Opinion
DA 23-0006
01-24-2023
MARCIA FOWLER, Plaintiff and Appellee. v. VINCENT J. COX, Defendant and Appellant.
ORDER
Representing himself, Vincent J. Cox has filed a verified Petition for an Out-of-I ime Appeal, indicating that he failed to file a timely Notice of Appeal for several reasons. He states that he did not "receive any notification of any court dates or paperwork on this case until preliminary judgment was made."
M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice[.]" "Extraordinary' circumstances do not include mere mistake, inadvertence, or excusable neglect." M. R. App. P. 4(6).
Cox maintains that he never received notice of any court dates. He offers that he "was served with papers by a deputy sheriff in July 2019 stating that [he] was being sued by Marcia Fowler in Great Falls, MT." Cox provides that he lives in West Virginia and alleges that the underlying plaintiff, Marcia Fowler, lied to the District Court. Cox asserts that he bought a vehicle for Fowler so she could return to Montana, moved her property to a storage unit, and that her property was not damaged upon a move to Montana. He contends that she has harmed him. Cox explains that he "was battling cancer" and that he was unable to travel due to the treatment regimen for his cancer and resulting damage to his kidneys.
We secured a copy of the register of actions from the Cascade County District Court. Through counsel. Fowler initiated a civil complaint in July 2019. Fowler filed a request for entry of default on August 12. and default was entered on August 21, 2019. The next year. Judge Kutzman accepted jurisdiction after other judges declined. On July 1. 2021, the District Court entered a Default Judgment Order and a Judgment, concluding that Cox is liable for $16,000 for a combination of missing and damaged personal property as well as damages for emotional distress. The court amended its Judgment on July 20, 2021. to correct the spelling from Fox to Cox. Cox includes a copy of this judgment with his Petition. On April 1 I, 2022. Cox filed a Motion to Dismiss Default Judgment, requesting "relief for ffaud/misrepresentation based on Title 25 Chapter 20 Rule 60[](3)." Counsel filed an Answer to Motion to Set Aside Judgment on May 20. 2022.
"A motion under Rule 60(b) must be made within a reasonable time- and for reasons (1), (2), and (3) no more than a year after the entry of the judgment or order or the date of the proceeding." Cox sought relief with the District Court within a year from the Judgment. Pursuant to M. R. Civ. P. 60(b)(3), the grounds for relief from a judgment include "fraud . . . . misrepresentation, or misconduct by an opposing party[.|" The District Court did not issue an order on Cox's pending motion and answer and. accordingly, the motion was deemed denied on July 19. 2022. M. R. Civ. P. 60(6)(c)(1). Cox would have had thirty days from the July 19, 2022, to file a timely Notice of Appeal with the District Court and this Court. M. R. App. P. 6(3)(b). Cox seeks to appeal the "deemed denied" of his Motion to Set Aside Judgment. Under the circumstances, we conclude that Cox may proceed with his appeal. Accordingly, IT IS ORDERED that Cox's Petition for an Out-of-Time Appeal is GRANTED and the Clerk of the Supreme Court may file his accompanying Notice of Appeal.
The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Vincent J. Cox along with a copy of this Court's Civil Appellate Handbook.