On June 26, 2013, counsel for Schmidt (Dale R. Mrkich) sent a letter to counsel for the Corbins (Anne Blanche Adams) accusing the Corbins and Adams of omitting relevant facts and making false statements of fact in their filings with the District Court and this Court. Mrkich asked Adams to immediately disclose the "false and incorrect facts" to the District Court and to this Court. Mrkich followed this letter with an affidavit, filed in this Court on July 11, 2013, in which he reiterates the same accusations. He requests that this Court "consider the facts contained in this Affidavit when deciding whether the district court erred when it dismissed Championship Training, LLC from the lawsuit."
Mrkich's contentions relate to the fact that Championship Training, LLC, originally was organized and registered with the Montana Secretary of State in June 2009 under the name Coach Corbin, LLC. The Corbins registered a change of the company's name to Championship Training, LLC, in November 2009. Mrkich contends, however, that James Corbin failed to disclose to Schmidt the existence of Coach Corbin in September 2009 when Schmidt, "pursuant to oral agreements, " delivered a loan to the Corbins. Nor did James, according to Mrkich, disclose the company's name change in November 2009. Mrkich asserts that neither he nor his client became aware of these facts until recently. Mrkich further asserts that James Corbin and Jamie Troiano (the tax accountant for the Corbins and Championship Training) made false statements in their affidavits (dated September 25, 2012, and October 26, 2012, respectively) when they indicated that Championship Training had been registered in June 2009. Mrkich posits that these factual matters are pertinent to whether the Corbins were properly granted summary judgment and whether Championship Training was properly dismissed from this lawsuit.
On July 5, 2013, the Corbins (through Adams) filed in this Court a response to Mrkich's accusations. They attached Mrkich's June 26 letter as an exhibit. The Corbins state that they have made no misrepresentations regarding Championship Training. They note that although the name was changed in November 2009, the company has always been the same limited liability company with the same date of organization and registration, and that Schmidt has been on constructive notice of the company's existence since June 2009. Moreover, the Corbins point out that the name change is irrelevant to this lawsuit. Schmidt brought this action for breach of contract based upon a written contract dated November 26, 2010, and this contract was between Schmidt and the Corbins in their individual capacities; Championship Training was not a party to the contract.
In considering the parties' filings, we first note that Mrkich's affidavit has not been properly presented for this Court's consideration pursuant to the procedures outlined in Rule 8(6) of the Montana Rules of Appellate Procedure (regarding correction or modification of the record). Furthermore, even if the affidavit were deemed part of the record, this Court rendered its decision on Schmidt's appeal on July 9, 2013, and none of the factual matters alleged in the affidavit alter our conclusions that the District Court correctly dismissed Championship Training from the lawsuit and correctly granted summary judgment to the Corbins. Schmidt's entitlement to relief is controlled by the terms of the November 26, 2010 contract, and Championship Training is not a party to that contract. Moreover, as the District Court determined, the Corbins not only paid Schmidt the full amount due under the contract, but paid excess principal in the amount of $1, 557.26, which is greater than the "just under $1, 200" that Schmidt claims is still due. Accordingly, we agree with the Corbins that the factual matters identified by Mrkich are immaterial.
It has come to the Court's attention that the Corbins' motion to strike certain exhibits from the appendix to Schmidt's opening brief remains pending. That motion, filed April 24, 2013, also included a request for sanctions against Schmidt in the form of attorney's fees and costs associated with drafting and filing the motion to strike. On May 15, 2013, this Court entered an order indicating that the matter had been taken under advisement. Having now considered the matter, we deem the motion to strike moot and decline to impose sanctions.
Based on the foregoing,
IT IS ORDERED that Mrkich's affidavit, construed as a motion to correct or modify the record, is DENIED.
IT IS FURTHER ORDERED that the Corbins' motion to strike and their accompanying request ...