Childress v. Costco ( 2021 )

Eir a NAL 08/31/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 20-0526
OP 20-0526
r LED
RANDALL CHILDRESS and CLAUDIA pus 3 1 2021
CHILDRESS,
;freognEnclodur t
t aoetfelSoclif
ilia°cw
131 intiffs, Appellees, and Cross-Appellants,
ORDER
v.
COSTCO WHOLESALE CORPORATION,
Defendant, Appellant, and Cross-Appellee.
Appellees Randall and Claudia Childress (Childresses) has filed a petition for
rehearing following issuance of the Court's opinion in this matter on August 3, 2021.
Appellant Costco Wholesale Corporation (Costco) opposes the petition.
The Montana Rules of Appellate Procedure set forth limited grounds for rehearing.
See M. R. App. P. 20(1)(a). A rehearing may by granted only if the petitioner raises any
overlooked fact material to the decision, an overlooked question presented that wouldthave
been decisive to the case, or any statute or controlling decision that conflicts with the
Court's opinion. See.M. R. App. P. 20(1)(a).
Childresses appear to present their petition under subsecfion (iii) of M. R.
App. P. 20(1)(a), arguing the Court overstepped its authority to answer certified questions
under M. R. App. P. 15(3), by resolving issues outside of the scope of the certified question.
However, the issue Childresseses now object to the Court addressing—whether they
established loss of "personal identity" property sufficient to support an award of parasitic
emotional distress damages pursuant to Maloney v. Home & Inv. Ctr., Inc., 2000 MT 34,
298 Mont. 213, 994 R2d 1124—was not only raised by the Childresses in their briefing,
but argued therein at length: "the loss in this case involves not run-of-the-mill personal
property. Rather at issue here is the special case of what the Court has recognized as
``personal-identity property.' Maloney v. Home & Inv. Ctr., Inc., 2000 MT 34, ¶ 67, 298
Mont. 213, 994 P.2d 1124." They further argued that the personal property lost in this
case "is more than sufficient to satisfy the standard articulated in Maloney and its lineage."
It is axiomatic that the purview of the Court to answer certified questions includes the
ability to address issues raised in the briefing. Cf. M. R. App. P. 20(1)(a)(ii) (overlooking
issue presented by counsel may be ground for rehearing).
The Childresses have not raised any overlooked fact material to the decision, any
overlooked question presented that would have been decisive to the case, or any law that
conflicts with the Court's opinion. See M. R. App. P. 20(1)(a). Therefore,
IT IS ORDERED that the petition for rehearing is DENIED.
The Clerk is directed to mail copies hereof to counsel of record for the respective
parties.
DATED this 3 ( day of August, 2021.
Chief Justice
4 -"e "71/&-•\_
I ft4 -414 1 L,
Justices