J. Schmaus v. Dichey-Hellems ( 2023 )

D ORIGINAL • 11/14/2023 IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0451 DA 23-0451 JOSEPH H. SCHMAUS, FLED Plaintiff and Appellant, NOV 1 4 2023 v. Bowen Greenwood Clerk of Suprorne Court State of Montana ORDER SUSAN DITCHEY-HELLEMS, RANDY AND CHERYL VUKASIN, Husband and Wife, GAYLE STUBBLEFIELD, and MARK EVEN HOPKINS, Defendants and Appellees. Through counsel, Appellees Randy and Cheryl Vukasin, Gayle Stubblefield, and Mark Even Hopkins (hereinafter Appellees) move this Court for dismissal of the appeal and request attorney's fees for costs associated with this appeal. Susan Ditchey-Hellems appears pro se and has not filed a pleading. Self-represented Appellant Joseph H. Schmaus responds in opposition. Appellees explain that Schmaus has not ordered transcripts as required by the Montana Rules of Appellate Procedure and the Jefferson County District Court Order, dated September 7, 2023. They provide that this is not the first time Schmaus has filed such a complaint for Eminent Domain Right-of-Way against these same parties. The Appellees state that the District Court dismissed Schmaus's previous action after all the parties reached a settlement. In another revived and prolonged civil matter, Appellees further state the District Court held a hearing in March 2023 and determined Schmaus did not follow the proper procedure to obtain jurisdiction. The District Court issued an order on attorney fees and costs, dismissing the matter. Appellees maintain that Schmaus's August 25, 2023 Notice of Appeal indicates Schmaus would not order the transcripts. Accordingly, pursuant to M. R. App. P. 8(3), the Appellees requested the District Court direct Schmaus to order specific hearing transcripts. The District Court gave Schmaus ten days to comply with its Order. The Appellees argue dismissal is appropriate because Schmaus has not ordered the transcripts required on appeal. They further request remand to the District Court for determination of the costs they incurred in addressing this appeal. Schmaus states that he did not order the transcripts because he "believes no transcripts are required for this Court to rule upon the issue(s) he plans to raise under this appeal . . . ." He contends that transcripts are optional according to this Court's Notice of Appeal. Schmaus indicates that M. R. App. P. 8(2) and 8(3)(a) "do not require the appellant to order transcripts." (Emphasis removed). Lastly, he offers that he did not receive a copy of the District Court's Order requiring him to order and pay for the necessary transcripts. Schmaus blames the United States Postal Service for the error. From the register of actions on file here, the District Court dismissed the underlying matter with prejudice on April 12, 2023, and then later entertained the various parties' motions for fees and dismissal. The court issued a July 17, 2023 Order on Attorney's Fees and Costs and on Dismissal with Prejudice. The Appellees filed a Notice of Entry of Judgment on July 26, 2023. As indicated, the District Court issued an Order on Motion to Order Appellant to Order Transcripts for Appeal on September 7, 2023. ,Schmaus's appeal may be timely, but it is not prpperly before this Court. As an appellant, Schmaus has the duty to provide a sufficient record. M. R. App. P. 8(2). He has not done so, and his reasons lack merit. Upon review, his response is not well taken. We find that, along with dismissal, the additional sanction of attorney's fees is appropriate. M. R. App. P. 19(5). Therefore, IT IS ORDERED that: 1. the Appellee's Motion to Dismiss Appeal is GRANTED and this appeal is DISMISSED with prejudice; 2. Schmaus's pending request for stay is DENIED, as moot; 3. this matter is REMANDED to the Fifth Judicial District Court, Jefferson County, 2 for determination of attorney's fees and costs on appeal for the Appellees as set forth above; and 4. this matter is CLOSED as of this Order's date and the Clerk may return the Exhibits on file. The Clerk is directed to provide a copy of this Order to: the Honorable Luke Berger, District Court Judge; Dorianne Wood, Clerk of District Court, Jefferson County, under Cause No. DV-2022-26; counsel of record; Susan Ditchey-Hellems personally, and Joseph H. Schmaus personally. DATED this I 9 3ay of November, 2023. Chief Justice I. rZ- 14-6‘-- noi Justices 3