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Mines Management, Inc. v. Fus

Supreme Court of Montana

December 17, 2013

MINES MANAGEMENT, INC., NEWHI, INC., and MONTANORE MINERALS CORP., Plaintiffs and Appellees,
v.
TRACIE FUS, LUCILLE PENNY, DESIREE HANN, WALTER LINDSEY, MERLIN ROGERS, ROCKY BAKIE, LOUISE VOVES, FRANK WALL, ARNOLD BAKIE and LIBBY CREEK VENTURES, LLC, Defendants and Appellants.

ORDER

Appellants Tracie Fus, Lucille Penny, Desiree Hann, Merlin Rogers, Rocky Bakie, Louise Voves and Libby Creek Ventures (collectively Appellants) have moved to file an out of time appeal. Appellants argue that the District Court impermissibly denied their motion for entry of judgment on March 12, 2013, due to "treat[ment of] the order enforcing the settlement [on January 2, 2011, ] as having required the payment of $30, 000." Appellees Mines Management Inc., Newhi, Inc., and Montanore Minerals Corp. (collectively MMC) contest the motion as not ripe for review, as having failed to fulfill the prerequisites of M. R. App. 4(6), and as untimely.

The District Court filed its "[o]rders [o]n [p]ending [m]otions" on March 12, 2013. One of these orders enforced a settlement agreement and another granted an attendant injunction that is the subject of the companion case to this appeal, Mines Management, v. Fus, et ad., cause number DA 13-0240. The settlement agreement "require[s] $30, 000.00 to be paid to all the defendants." The District Court apparently has not yet entered a judgment enforcing that payment. The final line of the District Court's March 12, 2013, orders on pending motions directs "[t]he appropriate parties to prepare judgments." The updated District Court case register reflects that no judgments have been entered.

The Appellants petitioned for the entry of judgment with regard to the $30, 000.00, in question on August 8, 2013. MMC filed a brief in opposition on August 22, 2013. Appellants filed their reply brief on September 11, 2013. The District Court apparently took no action on appellants' motion or MMC's opposition. The District Court has not yet entered any final judgment with regard to the $30, 000.00 in question.

Appellants argue that because the District Court did not rule on appellant's motion, the motion was "deemed denied" by operation of law on November 11, 2013. See M. R. Civ. P. 59(f). Appellants concluded that they had authority to appeal "from a 'deemed denied' motion." M. R. App. P. 6(3)(b). The Appellants' notice of appeal followed on November 15, 2013. MMC responds that the Appellants' motion is out of time because the sixty day deadline to file the notice of appeal began on the date that Appellants filed their motion. MMC argues that the motion would have been "deemed denied" on October 7, 2013, based upon the "clear language of the applicable rule." MMC concludes that the Appellants' deadline to file a notice of appeal would have expired on November 6, 2013.

Both parties' arguments are inapposite because the District Court has not yet entered any final judgment that pertains to the $30, 000.00 in question. M. R. Civ. P. 59, provides only for a new trial, alteration of a judgment, or amendment of a judgment. It does not provide for the entry of judgment. M. R. Civ. P. 59. Said another way, M. R. Civ. P. 59, cannot apply without a judgment to alter or amend. The Appellants' motion for entry of judgment under M. R. Civ. P. 59, could not produce correctly an entry of judgment. Questions with regard to the $30, 000.00 award are not ripe for appellate review without a judgment.

M. R. App. P. 6(6), would allow this Court to review an "an otherwise interlocutory order or judgment" pursuant to the provisions for a party to seek entry of judgment under M. R. Civ. P. 54(b). The Appellants may seek entry of judgment with regard to the $30, 000.00 in question under M. R. Civ. P. 54(b), a judgment over which this Court could exercise appellate review if the requirements of M. R. App. P. 6(6) are satisfied.

Therefore,

IT IS ORDERED that the motion to file an out of time appeal is DENIED.


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