# ORIGINAL

IN THE SUPREME COURT OF THE STATE OF MONTANA OP 20-0425
VALERIE CADY n/k/a VALERIE LAFOND, RUSSELL LAFOND,and MERILEE LAFOND,

Petitioners,
v. MONTANA TENTH JUDICIAL DISTRICT, FERGUS COUNTY,HONORABLE JOHN A. OLDENBURG,

Respondent. 

# FILED SEP 0 9 2020
Bowen Greenwooci Clerk of Supreme Court State of Montana
ORDER

Petitioners Valerie Cady n/k/a Valerie La Fond, Russell La

Fond, and Merilee LaFond (La

Fonds)seek a writ ofsupervisory control directing the Tenth Judicial District Court,Fergus County,to vacate its July 30, 2020 Order on Pending Motions in its Cause No. DV-14-2017-61. In that Order, among other rulings, the District Court denied Plaintiffs LaFonds' motion to dismiss the counterclaim of DP Construction, Inc., the Defendant in the underlying matter. In denying LaFonds' motion to dismiss,the District Court found unpersuasive La Fonds' argument that a construction lien filed in the name of DP Construction, Inc., must be dismissed because the entity did not exist at the time the lien was filed. The court noted that it had ruled upon that issue in Defendant's favor in an earlier order, stating that La Fonds' attempt to resurrect the issue via a motion to dismiss was "simply a second bite ofthe apple[1" The court further ruled, "It shall be the law of this case that the Construction Lien dated April 26,2017 is a valid lien and the Defendant may pursue his remedies thereunder." Supervisory control is an extraordinary remedy that is sometimes justified when urgency or emergency factors make the normal appeal process inadequate, the case involvespurely legal questions,and one ormore ofthe three following circumstances exist; 09/09/2020

Case Number: OP 20-0425the other court is proceeding under a mistake of law and is causing a gross injustice,

constitutional issues ofstate-wide importance are involved, or the other court has granted or denied a motion for substitution of a judge in a criminal case. M.R. App. P. 14(3). 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 16-0517,386Mont.393,386P.3d 545 (table)(Oct. 18,2016);Lichte v. Mont. Eighteenth JudicialDist. Court,No. OP 16-0482, 385 Mont. 540, 382 P.3d 868 (table)(Aug. 24, 2016). "[A]writ ofsupervisory control is not to be used as a means to circumvent the appeal process. Only in the most extenuating circumstances will such a writ be granted." State ex rel. Ward v. Schmall, 190 Mont. 1,617 P.2d 140 (1980). LaFonds allege that supervisory control is necessary in this case because allowing the case to proceed under the District Court's ruling will preclude them "from raising yet undetermined facts which are elements of the proof required for a construction lien at mediation or trial." They argue that the District Court's ruling on the validity of the construction lien was premature; however, it was La Fonds themselves who moved the District Court to declare it invalid. La Fonds do not explain why this issue cannot be addressed on appeal. As such,this matter is not appropriate for supervisory control. IT IS THEREFORE ORDERED that the Petition for a Writ ofSupervisory 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 Tenth Judicial District Court,Fergus County,Cause No.DV-14-2017-61,a4c

i l .,the Honorable John A.Oldenburg,presiding. DATED this

—day ofSeptember,2020.

2 ChiefJustice3