No. 80-124 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

MARCUS DALY MEMORIAL HOSPITAL 

CORPORATION, A MONTANA CORPORATION, 

Plaintiff and Respondent, 

JEROME F. BORKOSKI, et 

al:; , 

Defendant and Appellant. 

Appeal from: District Court of the Fourth Judicial District, 

In and for the County of Ravalli. 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellants: 

Milodragovich, Dale and Dye, Missoula, Montana 

Harold V. Dye argued, Missoula, Montana 

Garlington, Lohn and Robinson, Missoula, Montana 

Datsopoulos, MacDonald & Lind, Missoula, Montana 

Curtis C. Cook, Hamilton, Montana 

Terry A. Wallace, Missoula, Montana 

Jon E. Ellingson, Missoula, Montana 

For Respondent: 

Johnson and Johnson, Hamilton, Montana 

Lawrence D. Johnson argued, Hamilton, Montana 

Boone, Karlberg & Haddon, Missoula, Montana 

Sam Haddon argued, Missoula, Montana 

Submitted: November 21, 1980 

Decided: March 4, 1981 

Filed: MAR 4 - I~H- 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

Defendant, Jerome F. Borkoski, the purchaser of the 

Marcus Daly Memorial Hospital in Hamilton, appeals from the 

order of the Ravalli County District Court granting summary 

judgment to the defendant seller, Marcus Daly Memorial 

Hospital, Inc. The order declared that the buyer had 

forfeited his right to any interest in the hospital building. 

Borkoski, as buyer, raises three issues on appeal. He 

first claims that the seller elected the remedy of specific 

performance by choosing to accelerate all amounts due under 

the contract and therefore should be estopped from canceling 

the contract and declaring a forfeiture. His second claim 

is that he is statutorily entitled to be relieved of a 

forfeiture. He raises these issues for the first time on 

appeal. His third claim is that the trial court erred in 

refusing to accept and consider his affidavit and brief 

filed in opposition to the summary judgment motion, which 

affidavit and brief was filed on the day of the hearing. We 

affirm. 

Plaintiff-seller has moved this Court to dismiss the 

appeal because of several procedural irregularities in perfecting the appeal. The buyer failed, within the time 

periods allowed by the Rules of Appellate Civil Procedure, 

to order a transcript; he failed to file an undertaking, 

to transmit the record to this Court; and finally, he failed 

to post a supersedeas bond. Although the buyer eventually 

complied with each of these requirements, the seller urges 

dismissal of the appeal because of these dilatory tactics. 

We choose, however, to decide the appeal rather than to 

dismiss for failure to comply with the Rules of Appellate 

Civil Procedure. See, Rules 3, 10 and 21, M.R.App.Civ.P.; 
see also, Hannifin v. Retail Clerks International Ass'n. 

(19731, 162 Mont. 170, 172-73, 511 P.2d 982, 984. 

The purchase contract for the Marcus Daly Memorial Hospital 

was signed on October 11, 1977. The agreed purchase price 

was $80,000. The contract called for downpayment of $21,000, 

including $10,000 which was to be allowed as a credit for a 

previous contract if the buyer paid the second half of the 

1976 taxes on the Hospital within one year. The remaining 

balance of $59,000 was to be paid in monthly installments of 

$1,000 beginning November 11, 1977, with interest accruing 

at 8 percent per annum. The deferdant-seller was to pay the 

taxes on the property after July 1, 1976, as well as insurance 

premiums. 

The buyer made the downpayment and the first three 

monthly installments, but then went into default. He has 

made no installment payments on the contract since January 

1978. As of the time this appeal was heard, he had failed 

to pay the taxes through the year 1978 and had not paid the 

insurance premiums for which he was contractually responsible. 

On April 28, 1978, the seller, acting under the default 

clause in the agreement between the parties, sent the buyer 

a notice of default accelerating all payments to be made 

under the contract and declaring the seller's intention to 

cancel the contract if the default was not cured within 30 

days. The buyer failed to make the payment within the 30- 

day period, and the seller then filed suit against the buyer 

to cancel the contract. ~t the same time, the seller filed 

suit against several mechanic's lienholders--suppliers of 

materials to the buyer, which materials were used in renovating 

the building. The buyer filed a general denial and pleaded 

no affirmative defenses. 

- 3- 
On September 24, 1979, the seller moved for summary 

judgment against the buyer. The court held a hearing on 

October 26, 1979. On December 10, 1979, the court granted 

summary judgment to the seller. On August 26, 1980, the 

court amended its order --- nunc pro tunc, certifying the case 

for appeal under Rule 54(b), M.R.Civ.P. See Roy v. Neibauer 

(1980) Mont. , 610 P.2d 1185, 37 St.Rep. 897. 

The buyer first claims that the seller, in choosing to 

accelerate all amounts due under the contract, elected the 

remedy of specific performance, and therefore should be 

estopped from canceling the contract and declaring a forfeiture. 

Second, the buyer claims that alternatively, he is statutorily entitled to be relieved of a forfeiture. These are 

affirmative defenses and should have been pleaded as such in 

his answer. Rule 12(b), M.R.Civ.P. Because he failed to do 

so, we will not consider these defenses raised here for the 

first time. See, Chadwick v. Giberson (1980), - Mont . - I 

618 P.2d 1213, 1215, 37 St.Rep. 1723, 1726. 

We emphasize that the record of the proceedings shows 

no extenuating circumstances to justify the buyer's failure 

to assert in trial court the defenses he now urges in his 

appeal. To the contrary, the procedural history of this case 

demonstrates the buyer's attempt to unjustifiably prolong 

the litigation and frustrate the judicial process. He 

failed to appear at a court-ordered deposition on June 29, 

1979. On July 6, 1979, the trial court ordered him to pay 

costs and attorney fees incurred by the parties who did 

attend. Later, in a deposition taken on July 27, 1979, he 

failed to bring all the documents requested of him. By 

agreement, the parties gave the buyer ten working days to 

produce the documents. He failed to do so, and on October 
26, 1979, the trial court again ordered him to pay attorney 

fees. Never, at any time, did the buyer make any effort to 

amend his answer to assert the affirmative defenses he now 

asserts in this appeal. 

The last claim of the buyer is that the trial court 

erred in not considering his affidavit and brief filed on 

the day of the hearing on the seller's motion for summary 

judgment. The hearing on motion for summary judgment was 

first scheduled for October 12, 1979, almost three weeks 

after the motion was filed. Before the day of the hearing, 

the buyer approached the trial judge - ex parte and asked for 

a new hearing date because he anticipated testifying at the 

hearing and would not be able to attend on the scheduled 

date. The trial court granted his request and reset the 

hearing for October 26, 1979. The buyer did not testify at 

the hearing. 

It was not until the day of the hearing that the 

buyer's atorney filed an affidavit and brief opposing the 

seller's motion for summary judgment. Counsel for the 

seller asked the trial court not to consider the affidavit 

and brief because they were untimely filed under Rule 6 (d) , 

M.R.Civ.P. Rules 6 (d) and 56 (c) , M.R.Civ.P., require the 

party opposing the motion for summary judgment, to file 

opposing affidavits before the date of the hearing. Under 

the facts of this case, we cannot say that the trial court 

abused its discretion in refusing to consider the affidavit. 

The buyer offered no compelling excuse for his untimely 

filing. When this untimely filing is considered with all 

the unwarranted delays already caused by the buyer, it is 

clear that the trial court properly exercised its discretion 

in refusing to consider the affidavit. 

The judgment of the District Court is affirmed. 
We Concur: 

Chief Justice \ 

Justices 

This cause was submitted prior to January 5, 1981.