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City of Missoula v. Sullivan

Supreme Court of Montana

December 5, 2017

CITY OF MISSOULA, Plaintiff and Appellee,
v.
TERRY JAMES SULLIVAN, Defendant and Appellant.

          ORDER

         By order filed November 14, 2017, this Court dismissed Appellant Terry Sullivan's previously-filed pro se appeal from a judgment of the Montana Fourth Judicial District Court, Cause No. DC-17-034, affirming a prior judgment of criminal conviction in the City of Missoula Municipal Court, Cause No. CR-16-1045. We dismissed the appeal pursuant to M. R. App. P. 4(5) as untimely filed after October 1, 2017. By petition filed November 22, 2017, Sullivan now moves through counsel for leave to file an out-of-time appeal on the asserted ground that the Court's prior "dismissal of [his] meritorious appeal is a harsh result and, under the extraordinary circumstances of this case, amounts to a gross miscarriage of justice." By separate petition filed November 27, 2017, Sullivan seeks rehearing and reconsideration of our prior order of dismissal on similar grounds. For the following reasons, we hereby deny Sullivan's petitions.

         On November 3, 2017, Sullivan filed a notice of appeal from a judgment of the Montana Fourth Judicial District Court, Cause No. DC-17-034, affirming a prior judgment of criminal conviction of the City of Missoula Municipal Court in Cause No. CR-16-1045. Sullivan further moved this Court for appointment of counsel on appeal. Sullivan's notice of appeal purported to appeal a final written judgment of the district court dated September 7, 2017. Upon judicial notice of the lower court dockets, we ascertained that the District Court entered an appealable final judgment on August 1, 2017, denying a motion to disqualify the judge and further dismissing the appeal pursuant to U. M. C. R. App. 14[1] for failure to timely file a supporting brief.

         Criminal defendants may appeal adverse municipal court judgments to district court but only in strict accordance with the procedural requirements of the U. M. C. R. App. Sections 3-6-110(1), 46-20-101 and -104(1), and 46-17-401 and -404(1), MCA; U. M. C. R. App. 1. District courts do not acquire jurisdiction over appeals from municipal court judgments absent strict compliance with the procedural requirements of U. M. C. R. App. See Mont. Const, art. VII, § 4(2); § 3-6-110(1), MCA. In turn, a party may appeal an adverse judgment of the district court, on appeal of an adverse municipal court judgment, to this Court in strict accordance with the procedural requirements of the M. R. App. P. See §§ 46-20-101, -104(1), 46-17-401, and -404(1), MCA; M. R. App. P. 1(2), 2(c), and 4(2)(a). Whether appealing from a district court judgment of conviction or an adverse district court judgment on appeal of a municipal court judgment of conviction, an appellant must timely fde a notice of appeal in this Court no later than 60 days from the date of entry of final judgment in district court. M. R. App. P. 4(5)(a)(i) and (b)(i). Except as otherwise provided by M. R. App. P. 4(6), failure to timely file a notice of appeal from a final judgment constitutes a waiver of the appellant's right to appeal. M. R. App. P. 4(2)(a), (c), and 6(1).

         Here, the District Court entered judgment on August 1, 2017, denying Sullivan's municipal court appeal pursuant to U. M. C. R. App. 14. The judgment of dismissal was a final judgment for purposes of M. R. App. P. 4(1)(a), (5)(a)(i), (b)(i), and 6(1). See also U. M. C. R. App. 17 (district court dismissal of appeal effectively affirms lower court judgment). Since an appeal from a lower court judgment of criminal conviction case is a separate civil proceeding in district court for review of the underlying criminal conviction for compliance with applicable law, [2] M. R. App. 4(2)(a), (5)(a)(i), and 6(1) required Sullivan to file a notice of appeal no later than October 1, 2017. Sullivan did not file his notice of appeal until November 3, 2017.

         Nonetheless, this Court may grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice" as shown by verified petition with supporting "affidavits, records, and other evidence." M. R. App. P. 4(6) (emphasis added). However, "[e]xtraordinary circumstances" warranting an out-of-time appeal "do not include mere mistake, inadvertence, or excusable neglect." M. R. App. P. 4(6). The gist of Sullivan's assertion of a harsh result and a gross miscarriage of justice resulting from extraordinary circumstances boils down to no more than: (1) that he was an uninformed pro se litigant who acted in good faith to comply with the rules; (2) an ultra-technical legal argument that the M. R. App. P. do not address this situation and the resulting assertion that he was thus prejudiced by an unwritten rule of procedure; and (3) that he has nine "meritorious" assertions of error and that "several" unnamed attorneys advised him that the District Court's order of dismissal was a "highly improper" ex parte order.

         However, the rule that the failure to timely file a notice of appeal of a final judgment constitutes a waiver of the right to appeal is not an unwritten rule. See M. R. App. P. 4(2)(a), (c), and 6(1), and (2). Nor is the well-settled rule that a motion for reconsideration does not toll the deadline for filing a notice of appeal except as provided by M. R. App. P. 6(3)(a) (right to appeal from M. R. Civ. P. 59 motion to alter or amend judgment). See also Nelson v. Driscoll, 285 Mont. 355, 359-62, 948 P.2d 256, 259-60 (1997) (mere motion to reconsider not a cognizable motion for tolling of appeal deadline). The September 7, 2017 order from which Sullivan now seeks to appeal out-of-time was merely a District Court order denying his motion for reconsideration of its prior August 1, 2017 order of dismissal. Even through counsel here, Sullivan has made no assertion, much less a showing, that his motion to reconsider was the substantive equivalent of a M. R. Civ. P. 59 motion to alter or amend judgment, thereby tolling or extending his appeal deadline pursuant to M. R. App. P. 6(3)(a).

         Sullivan's cursory assertions that he has "meritorious" assertions of error and that several unnamed attorneys advised him that the District Court's dismissal order was "highly improper" are similarly insufficient to satisfy the M. R. App. P. 4(6) requirement for a supported showing of a gross miscarriage of justice resulting from extraordinary circumstances. While we typically provide pro se litigants considerable latitude with technical pleading requirements, all litigants must strictly adhere to procedural rules, particularly those that are jurisdictional in nature. Xin Xu v. McLaughlin Research Inst, for Biomedical Set, Inc., 2005 MT 209, ¶ 23, 328 Mont. 232, 119 P.3d 100. Even liberally viewed, Sullivan has at best shown no more than his own mistake and excusable neglect, neither of which are sufficient alone to constitute a supported showing of a gross miscarriage of justice resulting from extraordinary circumstances as required by M. R. App. P. 4(6). Therefore, THE COURT HEREBY ORDERS that Sullivan's Petition For Out-Of-Time Appeal filed November 22, 2017, and related Petition For Rehearing filed November 27, 2017, are hereby DENIED.

         The Clerk is hereby respectfully ordered to serve a copy of this Order to counsel of record, and to Terry Sullivan.

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Notes:

[1] The Montana Uniform Municipal Court Rules of Appeal to District Court are codified at Title 25, Chapter 30, MCA.

[2] See M. R. App. P. 6(2) (appealable orders in criminal ...


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