NO. 94-111

IN THE SUPREME COURT OF THE STATE OF MONTANA

1994

DAVID DUNKELBERGER,

Respondent and Petitioner,

BURLINGTON NORTHERN

RAILROAD COMPANY.

Appellant and Respondent.

APPEAL FROM: District Court of the Eighth Judicial District,

In and for the County of Cascade,

The Honorable John M. McCarvel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Jeff Hedger, Kroschel & Yerger, Billings, Montana

For Respondent:

Kurt M. Jackson, Hoyt & Blewett, Great Falls,

Montana

Filed:

Submitted on Briefs: April 19, 1994

Decided: June 2, 1994
Justice Fred J. Weber delivered the Opinion of the Court.

This action is before the Court on Petitioner Dunkelberger's

motion to dismiss. We grant Dunkelberger's motion for dismissal of

this appeal.

We consider the following issue on review:

Pursuant to Rule 6(a), M.R.Civ.P., were December 24, 1993 and

December 31, 1993, either "holidays" or "legal holidays*' in 1993

because both Christmas Day and New Year's Day fell on Saturdays?

Burlington Northern (BN) filed a notice of appeal on March 11,

1994, seeking to reverse a jury verdict entered on December 14,

1993 in favor of Petitioner Dunkelberger (Dunkelberger).

Dunkelberger has petitioned this Court to dismiss BN's appeal

because the notice of appeal was filed too late under the Montana

Rules of Civil Procedure.

Notice of Entry of Judgment reflecting the jury verdict was

filed and mailed to BN's attorneys on December 15, 1993. BN filed

a motion for extension of time on December 29, 1993, erroneously

believing that it could extend the ten-day time period in which to

serve notice of a motion for new trial pursuant to Rule 59(b),

M.R.Civ.P. Subsequently, BN filed its motion for a new trial on

January 4, 1994. The court ruled on BN's motion for extension of

time to file a post-trial motion for new trial on January 7, 1994,

three days after the motion for extension of time was filed. The

court never ruled on the January 4, 1994 motion for new trial.

Dunkelberger contends that BN is limited to ten days in which

to serve a motion for new trial pursuant to Rule 59(b), M.R.Civ.P.

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Dunkelberger further contends that a party has thirty days to

appeal a judgment according to Rule 5, M.R.Civ.P., unless the party

requests an extension of time, which was not done in this case in

accordance with the rule. Dunkelberger argues that because RN's

motion for new trial was served after the ten-day limit, the

thirty-day time limit for filing an appeal was not tolled and,

thus, its appeal is untimely and must be dismissed.

BN contends that interpretation of Rule 6(a) and 6(e),

M.R.Civ.P., concerning computation of time involving post-trial

motions, in addition to appropriate statutes as well as rules

issued by the Department of Administration, indicate that its

motion for new trial was timely. According to RN, because its

motion was timely and because the court did not rule on this

motion, the motion was deemed denied forty-five days after filing

or February 22, 1994, pursuant to Rule 59(d). RN contends that the

thirty-day appeal time began to run on February 23, 1994, making

its March 11, 1994, appeal timely.

In order to understand the procedure and time constraints

required of the parties in this case, we quote the following rules

from the Montana Rules of Civil Procedure:

Rule 59(b). Time for motion. A motion for new trial

shall be served not later than 10 days after service of

notice of the entry of the judgment. (Emphasis added.)

Rule 59(d). Time for ruling on motion. If the court

shall fail to rule on a motion for new trial within 45

days from the time the motion is filed, the motion shall,

at the expiration of said period, be deemed denied.

Rule 6(a). Computation. In computing any period of time

prescribed or allowed by these rules, by order of court,

or by any applicable statute, the day of the act, event,

3
or default after which the designated period of time

begins to run is not to be included. The last dav of the

period so COmDUted is to be included, unless it is a

Saturday. Sunday or leaal holiday, or, when the act to be

done is the filing of a paper in court, a day on which

weather or other conditions have made the office of the

clerk of the district court inaccessible, in which event

the period runs until the end of the next day which is

not one of the aforementioned days. When the DeriOd of

time urescribed or allowed is less than 11 davs.

intermediate Saturdavs, Sundays and holidays shall be

excluded in the commutation. . . . (Emphasis added.)

Rule 6(b). Enlargement. When by these rules or by a

notice given thereunder or by order of court an act is

required or allowed to be done at or within a specified

time, the court for cause shown may at any time in its

discretion (1) with or without motion or notice order the

period enlarged if request therefor is made before the

expiration of the period originally prescribed or as

extended by a previous order or (2) upon motion made

after the expiration of the specified period permit the

act to be done where the failure to act was the result of

excusable neglect: but it mav not extend the time for

takins any action under Rules 50(b) and (c)(2), 52(b),

590, Cd) r (e) and (g) and 60(b), except to the extent

and under the conditions stated in them. (Emphasis

added.)

Rule 6(e). Adclitional time after service by mail.

Whenever a party has the right or is required to do some

act or take some proceedings within a prescribed period

after the service of a notice or other paper upon the

party and the notice or paper is served upon the party &

mail. 3 davs shall be added to the Drescribed Deriod.

(Emphasis supplied.)

We firstnote that Rule 59(b), M.R.Civ.P., requires only that

the motion for new trial be "served" within ten days. The rule

does not state that the motion must be filed. Service on the other

party in an action can be accomplished without the use of the

courts of this State. Service means providing the other party or

the party's counsel with a copy of the applicable document. Rule

5(b) t M.R.Civ.P.

