NO. 93-098

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

KEITH SADOWSKY and LINDA

SADOWSKY, husband and wife,

Plaintiffs and Appellants,

v.

THE CITY OF GLENDIVE,

MONTANA, a municipal corporation,

Defendant and Respondent.

APPEAL FROM: District Court of the Seventh Judicial District,

In and for the County of Dawson,

The Honorable Richard G. Phillips, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Marvin L. Howe, Esq., Simonton, Howe & Schneider,

P-C., Glendive, Montana

For Respondent:

Gary L. Day, Esq., Lucas & Monaghan, P.C.,

Miles City, Montana

Fil

Submitted on Briefs: June 1, 1993

Decided: July 20. 1993
Chief Justice J. A. Turnage delivered the Opinion of the Court.

Keith and Linda Sadowsky appeal from an order entered by the

District Court for the Seventh Judicial District, Dawson County,

denying their motion for an extension of time to file a notice of

appeal. We affirm.

The dispositive issue is whether the District Court erred in

denying the Sadowskys' motion for an extension of time to file a

notice of appeal. As a preliminary matter, we determine that a

denial of a motion for extension of time to file a notice of appeal

is itself an appealable order.

In 1988, the Sadowskys brought this action to recover damages

to their property allegedly caused by water leaking from a lawn

sprinkler system owned by the City of Glendive. In March 1990, the

District Court entered summary judgment for the City based on the

doctrine of sovereign immunity as explained in this Court's opinion

in Eccleston v. Third Judicial Dist. Court (1989), 240 Mont. 44,

783 P.2d 363.

In January 1991, this Court decided Crowell v. School Dist.

No. 7 (1991), 247 Mont. 38, 805 P.2d 522, holding that the purchase

of liability insurance by a school district operated as a waiver of

sovereign immunity to the extent of the coverage granted by the

insurance policy. Then, in June 1992, this Court decided Koch v.

Billings School Dist. No. 2 (1992), 253 Mont. 261, 833 P.2d 181,

holding that plaintiff Koch could reopen her case based upon the

Crowell decision and pursuant to Rule 60(b)(6), M.R.Civ.P.

2
On September 25, 1992, over two years after this case ended in

a summary judgment, the Sadowskys moved for relief from the summary

judgment based on Crowell and Koch. On November 23, 1992, the

District Court entered an order granting that motion.

In January 1993, the City pointed out to the District Court

that its November 23, 1992 order was invalid, because motions made

under Rule 60, M.R.Civ.P., are deemed denied if no order is entered

within forty-five days of the motion. The forty-five-day time

limit had expired on November 9, 1992.

On January 20, 1993, the Sadowskys' attorney moved, pursuant

to Rule 5(a)(5), M.R.App.P., to extend the time in which they might

file an appeal from the deemed denial of their motion for relief

from summary judgment. Their motion was filed within the time

allowed under Rule 5(a)(5), M.R.App.P. However, the District Court

denied the motion for extension of time, ruling that there was no

excusable neglect or good cause to justify an extension. The

Sadowskys then noticed this appeal from the denial of their motion

for an extension of time to file a notice of appeal.

The City claims that a denial of an extension of time to file

a notice of appeal is not an appealable order. It relies on Zell

v. Zell (1977), 172 Mont. 496, 498, 565 P.2d 311, 312, in which

this Court stated that "[iIt is well settled in Montana that an

untimely notice of appeal is a jurisdictional defect, which renders

this Court powerless to hear the appeal." However, in m the

appellant did not file a motion for extension of time in district

court, instead asking this Court to extend the time allowed for

3
appeal. In other words, no timely notice of appeal was filed. In

the present case, in contrast, the notice of appeal from the

District Court's order denying an extension was timely filed in the

proper court. The question here is whether an order denying an

extension of time to file an appeal is appealable.

