Helvik v. Tuscano

• Court: Montana Supreme Court
• Decided: January 22, 2025
• Docket: DA 23-0656
• Status: Unpublished

Opinion

01/22/2025

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 23-0656

DA 23-0656

SIDNEY and JULIAN HELVIK,

Plaintiffs, Counter-Defendants, and Appellees, v. FILED WESLEY and KAREN TUSCANO, JAN 2 2 2025 Bowen Greenwood Clerk of Supreme Court State of Montana Defendants, Counter-Plaintiffs, and Appellants.

ORDER

WESLEY and KAREN TUSCANO,

Third-Party Plaintiffs and Appellants,

v.

JACQUELINE CONNER,

Third-Party Defendant and Appellee.

On November 7, 2023, Appellants Wesley and Karen Tuscano, by and through their counsel of record, filed their Notice of Appeal in this matter. In that Notice of Appeal, Tuscanos asserted that all transcripts of the proceedings in this cause had been ordered from the court reporter Robin Lee. Pursuant to M. R. App. P. 9(1), the transcripts were due on December 17, 2023. No transcripts were filed as of that date. On December 21, 2023, a District Court order granted Lee until February 1, 2024, to transmit the transcripts. Tuscanos ultimately filed—and were granted—an extraordinary seven additional extensions of time to file the transcripts. Lee's affidavits in support of these extensions collectively explain that she was delayed in preparation of these transcripts due to a tragic family matter, ill health, other family obligations, an unusually busy trial calendar, and a backlog of transcript preparation due to these circumstances. Although Lee filed some transcripts in October 2024, the transcripts of the three-day jury trial remained outstanding. The final extension of time granted by this Court gave Lee until December 17, 2024, to file the remaining transcripts with the caveat that we would grant no further extensions of time for these transcripts. However, no further transcripts were filed and on December 30, 2024, Appellees Sidney and Julian Helvik moved to dismiss the appeal on the basis of insufficient record under M. R. App. P. 8(2). Helviks argued that Tuscanos have the duty to ensure that the transcripts are filed, they are entitled to no further extensions of time, and Helviks are prejudiced by the delay in bringing this litigation to a close. On January 13, 2025, Tuscanos responded in opposition to the motion to dismiss, relaying the lengths their counsel and support staff have gone to in their attempts to obtain the transcripts. Tuscanos alleged there were no further efforts they could have made to secure the transcripts in a timely fashion and that Lee's failure to timely produce the transcripts was beyond their control. Tuscanos assert that they are similarly prejudiced by the delay in having this appeal decided by this Court on its merits. On January 14, 2025, the remaining transcripts were filed with the Clerk of this Court. Thus the record is complete for purposes of appeal. Although we appreciate Helviks' position that the exceptional delay in resolution of this appeal has prejudiced them, we also agree that Tuscanos diligently tried to obtain the transcripts in a timely fashion. With the transcripts now filed, there is no further impediment to this appeal proceeding accordingly, and therefore there is no basis to dismiss this matter at this juncture. IT IS THEREFORE ORDERED that the motion to dismiss is DENIED. The Clerk is directec t9 give notice of this Order to all counsel of record. DATED this2—z-- day of January, 2025.

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