July 10, 2013
IN THE MATTER OF THE GUARDIANSHIP OF HERBERT OSORIO, A Protected Person, Petitioner and Appellant.
Linda Osorio St. Peter, temporary guardian of Herbert Osorio, by counsel (Linda), has filed a notice of appeal seeking review of District Court orders granting a temporary injunction entered on June 3 and 4, 2013. In response, Linda's brother, John H. Osorio, appearing pro se (John), has filed a motion to dismiss the appeal and supporting affidavit. Linda has filed a memorandum in opposition to the motion to dismiss.
The essential facts underlying this appeal are not in dispute. The respondents John and his two other sisters Debra Thorson and Karlene Khor are contesting Linda's appointment as the sole temporary guardian of their father. When John's sisters learned that Linda was possibly removing property from Herbert's residence in Kalispell, they filed a motion on May 28, 2013, for temporary injunction, accounting, and brief in support. Subsequently, the presiding judge, Hon. Heidi J. Ulbricht, entered two orders. The first order, issued June 3, 2013, enjoined Linda from removing any further property belonging to Herbert until the contested hearing regarding the temporary guardianship could be concluded. The second order, issued June 4, 2013, granted respondents' motion for temporary injunction, and scheduled a hearing for June 11, 2013. On June 10, 2013, Linda filed a notice of appeal with this Court.
On June 17, 2013, the District Court issued an order vacating the temporary injunction. The court explained that the entry of the two orders referenced above was the result of "inadvertent oversight and mistake." The court also vacated a hearing then scheduled for June 14, 2013, on the temporary guardianship, "until further order from the Supreme Court."
John argues in his motion and affidavit that Linda has refused to dismiss this appeal despite his request and a request from the District Court that she do so, in light of the fact that the orders which form the basis for the appeal have been vacated. John cites our decision in Northern Plains Resource Council v. Bd. of Health and Envtl. Sciences, 184 Mont. 466, 472, 603 P.2d 684, 688 (1979), for the proposition that while jurisdiction passes from the district court and vests in the Supreme Court once a notice of appeal has been filed, the district court retains jurisdiction to correct clerical errors, which is what the District Court did here. John also requests an award of reasonable fees and costs incurred in bringing this motion, and asks that any funds expended from his father's estate to fund this appeal be repaid to the estate.
Linda opposes the motion to dismiss, claiming that the District Court had no authority to vacate its prior orders as it lost jurisdiction once the notice of appeal was filed. However, we agree with John that the District Court retained jurisdiction to correct its clerical errors after the notice of appeal was filed. Moreover, Linda does not explain why it is necessary that her appeal go forward. If it is her argument that the injunctions were wrongly entered, she has already won that argument, as the court has withdrawn its orders. The most this Court would do after a full appeal would be to direct the District Court to vacate its injunctions and schedule the matters for further hearing upon notice and an opportunity to be heard. Because it is evident that this is precisely what the District Court intends to do, this appeal would only delay the proceedings.
IT IS HEREBY ORDERED that John's motion to dismiss this appeal is GRANTED. Linda's appeal is DISMISSED WITHOUT PREJUDICE.
IT IS FURTHER ORDERED that John's request for an order of fees and costs in bringing this motion, together with his request that any funds expended from his father's estate to fund this appeal be repaid to the estate, shall be taken up in the District Court.
The Clerk of this Court is directed to provide a copy of this Order to John, to all counsel of record, and to the Eleventh Judicial District Court, the Hon. Heidi J. Ulbricht, presiding.