                                                                                          October 8 2013


                                           DA 13-0036

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2013 MT 295N



TIMOTHY GEISZLER,

              Plaintiff and Appellee,

         v.

KYEANN SAYER,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Fourth Judicial District,
                        In and For the County of Missoula, Cause No. DV-10-1586
                        Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Kyeann Sayer (Self-Represented); Missoula, Montana

                For Appellee:

                        David J. Steele, II; Geiszler & Froines, PC; Missoula, Montana



                                                     Submitted on Briefs: September 18, 2013
                                                                Decided: October 8, 2013


Filed:

                        __________________________________________
                                          Clerk
Justice Patricia O. Cotter delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(d), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Timothy Geiszler filed a Complaint in the Fourth Judicial District Court, Cause

No. DV-10-1586, against Kyeann Sayer on November 24, 2010, alleging she had

defamed and libeled him in a website Sayer created, published, and maintained. He

sought the permanent removal of the defamatory publications and a permanent injunction

against the publication by Sayer of other defamatory statements.

¶3     As litigation proceeded, the District Court issued multiple interlocutory orders,

including an order dated June 25, 2012, granting Geiszler’s motion for an injunction. On

June 28, 2012, Sayer filed a Notice of Appeal appealing the court’s June 25 order. The

Montana Supreme Court assigned Cause Number DA 12-0397 to Sayer’s appeal.

However, at the time Sayer filed the appeal, the District Court had not yet issued a final

order in DV-10-1586. This was done on July 26, 2012. Also on July 26, 2012, the

District Court ordered Sayer to post a supercedeas bond in the amount of $50,000

pending her appeal. On September 5, 2012, the District Court entered an amended

judgment against Sayer in the amount of $16,087.30.

¶4     Sayer failed to file the bond in accordance with the District Court’s order;

therefore, on September 11, 2012, we ordered her to do so within 20 days and to file an


                                         2
amended notice of appeal within 30 days of the notice of entry of judgment in the District

Court. Rather than comply, Sayer challenged our Order. We issued a subsequent Order

on October 9, 2012, with which Sayer also failed to comply. Consequently, on December

4, 2012, we dismissed Sayer’s appeal with prejudice on the grounds that she had appealed

without substantial or reasonable grounds and refused to obey this Court’s orders. We

further ordered that Geiszler was entitled to sanctions in the form of his attorney fees and

costs incurred in responding to Sayer’s appeal. We remanded the matter to the District

Court for a determination of the appropriate amount of attorney fees and costs to be

assessed against Sayer.

¶5     Upon receipt of the case on remand, Geiszler moved for an amended judgment in

the amount of $27,361.70 which included interest on the original judgment and his fees

and costs on appeal. In accordance with our order of December 4, Geiszler moved for a

reasonableness hearing on these requested fees and costs. On December 17, the District

Court ordered that the reasonableness hearing would be conducted on December 24,

2012. Sayer objected to Geiszler’s motion for an amended judgment, to the amount of

fees and costs he claimed, and to the court’s scheduling of the reasonableness hearing.

¶6     On the morning of December 24, the clerk of the District Court notified the parties

by telephone that the hearing scheduled for that day was continued until December 26

because the judge was ill.     On December 26, Sayer filed another challenge to the

reasonableness hearing, acknowledging receipt of the clerk’s phone message continuing

the hearing to December 26. She also claimed that the scheduled hearings on December

24 and December 26 were “unnoticed” hearings in violation of her due process rights and


                                         3
the court’s procedural rules. Sayer did not attend the December 26 hearing. At that

hearing, the District Court notified Geiszler, who was in attendance, that the hearing was

continued to December 31 due to the late notice to both parties. The court issued a

Minute Entry that was mailed to both parties notifying them of the new hearing date and

time.

¶7      Once again, on the morning of December 31, Sayer filed a notice to the court that

she would not attend the December 31 hearing, again asserting that the hearing was not

properly “noticed.” The District Court conducted the hearing and approved the submitted

fees and costs Geiszler claimed to have incurred as a result of Sayer’s appeal to this

Court. On January 8, 2013, the District Court issued an Order and Amended Judgment,

awarding Geiszler a total of $30,041.27 which included the original September 5, 2012

judgment of $16,087.30, $515.97 in accrued interest on that judgment, and $13,438 in

appellate attorney fees.

¶8      Sayer filed her Notice of Appeal from the January 8 Order and Amended

Judgment on January 14, 2013. This Court assigned Montana Supreme Court Cause

Number DA 13-0036 to this new appeal. Sayer attempts to raise multiple issues on

appeal; however, we issued an order on July 10, 2013, striking most of these issues as

they had been previously raised but dismissed with prejudice in Sayer’s earlier appeal

under Cause No. DA 12-0397. As a result, the only issue properly before us on appeal is

whether the District Court failed to provide Sayer with notice of the December 31, 2012

reasonableness hearing.




                                         4
¶9     Sayer does not dispute that she received actual notice of the December 31 hearing

and that she refused to appear.       In her notice to the District Court, she cited no

circumstances beyond her control that prevented her attendance; rather, she again

chastised the District Court for its alleged failure to notice the hearing in accordance with

M. R. Civ. P. 6(c)(1) (Rule 6). In State v. Bekemans, 2013 MT 11, 368 Mont. 235, 293

P.3d 843, we held that a defendant who voluntarily fails to appear at a hearing waives her

right to be personally present at all critical stages of her trial. We explained that an

absence is voluntary “if the defendant knew of the hearing and failed to appear due to

circumstances that were within her control.” Bekemans, ¶ 25. On November 5, 2010, the

district court issued notice of Bekemans’ show-cause hearing to be held on November 9.

Bekemans, ¶ 15. It was undisputed that Bekemans received actual notice of the hearing

but failed to appear. Bekemans, ¶ 26. Bekemans claimed she missed the hearing because

she did not have enough time to make arrangements to take time off from work.

Bekemans, ¶ 26. We stated, “[w]hile attending the court proceeding may have been

inconvenient, such an excuse is insufficient to make her absence involuntary.”

Bekemans, ¶ 26.

¶10    Sayer makes no excuses for her failure to attend; she simply argues that the

District Court failed to give her two weeks notice of the hearing in accordance with Rule

6. However, Rule 6(c)(1)(C) provides for an exception to the 14-day standard notice:

       In General. A written motion and notice of the hearing must be served at
       least 14 days before the time specified for any hearing, with the following
       exceptions:
                                        . . .



                                          5
       (C)    when a court order -- which a party may, for good cause, apply for
              ex parte -- sets a different time.

In the case before us, as in Bekemans, the District Court set a “different time” as provided

in Rule 6(c)(1)(C). Sayer having received notice, her refusal to attend the hearing was

voluntary and thus is unexcused.

¶11    We note that Geiszler moved this Court for an order of sanctions in the amount of

$5,000 against Sayer in an effort to “avoid continued protracted litigation.” We deny

Geiszler’s sanction request at this time but will re-consider sanctions against Sayer if

these or related arguments are resurrected again.

¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of

our Internal Operating Rules, which provides for noncitable memorandum opinions. The

issue in this case is legal and is controlled by settled Montana law which the District

Court correctly interpreted.

¶13    We therefore affirm the District Court.



                                                    /S/ PATRICIA COTTER


We Concur:

/S/ MIKE McGRATH
/S/ JIM RICE
/S/ LAURIE McKINNON
/S/ BRIAN MORRIS




                                         6
