Joseph Eve & Co. v. Allen
945 P.2d 897
Mont.
1997
Check Treatment

*1 EVE & CO., JOSEPH Appellant, Plaintiff CATHERINE B. ALLEN, Respondent. Defendant No. 97-405. September Decided St.Rep. 284 Mont. 511. 945 P.2d 897. AND ORDER

OPINION Background (Eve) with the District & Co. filed a Notice of Joseph Eve District, County, on Judicial Yellowstone for the Thirteenth 23, 1997, June following that court’s March 1997 Judgment. Eve filed an Amended Notice ofAppeal 27,1997. on June July On 23,1997, (Allen) Catherine B. Allen filed a motion to dismiss the claiming that the District Court’s judgment was not final. This Court denied Allen’s motion to dismiss on August 12,1997. days later, Two on August Allen filed her Motion for Leave to File Cross *2 Appeal with this Court. Eve filed its memorandum in opposition to respondent’s August 26, motion on

The issue before this Court is one impression. of first We are called upon to answer the question of timely whether the filing of a notice of cross appeal jurisdictional is a prerequisite to this Court’s consid- of appeal eration the cross or whether the time for filing a notice of a appeal procedural cross is a requirement may that be discretionarily waived. We hold that the time limit for the filing of a appeal cross is jurisdictional and that on the facts of this case are precluded we from considering Allen’s cross

Discussion 5(a)(3), Under M.R.App.R, Rule appeal may cross be filed within days after the date on which the first notice of appeal was filed. In this Allen failed to file a appeal within that time and she requests now leave of this Court to file her cross appeal even though days elapsed from the time the first notice of appeal was filed until time she filed her motion. Allen relies on two circuit courts of appeal decisions for her con timely tention that while a notice of appeal mandatory juris is and dictional, a cross appeal practice is a matter of or procedure and is jurisdictional not a prerequisite once an initial appeal has been filed. (2d. Oil Co. Texport M/V Amolyntos 1993), Cir. 11 F.3d (9th Bryant 1981), v. Technical Research Co. 1337, 1341. Cir. 654 F.2d decisions, Allen asserts based on these this Court has discretion disregard requirement. the time While the two decisions Allen cites that appeals hold are not jurisdictional, the remainder of the appeal circuit courts of differ on this issue. The federal rule regarding filing of a cross party timely “If one provides: appeal, any files a notice of other party file may days a notice of within 14 after the date when the filed, prescribed by first notice was or within the time otherwise this 4(a), period 4(a)(3), whichever last Rule expires.” Fed.R.App.R expressed Texport Bryant Some circuits follow the view and that may is a rule practice this rule which be waived in the interest of appropriate or under circumstances. United States v. Tabor justice (4th (3rd 335; LaFaut 1991), Cir. 943 F.2d v. Smith Realty Corp. Court (5th 389; Anthony Helicopters, v. Petroleum Inc. 1987), Cir. 834 F.2d to the view that the 1982), 693 F.2d 495. Other circuits adhere Cir. mandatory jurisdictional. for a cross are time limits (6th Slaby 1988), Reproductive Akron Center Health Cir. for Repro on other sub nom Ohio v.Akron Ctr. grounds F.2d rev’d 405; Health 497 U.S. 110 S.Ct. L.Ed.2d ductive (7th 1989), 1408; Young Corp. Co. v. Celotex Cir. 881 F.2d Radiator (10th Valley Savage Dairy v. Cache Ass’n Cir. 737 F.2d 887. Appeals the Seventh Circuit Court of held that the time Young, mandatory are limits Young pointed 881 F.2d at 1416. The court in out Young, that the of a cross contrary behind the view rationale on the notion that merely practice procedure, a matter of is based invokes over the entire case the initial notice of court has the to overlook the absence of appellate power so that the. idea, appeal. Young, refuting of cross 881 F.2d at 1415. In this a notice decision, Young the court in cited to a United States 312,108 Scavenger Torres v. Oakland Co. 487 U.S. S.Ct. issue, interpretation that addressed a related L.Ed.2d 3(c), Fed.R.App.P., regarding specify parties the failure to all *3 held in that “the taking require- an The Torres mandatory jurisdictional ments of Rules 3 and 4 are and and that although appeals may liberally the courts of construe those rules to with, may the courts not they complied determine have been whether 1416. noncompliance.” Young, 881 F.2d waive by Allen to addition, Bryant Texport, support In and the cases cited Bryant in contention, holdings. are limited in their The court her scope holding “[i]t the narrow of its and stated will emphasized file appellee case where an that fails to a be the unusual judgment.” Bryant, a 654 challenge aspects can unfavorable of of the pointed court in out that Texport F.2d at 1343. The by only day business and that the direct appeal was late one cross Texport, 11 “closely cross were interrelated.” and the F.3d at 366. timely to the idea that the jurisdictions also adhere

Certain state Investor’s Nat. jurisdictional. Mahaffey v. (Kan. (Nev. 1986), 727 1218; v. State 1986), 725 P.2d Johnson Sec. Co. Inc. Co-op., Elec. by in Denton v. 912, part P.2d overruled Sunflower (Wis. (Kan. Ct. 420; App. v. Rossmiller 1988), 748 P.2d Rossmiller 514 445; (Iowa 444 N.W.2d McCracken v. Edward D. Jones & Co. App. 1989),

