C:„IGrW, 

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 Gt eenwocia 

Clerk <-17 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 brief is not yet due. Also pending 

before the Court is Cunningham's motion for extension of time to file a transcript, which 

Appellees oppose because they contend the Court should dismiss this appeal. 

Under M. R. App. P. 13(1), an appellant shall serve and file the opening brief within 

30 days after the date on which the record is filed. M. R. App. P. 8(1) provides that the 

composition of the record on appeal consists of "the original papers and exhibits filed in 

the district court, the transcript of proceedings, if any, and a certified copy of the docket 

entries prepared by the clerk of the district court[1" 

In this case, Cunningham filed her Notice of Appeal (NOA) on August 31, 2022. 

Within the NOA, she indicated that she had ordered all necessary transcripts from the court 

reporter contemporaneously with the filing of her 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 of the 

12/06/2022

Case Number: DA 22-0498
Supreme 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: If the above-described 

record constitutes the complete record on appeal, the Appellant's opening brief is due 30 

days from September 12, 2022." 

On October 6, 2022, in accordance with M. R. App. P. 9(3)(b), the Twenty-First 

Judicial District Court, Ravalli County, granted the court reporter until November 29, 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, arguing that 

the Court should dismiss Cunningham's appeal because she had failed to file her opening 

brief within 30 days of September 12, 2022. Appellees inaccurately assert that the Notice 

of Filing set a due date of "30 days from September 12, 2022." Appellees omit the Notice'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 

of the Supreme Court's Notice of Filing and/or the Montana Rules of Appellate Procedure; 

otherwise, Appellees would have recognized that, lacking the transcripts which had been 

ordered, the record on appeal remained incomplete at the time they moved to dismiss, since 

Cunningham had indicated in the NOA that she had ordered transcripts, the District Court 

had granted a motion for extension of time for these transcripts, and the 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 of time to 

allow the court reporter to submit the transcripts pursuant to M. R. App. P. 9(4) is similarly 

2 
without 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 brief cannot be overdue as the time for its submission has not even 

begun to run. 

IT IS ORDERED that Appellee's motion to dismiss is DENIED. 

IT IS ORDERED that Appellant's motion for extension of time 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 of this Order upon all parties of record, the District 

Court, and the court reporter. 

DATED this day of December, 2022. 

Chief Justice 

3 

Justices