### NO. 91-584 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1992



### FIRST SECURITY BANK OF HAVRE, 

### a corporation, Plaintiff, Respondent and Cross-Appellant,

RONALD M. HARMON, GERALD W. RIDGEWAY, NORTHERN INSURANCE AGENCY, a corporation, and THE UNITED STATES OF AMERICA, Defendants and Appellants.

APPEAL FROM: District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable Leonard H. Langen, Judge presiding.

COUNSEL OF 

### RECORD: For Appellants: Douglas C. Allen, Attorney at Law, Great Falls, Montana A. Clifford Edwards, Edwards & 

### Paoli, Billings, Montana For Respondent: Kathleen 

### H. Richardson, Morrison, Hauge, Ober & 

### YOUng, Havre, Montana 

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### Submitted on Briefs: Auqust 13, 1992 

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### Decided: November 12, 199; 

### Filed: 

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..,. .>,ATE OF MONTANAJustice John Conway Harrison delivered the Opinion of the Court.

This is an appeal from the Twelfth Judicial District, County of Hill, the Honorable Leonard H. Langen presiding. Appellant Ronald M. Harmon (Harmon) appeals from an order granting the respondent, First Security Bank of Havre (First Security) summary judgment in its action to collect on a promissory note executed by Harmon on August 3, 1981 in the original amount of $283,242.93. We hold that Harmon's failure to file a timely notice of appeal prevents this Court from acquiring jurisdiction overhis appeal. BACKGROUND In 1981, Harmon was the sole owner and stockholder of Big Bud Tractors, Inc., and its wholly owned subsidiary, Big Bud Sales and Services, Inc. (collectivelyBig Bud). Harmon and Big Bud were indebted to First Security and its correspondent, Seattle First National Bank (Sea-First). In July 1981, to avoid foreclosure, Harmon and Big Bud executed a settlement agreement with the two banks. Under the terms of this agreement, Harmon and Big Bud conveyed all of their assets to First Security and Sea-First. The banks agreed to reconvey these assets after Harmon and Big Bud paid approximately $3 million. Whether thismoney waspaid,and whether the banks were obligated to reconvey the Harmon-Big Bud assets,

were unresolved issues between the parties. Harmon contends now that the promissory note executed in August 1981 was part of the July 1981 settlement agreement and represents a "rewriting" of Harmon's obligation to First Security. First Security contends that theAugust 1981promissory note was notpart of the settlement 2agreement. In

### April 1982, Harmon and Big Bud filed 

### suit against the 

### two banks in United States ~istrict Court for the ~istrict ofMontana, Great Falls Division (AdversaryNo. 482-0113). Their allegations included breach of contract, fraud,breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. First security counterclaimed on all promissory 

### notes of Big Bud and 

### Harmon, except for the note at issue in the case before this 

### Court. Judgment on the federal jury verdict was entered 

### on February 28, 1990. The jury, responding to special interrogatories, found that the bankshad not committed fraud 

### orbreached their settlement agreement with Harmon and Big Bud; that the banks had breached a fiduciary duty in dealing with Harmon and Big Bud; and that this breach was not a proximate cause of damage to 3ig Bud or Harmon. The jury also found that First Securitywasnot entitled to recover any money on its counterclaim. Thepromissory note 

### onwhich First Security is now attempting 

### to collect

### was securedby a trust indentureconveying 3.92 acres of land along U.S. Highway 2 

### in Hill County. Harmon stated in his District Courtbrief that this was his "last piece of property not previously conveyed to the Banks." Harmon had a 52.5 percent undivided interest in this land, having conveyed a 47.5 percent interest to Gerald Ridgeway in 1979. From 1981through 1985, Harmon failed topay property taxes

on the indentured property. Under the terms of the note, failure

### to pay 

### taxes constituted a 

### default,and onNovember 14, 1985,First 

### Security declared that all 

### sums owing 

### on the note were due and payable, As of December 1, 1985, Harmon's debt included the original principal plus $108,211.40 in interest, with interest accruing at the rate of $93.13 per day. On 

### May 30, 1986, First Security filed this collection action seeking, in addition to judgment for the amount of the debt, partition of Ridgeway's portion 

### of the indentured property and a foreclosure sale of Harmon's portionThe Harmon-Big Bud federal case was still pending in April 1988, when Judge Langen held a scheduling conference on First Security's state court action. The parties agreed then to abate the action until the federal case was tried, though the First Security attorney expressed concern that Hill County would "move 

### for a 

### tax deedt'as the unpaid taxes on the property continued to increase. In fact, the county did issue a tax deed in October 1989, and in May 1990 the county quitclaimed the indentured property to a third party. 

### In June 1990 First Security moved for summary judgment based

on the verdict 

### in federal court. After a hearing by conference telephonecall in February 1991,JudgeLangenordered that judgment for 

### First Security be entered but not 

### executed on until Harmon's appeal from the federal 

### courtverdictwas concluded. The judgment, entered on March 21, 1991, was in the amount of $596,288.03 plus $9,429.89 for attorney's fees, $204.25 

### for costs, and interest at 12 percent from and after the date of entry of judgment. With

### respect to the other defendants, the court found that Ridgeway's interest was foreclosed by the Hill County tax deed and that the Northern InsuranceAgency and the United States (Internal Revenue Service)had disclaimedany interest in the litigationandhad been dismissed as parties in September 1986, and April 1987, respectively. THE DISPOSITIVE ISSUE The critical issue in this case iswhether Harmon's untimely notice of appeal prevents the Supreme Court from obtaining jurisdiction over the appeal. Finding that it does, we dismiss this appeal without deciding the other issues raised by the parties. Harmon filed amotion to alter or amend the judgment on March 29, 1991, well within the ten-day limit established by M.R.Civ.P. 59 (g)

# . OnApril 12, 1991,Harmonmoved for an extension of time to file a brief in support of his motion to amend. Judge Langen extended the time through April 30, 1991. 

