November 20, 2013
GREG LeMOND, an individual, Plaintiff and Appellee,
YELLOWSTONE DEVELOPMENT, LLC, a Montana limited liability company; YELLOWSTONE MOUNTAIN CLUB, LLC, a Montana limited liability company; TIMOTHY BLIXSETH, an individual; OVERLOOK PARTNERS, LLC; and 395 LAMPE, LLC, Defendants and Appellants. 395 LAMPE, LLC, Counterclaimant and Appellant,
GREG LeMOND, Counterdefendant, Appellee and Cross-Appellant.
Appellee/Cross-Appellant Greg LeMond (LeMond) has filed a motion for judicial notice of certain documents which LeMond claims are made relevant by Appellants'— Timothy L. Blixseth (Blixseth) and Overlook Partners, LLC—briefing.
The dispute on appeal arises from an alleged contract between the "Yellowstone Defendants" (Yellowstone Development, LLC, Yellowstone Mountain Club, LLC, and Blixseth) and LeMond. LeMond claims that he has an interest in certain real property pursuant to the alleged contract. The Fifth Judicial District Court, Madison County, entered summary judgment in favor of LeMond. The Yellowstone Defendants, Overlook Partners, LLC, and 395 Lampe, LLC, have appealed the District Court's judgment.
Pursuant to M. R. Evid. 202, LeMond seeks judicial notice of law of eleven documents that LeMond has included in the appendix of his answer brief. The documents are labeled 6 through 16. Documents 6 through 15 pertain to United States Bankruptcy Court cases. Appendix 16 is a United States District Court opinion on appeal from a Bankruptcy Court order.
Montana Rules of Evidence 202(b)(6) allows a court to take judicial notice of law, including "[r]ecords of any court of this state or of any court of record of the United States or any court of record of any state of the United States." Documents 6, 7, 8, 15, and 16 in LeMond's appendix are court decisions, memorandums, and orders. All of these documents are court records that contain law. M. R. Evid. 202(b)(6). These documents properly can be the subject of judicial notice.
The remaining six documents appear to involve exhibit lists, stipulations, and motions that potentially raise factual disputes for this Court. These documents do not contain law of which we may take judicial notice pursuant to M. R. Evid. 202. The Court can take judicial notice of the fact that these documents were filed with the Bankruptcy Court, however, pursuant to M. R. Evid. 201. The Court will not consider the content of the documents if, and to the extent, these documents are used in an attempt to provide factual support for LeMond's position that is not record-based. This Court is confined in equity cases to a consideration of evidence presented in the record. Section 3-2-204(5), MCA.
IT IS HEREBY ORDERED that LeMond's Motion for Judicial Notice is GRANTED for Documents 6, 7, 8, 15, 16 and GRANTED for Documents 9 through 14 with the proviso that the Court will give them appropriate consideration, if any, to which they are due in this appeal.
The Clerk of this Court is directed to provide copies of this order to Appellee/Cross-Appellant Greg LeMond and to all counsels of record.