February 12, 2014
TINA MALCOMSON, Petitioner and Appellee,
LIBERTY NORTHWEST, Respondent and Appellant.
Appellee Tina Malcomson filed her answer brief on February 11, 2014.
Rule 12(l)(f) and (2) of the Montana Rules of Appellate Procedure require the argument portion of an appellee's brief to be preceded by a summary, under an appropriate heading, which contains a succinct, clear, and accurate statement of the arguments made in the body of the brief and which is not a mere repetition of the argument headings. Appellee has not provided the required summary of her arguments.
Additionally, Rule 12(2) requires the appellee's answer brief to include the same components as the appellant's brief. The only exceptions are a statement of the issues presented for review and a statement the case, which need not be provided unless the appellee is dissatisfied with the statement(s) provided by the appellant. Appellee's brief does not comply with Rule 12(2) in that it omits a statement of the facts relevant to the issues presented for review, with references to the pages or the parts of the record at which material facts appear. See Rule 12(l)(d), (2). Appellee purports in her Statement of the Facts section to "incorporate[ ] by reference" the findings of fact entered by the Workers' Compensation Court; however, the Rules do not permit a party's brief to "incorporate by reference" the contents of other documents. See State v. Ferguson, 2005 MT 343, ¶¶ 40-42, 330 Mont. 103, 126P.3d463. Therefore,
IT IS ORDERED that the original and nine copies of the referenced brief be, and are hereby, returned for revisions necessary to comply with the foregoing rules;
IT IS FURTHER ORDERED that, other than the addition of a summary of the argument, a statement of the facts, and an updated certificate of compliance, no other changes, additions, or deletions may be made to Appellee's answer brief as originally filed;
IT IS FURTHER ORDERED that the original and nine copies of the revised brief ordered herein be filed with the Clerk of the Supreme Court within ten days of the date of this Order and that one copy of the revised brief be served upon each counsel of record;
IT IS FURTHER ORDERED that the postage costs for returning the original and nine copies of Appellee's answer brief be billed to Appellee by the Clerk of the Supreme Court and are due and payable upon receipt; and
IT IS FURTHER ORDERED that the times for any subsequent briefing contained in M. R. App. P. 13 shall run from the date of re-filing the brief being returned this date.
The Clerk is directed to mail a true copy of this Order, together with the original and all copies of Appellee's answer brief, to Appellee and to mail a true copy of this Order to all counsel upon whom the brief was served.