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IN THE SUPREME COURT OF THE STATE OF MONTANA
DA 22-0498

GREENER MONTANA PROPERTY MANAGEMENT, LLC, TRAVIS MARTINEZ, Individually and KRISTYN MARTINEZ, Individually,

Plaintiffs and Appellees,

v.
HYDI CUNNINGHAM,

Defendant and Appellant. 

### DEC 0 6 2022
BowF;r1 Gteenwocia Clerk <

- 1 7 F_ Couri st.„.„ nr IvInntarta ORDER

Appellees Greener Montana Property Management, LLC, Travis Martinez, and Kristyn Martinez move to dismiss this appeal pursuant to M. R. App. P. 13(1) and 13(3) because they allege Appellant Hydi Cunningham failed to file a timely opening brief. Cunningham opposes the motion, arguing her opening briefis not yet due. Also pending before the Court is Cunningham's motion for extension oftime to file a transcript, which Appellees oppose because they contend the Court should dismissthis appeal. UnderM. R.App. P. 13(1), an appellant shall serve and filethe openingbriefwithin 30 days after the date on which the record is filed. M. R. App. P. 8(1) provides that the composition ofthe record on appeal consists of "the original papers and exhibits filed in the district court, the transcript ofproceedings, ifany, and a certified copy ofthe docket entries prepared by the clerk ofthe district court[1" In this case, Cunningham filed her Notice ofAppeal (NOA) on August 31, 2022. Within theNOA, she indicatedthat shehad ordered all necessary transcripts from the court reporter contemporaneously with the filing ofher NOA. On September 12, 2022, the District Court transmitted the original papers and exhibits and a certified copy of the docket entries. On that same date, the Clerk ofthe 12/06/2022

Case Number: DA 22-0498Supreme Court sent a Notice of Filing to the parties, advising them that the Clerk had

received and filed the District Court record, "consisting of documents 1-36 and Case Register Report." The Clerk firther advised the parties, "NOTE: Ifthe above-described record constitutes the complete record on appeal, the Appellant's opening briefis due 30 days from September 12, 2022." On October 6, 2022, in accordance with M. R. App. P. 9(3)(b), the Twenty-First JudicialDistrictCourt,Ravalli County, grantedthe courtreporteruntilNovember29,2022, to transmit the transcripts that Cunningham had ordered. The District Court's order was filed in the appellate record. Appellees filed the pending motion to dismiss on November 22, 2022, arguingthat the Court should dismiss Cunningham's appeal because she had failed to file her opening briefwithin 30 days of September 12, 2022. Appellees inaccurately assert that the Notice ofFilingset adue date of"30 days from September 12, 2022." Appellees omittheNotice's qualifying language that the brief was due at that time only if "the above-described record"—"consisting of documents 1-36 and Case Register Report"—"constitutes the complete record on appeal[.]" Appellees do not contend that Cunningham was not diligent in ordering the necessary transcripts. Rather, Appellees' motion to dismiss, and their opposition to Cunningham's motion for extension, evinces their failure to comprehend either the Clerk ofthe Supreme Court's Notice ofFiling and/or theMontana Rules ofAppellateProcedure; otherwise, Appellees would have recognized that, lacking the transcripts which had been ordered, the record on appeal remained incomplete atthe time they movedto dismiss, since Cunningham had indicated in the NOA that she had ordered transcripts, the District Court had granted a motion for extension oftime for these transcripts, andthe transcripts had not yet been filed. Appellees' motion to dismiss is wholly without merit. Appellees' reliance on their motion to dismiss as a basis for opposing Cunningham's motion for extension oftime to allow the court reporter to submit thetranscripts pursuant toM.R.App.P. 9(4) is similarly 2without merit. As Cunningham's motion for extension of time illustrates—again—the

record on appeal is not yet complete; therefore, pursuant to M. R. App. P. 13(1) Cunningham's opening briefcannot be overdue as the time for its submission hasnot even begun to run. IT IS ORDERED that Appellee's motion to dismiss is DENIED. ITIS ORDERED that Appellant's motion for extension oftime to file transcripts is GRANTED. Court Reporter Tamara Stuckey shall have up to and including January 15, 2023, to prepare, file, and serve the transcripts requested on appeal. The Clerk shall serve a copy ofthis Order upon all parties ofrecord, the District Court, and the court reporter. DATED this day ofDecember, 2022.

ChiefJustice

3 Justices