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Janecke v. Heitman

Supreme Court of Montana

January 7, 2014

BILL JANECKE, Plaintiff and Appellee,
v.
KATHLEEN HEITMAN, Defendant and Appellant.

ORDER

Representing herself, Kathleen Heitman (Heitman) has filed a petition for an out-of-time appeal from an order and judgment entered by the District Court on April 8, 2013. The case was tried injustice court, which ordered that Heitman's month-to month tenancy of her apartment be terminated and awarded attorney fees and costs of obtaining a writ of execution to Bill Janecke (Janecke). Heitman disputes the adequacy of the notice to quit the premises via an e-mail on August 3, 2012. Janecke provided her a hand-delivered notice under her door on August 4, 2012. Heitman claims that she was not provided notice via certified mail as § 70-24-108(c), MCA requires. Janecke was required to take legal action to remove her from his parents' four-plex.

Both parties were represented by counsel in justice court where the court determined that Janecke had the right to terminate the tenancy for any reason and that he met the statutory notice requirements. The justice court found no evidence that the termination was retaliatory.

In her appeal to District Court, Heitman did not dispute the amount of attorney fees awarded to Janecke and abandoned the retaliation issue. She challenged only the adequacy of notice. In its April 8, 2013 order, the District Court concluded that Heitman had actual knowledge of the 30-day termination notice when she read the e-mail on August 4, 2012, and was thereby required to vacate the premises by September 3, 2012. Heitman failed to move out of the premises until the justice court issued its order on November 7, 2012. The District Court concluded the parties were required to "go through an expensive court proceeding over a relatively non-existent issue, " and the landlord had an unconditional right to terminate the tenancy at any time upon 30 days notice.

The only ostensible excuse Heitman offers for failing to file a timely appeal is that her elderly father passed away and she was required to assist her out-of-town mother. She states that she is disabled, she acted in good faith and was abused by the eviction process. Heitman has not made a showing that she has a meritorious issue to raise on appeal. Further, the purported justification for a 7-month delay in seeking an out-of-time appeal does not rise to the level of "extraordinary circumstances amounting to a gross miscarriage of justice" as required in M. R. App. P. 4(6).

IT IS HEREBY ORDERED that the Petition for an Out-of-Time Appeal is DENIED.

The Clerk is directed to provide a copy hereof to counsel of record and to Kathleen Heitman.


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