February 18, 2014
LETICA LAND COMPANY, LLC, a Michigan limited liability company, and DON McGEE, an individual, Plaintiffs and Appellants,
ANACONDA-DEER LODGE COUNTY, a political subdivision of the State of Montana, Defendant and Appellee.
The case underlying this appeal concerns the county road status of, and resulting public right of access to, a road north of Anaconda, Montana, known as Modesty Creek Road. We are informed that trial is scheduled for May 12, 2014. The December 23 and December 27, 2013 notices of appeal state that this interlocutory appeal is taken from the November 2013 deemed denial of a September 2013 motion by Plaintiff and Appellant Letica Land Company, LLC, (Letica) to alter or amend a July 3, 2012 order denying Letica's application for preliminary injunction restraining Anaconda-Deer Lodge County and the public from entering Letica's property. An order refusing to grant an injunction is appealable under M. R. App. P. 6(3)(e).
Now pending before the Court are motions by both Letica and Plaintiff and Appellant Don McGee (McGee) to amend their notices of appeal, and two motions by Anaconda-Deer Lodge County to dismiss the appeal. All four motions are opposed.
Letica has asked the Court to allow it to file an amended notice of appeal to include, as part of this appeal, review of the District Court's "All Motions Hearing Order Fall 2013, " which was filed on December 31, 2013, and, as part of which, the District Court reaffirmed its refusal to grant the requested preliminary injunction. McGee has separately moved for an order allowing him leave to file an amended notice of appeal to include, as part of his appeal, a review of the same December 31, 2013 order. The December 31 order also includes denial of both parties' motions for partial summary judgment, a denial of a motion in limine, the grant of a motion for leave to amend the complaint, an order bifurcating one claim from the others, and a denial of a motion requesting a judicial site review. No claim has been made that any of these other matters addressed in the December 31 order are subject to interlocutory appeal.
Anaconda-Deer Lodge County has moved to dismiss this appeal on grounds that it is (1) untimely as to the July 2013 order refusing to grant a preliminary injunction, or (2) not allowed because the deemed denial of Letica's motion to alter or amend the July 2, 2012 order is not appealable and is not the District Court's final decision on the matter. Anaconda-Deer Lodge County also has moved to dismiss McGee's appeal on grounds that McGee has no standing to appeal the deemed denial of Letica's motion to alter or amend- McGee was not a party to this action when the July 3, 2012 order was entered, nor did he file a motion to alter or amend that order.
While M. R. App. P. 6(3)(e) allows interlocutory appeal from an order refusing to grant an injunction, it does not extend the right to interlocutory appeal to a situation such as the one presented here, in which Plaintiffs elected to pursue relief under M. R. Civ. P. 60(b), instead of a timely appeal of the denial of their request for an injunction. And, in this case, with trial scheduled for May of this year, no final appealable judgment has been entered. We conclude no timely notice of appeal of an appealable order has been filed. As a result, we need not address the other motions now pending before us.
IT IS ORDERED that Anaconda-Deer Lodge County's motion to dismiss this appeal is GRANTED and this appeal is DISMISSED without prejudice.
The Clerk is directed to provide copies of this order to all counsel of record.