August 6, 2013
L. CRAIG SEMENZA, Plaintiff and Appellant,
HOLLISTER A. LARSON, et al, and HOLLY JEAN LARSON, both individually and collectively d/b/a FIRST & MAIN BUILDING, Defendants and Appellees.
Plaintiff and Appellant L. Craig Semenza, appearing as a self-represented litigant, appeals from the District Court's "Order and Rationale on Cross Motions for Summary Judgment, " filed in the District Court on July 2, 2012 (Order). The defendants Hollister and Holly Larson, d/b/a First & Main Building (hereinafter Larsons) have filed an answer brief, and Semenza has filed his reply. For the reasons set forth below, we must dismiss Semenza's appeal without prejudice.
The Order from which Semenza appeals denied Semenza's motion for partial summary judgment and granted in part Larsons' motion for summary judgment. Specifically, the court denied Semenza's request for partial summary judgment that as a matter of law, he was entitled to a certain amount of overtime pay, interest, and penalties. Further, the court entered summary judgment in favor of the Larsons on Semenza's cause of action for wrongful discharge, and granted Holly Jean Larson's motion for summary judgment with respect to Semenza's claim against her for unpaid and overtime wages. In addition, the court entered summary judgment for the defendants on plaintiffs claim for abuse of process. However, the court's Order did not constitute a final judgment against Semenza on all of his claims.
While the court determined that on the record before it, Semenza was not entitled to judgment as a matter of law against Hollister Larson for unpaid overtime wages, interest, and penalties, the court did not enter summary judgment on this claim in favor of Hollister Larson. The denial of a motion for summary judgment does not constitute a judgment on the merits of the claim; rather, the denial simply means that the case must be presented at trial. Therefore, Semenza's wage claim against Hollister Larson remains pending in the District Court. In addition, the District Court concluded that Semenza's cause of action for malicious prosecution required "evidence which must be presented to a jury, not to the court on a motion for summary judgment." Finally, the District Court did not strike or otherwise rule upon Semenza's claim for punitive damages. Accordingly, no final judgment has been entered on Semenza's wage claim against Hollister Larson, his cause of action for malicious prosecution, or his claim for punitive damages.
M. R. App. P. 6(5)(a) provides that in cases involving multiple claims for relief, an order or judgment which adjudicates fewer than all claims as to all parties, and which leaves matters in the litigation undetermined, is not appealable. This provision is subject to M. R. App. P. 6(6), which permits a district court to specifically direct the entry of final judgment as to an otherwise interlocutory order or judgment, provided the court complies with the provisions of that rule, as well as M. R. Civ. P. 54(b). Here, because three of Semenza's multiple claims for relief are still outstanding, and because the District Court has not certified its judgment as final for purposes of appeal, Semenza's appeal is premature.
We have consistently held pursuant to the foregoing rules that interlocutory appeals shall not be considered by this Court. Farmers Union Mut. Ins. Co. v. Bodell, 2008 MT 363, ¶¶ 26 and 28, 346 Mont. 414, 197 P.3d 913 (denial of a motion for summary judgment is not a final order or judgment); In the Matter of the Litigation Relating to the Riot of Sept. 22 1991, at the Maximum Security Unit of the Montana State Prison, 283 Mont. 277, 280-81, 939 P.2d 1013, 1015-16 (1997) (orders denying summary judgment are interlocutory and are not appealable). See also Trombley v. Mann, 2001 MT 154, ¶¶ 6-7, 9-10, 306 Mont. 80, 30 P.3d 355.
For the foregoing reasons,
IT IS HEREBY ORDERED that Semenza's appeal is DISMISSED WITHOUT PREJUDICE to refiling, once a final judgment has been entered in the District Court on all claims for relief raised by Semenza, or upon the entry by the District Court of a proper order certifying the judgment as final for purposes of appeal.
The Clerk is directed to provide notice of this Order to counsel of record, to Semenza, personally, and to the Montana Eleventh Judicial District Court (the Hon. Stewart E. Sadler, formerly presiding), under Cause No. DV-09-1189C.