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Wallace v. Hayes

Supreme Court of Montana

November 26, 2013

LEONARD WALLACE, Plaintiff and Appellant,
v.
NORMAN HAYES, MAGTRAC BOLUS PARTNERSHIP, GERALD HILL, LUCILLE HILL, JACK HEYNEMAN, JOHN HEYNEMAN, and RODNEY J. HAYES, Defendants and Appellees.

ORDER

Leonard Wallace (Wallace) has filed a petition for an out-of-time appeal from a January 30, 2013, order from the Thirteenth Judicial District Court, Yellowstone County, that denied Wallace's motion to remand to the arbitrator, and the court's imposition of sanctions against Wallace and his counsel. Wallace asserts that his counsel failed to notify him of the decision that had been filed and that his counsel had withdrawn after the District Court had referred to "arrows, " "bleeding, " and "sanctions" in the January order. The Court determined that Wallace and his counsel had made representations to the Court that failed to comply with the criteria in M. R. App. P. 11(b), and imposed a sanction of $500 against Wallace and his counsel.

Wallace had 30 days from the date that the District Court filed its order on January 30, 2013, in which to file an appeal. Wallace did not file his notice of appeal within the 30-day limit. Montana Rule of Appellate Procedure 4(6) provides, however, for granting an out-of-time appeal "in the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice." Wallace had the right to file a timely appeal once a final order was entered on January 30, 2013, but he waited more than nine months to do so. Wallace has failed to present a sufficient justification for belatedly seeking an out-of-time appeal.

The circumstances here do not rise to the level of "extraordinary circumstances amounting to a gross miscarriage of justice" as required in M. R. App. P. 4(6). Further, Wallace has not made any showing that he has any meritorious issues to raise on appeal. Accordingly, we must deny this petition for failure to satisfy the requirements of M. R. App. P. 4(6).

Wallace also seeks an appeal from an order on October 25, 2013, wherein the District Court judge refused to disqualify himself and to vacate decisions and orders made by the District Court. We observe that on November 15, 2013, Wallace also filed a Notice of Appeal in Cause No. DA 13-0761. This appeal seeks review of the same October 25, 2013, order of the Thirteenth Judicial District Court. Consequently, it is apparent that Wallace timely filed the Notice of Appeal with respect to the District Court's October order in Cause No. DA 13-0761.

The October 25, 2013, order states, however, that Wallace had filed a motion in 2011 that the District Court noted was "virtually identical" to Wallace's 2013 motions to disqualify the District Court judge and to vacate orders and judgments of the District Court. We issued a May 11, 2011, order which denied Wallace's 2011 motion to disqualify the District Court judge. Wallace is raising the same issues in 2013 which the District Court and this Court already resolved in 2011. Wallace cannot attempt to re-litigate issues that have already been decided.

IT IS ORDERED that the Petition for an Out-of-Time Appeal from the January 30, 2013, order is DENIED.

IT IS FURTHER ORDERED that the appeal from the October 25, 2013, order is DISMISSED because re-litigation of these issues is barred under the principle of res judicata.

The Clerk is directed to provide a copy hereof to counsel of record and to Leonard Wallace.


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