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toi u Akt 08/17/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: OP 21-0335
OP 21-0335
B.D. and J.D.,
FLED
AUG 1 7 2021
Petitioners, Bowen Greenwood
Clerk of Supreme Court
State of Montana
v.
ORDER
THIRTEENTH JUDICIAL DISTRICT,
YELLOWSTONE COUNTY,
HONORABLE ROD SOUZA,Presiding,
Respondent.
Petitioners B.D. and J.D., via counsel, have filed a Petition for Rehearing of this
Court's July 20,2021 Order denying their petition for writ ofsupervisory control, in which
they asked this Court to take supervisory control over the Thirteenth Judicial District Court,
Yellowstone County, in Cause Nos. DN-18-411 and DN-19-194, and reverse that court's
orders denying their motions to intervene. We denied the petition for writ of supervisory
control for lack ofjurisdiction because,as indicated by the Certificate ofService Petitioners
filed, Petitioners had failed to serve any ofthe parties to the underlying case as required by
M. R. App. P. 14(6). Therefore, we were without jurisdiction to entertain the matter.
Pursuant to M. R. App. P. 20(1)(a), this Court grants petitions for rehearing only
under three circumstances: (i) the Court overlooked some fact material to the decision;
(ii) the Court overlooked some question presented by counsel that would have proven
decisive to the case; or (iii) the Court's decision conflicts with a statue or controlling
decision it had not address. Rule 20(1)(d) provides, "Absent clearly demonstrated
exceptional circumstances, the supreme court will not grant petitions for rehearing of its
orders disposing of motions or petitions for extraordinary writs."
Petitioners argue they have grounds for rehearing under Rule 20(1)(a)(i) because
this Court overlooked a fact material to the decision. Specifically, Petitioners allege the
record reflects that they served all parties, even though the Certificate of Service reflects
only that they served the District Court, the presiding District Court Judge, and their own
co-counsel. Petitioners maintain that service was perfected on all parties because
"the pleading was circulated to all 15 parties and counsel of record in both proceedings"
after they served the Yellowstone County Clerk of District Court. Petitioners argue that
"the recore reflects this service and therefore this Court overlooked that fact. Petitioners
further maintain that the Certificate of Service they filed with their Petition reflected only
service upon the District Court, the presiding District Court Judge, and their own
co-counsel because that is how the certificate was automatically generated by the
Montana e-filing system.'
Petitioners filed their Petition in this Court on July 9, 2021, and they included with
that filing a Certificate of Service that asserted they served "the foregoing Petition — Writ"
upon the District Court, the presiding District Court Judge, and their own co-counsel. We
denied the Petition on jurisdictional grounds on July 20, 2021. That same day, Petitioners
filed this Petition for Rehearing. Attached as an exhibit to the Petition for Rehearing is a
July 13, 2021 Certificate of Service that asserts they served a "Notice — Notice of Filing"
on the parties in the underlying cases on that date. However,Petitioners did not supplement
their Petition in this Court with this or any other Certificate of Service indicating that they
had served all parties in compliance with Rule 14(6).
M. R. App. P. 14(5)(b)(iv) provides that when filing a petition for writ of
supervisory control, a petitioner must include every document that is necessary to make
out a prima facie case or to substantiate the petition or conclusion or legal effect. That
includes the jurisdictional prerequisite of proof of service. Since these facts were not in
the record at the time we considered the Petition, we will not consider them now upon
rehearing. Alps Prop. & Cas. Ins. Co. v. Keller, No. DA 20-0238, Order (Mont. Mar. 23,
The Montana e-filing system generates Certificates of Service based on the data entered by the
filer. Had Petitioners entered correct and complete data when they filed their Petition, the
automatically generated Certificate ofService would have included all the parties in the underlying
matters.
2
2021). This Court did not overlook any fact in "the record," as counsel did not provide
adequate proofofservice upon filing ofthe Petition, and did not offer proofofservice until
after the Petition was dismissed for lack of jurisdiction. We conclude this petition for
rehearing does not clearly demonstrate exceptional circumstances as required under
Rule 20(1)(d)for rehearing of the denial of a petition for extraordinary writ.
IT IS THEREFORE ORDERED that the petition for rehearing is DENIED.
The Clerk is directed to provide copies of this Order to counsel for Petitioner, all
counsel of record in the Thirteenth Judicial District Court, Yellowstone County,
Cause Nos. DN-18-411 and DN-19-194, and the Honorable Rod Souza, presiding.
Dated this j —I-day of August, 2021.