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S & E Operations, Inc. v. Fortner

Supreme Court of Montana

January 22, 2014

S & E OPERATIONS, INC. and FAS MONTANA LLC, Plaintiffs,
v.
TRACY FORTNER and MARCY FORTNER, Defendants and Appellees, BOB SYPHRETT, Third Party Defendant and Appellant, ROBERT ANDREWS, Third Party Defendant and Appellee.

ORDER

Appellees Tracy and Marcy Fortner, by counsel, have filed a motion to dismiss the appeal of third-party defendant and appellant Bob Syphrett. Syphrett, appearing as a self-represented litigant, has filed a response in opposition to the motion.

The plaintiffs S & E Operations, Inc. and FAS Montana LLC, by counsel, commenced this lawsuit against Fortners in 2009. Syphrett, a member/officer of the named plaintiffs, was subsequently named as a third-party defendant in a third- party complaint filed by Fortners. The plaintiff entities were initially represented by counsel, but their attorneys withdrew in June, 2011.

On August 14, 2013, the District Court entered an "Order on Pending Motions." This is the order from which Syphrett appeals. Pertinent here, the District Court noted that the plaintiff entities had not been represented by counsel since June of 2011. The court further observed that while Syphrett has continued to appear on his own behalf, many of his filings advance arguments on behalf of the plaintiff entities. Because Syphrett is not an attorney, he cannot represent the plaintiff entities. The court therefore stated in its order: "[A]ll materials filed by Syphrett on any motion, except such motions as he files on behalf of himself, are void and stricken. To the extent the materials filed by Syphrett argue on behalf of either S&E or FAS, such materials are void and stricken." In addition, the court granted the Fortners' motion to dismiss the claims of the plaintiff entities for their failure to obtain new counsel in the proceeding. As of the date that Syphrett filed his notice of appeal, there was pending in the District Court a January 17, 2014 hearing on status and scheduling matters.

The Fortners argue that Syphrett's appeal must be dismissed because the District Court has not issued a final judgment on any issue in this case. Further, Syphrett has failed to seek a M. R. Civ. P. 54(b) certification. According to M. R. App. P. 6(5)(a), in cases involving multiple parties or multiple claims for relief, any order which adjudicates fewer than all claims as to all parties is not appealable.

Syphrett opposes the motion to dismiss. He maintains that all of his filings were made by him in his capacity as a third-party defendant, seeking to protect his individual rights in these proceedings. By summarily concluding that his filings benefit the corporate parties, the District Court has in effect imposed a blanket denial of his Sixth Amendment right to due process and his right to protect his individual interests in these proceedings. He urges us to deny the motion to dismiss.

We conclude that Fortners' motion to dismiss Syphrett's appeal must be granted. The Montana Rules of Appellate Procedure do not permit piecemeal appeals during the pendency of litigation in the District Court, except under narrow circumstances not present here. The District Court's order of August 14, 2013, is clearly an interlocutory order. Syphrett shall have the right of appeal from interlocutory orders issued by the District Court after the court enters final judgment as to all claims and parties. Accordingly,

IT IS HEREBY ORDERED that Fortners' motion to dismiss Syphrett's appeal is GRANTED. Syphrett's appeal is dismissed without prejudice.

The Clerk of this Court is directed to serve notice of this Order upon all counsel of record, upon all self-represented parties at their last known addresses, and upon the Honorable James P. Reynolds, Montana First Judicial District Court.


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