Opinion
OP 23-0278
07-05-2023
CHASE MONAGHAN. CODY MONAGHAN and MAGGIE MONAGHAN, Petitioners, v. MONTANA FIFTH JUDICIAL DISTRICT COURT, HON. LUKE BERGER. Presiding, Respondent.
ORDER
Petitioners, the plaintiffs in Madison County Cause No. DV-29-2022-43, seek a writ of supervisory control to vacate the Fifth Judicial District Court's May 2, 2023 order permitting the defendants to attempt service by publication on a third-party defendant, Zane Monaghan. Plaintiffs assert that the Rules of Civil Procedure plainly do not allow service by publication in this personal injury action and that the District Court is proceeding under a mistake of law that will prejudice them in the underlying case. On the Court's request, Dalton Fish, Defendant and Third-Party Plaintiffin the underlying action, has submitted a response. In addition, on July 3, 2023, Zane Monaghan filed a Notice advising the Court that, on the same date, counsel specially appeared on his behalf in the District Court proceeding for the purpose of bringing a Motion to Quash the Summons by publication that the District Court previously approved.
The case arises from an altercation between the Petitioners and several individually named defendants at the Pioneer Bar in Virginia City, Montana. During the altercation, Zane Monaghan-a relative of the Petitioners but not a plaintiff in the case-allegedly struck Defendant Fish. Fish filed a third-party complaint against Zane and sought to serve him by publication after numerous attempts at personal service had failed. The District Court agreed that the rules on service of process must be followed but reasoned that they were "not an invitation for the administration of justice to be delayed by someone avoiding service." Relying on the facts and circumstances of this case and its concern that Zane was deliberately evading service, it agreed to allow service by publication.
Petitioners argue that the court's order violates M. R. Civ. P. 4(o) because the case is not one the rule identifies as a permissible situation for service by publication. They argue that a writ is appropriate because this is purely an issue of law and that, if Zane does not respond and is defaulted, their substantial rights in the case could be prejudiced.
Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors exist making the normal appeal process inadequate, when the case involves purely legal questions, and when the other court is proceeding under a mistake of law and is causing a gross injustice, constitutional issues of state-wide importance are involved, or, in a criminal case, the other court has granted or denied a motion to substitute a judge. M. R. App. P. 14(3). We determine on a case-by-case basis whether supervisory control is appropriate. Stokes v. Mont. Thirteenth Judicial Dist. Court, 2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citations omitted). It is the Court's general practice to refrain from exercising supervisory control when the petitioner has an adequate remedy of appeal. E.g, Westphal v. Mont. Eleventh Judicial Dist. Court, No. OP 21-0387, 2021 Mont. LEXIS 663 (Aug. 17, 2021) (citing cases).
Upon review of the petition and response, along with the District Court's order, the materials included with the parties' submissions, and the Notice submitted by Zane Monaghan, we conclude that the Petitioners have not established the extraordinary circumstance justifying this Court's intervention. Petitioners' claims of prejudice are based on assertions of what might happen as the case moves forward. Those claims depend on facts yet to be developed and potential rulings of the trial court, which now has before it Zane's motion to quash. Petitioners have not demonstrated why appeal would not afford them an adequate remedy in the event of an unfavorable judgment. IT IS THEREFORE ORDERED that the petition for writ of supervisory control is DENIED and DISMISSED. '
The Clerk is directed to provide copies of this Order to all counsel of record in Fifth Judicial District Court Cause No. DV-29-2022-43 and to the Honorable Luke Berger, presiding Judge.