                    ORIGINAL                                                              08/12/2020


            IN THE SUPREME COURT OF THE STATE OF MONTANA                              Case Number: OP 20-0387


                                        OP 20-0387


 LINDA McMULLEN,                                                             FILLD
                                                                              AUG 1 2 2020
              Petitioner,                                                  Bowen Greenwooa
                                                                         Clerk of Supreme Court
                                                                            Stato nf Mr)ntan;-1
       v.
                                                                     ORDER
 MONTANA SIXTH JUDICIAL DISTRICT
 COURT,SWEET GRASS COUNTY,
 HONORABLE BRENDA R. GILBERT,
 PRESIDING,

              Respondent.


       Petitioner and Defendant Linda McMullen (Defendant), via counsel, seeks a writ of
supervisory control pursuant to Article II, Section 2(2), of the Montana Constitution, over
underlying proceedings in Cremer Rodeo Land & Livestock Co. v. McMullen, Cause No.
DV-2016-23, Montana Sixth Judicial District Court, Sweet Grass County. Defendant
asserts that the District Court abused its discretion under M. R. Civ. P. 15(a) in vacating
proceedings on the morning of trial to allow Plaintiff in the underlying matter to file a
motion, and then subsequently granting Plaintiffs motion to amend its prescriptive
easement claim regarding a former county roadway to include a similar prescriptive
easement claim over a related but distinct roadway spur branching offfrom the originally-
disputed roadway.
      Pursuant to Mont. State Univ.—Bozeman v. Mont. First Jud. Dist. Ct., 2018 MT 220,
IN 14-18, 392 Mont.458,426 P.3d 541;Stokes v. Mont. Thirteenth Jud. Dist. Ct., 2011 MT
182, ¶ 5, 361 Mont. 279, 259 P.3d 754; and M. R. App. P. 14(3), Defendant asserts that
supervisory control is necessary because the District Court is proceeding under a mistake
of law for which ordinary appeal will be inadequate to remedy the gross injustice (i.e.
dramatically increased cost and scope of trial preparation and presentation) that will result
from the last-minute amendment ofthe complaint. Defendant asserts that the court abused
its discretion by not recognizing that the requested amendment was untimely, granting the
amendment despite Plaintiffs failure to file a supporting brief, and thereby denying
Defendant the opportunity to dispute the asserted grounds upon which the court granted
the motion.
       Supervisory control is an extraordinary remedy justified in our discretion only when
urgency or emergency factors render the normal appeal process inadequate, purely legal
questions are involved, and, as pertinent here, the petitioner demonstrates that the lower
court is proceeding under a mistake oflaw that will result in a gross injustice. M.R. App.
P. 14(3)(a). However, we cannot allow supervisory control to substitute for ordinary
appeal at the convenience of the parties and will generally utilize it "[o]nly in the most
extenuating circumstances." State ex reL Ward v. Schmall, 190 Mont. 1, 617 P.2d 140
(1980). In our discretion, we may order a summary response to a petition for supervisory
control or deny and dismiss it without response. M.R. App. 14(7).
       The petition and the supporting documents here clearly indicate that, though
recognizing that the motion was otherwise untimely on the morning of bench trial and that
Plaintiff was previously aware that amendment or conformance ofthe complaint to the trial
evidence would ultimately be necessary, the District Court granted the discretionary Rule
15 motion in the interest ofjudgment on the merits and on the ground that it would not be
unduly prejudicial because:(1)the expanded claim was interrelated to the originally pled
claim;(2) the existence, nature, and grounds of the expanded claim, and Plaintiffs intent
to litigate it, were well-known to Defendant as the subject of"extensive testimony on the
contempt hearing record over a year earlier and as referenced in the deposition record; and
(3)requiring further litigation in a separate future proceeding would be contrary to a "just,
speedy, and inexpensive determinatioe ofthe entirety ofthe existing dispute between the
parties. Despite Plaintiffs failure to file a supporting brief, the transcript from the morning
of trial and the subsequent order granting the motion indicate that the ruling was based on
the preceding oral argument ofthe parties, Defendant had full and fair opportunity and did
in fact oppose the asserted grounds for the motion, and the amendment would not alter the

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originally asserted legal theory for relief. We note further that Petitioner's assertions
regarding the District Court's consideration of prejudice and surprise under M. R. Civ. P.
15(a) involve factual considerations generally not appropriate for review on supervisory
control. Without prejudice to ordinary appeal, we accordingly conclude that the petition is
insufficient to show that the District Court is proceeding under a mistake of law that will
result in a gross injustice and under urgent or emergency circumstances render ordinary
appeal an inadequate remedy.
      IT IS THEREFORE ORDERED that the petition for writ of supervisory control is
DENIED and DISMISSED.
       The Clerk is directed to provide immediate notice of this Order to counsel for
Petitioner, all counsel of record in the Sixth Judicial District Court, Sweet Grass County,
Cause No. DV-2016-23, and the Honorable Brenda R. Gilbert, presiding.
       DATED this / Z "ay of August, 2020.




                                                              Chief Justice




                                                                 Justices
