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JON WILLIAMS; MADDUX REAL ESTATE GROUP, INC.; DAWN MADDUX; and RALEIGH WARD, Defendants, Counterclaimants,

and Appellants, and WAGNER & LYONS, PLLC, f/k/a SULLIVAN, WAGNER & LYONS, PLLC,

Appellants,

v. SUPERIOR HARDWOODS AND MILLWORK, INC. d/b/a GRIZZLY FLOORING INSTALLATION,

Third-Party Defendant and Appellee. IN THE SUPREME COURT OF THE STATE OF MONTANA DA 21-0532

DARRELL LEE CONSTRUCTION, LLC,

Defendant, Third-Party Plaintiff, and Appellant, and 

### OCT 1 8 2022
Bowen Greenwood CV:rk of Supreme Court

. t:,41,= , of Ninntana

ORDER

The above-named Appellants (collectively referred to as "DLC") have moved this Court to consolidate their respective appeals pursuant to M. R. App. P. 4(3), set a briefing schedule, and appoint a mediator for the consolidated cases. Appellee SuperiorHardwoods and Millwork, Inc. d/b/a Grizzly Flooring Installation ("Superior") does not oppose DLC's motions, with certain caveats. Superior requests leave to file a single, overlength response briefto collectively address DLC's opening briefs. 10/19/2022The present motions concem four pending appeals that are taken from various

orders entered by the Montana Fourth Judicial District Court, Missoula County, in Cause No. DV-18-109: Darrell Lee Construction, LLC, v. Superior Hardwoods andMillwork, Inc. d/b/a GrizzlyFlooringInstallation, Case No. 21-0532; Wagner & Lyons, PLLC,f/k/a Sullivan, Wagner & Lyons, PLLCv. Superior Hardwoods andMillwork, Inc. d/b/a GrizzlyFlooringInstallation, Case No. 22-0488; Maddux Real Estate Group, Inc., Dawn Maddux and Raleigh Ward v. Superior HardwoodsandMillwork, Inc. d/b/a GrizzlyFlooringInstallation, Case No. 22-0495; and Jon Williams and Darrell Lee Construction, LLC, v. Superior Hardwoods andMillwork, Inc. d/b/a Grizzly FlooringInstallation, Case No. 22-0499.
DLC contends these appeals could be efficiently resolved as a consolidated appeal, provided the appellants in each matter be granted leave to file an opening brief. DLC requests that the appellants have additional time in which to file their respective opening briefs, and that this Court appoint the same mediator for all four cases. Superior does not oppose consolidation nor DLC's request for more time to file opening briefs. However, Superior requests that the Court to speci& that DLC may file a total ofthreeopeningbriefs: onebriefforDarrellLee Construction,LLC, andJon Williams for Case Nos. 21-0532 and 22-0499; one brieffor Wagner & Lyons, PLLC, f/k/a Sullivan, Wagner & Lyons, PLLC, for Case No. 22-0488; and one brief for Maddux Real Estate Group, Inc., Dawn Maddux, and Raleigh Ward, for Case No. 22-0495. Superior asserts that it intends to provide a single response'brief to address all the opening briefs, and it requests leave to file an overlength briefofup to 30,000 words. We agree with the parties that a consolidated appeal is appropriate and that DLC may have additional time in which to file the opening briefs. We agree with Superior that it is appropriateto limit DLC to atotal ofthree openingbriefs inthe configuration Superior

2proposes. The members of each grouping are represented by the same counsel and there

are no apparent conflicts ofinterest within each ofthese groupings. As to Superior's request to file an overlength response brief, M. R. App. P. 12(10) providesthatsuchmotionswillnotberoutinelygranted and such motionmustbesupported by an affidavit demonstrating extraordinary justification. Superior did not include an affidavit, and we believe its request is premature at thisjuncture. After the opening briefs
are filed, Superior may move for leave to file an overlength briefifit finds grounds upon which it can allege the requisite extraordinaryjustification. Finally, Appellants Wagner & Lyons, PLLC, f/k/a Sullivan, Wagner & Lyons, PLLC ("Wagner"), in Case No. DA 22-0488, and Appellants Maddux Real Estate Group, Inc.,DawnMaddux, andRaleighWard ("Maddux"), inCaseNo.DA22-0495,havemoved this Courttowithdrawthepresent appointmentofmediators andto appoint insteadMichael J. Lilly, who was selected by the parties in DA 21-0532 and DA 22-0499 pursuant to M. R. App. P. 7(4). Wagner andMaddux assertthattheparties have set a global mediation with Lilly and they believe the appointed mediators are unnecessary. Themandatory appellatemediation process is controlledby M. R. App.P.7. Under Rule 7(4)(b), the parties may jointly select a mediator for purposes of Rule 7 within 15 days ofthe filing ofthe notice ofappeal. Ifthe parties do not do so, then the Clerk ofthis Court will assign a mediator. In DA 21-0532 and DA 22-0499, the parties selected Lilly pursuant to Rule 7(4)(b) and notified the Clerk in accordance with Rule 7(4)(c). Since the parties to Wagner's and Maddux's respective appeals did not select a mediator, the Clerk assigned one to each case in accordance with Rule 7(4)(b) and Rule 7(4)(d). In Wagner's appeal, the Clerk assigned Charles J. Tornabene on September 19, 2022. On September 20, 2022, Tornabene declined the appointment; currently, no mediator is assigned to Wagner's appeal and thus there is no appointment to withdraw. In Maddux's appeal, the Clerk assigned Charles W. Schuyler on September 20, 2022. Rule 7(4)(d)provides, in relevant part, that after the Clerk assigns a mediator, "The parties may substitute a mediator oftheir choice

. . . only if, within 10 days ofthe clerk's appointment, they file a written stipulation signed by all parties agreeing upon a substitute

3mediator." (Emphasis added.) The parties to Maddux's appeal did not do so. Although

M. R. App. P. 29(1) allows this Court to suspend requirements of the Rules ofAppellate Procedure under certain circumstances, Rule 29(2) specifically excepts suspension ofany requirements governed by Rule 7. Therefore, this Court has no means to remedy the parties' failure to follow Rule 7's procedures. Recognizing the economy ofa consolidated mediation, however, we note that while the Court cannot suspend Rule 7, this does not foreclose the parties from mutually reaching agreement among themselves and with their respective mediators as to how they wish to proceed. IT IS ORDERED that the motion to consolidate Case Nos. 21-0532, 22-0488, 22- 0495, and 22-0499 is GRANTED. IT IS ORDERED that these cases are CONSOLIDATED under Case No. DA 21-0532 and SHALL BE CAPTIONED as set forth in this Order. IT IS ORDERED that the Appellants shall prepare, file, and serve their respective opening briefs within 30 days ofthe date ofthis Order. All further briefing deadlines shall be as provided in M. R. App. P. 13(1). IT IS ORDERED that the motion to withdraw the appointment ofmediator Charles J. Tomabene in Case No. 22-0488 is DENIED as MOOT. IT IS ORDERED that the motion to withdraw the appointment ofmediator Charles W. Schuyler in Case No. DA 22-0495 is DENIED. IT IS ORDERED that the motion to appoint mediator Michael J. Lilly in Case Nos. DA 22-0488 and DA 22-0495 is DENIED. The Clerk is directed to give notice ofthis Order to all counsel ofrecord.

`to—. Dated this 

# r day ofOctober, 2022.

ChiefJustice

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