                                                                                          03/25/2020


           IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                                                      Case Number: DA 20-0057


                                        DA 20-0057


WILLARD RUSSELL KEIGHTLEY,
Trustee of Louise Keightley Trust
                                                                             FILED
and Manager ofProperty,                                                      MAR 25 2020
                                                                          Bowen Greenwood
             Plaintiff and Appellee,                                    Clerk of Supreme
                                                                                         Court
                                                                           State of Montana

      v.
                                                                    ORDER
DAVID ANDREW KEIGHTLEY and
THE LOUISE KEIGHTLEY TRUST,by
and through, KATHLEEN KEIGHTLEY
JOHNS,co-Trustee,

            Defendants and Appellant.


       Representing himself,David Andrew Keightley has filed a verified motion to proceed
on appeal without paying mediator costs. David provides that he cannot afford the costs for
mediation in this appeal. He points out that he was unemployed for the last nine months and
only recently began paid employment. Through counsel, Willard Russell Keightley has not
filed a response.
       We observe that David contemporaneously filed a motion for extension of time
wherein he states that he hired an attorney recently to try to settle matter. While David did
serve opposing counsel with both motions, it is not readily apparent whether David
contacted opposing counsel prior to filing this motion to waive. M.R. App.P. 16(1).
       A party may opt out of mediation based on an inability to pay. To seek a timely
waiver ofmediation under the Montana Rules ofAppellate Procedure,a party should file"an
affidavit stating the party is unable to afford appellate mediation . . . within the 15 days
allowed for the parties to select a mediator under rule 7(4)(b)." M.R. App.P. 7(4)(g).
       Upon review ofour docket,the Clerk ofthe Supreme Court appointed a mediator on
February 12,2020, after the parties did not select one. David should have filed a waiver to
opt out ofsuch mediation on or before February 6,2020,or fifteen days after his appeal was
filed. David did not do so. Upon review of his documents, David has demonstrated that he
has limited financial resources. While his filing does not completely conform with this rule,
we have been 1ibera 1 in our application based upon a party's request. Upon consideration of
David's motion and no objection to this waiver, therefore,
      IT IS ORDERED that David's Motion to Proceed on Appeal without Paying Mediator
Costs is GRANTED and mediation is thus WAIVED in this appeal.
      The Clerk is directed to provide a copy ofthis Order to appointed mediator Arthur W.
Wittich, to counsel of record, and to David Andrew Keightley personally.
      DATED this 4.-1 —day of March,2020.
                                                 For the Court,




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