September 11, 2013
DIANE GUETHLEIN, Plaintiff and Appellee,
FAMILY INN, Defendant and Appellant.
Appellee Diane Guethlein, by counsel, has filed a motion to dismiss the appeal of defendant Family Inn (the Inn). The Inn, by counsel, has filed a memorandum in opposition to Guethlein's motion. Guethlein seeks to dismiss the Inn's appeal because the Inn has failed to file an undertaking in this case, as required pursuant to M. R. App. P. 16(1), and §§ 25-33-201(1) and -205, MCA.
Judgment was entered in favor of Guethlein and against the Inn in the Missoula County Justice Court in the sum of $7, 255.27, on October 31, 2012. Subsequently, the judgment was satisfied in its entirety by the Inn, and a satisfaction of judgment was filed by counsel for Guethlein on December 7, 2012. The Inn appealed the judgment to District Court, but did not file any undertaking in Justice Court as required under § 25-33-201(1), MCA, nor did it make a deposit of money in lieu of the undertaking, as permitted under § 25-33-205, MCA. In light of this failure, Guethlein filed a motion to dismiss the appeal in District Court. Following briefing, the District Court dismissed the Inn's appeal. The Inn now appeals to this Court from the District Court's Amended Order of Dismissal of Appeal and Order of Remand, entered June 17, 2013.
In her motion to dismiss this appeal, Guethlein cites § 25-33-201(1), MCA, which provides that "an appeal from a justice's or city court is not effectual for any purpose unless an undertaking is filed, with two or more sureties, in a sum equal to twice the amount of the judgment, including costs, when the judgment is for the payment of money." Under the statute, she argues, the Inn was obligated to post an undertaking in the sum of $14, 510.54. In the alternative, she concedes that the Inn could have deposited the amount of the judgment plus $300 in the court below pursuant to § 25-33-205, MCA, which would serve as the equivalent to the filing of the undertaking. This would require a deposit of $7, 555.27. Because neither alternative was invoked by the Inn, she maintains this appeal must be dismissed.
In response, the Inn wryly notes that because it is appealing the precise issue upon which Guethlein premises her motion to dismiss the appeal, resolution of the issue on appeal is appropriate, and dismissal is not. Further, the Inn points out that it has already satisfied the judgment, and therefore the requirement that an undertaking be posted is obviated. Finally, the Inn directs our attention to Rule 24 of the Montana Justice and City Court Rules of Civil Procedure, which provides that "[a]ppeals from a justice or city court to a district court are governed by Title 25, chapter 33, except that the undertaking on appeal, when the judgment is for the payment of money, may be in the form of... a deposit of money in a sum equal to the amount of the judgment, including costs." Because Guethlein was able to execute on the judgment, costs included, the Inn argues that a "deposit" has in fact been made that satisfies Rule 24.
Although it is somewhat puzzling that the Inn has fully satisfied the judgment and yet is pursuing an appeal, we conclude that dismissal of the Inn's appeal is not warranted. As we have noted previously, dismissal of an appeal is an extreme remedy. Roberts v. Nickey, 2002 MT 37,
¶ 13, 308 Mont. 335, 43 P.3d 263; Nelson v. Driscoll, 285 Mont. 355, 361, 948 P.2d 256, 260 (1997). Therefore,
IT IS HEREBY ORDERED that Guethlein's motion to dismiss this appeal is DENIED. The Clerk of this Court is directed to provide a copy of this Order to all counsel of record.