Eakin v. State

05/09/2023

IN THE SUPREME COIJRT OF THE STATE OF MONTANA Case Number: DA 23-0244

DA 23-0244

KIRK EAKIN and CATHY EAKIN, F LTFO husband and wife, MAY 0 9 2023 Plaintiffs and Appellants, Bowen Greenwood Clerk of Supreme Court State of Montana v. ORDER STAIL OF MONTANA, and KEVIN DOWNS, Lewis and Clark County Attorney, Defendants and Appellees.

Kirk Eakin and Cathy Eakin (hereinafter the Eakins) have filed a verified Petition for an Out-of-Time Appeal along with supporting documents. The Eakins indicate that they discussed filing a timely appeal with their attorney but that he failed to file it for them.

The Eakins provide that after spending a large amount on attorney fees, they "have decided to bring this case on [their] own." The Eakins learned that "[o]n April 21, 2023[,] [their] attorney wasn't interested in appealing the District Court ruling filed February 24, 2023." They state that they recently were advised that the sixty-day time frame for a timely appeal expired. They further state that they seek to appeal the ruling not to award attorney fees "since there never should have been a case to begin with." The Eakins include a copy of the final judgment.

M. R. App. P. 4(6) allows this Court to grant an out-of-time appeal "[i]n the infrequent harsh case and under extraordinary circumstances amounting to a gross miscarriage of justice[.]" Upon review, we conclude that the Eakins have demonstrated extraordinary circumstances. Therefore, IT IS ORDERED that the Eakins' Petition thr an Out-of-Time Appeal is GRANTED.

IT IS FURTHER ORDERED that the Eakins shall prepare, file, and serve a Notice of Appeal on or before Thursday, June 8, 2023.

The Clerk of the Supreme Court is directed to provide a copy of this Order to counsel of record and to Kirk Eaton and Cathy Eakin along with a copy of this Court's Civil Appellate Handbook. .11., DATED this day of May, 2023.

Chief Justice

Justices