Opinion
OP 22-0617
11-15-2022
BOBBY FRANCIS LOWRY, Petitioner, v. MONTANA FIRST JUDICIAL DISTRICT COURT, HON. KATHY SEELEY and HON. CHRISTOPHER ABBOTT, Presiding, Respondents.
ORDER
Bobby Francis Lowry has filed a Petition for Writ of Supervisory Control over the First Judicial District Court. Lewis and Clark County, Judge Kathy Seeley, and Judge Christopher Abbott. Lowry explains that, beginning in September 2019, he filed two construction liens and two civil lawsuits in the District Court. He adds that "[a]s of October 10, 2022, the above-named Petitioner has been completely unable to receive any information, such as filing status, service status, assigned Judge, or current disposition, of any[] of the above-listed cases." He states that he paid for filing and service costs, including some copies of various attachments.
Supervisory control may be appropriate on a case-by-case basis. "This extraordinary remedy can be invoked when the case involves purely legal questions and urgent or emergency factors make the normal appeal process inadequate." State v. Spady, 2015 MT 218, ¶ 11, 380 Mont. 179, 354 P.3d 590 (citing M. R. App. P. 14(3); Redding v. McCarter, 2012 MT 144, ¶ 17, 365 Mont. 316, 281 P.3d 189). "The case must meet one of three additional criteria: (a) [T]he other court is proceeding under a mistake of law and is causing a gross injustice; (b) [C]onstitutional issues of state-wide importance are involved; or (c) [T]he other court has granted or denied a motion for substitution of a judge in a criminal case." Spady, ¶ 11 (quoting M. R. App. P. 14(3)(a)-(c)).
Upon review, Lowry has presented no information or documents that he actually served the parties with copies of the construction liens or complaints. Lowry admits that he only knows the names of the Christensons in one construction lien action, yet he does not know the names of the other parties. Without the correct names and addresses, service may not be completed. A summons and complaint must be served together either in person Or by mail. M. R. Civ. P. 4(d)(1), (2), and (3)(A). Lowry includes a copy of a praecipe in this year's civil case against J &D Auto, but this document does not have the Sheriffs return of service.
We requested and reviewed the registers of actions based on the limited information that Lowry provided. The District Court has no construction lien cases for Lowry; the requirements for claiming, perfecting, and serving notice of such a lien are contained in Title 71, Chapter 3, Part 5, MCA. Lowry commenced a dissolution of marriage action by filing a petition and proposed property distribution in February 2022 (Cause No. DR 2022-052).The docket sheet reflects that no answer or response has been filed within twenty-one days. M. R. Civ. P. 12(a)(1)(A). Lowry commenced an action against J &D Auto in July 2022 (Cause No. DDV 2022-602), and the court issued the summons on the same day, July 18, 2022. Upon review of an attachment, the summons has not been returned. According to the attached praecipe, no record of service exists. Lowry's attachments include two responses from the Clerk of Court's Office advising that his case cannot proceed until the original summons is returned with proof of service. From the foregoing, the Court is unable to determine that Lowry has perfected service in his pending matters.
We do not find the existence of urgency or emergency factors with Lowry's instant Petition, Spady, ¶ 11. Lowry has not presented a purely legal question for review due to the fact-intensive aspects of the issues he raises. We conclude that he has not met the requirements for a writ of supervisory control to issue. M. R. App. P. 14(3).
IT IS THEREFORE ORDERED that Lowry's Petition for a Writ of Supervisory Control is DENIED and DISMISSED.
The Clerk is directed to provide a copy of this Order to: the Honorable Kathy Seeley and Honorable Christopher Abbott, First Judicial District Court; Angie Sparks, Clerk of District Court, Lewis and Clark County, under Cause Nos. DR 2022-052 and DDV 2022602; counsel of record; and Bobby Francis Lowry personally.