### On April 30, 

### 1991, Harmon againmoved for an extension of time to filehis brief, and again Judge Langen ordered an extension, this time throughMay 10, 

### 1991. On May 13, 1991, Harmon filed a third motion for an extension of time,but Judge Langen did not enter a corresponding order. Harmon filed his brief on May 21, 1991. UnderM.R.Civ.P. 59(g), amotion to alter or amend a judgment is deemed denied if the court fails to rule on the motion within forty-five days from the time it is filed. Thus, Harmon'smotion to amend or alter the judgment againsthim was deemed denied on orabout May 15, 1991. A party must file notice of appealwithin thirty days from the date that

### amotion to alter or amend the judgment isdeemed denied. Rule 5(a)(4), M.R.App.P. ~pplied here, this rule required Harmon to fife notice of appeal by June 14, 1991. Instead,Harmonwaited until July 9, 1991 to move for an extension of time to file a notice of appeal, JudgeLangen granted thismotion on October 16, 1991,extending thedeadline

### to October 27,andHarmon filed notice of appeal on October 23, 1991. Under M.R.App.P. 5(a)(5),the court 

### may extend the time for filing a notice of appeal llupona showing of excusable neglect or good cause," in response to a motion filed "not later than 30 days after the expiration of the time prescribed by this Rule 5(a).lV Here, Harmon filed his motion for an extension of time within the 

### prescribed thirty-day limit, but he made 

### no showing of excusable neglect or good causeThe time limits for an appeal are mandatory and jurisdictional. "An appellant has a duty to perfect 

### an appeal in themanner andwithin the time limits provided by law. Absent such compliance, this Court does not acquire jurisdiction to entertain 

### and determine

### an appeal. Price

### v. Zunchich (1980)

### , 188Mont. 230, 235, 612 P.2d 1296, 1299. SeeAnderson v. Bashey [l99O), 241Mont. 252, 787 P.2d 304 (plaintiff'smotion to reconsiderwas filed one day too late and therefore failed to suspend the thirty-day limit for 

### filing notice 

### of appeal); Easeley 

### v. Burlington Northern R.R. (1988), 234 Mont. 290, 762 P.2d 870 (plaintiff's appeal deniedbecause he filed notice of appeal more than thirty days after his motion for reconsiderationwas deemed denied). Further, theparty attempting to appeal is not entitled to notice that a post-trial motion is deemed denied. Mortensen Construction Co. 

### v. Burlington Northern, Inc. (1985), 218 Mont. 415, 417, 708 P.2d 1006, 1007. The courtmay extend the deadline for filing notice of appeal by no more than thirty days past the prescribed time or ten days from the date of entry of the order granting the motion. M.R.App.P. 5(a) (5). Here, the thirty-day period expired on July 14, 1991. Judge Langen did extend the deadline for only ten days from the date his order granting Harmon's motion was entered, as the rule requires, but his order was entered on October 16, three months after the thirty-dayperiod prescribed byM.R.App.P. 5(a) (5) had expired. By then, the court had lost its authority to grant such an extension. Zell v. Zell (1977), 172 Mont. 496, 500, 565 P.2d 311, 313 ("[Tlhe district court loses its authority to grant such an extension after the additional 30 day period expires."); NorthwesternNat'l. Ins. Co. v. Agra Steel Corp. (1981),193 Mont. 437, 439, 632 P.2d 330, 332 (maximum allowable time within which the district court could grant an extension of time for filing notice of appeal expired thirty days after the original thirty-day limit expired). In his brief supporting the motion, Harmon stated: [C]ounsel forHarmon were unaware that hispending motion was deemed deniedby operation of law on or aboutMay 15, 1991,but were under the impression that the motion was still pending for ruling. This impression was fostered 

### by Plaintiff s counselhavingmoved after [May 151 foran extension of time to file a brief in opposition to the

### motions. Harmon went on to indicate that it was not until June 14, 1991, 

### when First Security filed its brief opposing an extension of time, that he realized his motion had been deemed denied since mid-May. Failure to timely file notice of appeal is a fatal defect cured onlyby the Itmostextenuating

### circumstance^.^^ Montana Power Co. 

### v. Fondren (1987), 

### 226Mont. 500, 505, 737 

### P.2d 1138, 1141. 

### We find no such circumstances here, as Harmon has shown only that he

was "unaware" of M.R.Civ.P. 59(g). 

### Under Rule 5, 

### M.R.App.P., Harmon was required to perfect his appeal within the time limitsprovided by law. Sincehe has failed to do so,this Court did not acquire jurisdiction to entertainhis appeal. Accordingly, it is hereby ordered that this appeal be dismissed as not having been timely filed.

We 

### concur:November 12, 1992 CERTIFICATEOFSERVICE Ihereby certify that the followingorderwas sentbyUnitedStates mail, prepaid, to the following named:

DOUGLASC.ALLEN AttorneyatLaw P.O. Box 2886 Great Falls,MT59403 A. Clifford Edwards EDWARDS&PAOLI P.O. Box20039 Billings,MT 59403-0039

KathleenH.Richardson MORRISON, YOUNG,MELCHER,BROWN&RICHARDSON P.O.Box 1070 Havre, Montana 59501 PHILLIPMcGIMPSEY AttorneyatLaw P.O. Box 1500 Billings,MT59103

ED SMITH CLERKOFTHESUPREMECOURT