Greener Montana v. Cunningham ( 2022 )

C:„IGrW, 12/06/2022 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 22-0498 DA 22-0498 GREENER MONTANA PROPERTY MANAGEMENT, LLC, TRAVIS MARTINEZ, Individually and KRISTYN MARTINEZ, DEC 0 6 2022 BowF;r1 Gt eenwocia Individually, Clerk <- 17 F_ st.„.„ nr IvInntarta Couri Plaintiffs and Appellees, ORDER v. HYDI CUNNINGHAM, Defendant and Appellant. Appellees Greener Montana Property Management, LLC, Travis Martinez, and Kristyn Martinez move to dismiss this appeal pursuant to M. R. App. P. 13(1) and 13(3) because they allege Appellant Hydi Cunningham failed to file a timely opening brief. Cunningham opposes the motion, arguing her opening brief is not yet due. Also pending before the Court is Cunningham's motion for extension of time to file a transcript, which Appellees oppose because they contend the Court should dismiss this appeal. Under M. R. App. P. 13(1), an appellant shall serve and file the opening brief within 30 days after the date on which the record is filed. M. R. App. P. 8(1) provides that the composition of the record on appeal consists of "the original papers and exhibits filed in the district court, the transcript of proceedings, if any, and a certified copy of the docket entries prepared by the clerk of the district court[1" In this case, Cunningham filed her Notice of Appeal (NOA) on August 31, 2022. Within the NOA, she indicated that she had ordered all necessary transcripts from the court reporter contemporaneously with the filing of her NOA. On September 12, 2022, the District Court transmitted the original papers and exhibits and a certified copy of the docket entries. On that same date, the Clerk of the Supreme Court sent a Notice of Filing to the parties, advising them that the Clerk had received and filed the District Court record, "consisting of documents 1-36 and Case Register Report." The Clerk firther advised the parties, "NOTE: If the above-described record constitutes the complete record on appeal, the Appellant's opening brief is due 30 days from September 12, 2022." On October 6, 2022, in accordance with M. R. App. P. 9(3)(b), the Twenty-First Judicial District Court, Ravalli County, granted the court reporter until November 29, 2022, to transmit the transcripts that Cunningham had ordered. The District Court's order was filed in the appellate record. Appellees filed the pending motion to dismiss on November 22, 2022, arguing that the Court should dismiss Cunningham's appeal because she had failed to file her opening brief within 30 days of September 12, 2022. Appellees inaccurately assert that the Notice of Filing set a due date of "30 days from September 12, 2022." Appellees omit the Notice's qualifying language that the brief was due at that time only if "the above-described record"—"consisting of documents 1-36 and Case Register Report"—"constitutes the complete record on appeal[.]" Appellees do not contend that Cunningham was not diligent in ordering the necessary transcripts. Rather, Appellees' motion to dismiss, and their opposition to Cunningham's motion for extension, evinces their failure to comprehend either the Clerk of the Supreme Court's Notice of Filing and/or the Montana Rules of Appellate Procedure; otherwise, Appellees would have recognized that, lacking the transcripts which had been ordered, the record on appeal remained incomplete at the time they moved to dismiss, since Cunningham had indicated in the NOA that she had ordered transcripts, the District Court had granted a motion for extension of time for these transcripts, and the transcripts had not yet been filed. Appellees' motion to dismiss is wholly without merit. Appellees' reliance on their motion to dismiss as a basis for opposing Cunningham's motion for extension of time to allow the court reporter to submit the transcripts pursuant to M. R. App. P. 9(4) is similarly 2 without merit. As Cunningham's motion for extension of time illustrates—again—the record on appeal is not yet complete; therefore, pursuant to M. R. App. P. 13(1) Cunningham's opening brief cannot be overdue as the time for its submission has not even begun to run. IT IS ORDERED that Appellee's motion to dismiss is DENIED. IT IS ORDERED that Appellant's motion for extension of time to file transcripts is GRANTED. Court Reporter Tamara Stuckey shall have up to and including January 15, 2023, to prepare, file, and serve the transcripts requested on appeal. The Clerk shall serve a copy of this Order upon all parties of record, the District Court, and the court reporter. DATED this day of December, 2022. Chief Justice Justices 3