Opinion
DA 23-0656
01-02-2024
SIDNEY and JULIAN HELVIK, Plaintiffs, Counter-Defendants, and Appellees, v. WESLEY and KAREN TUSCANO, Defendants, Counter-Plaintiffs, and Appellants, WESLEY and KAREN TUSCANO, Third-Party Plaintiffs, and Appellants, v. JACQUELINE CONNER, Third-Party Defendant, and Appellee.
ORDER
Appellants Wesley and Karen Tuscano have moved this Court to reconsider the December 19, 2023 Order that denied Tuscanos relief from the District Court's denial of their motion to stay judgment in that court's Cause No. DV-2021-39 while Tuscanos pursue this appeal Appellees Sidney and Julian Helvik oppose Tuscanos' present motion and Appellee Jacqueline Conner has joined in Helviks' objection.
Although Tuscanos styled their filing as an "Emergency Motion to Reconsider," we deem their motion a petition for rehearing, pursuant to M. R. App. P. 20, because a motion for reconsideration does not exist in either the Montana Rules of Civil Procedure or
Appellate Procedure. Nelson v. Driscoll, 285 Mont. 355, 359, 948 P.2d 256, 258 (1997). Under M. R. App. P. 20, this Court seldom grants petitions for rehearing, and will do so only upon grounds set forth in M. R. App. P. 20(1). Under Rule 20(1)(a), this Court will consider a petition for rehearing only if: (i) it overlooked some fact material to the decision; (ii) it overlooked some question presented by counsel that would have proven decisive to the case; or (iii) its decision conflicts with a statute or controlling decision not addressed by the Court. Pertinent to the matter before us, Rule 20(1)(d) further provides, "Absent clearly demonstrated exceptional circumstances, the supreme court will not grant petitions for rehearing of its orders disposing of motions. ..."
In this appeal, Tuscanos moved the District Court to stay judgment pending appeal upon their submission of a $20,000 cash bond pursuant to M. R. App. P. 22(1). The District Court denied the motion to stay, but ruled that it would stay judgment if Tuscanos posted a surety bond of $659,350.43. Tuscanos moved this Court for relief from the District Court's denial of stay under M. R. App. P. 22(2). We denied Tuscanos the relief they sought, concluding that Tuscanos had failed to demonstrate the requisite good cause for such relief.
Tuscanos allege that, due to a series of filing errors and miscommunication with the Office of the Clerk of the Supreme Court, this Court did not have the necessary exhibits in front of it when considering their motion for relief. Under M. R. App. P. 22(2)(a), a motion for relief from a district court's grant or denial of stay must include copies of relevant documents from the record as well as the district court's order granting or denying the stay. Tuscanos assert that their counsel inadvertently failed to transmit the appendix to the motion that contained those exhibits when counsel filed the motion for relief. Counsel did not recognize the error until after Helviks had filed their response in opposition to Tuscanos' motion. The aforementioned filing errors and miscommunication then frustrated Tuscanos' efforts to get their appendix before the Court.
In their petition, Tuscanos assign blame for the oversight to their counsel's paralegal. Lawyers have a duty to supervise any paralegals working under their purview. Therefore, any blame properly lies with counsel, not with office staff.
As we explicitly noted in the Order denying Tuscanos' motion, we reviewed both the District Court's November 28, 2023 Order Denying Tuscanos' Motion to Stay Judgment and for Approval of Security along with the District Court's October 11, 2023 Findings of Fact, Conclusions of Law, Final Order, and Judgment, because the Helviks included them as exhibits to their response in opposition to Tuscanos' motion. We therefore considered Tuscanos' motion for relief on the merits rather than denying it for procedural error.
We now consider whether rehearing is warranted because Tuscanos argue the lack of review of the remaining documents in their intended appendix caused us to overlook some fact material to our decision. M. R. App. P. 20(1)(a)(i). Tuscanos maintain that if this Court had reviewed Tuscanos' appendix to the motion for relief, we would have better understood the merits of their arguments. Specifically, they argue that we would have reviewed the jury verdict form and recognized that the District Court's subsequent rulings contradicted and nullified the jury verdict and we further would have reviewed Tuscanos' Notice of Compliance with Jury Verdict and Motion for Entry of Judgment and Satisfaction of Judgment that they filed in the District Court after the jury reached its verdict but before the court made the post-trial rulings that Tuscanos challenge on appeal.
Tuscano's arguments go to the substance of their appeal-not to whether they are entitled to stay judgment without posting security in the amount determined by the District Court. We understand that Tuscanos disagree with the District Court's rulings in this case- hence their appeal. But Tuscanos' confidence in the merits of their appeal does not abrogate the Helviks' right to security during the appeal process. Rasmussen v. Lee, 276 Mont. 84, 93, 916 P.2d 98, 104 (1996). The District Court calculated the bond amount it determined necessary to protect Helviks' interests. We found no good cause to disturb the District Court's ruling. We remain unpersuaded by Tuscanos' arguments to the contrary.
IT IS THEREFORE ORDERED that the petition for rehearing is DENIED.
The Clerk is directed to provide copies of this Order to all counsel of record and to Hon. Brenda R. Gilbert, presiding.