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Cope v. Martin

Supreme Court of Montana

September 11, 2013

JOHN COPE, Plaintiff and Appellee,
v.
DUANE MARTIN, Defendant and Appellant.

ORDER

This matter is before us on the appeal of Duane Martin. The sole issue he presents for review is whether the District Court erred in dismissing his appeal from Justice Court. For the reasons set forth below, we conclude that the issue presented on appeal is now moot, and therefore this appeal should be dismissed without prejudice.

After the Justice Court entered judgment against Martin and in favor of the plaintiff John Cope, Martin filed a notice of appeal to the District Court, and filed a $12, 000 appeal bond. Cope then sought to dismiss the appeal, alleging that the amount of the appeal bond was inadequate. The District Court agreed, and granted his motion to dismiss the appeal. It is from that order that Martin appeals to this Court.

Martin filed his opening brief on appeal on May 9, 2013, and the matter has now been fully briefed. In his reply brief, Martin advises that on April 25, 2013, he posted additional sureties with the District Court in order to supplement the existing bond on file. Martin also provides a copy of a District Court order entered on May 22, 2013, in which the District Court accepted the letter of credit and other documents submitted by Martin as equivalent to a supersedeas bond, and overruled plaintiffs objection thereto.

M. R. App. P. 22(1)(c) provides that a district court retains the power to entertain and rule upon a motion filed pursuant to the rule governing supersedeas bonds, despite the pendency of an appeal. Therefore, the District Court had the authority to accept as adequate the supplemental bond/surety filed by Martin, notwithstanding the pendency of this appeal. Because the District Court has accepted as adequate Martin's bond and surety, we conclude this appeal is moot. "Mootness is the doctrine of standing set in a time frame." In other words, "if the issue presented at the outset of the action has ceased to exist or is no longer 'live, ' or if the court is unable due to an intervening event or change in circumstances to grant effective relief . . . then the issue before the court is moot." Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 17, 364 Mont. 390, 276 P.2d 867. Because the District Court accepted the supplemental sureties as sufficient, Martin's appeal from the Justice Court will now presumably go forward in the District Court. This being so, the issue presented by Martin at the outset of this appeal has ceased to exist. Therefore,

IT IS HEREBY ORDERED that this appeal is DISMISSED AS MOOT, without prejudice. This matter is remanded to the District Court for further proceedings.

The Clerk of this Court is directed to provide a copy of this Order to all counsel of record, and to the Honorable James B. Wheelis, Nineteenth Judicial District Court, under Cause No. DV-12-216.


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