MAL 08/17/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0387
OP 21-0387
FILED
KATHY WESTPHAL and DOUGLAS
WESTPHAL, AUG 1 7 2021
Bowen Greenwood
Clerk of Supreme Court
State of Montana
Petitioners,
v. ORDER
MONTANA ELEVENTH JUDICIAL DISTRICT
COURT,HON. ROBERT ALLISON,Presiding,
Respondent.
Petitioners Kathy Westphal and Douglas Westphal seek a writ of supervisory
control directing the Eleventh Judicial District Court, Flathead County, to reverse in part
its July 28, 2021 Order and Rationale on Motions for Summary Judgment and Spoliation
Sanctions in its Cause No. DV-19-310B. Westphals urge this Court to reverse that part of
the District Court's Order that "finds [Intervenor and Defendant] Linda Romano's
(Romano) express easement claims are not barred by Res Judicata, Collateral Estoppel,
and the Settlement Agreement from Romano's prior easement lawsuit against the
Westphals, and dismisses Westphals' breach of contract claim against Romano for
breaching the settlement agreement by raising additional claims that were released."
Supervisory control is an extraordinary remedy that is sometimes justified when
urgency or emergency factors exist making the normal appeal process inadequate, when
the case involves purely legal questions, and when 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, in a criminal case, the other court has granted or denied a
motion to substitute a judge. M. R. App. P. 14(3). Whether supervisory control is
appropriate is a case-by-case decision. Stokes v. Mont. Thirteenth Judicial Dist. Court,
2011 MT 182, ¶ 5, 361 Mont. 279, 259 P.3d 754 (citations omitted). 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). And "DI the absence of extraordinary and compelling
circumstances beyond simply requiring a party to proceed to trial," we generally decline to
review by supervisory control an order denying summary judgment. State ex rel. Kosena
v. District Court, 172 Mont. 21,22-23, 560 P.2d 522, 523(1977).
Westphals assert the District Court is operating under mistakes oflaw,causing them
a gross injustice, and that these alleged rnistakes of law will lead to further erroneous
rulings that will render appeal an inadequate remedy. However, aside from conclusory
assertions with citations to cases that set forth statements of these rules, Westphals offer
no analysis or argument explaining why the rulings cause them a gross injustice or how—
aside from having to defend against Romano's claims—these interlocutory summary
judgment rulings render the normal appeal process inadequate. The burden of persuasion
is on the petitioner to convince the Court to issue a writ. Disability Rights Mont. v.
Mont. Judicial Dists. 1-22, No. OP 20-0189, 400 Mont. 556 (Apr. 14, 2020) (citing
Miller v. IIth Judicial Dist. Court, 2007 MT 58, ¶ 14, 336 Mont. 207, 154 P.3d 1186).
Westphals have not met their burden in this case.
Therefore,
IT IS ORDERED that the petition for 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 Eleventh Judicial District Court, Flathead County,
Cause No. DV-19-310B, and the Honorable Robert Allison, presiding Judge.
DATED this 1- day of August, 2021.
ChiefJustice
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