                                                                                            March 29 2016


                                          DA 15-0622
                                                                                        Case Number: DA 15-0622

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 76N



MARY E. REED,

              Petitioner and Appellee,

         v.

WILLIAM R. MACPHEAT,

              Respondent and Appellant.



APPEAL FROM:           District Court of the Fourth Judicial District,
                       In and For the County of Missoula, Cause No. DV-15-75
                       Honorable John W. Larson, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       William R. MacPheat (Self-Represented), Missoula, Montana

                For Appellee:

                       Joshua S. Van de Wetering, Van de Wetering Law Offices, P.C.,
                       Missoula, Montana



                                                   Submitted on Briefs: February 24, 2016

                                                              Decided: March 29, 2016


Filed:

                       __________________________________________
                                         Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1      Pursuant to Section I, Paragraph 3(c), 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      This case arises from a temporary restraining order (“TRO”) obtained by Mary

Reed (“Reed”) against William MacPheat (“MacPheat”). Reed petitioned for a TRO

with assistance from the Missoula Crime Victim Advocate Program on December 24,

2014. A hearing was held on January 8, 2015, in Missoula Municipal Court, and the

petition for the TRO was granted. MacPheat filed an appeal to Missoula District Court,

and a hearing was held on February 20, 2015. The Missoula District Court affirmed the

Municipal Court Order. MacPheat filed a notice of appeal to the Montana Supreme

Court on October 15, 2015. We affirm.

¶3      We review an order to amend a temporary restraining order for abuse of

discretion. Lockhead v. Lockhead, 2013 MT 368, ¶ 12, 373 Mont. 120, 314 P.3d 915.

¶4      Reed was MacPheat’s mental health provider for several months until October

2014.    Between October and December 2014, MacPheat repeatedly contacted Reed

through text messages and letters. This continuous contact after Reed terminated the

client relationship occasioned the eventual TRO petition. The record in this case was

developed during the January 8, 2015 hearing in Missoula Municipal Court. Prior to the


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hearing, MacPheat conversed with opposing counsel and reached an agreement regarding

the TRO.     Thereafter, MacPheat attended the hearing, and when opposing counsel

introduced the negotiated agreement, MacPheat interjected to clarify elements of the

proposal. At the end of the hearing, the judge invited him to add to the arrangement he

had actively participated in developing. MacPheat declined to further modify the TRO

and agreed to its final structure.

¶5     A few weeks after the January 8 hearing, MacPheat appealed; the District Court

affirmed based on the record. Now, over a year after he had agreed to the TRO in

Municipal Court, MacPheat appeals the TRO to this Court, and raises nine separate

issues, some of which are novel and all of which are unsupported by the record.

¶6     Parties to a case are entitled to seek review of a municipal court order in district

court, but are bound by the record developed in the lower court. Section 3-11-110(1),

MCA. Further, as we have said repeatedly, as a general rule, we will not consider novel

issues, or new arguments on appeal. Siebken v. Voderberg, 2015 MT 296, ¶ 19, 381

Mont. 256, 359 P.3d 1073; Day v. Payne, 280 Mont. 273, 276, 929 P.2d 864, 866 (1996).

This rule exists to protect the integrity of the trial courts and the appeals process, and to

ensure the fairness of litigation between parties to a suit. The rule is a hallmark of the

American justice system because:

       [i]t is based on the principle that it is fundamentally unfair to fault the trial
       court for failing to rule correctly on an issue it was never given the
       opportunity to consider. Furthermore, it is unfair to allow a party to choose
       to remain silent in the trial court in the face of error, taking a chance on a
       favorable outcome, and subsequently assert error on appeal if the outcome
       in the trial court is unfavorable.


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Payne, 280 Mont. at 276-77, 929 P.2d at 866. Here, MacPheat’s appeal runs afoul of this

rule. The electronic recording from the Municipal Court shows not only that MacPheat

failed to record his objections for the court to properly address them, but also that he

conclusively consented to the TRO. Consequently, there is no factual or legal basis for

his appeal. As a result, we are obliged to decline to address his arguments, and based on

our review of the record, we cannot agree that an abuse of discretion has occurred.

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

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, this case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶8     Affirmed.


                                                 /S/ MIKE McGRATH


We Concur:

/S/ BETH BAKER
/S/ MICHAEL E WHEAT
/S/ LAURIE McKINNON
/S/ JIM RICE




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