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In re Rules of Appellate Procedure

Supreme Court of Montana

February 5, 2014

IN THE MATTER OF THE RULES OF APPELLATE PROCEDURE

ORDER

MIKE McGRATH JUDGE

Set forth below are proposed revisions to the Montana Rules of Appellate Procedure. Mainly, the proposed revisions constitute what could be described as housekeeping matters. Proposed revisions to M. R. App. P. 7, on mandatory appellate alternative dispute resolution, are the most substantive proposed changes.

The Court proposes to adopt changes to Rules 2, 4, 5, 7, 12, 13, 17, and 20. Those rules are set forth below, with language proposed to be deleted interlineated and language proposed to be added, highlighted:

Rule 2. Parties - amicus curiae - captions.

(1) The following are parties to proceedings before this court and shall be referred to as such in the caption of and signature block of documents filed with this court:

(a) Appellant. The party who appeals from and usually seeks reversal of a decision in the district court. A party who files a cross-appeal shall be referred to as a cross-appellant.
(b) Appellee: The party who usually responds to the appeal, seeking affirmance of the district court. A party who responds to a cross-appeal shall be referred to as a cross-appellee.
(c) Petitioner: A party who seeks relief by way of an original proceeding or a petition for an extraordinary writ.
(d) Respondent: The party against whom a petition is filed.
(e) Relator: The real party in interest in whose name the government brings an action or proceeding before this court.
(f) Intervenor: One who, because of an asserted interest in the outcome, has voluntarily entered into an action or who, on motion, is granted leave to enter a proceeding before this court, despite not being named originally as a party.

(2)Amicus curiae. One who is not a party, but who, upon invitation or leave of the supreme court granted on motion, files a brief in a pending proceeding because of a strong interest in the subject matter.

(3) Counsel - parties not represented by counsel. When these rules require an act by or upon a party, the act shall be performed by or upon counsel for the party or by or upon a party not represented by counsel.

(4) Captions. The caption of an appeal shall list the parties in the same order as the caption used in the district court, with the addition of the designations "appellant" and "appellee" as appropriate. On motion of a party, or on the court's own motion, the caption of a pending cause may be modified to more accurately reflect the actual alignment or status of a party. Upon entry of an order correcting the caption, the cause shall proceed under that caption thereafter.

Rule 4. How and when to take an appeal or cross-appeal.

(1) Judgments defined.

(a) Final judgment. A final judgment conclusively determines the rights of the parties and settles all claims in controversy in an action or proceeding, including any necessary determination of the amount of costs and attorney fees awarded or sanction imposed.
(b) Interlocutory judgment. An interlocutory judgment is an order or decree that determines a preliminary or subordinate question or issue and which enables the court to render a final judgment but does not finally decide the cause.

(2) How commenced.

(a) An appeal is taken by timely filing a notice of appeal in accordance with rule 10(1) of these rules in the office of the clerk of the supreme court substantially complying with Form 1 in the Appendix of Forms, along with payment of the filing fee prescribed by statute or the affidavit to proceed without advance payment of fees prescribed in the Appendix of Forms as Form 3. A copy of the notice of appeal and a copy of the judgment, decision(s), or order(s) from which appeal is taken shall be contemporaneously served for filing in the office of the clerk of the district court and served on all parties.
(b) A cross-appeal is taken by timely filing a notice of cross-appeal in accordance with rule 10(1) of these rules in the office of the clerk of the supreme court substantially complying with Form 2 in the Appendix of Forms, along with the filing fee prescribed by statute or the affidavit to proceed without advance payment of fees prescribed in the Appendix of Forms as Form 3. A copy of the notice of cross-appeal, together with a copy of the judgment, decision(s), or order(s) from which appeal is taken, shall be contemporaneously served for filing in the office of the clerk of the district court and served on all parties.
(c) Except where the supreme court grants an out-of-time appeal under section (6) of this rule, the timely filing of a notice of appeal or cross-appeal is required in order to invoke the appellate jurisdiction of the supreme court.
(d) A notice of appeal or cross-appeal shall not be filed by the clerk of the supreme court unless accompanied by both the filing fee prescribed by statute or the affidavit to proceed without advance payment of fees prescribed in the Appendix of Forms as Form 3 and a copy of the judgment, decision(s), or order(s) from which appeal is taken. If the notice of appeal or notice of cross-appeal is filed by facsimile in accordance with rule 10(l)(b) of these rules, either the filing fee or the affidavit to proceed without advance payment of fees must be paid (or filed) and actually received by the clerk of the supreme court with a copy of the judgment, decision(s), or order(s) from which appeal is taken within 5 business days of the facsimile filing; otherwise the filing shall be treated as void.

(3) Joint or consolidated appeals.

