IN THE SUPREME COURT OF THE STATE OF MONTANA
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CLARENCE D. ANDERSON and GLORIA A. -
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ANDERSON, husband and wife, et al., -4 rv
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Plaintiffs and Appellants, .-
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MICHAEL A. BASHEY and JOYCE A. BASHEY, MARC
HUTCHINSON and JANE DOE HUTCHINSON, DONNA
DeCARO and JOHN DOE DeCARO, BASHEY & COMPANY, ..
and BASHEY, DeCARO & COMPANY, I , ' ,
Defendants and Respondents, t - ,.
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DANA P. DAIGLE and RUTH D. DAIGLE, HARRY E. --i
CHESMAN and DEEORAH T. CHESMAN, and MICHAEL J.
MULRONEY , Defendants.
APPEAL FROM: ~istrictCourt of the ~ i g h t h~udicial~istrict,
In and for the County of Cascade,
The Honorable John McCarvel, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Thomas H. Clary; Clary & Clary, Great Falls, Montana
Spencer Hall, Jr.; Mundt, MacGregor, Happel, Falconer,
Zulauf & Elall, Seattle, Washington
For Respondent:
Robert J. Ernmons; Emmons & Coder, (Bashey, etc.), Great
Falls, Montana
Mary C. EkLund; ~ittner& Barker, (Bashey, ~utchinson,
DeCaro ( & CO), Seattle, ~ashington
William E. ~itzharris,Jr.; Hallmark, eating & Abbott,
(Chesman), Seattle, ~ashington
Geoffrey P. Knudsen; Stoel, ~ i v e s , Boley, Jones & Grey,
(~aigle), Seattle, ~ashington
Ronald F. Waterman; Gough, Shanahan, Johnson & Waterman,
(Daigle), Helena, Montana
Judith A. Butler; ~ u k i n s& ~ n n i s ,(Mulroney), Spokane,
~ashington
Terry B. Cosgrove; Luxan & ~urfitt, (Mulroney) Helena,
Montana
submitted on ~riefs: Oct. 20, 1 9 8 9
Decided: February 2, 1990
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.
Plaintiffs appeal a judgment of the Eighth Judicial ~istrict,
Cascade County, granting defendant's motion to dismiss for lack of
in personam jurisdiction.
Defendants raise the question of whether or not the plaintiffs
properly and timely filed their notice of appeal. Having examined
the record and the law on the issue, we find the appeal is untimely
and we are without jurisdiction to hear it.
The plaintiffs in this action purchased interests in a
washington general partnership that owned and operated ten orchards
located in central Washington. The defendants are Washington
accountants, who worked for the general partnership.
The plaintiffs allege the defendants joined in a scheme to
defraud Montana residents through the unlawful sale of partnership
interests in the Washington fruit orchards. According to the
plaintiffs, the accountants assisted in carrying out the orchards
scheme by preparing tax opinion letters and financial information
used to sell the orchard securities in Montana and by acting as the
accountants for the orchards by, among other services, preparing
annual tax returns for the orchard partnerships and preparing
individual schedule K-1 tax forms for the investors in Montana.
On March 1, 1989, the District Court entered an order
dismissing all claims assessed against the defendants Micheal A.
Bashey and Joyce A. Bashey, husband and wife; Donna DeCaro and her
deceased husband, Michael DeCaro; Marc S. Hutchinson and Elizabeth
Hutchinson, husband and wife; Bashey & Company, a Washington
general partnership; and Bashey DeCaro & Company, a Washington
general partnership (collectively hereinafter the Bashey
defendants). The District Court in March 1, 1989, ruled that there
was no personal jurisdiction over the Bashey defendants in Montana.
On March 2, 1989, the plaintiffs acknowledged personal service
of the notice of entry of judgment of the March 1, 1989 order.
Subsequently, on March 13, 1989, the plaintiffs filed a motion for
reconsideration. Finally, on April 27, 1989, the plaintiffs filed
their notice of appeal.
