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 

- 

g :; 

Submitted on Briefs: Auqust - 13, 1992 

Decided: November 12, 199; 

Filed: d$ id:{ - in8 .rZ 

cLCR:< ii:? 3Ll?RE&lE COUflr . . ,. .>,ATE OF MONTANA 
Justice 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 over his 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. (collectively Big 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 this money was paid, 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 the August 1981 promissory note was not part of the settlement 

2 
agreement. 

In April 1982, Harmon and Big Bud filed suit against the two 

banks in United States ~istrict Court for the ~istrict of Montana, 

Great Falls Division (Adversary No. 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 banks had not committed fraud or breached 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 Security was not entitled to recover 

any money on its counterclaim. 

The promissory note on which First Security is now attempting 

to collect was secured by a trust indenture conveying 3.92 acres of 

land along U.S. Highway 2 in Hill County. Harmon stated in his 

District Court brief 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 1981 through 1985, Harmon failed to pay property taxes 

on the indentured property. Under the terms of the note, failure 
to pay taxes constituted a default, and on November 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 

telephone call in February 1991, Judge Langen ordered that judgment 

for First Security be entered but not executed on until Harmon's 

appeal from the federal court verdict was 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 Insurance Agency and the United States (Internal Revenue 

Service) had disclaimed any interest in the litigation and had been 

dismissed as parties in September 1986, and April 1987, 

respectively. 

THE DISPOSITIVE ISSUE 

The critical issue in this case is whether 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 a motion to alter or amend the judgment on March 

29, 1991, well within the ten-day limit established by M.R.Civ.P. 

59 (g) . On April 12, 1991, Harmon moved 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 again moved for an extension of time to file his brief, and 

again Judge Langen ordered an extension, this time through May 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. 

Under M.R.Civ.P. 59(g), a motion 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's motion 

to amend or alter the judgment against him was deemed denied on or 
about May 15, 1991. 

A party must file notice of appeal within thirty days from the 

date that a motion to alter or amend the judgment is deemed 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, Harmon waited 

until July 9, 1991 to move for an extension of time to file a 

notice of appeal, Judge Langen granted this motion on October 16, 

1991, extending the deadline to October 27, and Harmon 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 llupon a 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 

the manner and within 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) , 188 Mont. 230, 

235, 612 P.2d 1296, 1299. See Anderson v. Bashey [l99O), 241 Mont. 

252, 787 P.2d 304 (plaintiff's motion to reconsider was 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 denied 
because he filed notice of appeal more than thirty days after his 

motion for reconsideration was deemed denied). Further, the party 

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 court may 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-day period prescribed by M.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."); 

Northwestern Nat'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 for Harmon were unaware that his pending motion 

was deemed denied by operation of law on or about May 15, 

1991, but were under the impression that the motion was 

still pending for ruling. This impression was fostered 

by Plaintiff s counsel having moved after [May 151 for an 

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 only by the Itmost extenuating circumstance^.^^ Montana Power 

Co. v. Fondren (1987), 226 Mont. 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 limits provided by law. Since he has failed 

to do so, this Court did not acquire jurisdiction to entertain his 

appeal. Accordingly, it is hereby ordered that this appeal be 

dismissed as not having been timely filed. 

We concur: 
November 12, 1992 

CERTIFICATE OF SERVICE 

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

named: 

DOUGLAS C. ALLEN 

Attorney at Law 

P.O. Box 2886 

Great Falls, MT 59403 

A. Clifford Edwards 

EDWARDS & PAOLI 

P.O. Box 20039 

Billings, MT 59403-0039 

Kathleen H. Richardson 

MORRISON, YOUNG, MELCHER, BROWN & RICHARDSON 

P.O. Box 1070 

Havre, Montana 59501 

PHILLIP McGIMPSEY 

Attorney at Law 

P.O. Box 1500 

Billings, MT 59103 

ED SMITH 

CLERK OF THE SUPREME COURT