(a) If 2 or more parties are entitled to appeal from a judgment or order of the district court and their interests are such as to make joinder practicable, they may file a joint notice of appeal or cross-appeal, or may join an appeal or cross-appeal after filing separate notices.
(b) Appeals or cross-appeals may be consolidated by order of the supreme court upon its own motion or upon motion of a party or parties.

(4) Content of notice of appeal or cross-appeal.

(a) The notice of appeal or cross-appeal shall specify the party or parties taking the appeal or cross-appeal, and shall designate the final judgment or order or part thereof from which the appeal is taken. An appeal from a judgment draws into question all previous orders and rulings excepted or objected to which led up to and resulted in the judgment.
(b) If an appeal is taken after certification by the district court under M. R. Civ. P. 54(b), the notice of appeal shall state that fact, and a copy of the certification order shall be attached to the notice. Upon the filing of such a notice, the clerk of the supreme court shall immediately forward copies thereof to the supreme court. The appeal shall not proceed further until the supreme court has reviewed the certification order, determined that the certification complies with M. R. Civ. P. 54(b) and rule 6(6), and entered an order allowing the appeal to proceed.
(c) The attorney for the appellant or cross-appellant, or the party, if not represented by an attorney, shall certify that the appeal or cross-appeal is or is not subject to the mediation process required by rule 7.
(d) The attorney for the appellant or cross-appellant, or the party, if not represented by an attorney, shall certify that a copy of the notice of appeal or cross-appeal was served by mailing a copy thereof to the clerk of the district court and to counsel of record and every party not represented by counsel.
(e) In the event the appellant or cross-appellant fails to comply with sections (4)(a) through (d) of this rule, the clerk of the supreme court shall issue a written notice, substantially complying with Form 4 in the Appendix of Forms, directing the appellant or cross-appellant to file an amended notice of appeal or cross-appeal within 11 days. A notice issued by the clerk of the supreme court pursuant to this section shall not affect the original filing date of the notice of appeal or cross-appeal.
(f) An appeal or cross-appeal shall not be dismissed for informality of form or title so long as the information required in section (4) of this rule is contained in the notice of appeal or cross-appeal. In the discretion of the supreme court, an appeal may be dismissed for failure of the appellant or cross-appellant to comply with section (4)(e)of this rule.

(5) Time for filing notice of appeal or cross-appeal,

(a) Appeals in civil cases.
(i) In civil cases, including proceedings regarding abused or neglected children under Title 41, Chapter 3, the notice of appeal shall be filed with the clerk of the supreme court within 30 days from the date of entry of the judgment or order from which the appeal is taken. In all other cases in which the United States of America or the State of Montana, or any political subdivision thereof, or any officer or agency thereof is a party, the notice of appeal shall be filed within 60 days from the entry of the judgment or order from which appeal is taken. If notice of entry of judgment or order is required to be filed under M. R. Civ. P. 77(d), the 30 days or 60 days, as the case may be, shall not begin to run until service of the notice of entry of judgment or order.
(ii) A notice of appeal filed after the announcement of a decision or order, but before either entry of the written judgment or order from which the appeal is taken or service of the notice of entry of judgment, shall be treated as filed on the day of such entry. The district court is not deprived of jurisdiction to enter the written judgment or order by the premature filing of a notice of appeal.
(iii) If a timely notice of appeal is filed by a party, any other party may file a notice of cross-appeal within 15 days after the date on which the first notice of appeal was filed, or within the time otherwise prescribed by section (5)(a) of this rule, whichever last expires.
(iv) If a timely motion pursuant to the Montana Rules of Civil Procedure is filed in the district court by any party:
(A) Under rule 50(b) for judgment;
(B) Under rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if granted;
(C) Under rule 59 to alter or amend judgment;
(D) Under rule 59 for a new trial; or
(E) Under rule 60(b) for relief from a judgment or order, the time for appeal for all parties shall run from the entry of the order granting or denying any such motion or, if applicable, from the time such motion is deemed denied at the expiration of the 60-day period established by M. R. Civ. P. 59(f). No notice of entry of judgment or order is required when any of the foregoing motions are granted, denied, or deemed denied. A notice of appeal filed before the disposition of any of the above motions, whether by entry of an order or by deemed denial, shall be treated as filed on the date of such entry or deemed denial. The district court is not deprived of jurisdiction to enter its order on any such motion by the premature filing of a notice of appeal.

(b) Appeals in criminal cases.

(i) An appeal from a judgment entered pursuant to section 46-18-116 must be taken within 60 days after entry of the judgment from which appeal is taken. A notice of appeal filed after the oral pronouncement of a decision or sentence but before entry of the written judgment or sentence is treated as filed on the date of the written entry. The district court is not deprived of ...

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