Moore v. Frost, DA 20-0439

Docket NºDA 20-0439
Citation403 Mont. 483, 483 P.3d 1090, 2021 MT 74
Case DateMarch 30, 2021
CourtUnited States State Supreme Court of Montana

403 Mont. 483
483 P.3d 1090
2021 MT 74

Brian MOORE, Plaintiff and Appellant,
Kevin R. FROST, Defendant and Appellee.

DA 20-0439

Supreme Court of Montana.

Submitted on Briefs: February 24, 2021
Decided: March 30, 2021

For Appellant: Brian Moore, Self-represented, Hamilton, Montana

For Appellee: Ross D. Tillman, Tyler M. Stockton, Boone Karlberg P.C., Missoula, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

483 P.3d 1092
403 Mont. 485

¶1 Plaintiff and Appellant Brian Moore (Moore) appeals from the Order Re: Post-Judgment Motions issued by the Twenty-First Judicial District Court, Ravalli County, on August 5, 2020, which denied both his M. R. Civ. P. 60(b) motion for relief and M. R. Civ. P. 62.1 motion for an indicative ruling.

¶2 We restate the issues on appeal as follows:

1. Whether the District Court correctly determined it lacked jurisdiction to hear Moore's M. R. Civ. P. 60(b) motion.

2. Whether the District Court manifestly abused its discretion by denying Moore's M. R. Civ. P. 62.1 motion.

¶3 We affirm.


¶4 This case arises from Moore's allegation that Defendant and Appellee Kevin Frost (Frost) entered Moore's property in 2015 and shot his boat with a rifle. In 2018, Moore filed a lawsuit alleging several claims against Frost, which ultimately led to the District Court granting summary judgment in favor of Frost. Moore then appealed the summary judgment order to this Court in 2019. We affirmed the District Court. Moore v. Frost , No. DA 19-0647, 2020 MT 245N, 2020 WL 5792586, 2020 Mont. LEXIS 2376. A more complete background on the case can be found in our previous opinion. See generally Moore , No. DA 19-0647, 2020 MT 245N, ¶¶ 3-12, 2020 WL 5792586, 2020 Mont. LEXIS 2376.

¶5 While Moore's appeal was pending in this Court, Moore filed two motions in the District Court on June 11, 2020: Plaintiff's Motion for Relief from Judgement or Order Under Rule 60 (B),(2) [sic], and Plaintiff's Motion for Rule 62.1, F. R. Civ. P. Indicative Rule on a Motion for Relief that is Barred by a Pending Appeal. In his motions, Moore alleged he discovered "new evidence" Frost shot his boat after Moore's daughter, Jamie Moore, told him her friend "Rob," Robert Boucher, told her: Boucher had given Frost a rifle and bullets prior to the 2015 boat shooting, that Frost had been planning to shoot Moore's boat prior to that time, and that Frost came to "Peete ‘up Mill Creek’ " after the shooting and said he "did it." On August 5, 2020, the District Court denied both motions, finding it lacked jurisdiction over the M. R. Civ. P. 60(b) motion due to Moore's appeal to this Court and denying Moore's Rule 62.1 motion. Moore appeals.

403 Mont. 486


¶6 A district court's determination on the question of jurisdiction is a conclusion of law which we review de novo to determine whether the court's interpretation of the law is correct. D.R. Four Beat All., LLC v. Sierra Prod. Co. , 2009 MT 319, ¶ 22, 352 Mont. 435, 218 P.3d 827 (citing Bunch v. Lancair Int'l, Inc. , 2009 MT 29, ¶ 15, 349 Mont. 144, 202 P.3d 784 ).

¶7 We have not previously articulated the standard of review for the denial of an M. R. Civ. P. 62.1 motion. Because M. R. Civ. P. 62.1(a)(2) and Fed. R. Civ. P. 62.1(a)(2) are identical, "the interpretation of the federal rules [has] persuasive application to the interpretation of the state rules." Watchtower Bible & Tract Soc'y of N.Y., Inc. v. Mont. Twentieth Judicial Dist. Court , 2021 MT 13, ¶ 13 n.3, 403 Mont. 57, 479 P.3d 946 (quoting U.S. Fid. & Guar. Co. v. Rodgers , 267 Mont. 178, 181-82, 882 P.2d 1037, 1039 (1994) ); see also In re Marriage of Remitz , 2018 MT 298, ¶ 11 n.2, 393 Mont. 423, 431 P.3d 338. In memorandum opinions, the Ninth Circuit has wavered on whether the denial of a Rule 62.1 motion is an appealable order, previously stating it was "not

483 P.3d 1093

convinced" that a denial of a Fed. R. Civ. P. 62.1 motion for an indicative ruling is an appealable final order, Holloway v. Horn , 701 F. App'x 608, 610 (9th Cir. 2017), though more recently determining such a denial, when based on newly discovered evidence, is reviewed for an abuse of discretion. Prosterman v. Am. Airlines, Inc. , 747 F. App'x 458, 462 (9th Cir. 2018) ; see also Midland Innovations, NV v. Wen Wang , 815 F. App'x 200, 201 (9th Cir. 2020) (explaining the denial of a Rule 62.1 motion is reviewed for an abuse of discretion as it serves as a denial of a Rule 60(b) motion on the merits). While these decisions are not binding on this Court, we agree the denial of a Rule 62.1 motion should be reviewed as though it serves as a denial of a Rule 60(b) motion on the merits.1 Accordingly, we will review the denial of a motion for an indicative ruling based on a claim of newly discovered evidence for a manifest abuse of discretion. Essex Ins. Co. v. Moose's Saloon, Inc. , 2007 MT 202, ¶ 16, 338 Mont. 423, 166 P.3d 451 (citation omitted).

403 Mont. 487


¶8 1. Whether the District Court correctly determined it lacked jurisdiction to hear Moore's M. R. Civ. P. 60(b) motion.

¶9 After the District Court granted Frost summary judgment in 2019, Moore filed a Notice of Appeal. When a notice of appeal is filed from a district court order, jurisdiction passes to this Court. Powder River Cty. v. State , 2002 MT 259, ¶ 27, 312 Mont. 198, 60 P.3d 357 (citing Powers Mfg. Co. v. Leon Jacobs Enters. , 216 Mont. 407, 411, 701 P.2d 1377, 1380 (1985) ). After the notice of appeal has been filed, "the district court retains jurisdiction only to correct clerical errors and jurisdiction over ancillary matters, as well as some jurisdiction over matters involving an appeal such as undertaking of costs, stay of judgment, and matters involving transcript on appeal." Boland v. Boland (In re Estate of Boland) , 2019 MT 236, ¶ 46, 397 Mont. 319, 450 P.3d 849 (citing Powers Mfg. Co. , 216 Mont. at 411-12, 701 P.2d at 1380 ). As such, the District...

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