Fisher v. DeShaw ( 2021 )

05/04/2021
Vei '41 L'Ik;
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0041
DA 21-0041
RALPH FISHER and BEVERLY FISHER,
MAY 0 4 2021
Plaintiffs and Appellees,
Bowe n Greenwood
Clerk of Suprerne Court
State of Montana
v.
ORDER
LYLE DeSHAW;DeSHAW AGENCY,INC.;
HEARTLAND CROP INSURANCE,INC.; and
JOHN DOES I-V,
Defendants and Appellants.
Plaintiffs and Appellees Ralph Fisher and Beverly Fisher (Fishers), via counsel,
have moved to dismiss this appeal. Defendant and Appellant Heartland Crop Insurance,
Inc., has responded in support of Fishers' motion to dismiss. Defendants and Appellants
Lyle DeShaw and DeShaw Agency,Inc.(DeShaws), have responded in opposition.
On December 23,2020,the Fifteenth Judicial District Court, Sheridan County, filed
its Comprehensive Order on Motions Following May 20, 2020 Hearing (Comprehensive
Order), in which, pertinent to the present matter, it denied two motions DeShaws had filed:
a motion for summary judgment and a motion for leave to amend their answer to include
an affirmative defense.
On January 22,2021,DeShaws filed a Notice ofAppeal in this Court. In the Notice,
DeShaws represented that the Comprehensive Order was "a denial of a motion for
summary regarding subject matter jurisdictioe and that it is immediately appealable
pursuant to M. R. App. P. 6(3)(c).
Fishers have now moved to dismiss the appeal as prernature. They argue that the
Comprehensive Order is not appealable pursuant to M. R. App. P. 6(5)(a)-(b) because it is
an order denying a motion for summary judgment and it does not adjudicate all the claims
between the parties. In their motion to dismiss, Fishers anticipate that DeShaws will assert
that the motion for summary judgment was effectively a motion to dismiss for lack of
subject matter jurisdiction. Fishers counter that DeShaws did not raise a subject matter
jurisdiction argument below and Montana's state district courts have the jurisdiction to
hear a negligence claim such as this.
In their response in opposition, DeShaws argue that the District Court's denial of
their motion for summary judgment "carried the same effect" as a denial of a motion to
dismiss for lack of subject matter jurisdiction and this Court should therefore allow their
appeal to proceed. They argue that the issue raised before the District Court, while
presented as a motion for summary judgment, was in substance a motion to dismiss for
lack ofsubject matter jurisdiction. However,DeShaws do not refute Fishers' assertion that
DeShaws did not explicitly raise subject matter jurisdiction as the basis for their motion
before the District Court. In the brief supporting their motion for summary judgment
before the District Court, DeShaws argued that Fishers' claim against DeShaws relates to
Multiple Peril Crop Insurance coverage and as such Fishers must obtain a determination
from the Federal Crop Insurance Corporation prior to any award against DeShaws on
Fishers' state law claims pursuant to the applicable federal regulations.
Under M. R. Civ. P. 56, summary judgment is to be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, demonstrate no genuine issue as to any material fact and that the moving
party is entitled to ajudgment as a matter oflaw. A material fact is a fact that involves the
elements ofthe cause ofaction or defenses at issue to an extent that necessitates resolution
of the issue by a trier of fact. The party moving for summary judgment has the initial
burden of establishing both the absence of genuine issues of material fact and entitlement
to judgment as a matter of law. If the movant meets this burden, then the burden shifts to
the nonmoving party to establish that a genuine issue of material fact exists. Roe v. City of
Missoula, 2009 MT 417, ¶ 14, 354 Mont. 1, 221 P.3d 1200 (citations and internal
quotations omitted).
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In this case, the District Court determined that DeShaws did not meet their initial
burden as movants to establish the absence ofgenuine issues ofmaterial fact in part because
material facts remain in dispute as to whether insurance was obtained. Based on DeShaws'
briefing and the resulting Comprehensive Order, Fishers argue in their motion to dismiss
this appeal that the District Court only denied a motion for summary judgment and did not
deny a motion to dismiss for lack of subject matter jurisdiction because DeShaws did not
characterize their arguments as such.
We are not persuaded by DeShaws' argument that the District Court's denial of
summary judgment was effectively the same as a denial of a motion to dismiss for lack of
subject matter jurisdiction. As noted above, M. R. App. P. 6(5) provides in relevant part
that orders denying inotions for summary judgment are not appealable. Although M. R.
App.P. 6(3)(c) provides that an order denying a motion to dismiss for lack ofsubject matter
jurisdiction is appealable, in this case we do not have such an order. Moreover, M.R. App.
P. 6(3) also provides that a party may appeal from the types of orders enumerated within
the Rule only when "the order is the court's final decision on the referenced matter[d"
Where the District Court found that the existence of insurance is a question of fact, the
court's ruling is not final because the ultimate determination of this question of fact may
provide the answer regarding jurisdiction.
Regarding their appeal of the District Court's denial of their motion to amend,
DeShaws concede that the immediate appeal of such ari order is not provided for in the
Rules. Rather, DeShaws urge this Court to suspend the Rules and allow their appeal to
proceed under M.R. App.P. 29. Relying on Durden v. Hydro Flame Corp., 1998 MT 47,
¶ 19, 288 Mont. 1, 955 P.2d 160, DeShaws argue that this Court has previously suspended
the Rules in the interest ofjudicial economy to eliminate the need for a second appeal or a
second trial. DeShaws assert that in this case, the District Court's denial oftheir motion to
amend "could result in multiple trials over the same claims and facts" if they are not
allowed to immediately appeal the ruling.
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In Pickett v. Cortese, 2014 MT 166,¶ 23, 375 Mont. 320, 328 P.3d 660, we denied
an appellant's request that we suspend the Rules to review an order denying a motion for
summary judgment. In doing so, we distinguished Durden, noting that in Durden, unlike
Pickett, the facts were such that the necessity for a second appeal or a second trial was a
"near certainty" if we did not suspend the Rules to review the order at issue. In the present
case, DeShaws offer only that allowing the District Court's ruling to stand "coule lead to
multiple trials. We find this insufficient cause to suspend the Rules in this instance.
We conclude that Fishers' motion to dismiss is well-taken. The Comprehensive
Order is not properly before this Court on appeal at this time.
IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that this matter is REMANDED to the District Court.
The Clerk is directed to provide copies of this Order to all counsel of record.
,s1-%-,
Dated this 'I day of May,2021.
_ .d.
Chief Justice
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