03/25/2020

IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 20-0057

DA 20-0057

WILLARD RUSSELL KEIGHTLEY, Trustee of Louise Keightley Trust FILED and Manager ofProperty, MAR 25 2020 Bowen Greenwood Plaintiff and Appellee, Clerk of Supreme Court State of Montana v. ORDER DAVID ANDREW KEIGHTLEY and THE LOUISE KEIGHTLEY TRUST,by and through, KATHLEEN KEIGHTLEY JOHNS,co-Trustee, Defendants and Appellant.

Representing himself,David Andrew Keightley has filed a verified motion to proceed on appeal without paying mediator costs. David provides that he cannot afford the costs for mediation in this appeal. He points out that he was unemployed for the last nine months and only recently began paid employment. Through counsel, Willard Russell Keightley has not filed a response.

We observe that David contemporaneously filed a motion for extension of time wherein he states that he hired an attorney recently to try to settle matter. While David did serve opposing counsel with both motions, it is not readily apparent whether David contacted opposing counsel prior to filing this motion to waive. M.R. App.P. 16(1).

A party may opt out of mediation based on an inability to pay. To seek a timely waiver ofmediation under the Montana Rules ofAppellate Procedure,a party should file"an affidavit stating the party is unable to afford appellate mediation . . . within the 15 days allowed for the parties to select a mediator under rule 7(4)(b)." M.R. App.P. 7(4)(g).

Upon review ofour docket,the Clerk ofthe Supreme Court appointed a mediator on February 12,2020, after the parties did not select one. David should have filed a waiver to opt out ofsuch mediation on or before February 6,2020,or fifteen days after his appeal was filed. David did not do so. Upon review of his documents, David has demonstrated that he has limited financial resources. While his filing does not completely conform with this rule, we have been 1ibera 1 in our application based upon a party's request. Upon consideration of David's motion and no objection to this waiver, therefore, IT IS ORDERED that David's Motion to Proceed on Appeal without Paying Mediator Costs is GRANTED and mediation is thus WAIVED in this appeal.

The Clerk is directed to provide a copy ofthis Order to appointed mediator Arthur W.

Wittich, to counsel of record, and to David Andrew Keightley personally.

DATED this 4.-1 —day of March,2020.

For the Court,