Opinion
DA 24-0129
03-19-2024
WALTER JASON PURKHISER, Respondent and Appellant, v. STATE OF MONTANA; IN THE MATTER OF S.P., YINC Petitioner and Appellee.
ORDER
Walter Jason Purkhiser petitions this Court for an out-of-time appeal and moves for appointment of counsel. Purkhiser indicates that he discussed filing a timely appeal with his attorney but that his counsel did not file it for him. He contends that he did complete his treatment plan and that there was not "abandonment[]" in referring to a 2017 dependent and neglect case from the Eighth Judicial District Court, Cascade County. Purkhiser states that he is filing all 209 pages of attachments because of this "harsh case and under extraordinary circumstances amounting to a gross miscarriage of injustice."
Purkhiser cannot demonstrate extraordinary circumstances here. M. R. App. P. 4(6). This Court has already entertained one appeal concerning the youth, S.P. In re the Matter of S.P., No. DA 20-0314, 2021 MT 57N, 2021 Mont. LEXIS 221 (Mar. 9, 2021). This is Purkhiser's second attempt to initiate another appeal. See Purkhiser v. Bludworth, No. OP 24-0019, Order (Mont. Jan. 2024). We explained then that:
This Court affirmed the District Court's termination of the Mother's and Father's parental rights to the daughter. Matter of S.P., ¶ 2. "The supreme court's decision to uphold a decision of the district court constitutes an affirmance of that portion of the judgment or order of the district court from which the party took the appeal." M. R. App. P. 19(1)(a).
"Res judicata, or claim preclusion, bars the relitigation of a claim that the party has already had an opportunity to litigate." Baltrusch v. Baltrusch, 2006 MT 51, ¶ 15, 331 Mont. 281, 130 P.3d 1267 (citations omitted).
Through counsel, Purkhiser raised several issues, including that the District Court erred in its decision concerning abandonment. Matter of S.P., ¶ 8. We decided:
. Finally, we reject Father's contention the District Court erred in terminating his parental rights based on abandonment. It is clear from the District Court's order terminating Father's parental rights the District Court terminated Father's rights under § 41 -3-609(1)(f), MCA, for failure to successfully complete his treatment plan and his unlikelihood to change in a reasonable time. The District Court did not abuse its' discretion in terminating Father's parental rights.
Matter of S.P., ¶ 12. "Collateral estoppel, or issue preclusion, bars the reopening of an issue that has been litigated and determined in a prior suit." Baltrusch, ¶ 15 (citing Holtman v. 4-G's Plumbing and Heating, 264 Mont, 432, 439, 872 P.2d 318, 3221994)). This Court's prior decision bars Purkhiser from raising the same issues or any new issues because of his appeal. The doctrine of res judicata applies when this Court entered its final judgment. Baltrusch, ¶ 15. Purkhiser is precluded from raising issues about his daughter's custody again.
Purkhiser is not entitled to his request of custody of his daughter. We point out that Purkhiser has counsel to represent him in his pending criminal appeal with this Court. State v. Purkhiser, No. DA 22-0637.
Purkhiser has had an appeal concerning his parental rights of S.P. He cannot have a second such appeal because our previous decision was final, M. R.App. P. 19(1)(a). Furthermore, Purkhiser should not be filing pleadings on his own behalf with this Court when he is represented by counsel. M. R. App. P. 10(1)(c). Therefore, IT IS ORDERED that:
1. Purkhiser's Petition for an Out-of-Time Appeal is DENIED and DISMISSED;
2. Purkhiser's Motion for Appointment of Counsel is DENIED, as moot;
3. the Clerk is directed to CLOSE this matter as of this Order's date; and
4. the Clerk is further directed, henceforth, to return any filings from self-represented Walter Jason Purkhiser until a final decision has been reached in his pending appeal, Cause No. DA 22-0637, State v. Purkhiser. Only after a decision in that appeal is reached and the case is closed, may the Clerk file pleadings submitted by self-represented Walter Jason Purkhiser.
The Clerk is directed to provide a copy of this Order to counsel of record and to Walter Jason Purkhiser personally.