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O'Connell v. Glastonbury Landowners Association, Inc.

Supreme Court of Montana

September 5, 2018

DANIEL K. O'CONNELL and VALERY A. O'CONNELL AND as part owners and member of the Glastonbury Landowners Association, Plaintiffs and Appellants, and
v.
GLASTONBURY LANDOWNERS ASSOCIATION, INC. and current GLASTONBURY LANDOWNERS BOARD OF DIRECTORS, Defendants and Appellees.

          ORDER

         Daniel K. O'Connell, Valery A. O'Connell, and the above-named Appellants (O'Connells) have filed a motion for an out-of-time appeal from the judgment entered by the Park County District Court against them, and the April 23, 2018 deemed denial of their post-judgment Rule 60 motion to set aside the judgment, in O'Connell, et. al. v. Glastonbury Landowners Association, Inc., et. al, Cause No. DV-2011-114. On July 31, 2018, in Cause No. DA 18-0349, we granted the motion of Appellee Glastonbury Landowners Association (GLA) to dismiss that appeal as untimely filed. O'Connells v. Glastonbury Landowners Association, Inc., No. DA 18-0349, Order (Mont. July 31, 2018). The current motion has been filed as a new matter before this Court, designated as Cause No. DA 18-0483. The certificate of service indicates counsel for GLA was served with the motion, but no response has been filed.

         In the motion, O'Connells argue, first, that the Court's analysis of the timeliness of their appeal in Cause No. DA 18-0349, set forth in our July 31, 2018 Order, is incorrect, and that their appeal was, in fact, timely filed. We deem this argument to be in the nature of a request for rehearing in Cause No. DA 18-0349. However, our timeliness analysis was correct, O'Connells' is not, and rehearing is denied.[1]

         O'Connells argue that an out-of-time appeal is justified because the Rules of Civil Procedure were never complied with regarding service upon, and obtaining personal jurisdiction over, the O'Connell Children, whom the District Court also declared to be vexatious litigants. See M. R. Civ. P. 4(s) and M. R. App. P. 6(3)(b). They further argue that the District Court, in the process of declaring the O'Connell Children vexatious litigants, "failed to appoint any legal representation" for the Children, two of whom are minors. M. R. Civ. P. 17(c)(2). In light of their asserted issues of constitutional due process related to the Children, they argue an out-of-time appeal should be granted.[2]

         O'Connells' motion references a separate proceeding before the District Court involving the same parties, Board of Directors of Glastonbury Land Association v. O'Connells, District Court Cause No. DV-2017-135. We have obtained copies of the relevant court docket for that matter, which concerns an order of protection sought by GLA. There, the District Court entered an interim order of protection on December 22, 2017, denied O'Connells' motion for sanctions in August 2018, and entered a final order of protection, along with an order allowing O'Connells to participate in GLA business, on August 15, 2018. A timely appeal, if any, may yet be separately pursued in that matter and, despite O'Connells' erroneous reference to that proceeding, it bears no part in the consideration of the subject motion for out-of-time appeal.

         M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice[.]" O'Connells' argument about deficient service and lack of personal jurisdiction of the O'Connell Children-the primary contention of their motion-raises a viable question of constitutional dimension and establishes, with the record as a whole, extraordinary circumstances for granting an out-of-time appeal. However, such an appeal will be limited to that one issue alone, stated as follows: Whether the District Court properly entered the vexatious litigant order against the O'Connell Children in DV-2011-114. Attempts to raise and argue other issues arising out of that order or proceeding, or other matters, including the District Court's declaration of Daniel K. O'Connell and Valery A. O'Connell as vexatious litigants, will be summarily denied.

         Importantly, it must be understood that the minor O'Connell Children may not represent themselves in court. Neither may they be represented in court by a non lawyer. We conclude there is no need for court appointment of a guardian ad litem for the minor O'Connell Children in this appeal. M. R. Civ. P. 17. However, the minor O'Connell Children must obtain legal counsel in order for their appeal to proceed, and failure to obtain legal counsel within the time stated below will result in closure of this matter. See also § 37-61-416, MCA. Accordingly, IT IS ORDERED that the O'Connells' Motion for an Out-of-Time Appeal is GRANTED IN PART, for purposes of the one issue stated herein, subject to compliance with this Order, including the retention of legal counsel for the minor O'Connell Children.

         IT IS FURTHER ORDERED that O'Connells' Children who are not of legal age MUST RETAIN legal counsel. To provide the minor O'Connell Children sufficient time to comply with this Order, they are granted until November 5, 2018, to file, through legal counsel, a Notice of Appeal from the District Court's order declaring them to be vexatious litigants in Cause No. DV-2011-114. Time requirements for the appeal will follow thereafter in accordance with the Rules of Appellate Procedure. The minor O'Connell Children's' failure to file a proper Notice of Appeal, through legal counsel, on or before November 5, 2018, will constitute a failure to timely appeal and will close this matter, and the District Court's judgment will stand. The adult O'Connell Child shall be subject to the same deadlines for filing a Notice of Appeal and prosecuting an appeal, but may elect to provide self-representation.

         IT IS FURTHER ORDERED that the caption of this proceeding is CHANGED to: CHRISTAL V. O'CONNELL, SHANNON M. O'CONNELL, and VESTA C. O'CONNELL (the O'CONNELL CHILDREN), Third Party Counter Defendants and Appellants v. GLASTONBURY LANDOWNERS ASSOCIATION, INC. and current GLASTONBURY LANDOWNERS BOARD OF DIRECTORS, Defendants and Appellees.

         The Clerk is directed to provide a copy of this Order to counsel of record, to the O'Connells at their provided address, and to June Little, Clerk of District Court, Park County, under Cause No. DV-2011-114.

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Notes:

[1] In our July 31 Order, we explained:

[O'Connells] contend [their notice of appeal was timely filed] by designating May 19, 2018 as the date their last Rule 60 motion was deemed denied (by counting 60 days from their final filing on the matter, on March 19, 2018), and then adding 30 days for filing of the appeal, making their June 21 Notice of Appeal timely. However, O'Connells err in their calculations. The 60-day deemed-denied period runs, not from their final filing/briefing on that motion, but from the date the Rule 60 motion was initially filed, that being on February 20, 2018. See M. R. Civ. P. 59(f).... (emphasis in original).

[2] In their motion, O'Connells assert and reassert about a dozen times that the O'Connell Children were never served with process. Excessively repetitive arguments waste ...


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