### IN THE SUPREME COURT OF THE STATE OF MONTANA DA 08
- 0158 2008 MT 151

_________________ RICHARD J. REEDAL, LARRY C. BARNES and CLARA BARNES, as Members of THE BLUE SPRUCE LODGE, LLC, Plaintiffs and Appellants,
v. G. SCOTTREEDAL and LINDA REEDAL, Individually and as Members of THE BLUE SPRUCE LODGE, LLC, Defendants and Appellees. O P I N I O N A N D O R D E R

_________________ ¶1 Before this Court are the following: A ppellees’ m otion to dismiss thi s appeal;
appellees’ motion for e xtension of time to f ile c ross - appeal; appellants’ r esponse opposing appellees’ motion to dismiss this appeal; and i ntervenor’s r eply to appellees’
motion to dismiss this appeal
. Each is supported by a short memorandum of law. ¶2 Starting with their motion to dismiss this appeal, appellees claim that appellant’s Notice of Appealw as not timely filed. In that regard, it is necessary that w e begin by noting that

under M. R. App. P. 3 : All time limits s et forth in [the MontanaR ules of Appellate Procedure] for filing documents or performing any act are actual time limits. In order to comply with a time
- specific requirement, the do cument must be filed or the act

p erformed on or before the last day of the time specified. In computing any period of time prescribed by these rules , by an order of court , o r by any applicable statute, the day of the act, event or default from which the designated period of time begins to run shall not be April 29 20082

included, but the last day of the period shall b e included. N o additional time may beadded to any such time requirement for mailing or transmitting any document and all weekends and holiday s are included in the times spec ified; provided, however, that if the last day of the timelimit falls upon a w eekend or holiday, then the time limit is extended to the next business day. All documents must be filed in the office of the clerk of the supreme court between 8:00 a.m. and 5:00 p.m. on business days. We also observe that under M. R. App. P. 10(1)a.:

Papers required or permitted to be filed must b e placed in the custody of the clerk of the supreme court within the time fixed for filing. Filing may be accom

p lished by ma i l addressed to the clerk of the supreme court, but filing shall not be timely unle ss the papers are actually received within the time fixed for filing. P rocedural motions may be filed by facsimile between 8:00 a.m . and 5:00 p.m. on business days, provided the original document is fi le d with the clerk within 5 business days of the receipt of the facsimile; otherwise , the filing will be treated as void. ¶3 Appellees’ mo tiont o dismiss s tates that their notice of entry of the trial court’s judgment w as filed and served on February 25, 2008. E xhibit “B” to their motion substantiates this statement. A ppellants, thus, had 30 days from thes ervice of f iling of the N otice of Entry of Judgment , without time added for mailing, i n which to file their appeal. M
. R. App. P. 3 and 4 (5) a.i
. A fter some apparent confusion about where their Notice of Ap pealw as required to be filed , seeM
. R. App. P. 4(5)a.i., appellants fax e d their Notice of Appealt o the Clerk of the Supreme Court’s office o n March 25 , 2008, a Tuesday
. Appellants then filed the hard copy of their Notice of Appealo n March 27, 2008, a Thursday. A

ppellees contend that appellants ’ Notice of Appealw as time barred by not being f

i led within the 30 days allowed by M. R. App. P. 4(5)a.i. Appellants argue that under M. R. App. P. 10(1) a. , thefaxing of their Notice of Appealon March 25 , 200 8 , to the Clerk of the Supreme Court , plus posting the hard copyof their Notice of Appealin3

the mail on March 26, 2008 , and the subsequent receipt of the hard copy and filing of the Notice of Appealby the Clerk of this Court onMarch 27, 2008, taken tog eth er, complied with the 30
- day filing requirement. We disagree with appellants’ arguments. ¶4 Under M. R. App. P. 4(5)a.i. and 10(1)a. , appellants were required to actuallyf ile thehard copyof their Notice of Appealin the office of the Clerk of the Supre me Court on
or before 30 days from service of the N otice of Entry of Judgment (without time added for mailing, M. R. App. P. 3). Since the N oticeo f Entry of Judgment w as f iled and served F ebruary 25, 2008 , the filing clock started to run the following day ; that is , o n February 26, 2008. Thus, day3 0 , the final day for filing the N otice of A ppeal, fell on March 26, 2008. M. R. App. P. 3. ¶5 Appellants’ faxing of their Notice of Appealo n March 25 , 2008 , was not a permitted o r effective fax
- filing under M. R
. App. P. 10(1)a. A notice of appeal is not a “procedural motion” 1 f

or which fax filing is permittedunder this Rule
. A motion is a written or oral application requesting a court to make a specific ruling or order. Black’s Law D ictionary 1031 ( Bryan A. Garner ed., 7th ed., West 1999)
. A n otice of appeal, however, is a document filed with a court and served on the other parties, stating an