We note that counsel in this case may have orally stipulated

4
to an extension of time in which to bring the motion for a new

trial. In its Motion for Extension of Time, BN stated,

"Plaintiff's counsel has been contacted and has no objection to

this motion for extension of time." Counsel cannot stipulate to

override the effect of the mandatory time constraints contained

within the Montana Rules of Civil Procedure. We emphasize here

that Rule 59(b), M.R.Civ.P., provides that the ten days permitted

for service of a motion for new trial cannot be extended under any

circumstances.

The legal question which we must answer is whether EN's

calculation of the ten days was correct. Rule 6(e), M.R.Civ.P.,

states that when service of a motion is by mail, three days mailing

time must be counted before the ten days' time for service of

motion can begin. DeTienne Assoc. v. Montana Rail Link, Inc.

(1993) I 261 Mont. 238, __, 862 P.2d 1106, 1108. As discussed in

more detail below, our opinion in DeTienne was intended to clarify

the method for calculating the prescribed period of time when

service of a motion is made by mail if such prescribed period is

less than eleven days.

In order to accurately calculate the ten-day period, we first

must consider the meaning of the words "holidays" and V*leqal

holidays" found in the computation rule, Rule 6(a), M.R.Civ.P. If

BN is correct, its motion for new trial was timely and subject to

the forty-five day automatic denial as well as the tolling of the

thirty days permitted by the rules of appellate procedure for

filing an appeal.

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Notice of Entry of judgment was mailed on December 15, 1993.

We do not count the day of mailing, but rather begin counting the

three days on December 16, 1993. Thus, the three days allowed for

mailing ended on December 18, 1993--a Saturday. Rule 6(a),

M.R.Civ.P., provides that when a rule calls for less than eleven

days, Saturdays and Sundays are not counted. However, we held in

DeTienne that Saturdays and Sundays would not be excluded from the

initially added three days which are allowed for mailing and that

these days would be counted prior to the counting of the prescribed

period for serving a motion. DeTienne, 862 P.2d at 1108.

We must then begin our calculations on December 20, 1993, a

Monday, and include December 21, 22, 23, 24, 27, 28, 29, 30 and 31,

1993. The tenth and final day for serving was Friday, December 31,

1993. Under the foregoing calculation, BN's motion was not served

in time.

BN argues that December 24 and December 31were legal holidays

because the Department of Administration had so provided in

2.21.620, ARM, and these dates should be excluded. Dunkelberger

contends that the days before Christmas Day and New Year's Day,

that being December 24 and December 31, are not legal holidays and

should not have been considered as holidays in the calculation of

the ten day period. Whether these two days are "legal holidays" or

some other kind of holiday because Christmas Day and New Year's Day

fell on Saturdays is the key question. If they are either

l'holidaysV* or "legal holidaystl according to the rule, then BN would

have filed and served its January 4, 1994 motion for new trial

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within the ten-day period.

Dunkelberger cites § 1-1-216, MCA, for the proposition that

December 24 and December 31 are not legal holidays. Section l-l216, MCA, in pertinent part provides:

Legal holidays and business days. (1) The following are

legal holidays in the state of Montana: . . .

(b) New Year's Day, January 1;

ikj 'Christmas Day, December 25;

i2j 'I; any of the above enumerated holidays . . . fall

upon a Sunday, the Monday following is a holiday. All

other days are business days.

The statute makes no provisions for the circumstance where

Christmas Day and New Year's Day fall on Saturdays. Nor does it

list December 24 and 31 as "legal holidays."

BN attempts to rebut this argument by stating that the

Department of Administration has issued regulations which make this

very determination with regards to holidays that fall on Saturdays.

2.21.620, ARM. It is true that the Administrative Rules of Montana

make this determination--but only within the context of holidays

for state personnel.

Dunkelberger would have us interpret the aforementioned

Administrative Rules within the confines of § 3-l-302, MCA:

(1) No court may be open nor may any judicial business be

transacted on legal holidays, as provided in 1-1-216,

MCA, and on a day appointed by the president of the

United States or bv the governor of this state for a

public fast. thankssivins. or holidav . . . . (Emphasis

added.)

This statute speaks to the issue of the availability of courts. BN

contends that pursuant to the Administrative Rules of Montana, all

courts in the State of Montana, including the Supreme Court, were

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closed on December 24, 1993, and December 31, 1993--the Fridays

preceding the holidays.

It is true that all state employees and court personnel of the

State of Montana did not work on the Fridays before Christmas Day

and New Year's Day in accordance with 2.21.620, ARM. However, what

we are concerned with is service on a law office which is a private

business. No evidence exists in the record to indicate that

private businesses were closed in Montana on that date. In

addition, we point out that there is no evidence that the Governor

of the State appointed these days as holidays under the statute.

We conclude that whether the courts were open on December 24 and

December 31 is not decisive because BN's responsibility was to

"serve" notice on Dunkelberger's counsel. Service does not require

accessibility to the court system of this state.

No evidence exists to indicate that December 24 and December

31 were V*holidaysV1 or "legal holidayst@ within the meaning of Rule

6(a) I M.R.Civ.P. Therefore, BN had until December 31, 1993, in

which to serve notice on Dunkelberger that it was filing a posttrial motion for a new trial.

We conclude that BN has miscalculated the time in which to

file its motion for new trial and, therefore, its March 11, 1994

appeal of the underlying judgment was not timely made. This Court

has no alternative but to dismiss this action due to an untimely

appeal and for lack of jurisdiction to co

8
J &ices
June 2. 1994

CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the

following named:

Jeff Hedger, Esq.

Kroschel & Yerger

282%3rd Ave. No., Ste. 607

Billings, MT 59101

Alexander Blewett, III

Hoyt & Blewett

P.O. Box 2807

Great Falls, MT 59403-2807

ED SMITH

CLERK OF THE SUPREME COURT

STATE qMqNTeNA