Peter GRIGG, Plaintiff and Appellant, v. Judge Matt CUFFE, Defendant and Appellee.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion, 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 Peter Grigg appeals from the July 12, 2021 Order of the Eleventh Judicial District Court, Flathead County, granting summary judgment in favor of the Defendant, Judge Matt Cuffe. We affirm.
¶3 On April 12, 2021, Grigg filed a “Petition to Overturn Unlawful Eviction Judgement [sic] [and] Remove Judge Matt Cuffe from Office.” The “unlawful eviction” referred to in Grigg's petition is an order issued by Judge Cuffe in Grigg's dissolution of marriage case, In re the Marriage of Tiffaney Grigg and Peter Grigg, Cause No. DR-20-79. On October 7, 2020, Judge Cuffe issued the “Order Permitting the Sale of the Parties’ Residence,” (“the Order”) that required the parties to sell their property located at 323 Westgate Avenue, Libby, Montana.
¶4 On June 8, 2021, Judge Cuffe moved for summary judgment, arguing Grigg's petition was a collateral attack on the Order issued in the dissolution of marriage case and barred as a matter of law. The District Court granted Judge Cuffe's motion.
¶5 We review a district court's grant of summary judgment de novo. Baltrusch v. Baltrusch, 2006 MT 51, ¶ 11, 331 Mont. 281, 130 P.3d 1267. Summary judgment is appropriate when the “pleadings, the discovery and disclosure materials on file, and any affidavits” establish that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c)(3).
¶6 Grigg argues that the District Court erred in concluding his petition was a collateral attack on the Order issued in the marriage dissolution case.1 A collateral attack “is possible only if the judgment is void on its face and it appears affirmatively from the judgment roll that the court did not have jurisdiction or committed an act in excess of jurisdiction.” Glickman v. Whitefish Credit Union Ass'n, 1998 MT 8, ¶ 13, 287 Mont. 161, 951 P.2d 1388 (citing Higgins v. Montana Hotel Corp., 181 Mont. 149, 154, 592 P.2d 930, 934 (1979)). A collateral attack on a judgment is “an attempt to avoid, defeat, or evade it, or to deny its force and effect in some manner other than by appeal, writ of error, certiorari, or motion for a new trial, or by proper action in equity.” Blair v. Blair, 140 Mont. 278, 287, 370 P.2d 873, 878 (1962).
¶7 In response to Judge Cuffe's motion for summary judgment, Grigg failed to provide any argument or evidence that the Order was void and that Judge Cuffe acted without jurisdiction. Grigg's argument that the Order violates the federal moratorium on evictions under the CARES Act does not address whether the Order is void or that Judge Cuffe lacked jurisdiction; rather it is an attempt to “avoid, defeat, or evade it, or to deny its force and effect,” a remedy that must be sought on direct appeal.2 Blair, 140 Mont. at 287, 370 P.2d at 878.
¶8 On appeal, Grigg argues for the first time that because Judge Cuffe recused himself prior to issuing the Order, he lacked jurisdiction. Not only does a brief review of the District Court docket refute this statement (Judge Lint assumed jurisdiction of the dissolution case on July 26, 2021, nine months after Judge Cuffe issued the Order), Grigg has waived this argument on appeal by failing to raise it below. Mt. W. Farm Bureau Mut. Ins. Co. v. Brewer, 2003 MT 98, ¶ 9, 315 Mont. 231, 69 P.3d 652 (“[I]f a party fails to raise an issue or argue it in [their] brief, we will deem the issue waived and will not address it.”).
¶9 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, the case presents a question controlled by settled law or by the clear application of applicable standards of review. The District Court did not err in concluding Grigg's Petition was a collateral attack barred as a matter of law. The District Court's Order is affirmed.
1. Grigg's Petition also requested removal of Judge Cuffe from office. The District Court correctly held it did not have authority for that remedy. Mont. Const. art. VII, § 11; § 3-1-1101, MCA, et seq.
2. Grigg has also filed an appeal with this Court in the dissolution of marriage case, which is currently at the briefing stage.
Justice James Jeremiah Shea delivered the Opinion of the Court.
We Concur: BETH BAKER, J. INGRID GUSTAFSON, J. LAURIE McKINNON, J. JIM RICE, J.
Was this helpful?