12/08/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0546

DA 20-0546 F

JOSEPH H. SCHMAUS, DEC U 8 2020 Bowen Greenwood Plaintiff and Appellant, Clerk of Supreme Court State of Montana v. ORDER CX RANCH,LLP, Defendant and Appellee.

Appellee CX Ranch, LLP moves for dismissal of this appeal because a final judgment has not yet been entered. Appellant Joseph H. Schmaus responds in opposition, arguing he has appealed front a final judgment.

CX Ranch notes that the Montana Rules of Appellate Procedure provide a "final judgment . . . includ[es] any necessary determination of the amount of the costs and attorney fees awarded or sanction imposed." M.R. App. P. 4(1). CX Ranch explains that while the Broadwater County District Court issued an Order on Motion to Dismiss granting its motion on November 12, 2020, the court also granted its motion for its litigation and attorney fees, which determination has not yet been made because the appeal deprived the court from jurisdiction. Schmaus argues in response that the District Court deemed the motion to dismiss as a motion for summary judgment and rendered a final, appealable judgment, not an interlocutory order.

Upon review, we conclude that this appeal is prematurely before this Court. There is not a final judgment, pursuant to M. R. App. P. 4(1)(a) and 6(1), and the District Court needs an opportunity to issue an order assessing costs and attorney fees. We routinely dismiss appeals to permit this determination to be made. Schmaus retains a right to appeal upon entry of a final judgment. Therefore, IT IS ORDERED that CX Ranch's Motion to Dismiss Appcal is GRANTED and this appeal is DISMISSED without prejudice.

The Clerk of the Supreme Court is directed to close this case as of the date of this Order and to issue rernittitur.

The Clerk also is directed to provide a copy of this Order to the Honorable Judge Mike Menahan, First Judicial District Court; to Valerie J. Hornsveld, Clerk of District Court, Broadwater County, under Cause No. ADV-2020-31; to counsel of record, and to Joseph H. Schrnaus personally.

DATED this day of December, 2020.

Chief Justice

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L/776124/144 Justices