Ct. 445 N.W.2d 375. Montana,

In long this Court has held that the time limits mandatory an are appellant and “An has duty its perfect provided a in the manner and time Rule compliance, 5. Absent this this Court lacks hear appeal.” Apiaries, Foster Inc. Apiaries (1981), v. Hubbard 193 Mont. 156, 159, 1213, (citing P.2d Price v. Zunchich (1980), 188 1296). 230, Mont. 612 P.2d fashion,

In a similar this Court has held that the failure to properly a appeal precludes file this Court from addressing the issues in the example, raised For we said in Johnson v. Tindall (1981), 165, 266, 195 Mont. 635 P.2d that:

Although provides by cross-assign- for review of matters error, necessity ment of this does not eliminate the for cross-appeal by a who respondent rulings seeks review of on separate matters sought by distinct from those to be the appellant. reviewed 468, (1948), 470, 317, Francisco v. Francisco 120 Mont. 191 P.2d 319. A who respondent cross-appealed may has not not a seek of the determination amount involved more favorable to him than by that made the court below. Mechanics Universal v. Joint Co. (1936), 51, 58, 84-85, Culhane 81, 33, U.S. 57 S.Ct. 81 L.Ed. Error, 38. 5 Am. Jur. 2d § Johnson, at 635 P.2d 268. See also Converse v. Converse (1982), 227, 232, 413, 416; Lemley (1983), v. Allen 203 Mont. 659 P.2d Johnson Johnson 205 Mont. 263, 667 P.2d addition, Mydlarz stated in Co. we Palmer/Duncan Const. 209 Mont. 682 P.2d that:

Respondent Palmer/Duncan has two ad raised issues not by dressed appellant. We will consider such issues because has not with complied Appellate Palmer/Duncan Montana Rules of Procedure; specifically, perfected Civil Palmer/Duncan has not a cross-appeal. Although M.R.App.Civ.P., provides for re by cross-assignment errors, view of matters this does not elimi necessity cross-appeal by respondent nate the who seeks *4 separate sought review of matters and distinct from those to be (Mont. 1981), v. P.2d by appellant. reviewed Johnson Tindall (1948), 266, 268, 38 St.Rep. 1763; Francisco v. 120 Mont. Francisco 468, 470, 191 P.2d 319. (1989), 237 Tigart Thompson at 700. See also 682 P.2d

Mydlarz, Orient Restaurant Exp. P.2d Baldwin v. 468, 475, 774 Mont. 49, 51. 373, 377, 791 P.2d (1990), 242 Mont. Rogstad 232 Mont. later, in Neumann v. years

Four that: 761, we stated to grant Court erred when it failed alleged that the District [I]t is 72-12-206, attorney pursuant fees § the defendant costs before us. properly find the issue is MCA. We attorney the issue of fees. did not raise [appellant] note that We by an it is appellant, an issue not raised preserve In order to as to file a representative respondent the necessary personal The failure to so file is thus cross-appeal.... respondent’s notice of claim. fatal to his federal courts that Thus, unlike those base

Neumann, 757 P.2d at invokes the notion that the initial holdings their on that it this Court follows the belief over the entire addressed in the or a jurisdiction over those issues only has filed properly conclude that the time limits for

Accordingly, we to file jurisdictional and that Allen’s failure in Montana are 5(a)(3), day by limit provided within the her cross considering Court from her Motion this M.R.App.P., precludes Therefore, Appeal. File Cross Leave to for Leave to File Cross that Allen’s Motion

IT ORDERED IS hereby, is, DENIED. should be and give the Clerk of this Court ORDERED

IT IS FURTHER of record. by mail to counsel notice of this order day of September, this 22nd Dated HUNT, REGNIER, TURNAGE, JUSTICES JUSTICE

CHIEF concur. and GRAY TRIEWEILER LEAPHART, dissenting.

JUSTICE of a cross concludes that The Court I dissent. a number conclusion, the Court cites reaching that preserve an held in order we have decisions which of our notice file a notice of must appeal, party on for review issue Rogstad E.g. Neumann not raised to raise an issue that in order agree 765. I 757 P.2d cross appeal. a notice of must file respondent by appellant, file a must respondent here, however, is not whether The issue *5 appeal but, rather, notice of cross whether this Court has the power for filing to extend the time notice. that I adhere to the view that when the a appellant files notice of appeal, jurisdiction passes over the entire appellate case to the court. The Court’s that jurisdiction conclusion we do not obtain over the entire case, only appeal, but over those addressed in ignores issues the the fact is appellant required specify that an to issues his notice only party The notice of name taking need the the judgment 4(c), and the order or appealed from. Rule only The issues are defined M.R.App.P. appellant’s when the brief filed, well after passed. has “When a notice of has filed, been the jurisdiction passes from District Court and vests in the Mfg. Court.” Powers Co. v. Leon Jacobs Enter. appellate 1380. Once the ac court quires jurisdiction filing over the entire the of a cross appeal practice procedure subject becomes a matter of to the court’s suspend justice requires. discretion the to rules when so See Texport (2d M/V Amolyntos 1993), 361, 366; Bryant Oil Co. v. Cir. 11 F.3d (9th Technical Research Co. Cir. 654 F.2d 1341-42. 5(c), Although M.R.App.P., allows the district court to extend it appeal, time for does not address the rule, a notice In the of an applicable given of cross absence jurisdiction over the passes entire case from the trial court appellate upon court of the notice of I appeal, would hold that the for an extension was filed with request properly this Court determine M.R.App.P, under we had discretion to good whether or not cause time suspend existed limit.