Opinion
DA 23-0692
10-29-2024
MIRIAM PENADO, Plaintiff and Appellant, v. DANIEL HUNTER, Defendant and Appellee.
ORDER
Appellant Miriam Penado petitions for rehearing of this Court's September 24,2024 Opinion affirming the Eighteenth Judicial District Court's handling of the order of protection matter upon the filing of Daniel Hunter's notice of removal, and affirming its November 2, 2023 final Order of Protection. Penado v. Hunter, 2024 MT 216. Appellee Daniel Hunter opposes rehearing.
This Court will consider a petition for rehearing only upon the following grounds:
(i) That it overlooked some fact material to the decision;
(ii) That it overlooked some question presented by counsel that would have proven decisive to the case; or
(iii) That its decision conflicts with a statute or controlling decision not addressed by the supreme court.M. R. App. P. 20(1)(a).
Penado argues that the Court overlooked a decisive question when it failed to recognize that removal from the Butte-Silver Bow County Justice Court was limited to the Second Judicial District Court, Butte-Silver Bow County, and that she should have been allowed an opportunity to respond, as with all change of venue motions, to Hunter's request to transfer the case to Gallatin County. Penado claims that the Court's decision conflicts with a statute or controlling decision.
Hunter responds that Penado seeks to relitigate an issue already decided by the Court. He contends this Court discussed removal under the statute and addressed her argument about removal and transfer from the Butte-Silver Bow County Justice Court to the Gallatin County District Court. Hunter points out that Penado did not raise § 3-5-313(1), MCA, which she claims is the controlling statute, until her reply brief, and this Court properly did not consider it. Hunter urges denial of Penado's petition.
Having fully considered Penado's petition and Hunter's response, the Court concludes that rehearing is not warranted. Penado's petition raises arguments presented in her appellate briefing that we considered in deciding this case. We addressed Penado's argument about 1 the applicable justice and city court rules and did not overlook her argument that she should have been allowed an opportunity to respond. Penado, ¶¶ 17-19.
We did not overlook Penado's argument that § 3-5-313(1), MCA, requires removal to the district court in the same county as the justice court proceedings, noting that we would not consider arguments raised for the first time in her reply brief. Penado, ¶ 20, n.2. We found removal proper pursuant to § 40-15-301, MCA, governing jurisdiction and venue of temporary orders of protection, Penado, ¶ 10. The statute on which Penado relies, §3-5-313, MCA, was passed by the 2023 Legislature and made applicable only to proceedings begun on or after it took effect in October 2023. 2023 Mont. Laws ch. 409. The Court did not overlook the statute; it does not apply to this case.
Finally, we disagree with Penado that because we did not specifically discuss two United States Supreme Court cases she cited, there is a conflict with a controlling decision. Our decision applied Montana principles of statutory interpretation to a Montana statute and gave thorough consideration to the substance of her arguments. Penado, ¶¶ 11-16.
Though Penado may disagree with our decision, she identifies no proper ground for a i rehearing under Rule 20.
IT IS THEREFORE ORDERED that the petition for rehearing is DENIED.
The Clerk is directed to provide a copy of this Order to all counsel of record.