooperative, Inc. (1979), 180 Mont. 434, 436, 591 P.2d 196, 197). We have described the doctrine as follows:

The rule is well established and long adhered to in this state that where upon an appeal, the Supreme Court, in deciding a case presented states in its opinion a principle or rule of law necessary to the decision, such pronouncement becomes the law of the case, and must be adhered to throughout its subsequent progress, both Scott, 939 P.2d at 1002 (citing Fiscus, 591 P.2d at 197). Further, "[w]hether the opinion is right or wrong, it is the law of the case ... and is binding upon us." Fiscus, 591 P.2d at 198 (citation omitted).

in the trial court and upon subsequent appeal.

Our prior order stated that Appellant could still timely refile a notice of appeal, which he promptly did on February 4, 1997. That order is law of the case, and we will not revisit it.

Respondent next contends that this Court lacks jurisdiction because Appellant did not pay the $45.00 filing fee required by § 25-1-201(1)(c), MCA, for entry of judgment before he filed the notice of entry of judgment on February 4, 1997. It argues that because Appellant did not pay a fee, no judgment was entered at that time. Therefore, the February 1997 notice of entry of judgment had no legal effect. Respondent points out that judgment was not actually entered until May 1997, when Respondent itself paid the filing fee for entry of judgment and also served a notice of entry of judgment. Accordingly, Appellant's notice of appeal, filed February 4, 1997, was premature.

We do not agree with Respondent's argument. First, the filing fee is required on entry of judgment from the prevailing party, which in this case was the Respondent and not the Appellant. Section 25-1-201(1)(c), MCA.

Second, this Court has jurisdiction to hear appeals that are filed prior to the entry of judgment appealed from. Rule 5(a)(2), M.R.App.P., provides:

[A] notice of appeal filed after the announcement of a decision or order but prior to the time that the appeal period begins to run under subsection (a)(1) of this Rule 5, i.e., before the entry of the order or judgment appealed from or the service of the notice of entry of judgment as the case may be, shall be treated as filed after such entry and on the day thereof.

Thus, even though judgment was not entered until May 6, 1997, after Appellant had already filed the notice of appeal, we treat the notice as though filed "after such entry and on the day thereof." Rule 5(a)(2), M.R.App.P.

Furthermore, as this Court has already held, we will not revisit whether in fact Appellant was entitled to refile a notice of appeal on the basis that no notice of entry of judgment had been entered as of January 1997.

ISSUE TWO

Did the District Court err under Rule 2, Uniform District Court Rules, when it granted Respondent's motion to dismiss?

The District Court dismissed Appellant's second amended complaint on the grounds that Appellant had not responded to Respondent's motion to dismiss in the time permitted by Rule 2, Unif.Dist.Ct.R., and that therefore the motion was deemed to be well-taken. The District Court did not address the merits of Respondent's motion.

Appellant raises two arguments in support of his contention that the District Court erred. Both center on the parties' respective obligations to file briefs in connection with the motion to dismiss, and both involve Rule 2, Unif.Dist.Ct.R., which provides in part:

(a) Upon filing a motion or within five days thereafter, the moving party shall file a brief. The brief may be accompanied by appropriate supporting documents. Within ten days thereafter the adverse party shall file an answer brief which also may be accompanied by appropriate supporting documents. Within ten days thereafter, movant may file a reply brief or other appropriate responsive documents.

(b) Failure to file briefs. Failure to file briefs may subject the motion to summary ruling. Failure to file a brief within five days by the moving party shall be deemed an admission that the motion is without merit. Failure to file an answer brief by he adverse party within ten days shall be deemed an admission that the motion is well taken. Reply briefs by movant are optional, and failure to file will not subject a motion to summary ruling.

We have interpreted this rule as allowing the lower court discretion to either deny or grant unsupported or unanswered motions. In re Marriage of Grounds (1993), 256 Mont. 397, 403, 846 P.2d 1034, 1038 (unsupported motion); Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 1289 (unanswered motion). Hence, we will not overturn the District Court's decision absent an abuse of discretion. However, the question as to whether a "brief" has been filed within the meaning of Rule 2, Unif.Dist.Ct.R., presents a question of law. This Court reviews issues of law to determine whether the lower court's application or interpretation of the law is correct....