The issue raised by the plaintiffs is whether the District
Court properly granted defendants1 motion to dismiss for lack of
in personam jurisdiction. We do not have jurisdiction to determine
this issue. Plaintiffs1 notice of appeal was not timely, and
therefore this Court is without jurisdiction to hear it.
Consequently, plaintiffs' appeal must be dismissed.
On March 1, 1989, the District Court entered an order
dismissing all claims against the Bashey defendants. On March 2,
1989, the plaintiffs acknowledged the service of the notice of
entry of judgment. At that point, if plaintiffs desired relief
from the court's judgment they had the following alternatives:
1. File an appeal within 30 days from the service of notice
of entry of judgment. Rule 5 (a)(1), M.R.App. P.
2. Move for a new trial not later than 10 days after service
of the notice of entry of judgment. Rule 59(a) and (b),
M.R.Civ.P.
3 . Move to alter or amend the judgment not later than 10 days
after the service of the notice of entry of judgment. Rule
59(g), M.R.Civ.P., or
4. Move for an amendment of the District Court's findings no
later than 10 days after service of the notice of entry of
judgment. Rule 52 (b), M.R.Civ.P.
Although the plaintiff had a variety of motions to choose
from, the plaintiffs elected to file a motion for reconsideration.
A motion for reconsideration is not listed as a post-judgment
motion under the Montana Rules of Civil Procedure. The plaintiffs1
motion therefore has no effect, unless we equate it to a motion
under Rule 59, or Rule 52, M.R.Civ.P. The plaintiffs1 motion fails
to meet the provision ". . . no later than 10 days after service
of notice of entry of judgment1!as required by the Rules. On March
2, 1989, the plaintiffs acknowledged personal service of the notice
of entry of judgment. Unfortunately, the plaintiffs filed their
motion on March 13, 1989, one day too late under the Rules.
The plaintiffs1 tardiness in filing their motion has
devastating consequences under the time requirements for filing a
notice of appeal. Under Rule 5, M.R.App.P., the time for filing
a notice of appeal may be suspended by certain timely post-trial
motions. Rule 5 (a) (4), M.R.App.P. Here, however, plaintiffs'
post-trial motions were without effect to lengthen the time limits
for a notice of appeal. The motion filed by the plaintiff is
barred by the ten day limitation. Rules 59 and 52, M.R.Civ.P.
Rule 5 (a)(1), M.R.App. P., provides that an appeal from an
order must be taken within 30 days of its entry except that in
cases where service of notice of entry is required, the time for
appeal shall be 30 days from the service of notice of entry of
judgment. In Re the Marriage of McDonald (1979), 183 Mont. 312,
314, 599 P.2d 356, 357. Here, service of the notice of entry of
judgment was made on March 2, 1989. The plaintiffs filed their
notice of appeal on April 27, 1989, well beyond the 30 day time
limit set forth in Rule 5 (a)(I), M.R.App.P.
This Court has long held that the time limits for an appeal
are mandatory and jurisdictional. OIConnell v. Heisdorf (1982),
202 Mont. 89, 91, 656 P.2d 199, 200; Price v. Zunchich (1980), 188
Mont. 230, 235, 612 P.2d 1296, 1299; Snyder v. Gommenginger (1979),
183 Mont. 375, 376-77, 600 P.2d 171, 172-73. In the present case,
t h e p l a i n t i f f s were r e q u i r e d t o p e r f e c t an a p p e a l i n t h e manner and
w i t h i n t h e t i m e l i m i t s p r o v i d e d by t h e law. The p l a i n t i f f s have
f a i l e d , and t h e r e f o r e , t h i s Court d i d n o t a c q u i r e j u r i s d i c t i o n t o
e n t e r t a i n and d e t e r m i n e t h e i r a p p e a l . Snyder, 6 0 0 P.2d a t 1 7 3 .
Accordingly, it is hereby ordered that this appeal be
d i s m i s s e d a s n o t h a v i n g been t i m e l y f i l e d p u r s u a n t t o Rule 5 ,
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Justice 'J
W e Concur:
Justices