Zahara v. Advanced Neurology

r] ORIGINAL IN THE SUPREME COURT OF THE STATE OF MONTANA 07/30/2024

Case Number: DA 24-0203

DA 24-0203 FILED JOEY ZAHARA, JUL 3 0 2024 Bowen Greenwood Court Plaintiff and Appellant, Clerk of Supreme State of Iviontana

v. ORDER ADVANCED NEUROLOGY SPECIALISTS, Defendant and Cross-Appellant.

Defendant and Cross-Appellant Advanced Neurology Specialists (ANS) moves for partial dismissal of this appeal on the ground that Appellant Joey Zahara failed to provide notice to the Attorney General of his constitutional challenge to the statutory cap on non- economic damages in medical malpractice claims, § 25-9-411, MCA. ANS seeks an order striking from the Appellant's opening brief all argument on that issue and dismissing Zahara's constitutional challenges with prejudice. Zahara opposes the motion, arguing that he complied with M. R. App. 27 requiring notice to the Attorney General. Following submission of ANS's motion to the Court, it moved for an additional extension of time to file its opening brief on appeal, citing uncertainty about the issues for briefing and whether the Attorney General will be participating in the appeal. Zahara opposes that motion as well.

Rule 27 of the Montana Rules of Appellate Procedure requires a party who challenges the constitutionality of an act of the Montana Legislature in a case to which neither the state nor any state agency or officer is party to give notice to this Court and to the Montana Attorney General of the existence of the constitutional issue. The rule requires notice to be given within eleven days from the filing of the notice of appeal and allows the Attorney General twenty days thereafter to notify the Court and parties whether the Attorney General will intervene on the constitutional issue.

Zahara filed his notice of appeal in this case on April 2, 2024. ANS filed a notice of cross-appeal on April 17, 2024. ANS supports its motion with an affidavit from Deputy Solicitor General Brent Mead attesting that the Attorney General did not receive notice of Zahara's constitutional challenge until May 22, 2024, when it received a letter from Zahara's counsel notifying the office of a Stipulation to Hold Deadlines in Abeyance Pending Completion of Mediation Process. A month later, the Attorney General received another letter from .Zahara's counsel with a copy of Appellant's Opening Brief advising that deadlines in the appeal had resumed as of June 17, 2024. Though both the May and June letters referenced an April 2, 2024 letter notifying the Attorney General of Zahara's constitutional challenge, Mead attests that the Attorney General's Office has no record of receiving that first letter. He states that June 24, 2024, following his call to Zahara's counsel, "was the first time our office was provided with Mr. Zahara's Notice of Appeal or Mr. Zahara's letter dated April 2, 2022 [sic]." Counsel for Zahara, Martha Sheehy, has submitted an affidavit in opposition to ANS's motion. Sheehy attests that she wrote the letter notifying the Attorney General of the constitutional challenge and placed it in the mail the same day that she electronically filed the notice of appeal, April 2, 2024. Sheehy states that she has a "specific memory" of preparing the April 2 notice of appeal and letter because she was in Missoula that week, substitute teaching at the Law School. Sheehy attests that she prepared the letter and the envelope on a borrowed printer, personally stuffed the envelope addressed to the Attorney General with the letter and the Notice of Appeal, and deposited the envelope in, a mailbox in Missoula. Sheehy further attests that prior to filing its motion to dismiss, counsel for ANS made no inquiries of her regarding how she served the three letters on the Attorney General.

M. R. App. P. 10(3) allows service of papers required or permitted to be filed in this Court to be made personally or by mail. "Service by mail is complete on mailing." All three letters from Sheehy to the Attorney General's Office, which are attached to Mead's affidavit, use the identical—and correct—address. Upon review, we conclude that Zahara gave proper notice to the Attorney General under M. R. App. P. 27.

IT IS THEREFORE ORDERED that the motion for partial dismissal of Zahara's appeal and to strike arguments from his opening brief is DENIED.

IT IS FURTHER ORDERED that the Attorney General shall have twenty days from the date of this Order to notify this Court and all parties in writing whether the Attorney General will intervene in this appeal on the constitutional issue.

IT IS FURTHER ORDERED that the motion of Respondent and Cross-Appellant ANS for a 30-day extension of time to file its opening brief is DENIED. ANS shall file its brief on or before August 21, 2024.

The Clerk is directed to provide notice of this Order to all counsel of record and to the Attorney General Dated this 36 day of July, 2024.

Chief Justice

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