September 11, 2013
BILLINGS LEGAL, PLLC, Petitioner,
MONTANA THIRTEENTH JUDICIAL DISTRICT, Yellowstone County, the Honorable Russell C. Fagg, Presiding Judge, Respondent.
Billings Legal, PLLC, has asked this Court to exercise supervisory control over the Thirteenth Judicial District Court in Yellowstone County Cause No. DV 12-1362. Specifically, Billings Legal asks us to reverse the District Court's denial of its motion for summary judgment. At our invitation, counsel for Roy Bragg, the plaintiff in DV 12-1362, has filed a response objecting to the petition for writ of supervisory control. In addition, Daniel G. Gillispie, d/b/a/ Gillispie Law Office, PC, and Robert and Lynn Hilten, all of whom are defendants in DV 12-1362, have filed "notice[s] of joinder in Billings Legal, PLLC's, petition for writ of supervisory control."
Copies of documents appended to the petition for writ of supervisory control indicate that the District Court action is a four-count complaint for malicious prosecution and abuse of process filed by Bragg against the Hihens, Billings Legal, and Gillispie. The alleged malicious prosecution and abuse of process occurred in an assault and battery complaint filed against Bragg. Billings Legal moved for summary judgment in the malicious prosecution/ abuse of process action on grounds that the assault and battery complaint was not served on Bragg and the District Court did not acquire personal jurisdiction over Bragg while Billings Legal was acting as counsel; there was no legal process against Bragg; Billings Legal had withdrawn as counsel for the plaintiff before Bragg voluntarily made a personal appearance in that action; and Bragg is judicially estopped from asserting that claims were prosecuted against him because he took the direct contrary position in the assault and battery action, which he moved to dismiss for lack of prosecution. The District Court denied Billings Legal's motion for summary judgment in the malicious process/abuse of process action, as well as a motion for summary judgment filed by Gillispie, on grounds that it was sufficient for purposes of the malicious prosecution claim that Bragg alleged that Billings Legal and Gillispie commenced the assault and battery against him; and that, under Montana law, an abuse of process claim may be predicated on the filing of a baseless lawsuit and does not require service of process.
Supervisory control is an extraordinary remedy that may be appropriate when (1) urgency or emergency factors make the normal appeal process inadequate; (2) the case involves purely legal questions; and (3) as alleged here, the other court is proceeding under a mistake of law and is causing a gross injustice. M. R. App. P. 14(3).
Having reviewed the petition for writ of supervisory control and the response, we are not convinced that emergency circumstances make the normal appeal process inadequate here. Nor are we convinced that, under the circumstances presented, the District Court is proceeding under a mistake of law causing a gross injustice. Therefore, and without making a substantive decision on the issues presented in relation to the court's denial of the motion for summary judgment, we conclude it has not been established that supervisory control is justified in this case.
Therefore, IT IS ORDERED that the petition for writ of supervisory control is DENIED and DISMISSED.
The Clerk is directed to provide copies of this order to all counsel of record.