November 14, 2013
M. STAGEY PALMER, M. STAGEY PALMER TRUST, Plaintiff and Appellant,
ROBERT QUINN, AMF GONTRAGTING, SHAWN JOHNSTON, STEVE JOHNSTON, and GARY PERREN and GITY OF THREE FORKS, MAYOR GENE TOWNSEND, RAY NOBLE and G & H ENGINEERING & SURVEYING, ING. MARK GHANDLER, MATT GOTTERMAN AND JOHN DOES 1 THROUGH 20, Defendants and Appellees.
Appellant M. Stacey Palmer and the M. Stacy Palmer Trust (collectively "Palmer") has filed a motion to strike all untimely filed answer briefs. In the motion, Palmer asserts that the due date for answer briefs was September 30, 2013, or 30 days after service of Palmer's opening brief which was served by mail on August 29, 2013. Palmer states that she has not received copies of the answer briefs, except the brief from Appellees C & H Engineering and Surveying, Inc., and Chandler and Cotterman. The Clerk accepted and filed all of the answer briefs, all of which were filed by October 3, 2013.
Each of the named Appellees have filed a response objecting to the motion to strike. Some disagree that the answer briefs were due prior to October 3, 2013. Counsel for the City of Three Forks, Mayor Townsend and Ray Noble indicates that he contacted the Clerk of Court who indicated the brief would be accepted if filed on October 3, that Palmer has benefited from various extensions of time, and that the Montana Rules of Appellate Procedure do not allow a motion to strike, but "If an appellant fails to file a brief within the time provided by this rule, or within any extended time, an Appellee may move for dismissal of the appeal." M. R. App. P. 13(3). Other Appellees relied upon the date the Appellant's brief was filed in calculating the answer brief due date. Further, counsel for Gary Perren points out that Palmer failed to comply with M. R. App. P. 16 by contacting opposing counsel to ascertain if there was any objection to the motion to strike.
On October 18, 2013, Palmer filed a "notice of errata" in which she acknowledges that her own address was incorrect in the opening brief, which may have contributed to her failure to receive copies of the answer briefs.
M. R. App. P. 13(1) provides that "The appellee shall serve and file an answer brief within 30 days after service of the brief of appellant." We observe that in an August 15, 2013 Order, this Court granted Palmer until September 3, 2013 to file the opening brief. We cannot fault the Appellees for serving their answer brief to inaccurate address when Palmer inadvertently provided an incorrect address on her opening brief.
Court records indicate that the Appellant's brief was filed on September 3, 2013. This Court has afforded Palmer significant latitude in this appeal process. It would be patently unfair to foreclose the Appellees' appeal rights because Palmer served her brief a few days early.
IT IS ORDERED that the Motion to Strike All Untimely Filed Answer Briefs is DENIED.
The Clerk is directed to provide a copy hereof to counsel of record and to M. Stacey Palmer.