1 SeeM. R. App. P. 16. Also, and solely in the interest of comple teness, we note State v. Schindler , 268 Mont. 489, 886 P.2d 978 (1994), in which we referred to the fact that the appellant had filed her notice of appeal by facsimile from a justice court proceeding for trial de novo in district court. Schindler , 268 Mont. at 4 9 0 , 886 P.2d at 979. W e determined, however, that the actual notice of appeal was timely filed and that the “parties’ arguments about the date and time the fax was sent, received, or filed are irrelevant.” Schindler , 268 Mont. at 492, 886 P.2d at 980. W e did not address the issue of whether notices of appeal could be filed by facsimile in this Court, much less did we interpret specific language that limited the filings allowed to be filed by fax to “procedural motions.”4

intention to appeal a trial court’s judgment or order; it is the act by which the appeal is perfected. Black’s Law Dictionaryat 1089 ; s eealso M. R. App. P. 5. Moreover, the date that appellants “posted ”the hard copy of their Notice of Appeali n the mail to the Clerk of the Supreme Court’s officeis immaterial. Papers required to be filed in this Court are
no t “timely unless the papers are actually received within the time fixed for filing.” M
. R. App. P. 10(1)a. Accordingly, it follows that appellants ’ actual filing of their Notice of Appeal o n March 27, 2008, was one day late and was , therefore, n ot timely filed
. Appellants’ appeal must be dismissed w ith prejudice to the merits
. See Mountain West Bank v. Western Skys Ltd. , 2008 MT 54, 341 Mont. 4 48, 177 P.3d 1 0 52 (petitiont o file an out - of
- time appeal denied where notice of appeal was misfiled in the district c ourt and not timely filed in the office of the Clerk of the Supreme Court) ; M. R. App. P. 19(2) (unless otherwise ordered, dismissal of an appealis with prejudice and constitutes a final judgment of the S upreme C ourt). ¶6 We next turn to the i ntervenor. Intervenor’s r eply in opposition to appellees’
motion to dismiss this appeal advances an argument separate from appellants’ argument
. At the outset, we note that we are not able to determine from the limited record before us the identity of i ntervenor
. I nt ervenor c laims that its motion to intervene was gr anted on January 16, 2007. Assuming, on that representation, that i ntervenor is a party in this case, the identity o f i ntervenor is not included in the case caption, and nothing in the record in the Clerk of the Supreme Court’ s office sheds light on who i ntervenor is. That said, i ntervenor has a more fundamental problem. The record in the Clerk of the Supreme Court’s office discloses that i ntervenor did not file a separate notice of appeal.5

This omissioni s fatal. Under M. R. App. P. 2(1) , an i ntervenor is a party to the proceedings before this Court and, as a party, shall be referred to as such in the caption of and the signature block of the documents f iled with this Court. More to the point , M
. R. Ap p. P. 4(2)a. provides that “[a]n appeal is taken by timely filing a notice of appeal in the office of the clerk of the supreme court substantially complying with Form 1
. . . along with the filing fee prescribed by statute or the affidavit to proceed witho ut advance payment of fees prescribed in . . . Form 3 .” Additionally , M. R. App. P. 4(2)c. provides that “[e]xcept where the supreme court grants an out - of
- time appeal under section (6) of this rule, the timely filing of a notice of appeal or cross - appeali s required in order to invoke the appellate jurisdiction of the supreme court.” G iven that i ntervenor failed to file its own notice of appeal, i t may not invoke the appellate jurisdiction of this Court

— with the result that

whatever claims it might have had are not before this Court in this
cause. W e decline to consider further i ntervenor’s separate argument in opposition to
appellees’ motion to dismiss. See also Clark Fork Coalition v. Dep. of Envir. Qua

. , 2007 MT 176, ¶ 17, 338 Mont. 205, ¶ 17, 164 P. 3d 902, ¶ 17 ( i ntervenor is required “to monitor the litigation and file a timely appeal following entry of the judgment.”). ¶7 Because we are granting appellees’ m otion to dismiss, we do not reach or address the merits of their motion for e xtension of time t o f ile a c ross - appeal. T herefore, IT IS ORDERED that appellees’ motion to d ismis s appeal is GRANTED. T his
c auseis DISMISSED as to appellants and i ntervenor with prejudice to the merits. IT IS FURTHER ORDERED that the Clerk of this Court give notice of this O rder to all counsel of record.6

Dated this 29 th day of April, 2008.
/S/ JAMES C. NELSON

We concur: /S/ KARLA M. GRAY /S/ W. WILLIAM LEAPHART /S/ JIM RICE /S/ PATRICIA COTTER