ORIGINAL 09/09/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: OP 20-0425
OP 20-0425
FILED
VALERIE CADY n/k/a VALERIE LAFOND, SEP 0 9 2020
RUSSELL LAFOND,and MERILEE LAFOND,
Bowen Greenwooci
Clerk of Supreme Court
State of Montana
Petitioners,
v.
ORDER
MONTANA TENTH JUDICIAL DISTRICT,
FERGUS COUNTY,HONORABLE JOHN A.
OLDENBURG,
Respondent.
Petitioners Valerie Cady n/k/a Valerie LaFond, Russell LaFond, and Merilee
LaFond(LaFonds)seek a writ of supervisory control directing the Tenth Judicial District
Court, Fergus County, to vacate its July 30, 2020 Order on Pending Motions in its Cause
No. DV-14-2017-61. In that Order, among other rulings, the District Court denied
Plaintiffs LaFonds' motion to dismiss the counterclaim of DP Construction, Inc., the
Defendant in the underlying matter. In denying LaFonds' motion to dismiss, the District
Court found unpersuasive LaFonds' argument that a construction lien filed in the name of
DP Construction, Inc., must be dismissed because the entity did not exist at the time the
lien was filed. The court noted that it had ruled upon that issue in Defendant's favor in an
earlier order, stating that LaFonds' attempt to resurrect the issue via a motion to dismiss
was "simply a second bite of the apple[1" The court further ruled, "It shall be the law of
this case that the Construction Lien dated April 26, 2017 is a valid lien and the Defendant
may pursue his remedies thereunder."
Supervisory control is an extraordinary remedy that is sometimes justified when
urgency or emergency factors make the normal appeal process inadequate, the case
involves purely legal questions, and one or more ofthe three following circumstances exist;
the other court is proceeding under a mistake of law and is causing a gross injustice,
constitutional issues of state-wide importance are involved, or the other court has granted
or denied a motion for substitution of a judge in a criminal case. M. R. App. P. 14(3).
Consistent with Rule 14(3), it is the Court's practice to refrain from exercising supervisory
control when the petitioner has an adequate remedy of appeal. E.g., Buckles v. Seventh
Jud. Dist. Ct., No. OP 16-0517,386 Mont. 393,386 P.3d 545(table)(Oct. 18,2016);Lichte
v. Mont. Eighteenth Judicial Dist. Court, No. OP 16-0482, 385 Mont. 540, 382 P.3d 868
(table)(Aug. 24, 2016). "[A] writ of supervisory control is not to be used as a means to
circumvent the appeal process. Only in the most extenuating circumstances will such a
writ be granted." State ex rel. Ward v. Schmall, 190 Mont. 1,617 P.2d 140(1980).
LaFonds allege that supervisory control is necessary in this case because allowing
the case to proceed under the District Court's ruling will preclude them "from raising yet
undetermined facts which are elements of the proof required for a construction lien at
mediation or trial." They argue that the District Court's ruling on the validity of the
construction lien was premature; however, it was LaFonds themselves who moved the
District Court to declare it invalid. LaFonds do not explain why this issue cannot be
addressed on appeal. As such, this matter is not appropriate for supervisory control.
IT IS THEREFORE ORDERED that the Petition for a Writ of Supervisory Control
is DENIED and DISMISSED.
The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioners, all counsel ofrecord in the Tenth Judicial District Court,Fergus County, Cause
i.l,the Honorable John A. Oldenburg, presiding.
No. DV-14-2017-61, a4c
DATED this — day of September, 2020.
Chief Justice
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