The Sadowskys point out that, under the Federal Rules of

Appellate Procedure, denial of a motion for extension of time to

file an appeal is an appealable order. While it is true that some

of the Montana Rules of Appellate Procedure are patterned after the

Federal Rules of Appellate Procedure, not all are. The Federal

Rules permit appeals only from orders that are made appealable by

statute. 9 MooreUs Federal Practice 9 110.01. In state courts in

Montana, appealable orders are delineated not by statute but by

Rule 1, M.R.App.P. "Rule 1, M.R.App.P., defines the limits of

appealable actions." Continental Ins. Co. v. Bottomly (1988), 233

Mont. 277, 279, 760 P.2d 73, 75. A denial of a motion for

extension of time to file an appeal is not listed as an appealable

order under Rule 1, M.R.App.P. On its face, therefore, Rule 1,

M.R.App.P., prohibits this appeal.

The Sadowskys point out that this Court has reviewed instances

in which district courts have qranted extensions of time for filing

a notice of appeal. E.g., First Security Bank of Havre v. Harmon

(1992) I 255 Mont. 168, 841 P.2d 521; Xizer v. Semitool, Inc.

(1991), 251Mont. 199, 824 P.2d 229; In re Marriage of Bahm (1987),

225 Mont. 331, 732 P.2d 846. In those cases, however, the

extensions of time were reviewable in appeals of other, subsequent

4
appealable orders or judgments as "intermediate order[s] or

decision[s] excepted or objected to within the meaning of Rule 46

of the Montana Ru:Les of Civil Procedure, which involve the merits,

or necessarily affect the judgment[.]" See Rule 2, M.R.App.P.

Rule 1, M.R.App.P., allows appeal from "a final judgment

entered in [a] . . . special proceeding commenced in a district

court." The Sadowskys argue that the denial of their motion for an

extension of time is such a judgment. This argument is flawed in

that the order from which they wish to appeal is not a judgment.

The Sadowskys also cite Shields v. Pirkle Refrigerated

Freightlines (1979), 181 Mont. 37, 591 P.2d 1120. In that case,

this Court held that an order setting aside a default judgment on

jurisdictional grounds was appealable, because it "in effect,

finally concludes the case and the rights of the parties" and

"amounts to a final judgment." Shields, 591 P.2d at 1123. The

Sadowskys maintain the same reasoning applies here.

We agree. The denial of the Sadowskys' request for an

extension of time to file a notice of appeal concludes this case

just as finally as any final judgment. Because the denial of an

extension of time to file a notice of appeal is not simply a

ministerial act, but is a decision within the discretion of the

district court, we conclude that it would be unjust to deny the

right of appeal from such a decision. We therefore hold that the

denial of a Rule 5(a)(5), M.R.App.P., motion for an extension of

the time allowed for filing a notice of appeal is an appealable

order.

5
We now consider whether the District court abused its

discretion in denying the Sadowskys' request for an extension of

time. Rule 5(a)(5), M.R.App.P., allows the district court to

extend the time allowed for filing a notice of appeal "upon a

showing of excusable neglect or good cause." The Advisory

Committee Notes to Rule 5(a)(5), M.R.App.P., state that "the

district court should have the authority to extend time in

extraordinary cases where injustice would otherwise result."

In its order denying the request for the extension, the

District Court stated:

At all times the Plaintiffs had control of this situation. They knew or should have known the time period

after which the motion for relief is automatically

denied. They could have requested a determination sooner

from the Court. They also knew or should have known that

the order of November 23 was issued without jurisdiction.

It has been settled law in Montana for many years that

once the 45-day time limit has expired the Court is

without jurisdiction to take any action on the motion.

In essence, although they argue that they relied upon

such order, they had no right to.rely upon it. Nothing

occurred here that was beyond the Plaintiffs' control.

Therefore, the Court does not find any excusable neglect

or good cause.

As the City points out, this Court has never affirmed a

finding of excusable neglect or good cause under Rule 5(a)(5),

M.R.App.P., due to counsel's lack of understanding of the fortyfive-day time limit on rulings on motions under Rules 59 and 60,

M.R.Civ.P. It was the responsibility of the Sadowskys' counsel to

be aware of and to make sure the District Court was aware of the

forty-five-day rule on the motion for relief from summary judgment.

Lack of knowledge of a clear rule of civil procedure is not an

excuse for relief from the rules. We conclude that the District

6
Court did not abuse its discretion in ruling that the Sadowskys

have failed to demonstrate excusable neglect or good cause

justifying an extension of time for filing a notice of appeal.

We affirm the denial by the District Court of the motion for

extension of time for filing a notice of appeal.

Chief Justice

We Concur: