IN THE SUPREME COURT OF THE STATE OF MONTANA
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IN RE MATTER OF M.B., L.B., and F.B.,
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Youths in Need of Care.
APPEAL FROM: District Court of the Thrteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Bard G. Middleton; Attorney at Law; Billings, Montana
For Respondent:
Hon. Joseph P. Mazurek; Attorney General; Tarnmy K. Plubell;
Assistant Attorney General; Helena, Montana
Dennis Paxinos; Yellowstone County Attorney; Marcia Good Sept;
Deputy County Attorney; Billings, Montana
For Guardian Ad Litem:
Damon Gannett; Attorney at Law; Billings, Montana
Submitted on Briefs: March 20,1997
Decided: April 8, 1997
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
The appellants, Christie and Scott Banderob, moved the District Court for the
Thirteenth Judicial District in Yellowstone County for an order allowing them to file a late
notice of appeal. After a hearing, the District Court denied the motion, pursuant to Rule 5(c),
M.R.App.P. Banderobs appeal. We affirm the judgment of the District Court.
The dispositive issue on appeal is whether the District Court erred when it denied
Banderobs' motion to file a late notice of appeal.
FACTUALBACKGROUND
Christie and Scott Banderob are the natural parents of L.B., F.B., and M.B., all minor
children. On November 2, 1993, the Montana Department of Health and Human Services
filed a petition for termination of Banderobs' parental rights to L.B. and F.B., to award
permanent custody to the Department, and to award temporary legal custody of M.B. to the
Department until M.B. reached the age of eighteen.
On October 20, 1995, the District Court issued an order which terminated Banderobs'
parental rights. The State then filed the judgment and notice of entry of judgment on
October 26, 1995.
On March 20, 1996, Banderobs filed a pro se motion in which they requested the
District Court to allow them to file a late notice of appeal.
Banderobs did not dispute that they failed to file a notice of appeal within sixty days
of the service of notice of entry of judgment, as required by Rule 5(a)(l), M.R.App.P. They
claimed, however, that due to extenuating circumstances they should be allowed to file a late
notice of appeal.
In support of their claim, Banderobs asserted that: (1) they are uneducated and have
no knowledge of the legal system; (2) despite their efforts, they were unable to contact Paul
Toennis, their trial attorney, during December 1995; (3) when they finally contacted Toennis
on January 10, 1996, he failed to inform them of their rights pursuant to Rule 5(c),
M.R.App.P.; (4) they attempted to contact the District Court directly, but received no
assistance; and (5) they made a good faith attempt to file a timely notice of appeal.
At the conclusion of the hearing, the District Court held that: "The Banderobs failed
to show any excusable neglect or good cause which would extend the 60 day filing limit for
an additional 30 days. Even if they had, the Banderobs failed to file a notice of appeal in the
extended time period." Accordingly, the District Court denied Banderobs' motion to file a
late notice of appeal.
DISCUSSION
Did the District Court err when it denied Banderobs' motion to file a late notice of
appeal?
When we review a district court's conclusions of law, the standard of review is
whether those conclusions are correct. Carbon County v. Union Reserve Coal Co., Inc.
(1995), 271 Mont. 459,469, 898 P.2d 680,686.
Banderobs contend that the District Court erred when, pursuant to Rule 5(c),
M.R.App.P., it denied their motion to file a late notice of appeal. Specifically, they assert
that, because of extenuating circumstances, they should be allowed to file a late notice of
appeal. Furthermore, they claim that the District Court erred when it concluded that they did
not establish good cause or excusable neglect for their failure to file a timely notice of
appeal.
Rule 5 of the Montana Rules of Appellate Procedure is entitled "Time for filing notice
of appeal." Rule 5(a)(l), M.R.App.P., provides, in relevant part, as follows:
[I]f the State of Montana, or any political subdivision thereof, or an officer or
agency thereof is a party the notice of appeal shall be filed within 60 days from
the entry of the judgment or order or 60 days fiom the service of notice of the
entry of judgment.
The District Court issued its order which terminated Banderobs' parental rights on
October 20, 1995. Subsequently, on October 26, 1995, the District Court entered its
judgment and the State served notice of the entry of judgment. Banderobs did not file a
notice of appeal within sixty days of service. Therefore, they did not comply with
Rule 5(a)(l), M.R.App.P.
Rule 5(c), M.R.App.P., allows a district court to extend the period of time during
which a party can file a notice of appeal. It provides, in relevant part, as follows:
The district court, upon a showing of excusable neglect or good cause, may
extend the time for filing a notice of appeal upon motion filed not later than
the 30 days after the expiration of the time prescribed by Rule 5(a) for civil
cases . . . .
Rule 5(c), M.R.App.P.
Banderobs did not move the District Court to allow them to file a late notice of appeal
until March 20, 1996. At that time, the additional thirty days provided for in Rule 5(c),
M.R.App.P., had also expired. Therefore, that motion was not timely.
In Northwestern National Insurance Co. v. Agra-Steel(1981), 193 Mont. 437,439,
632 P.2d 330, 33 1, we stated:
In every appeal the first question is that of jurisdiction. Hand v. Hand (1957),
131 Mont. 571, 576,3 12 P.2d 990,992. Before proceeding we must consider
whether or not Agra-Steel properly perfected its right of appeal. Appellant had
the duty to perfect its appeal in the manner and within the time limits provided
by law. Absent such compliance, this Court does not acquire jurisdiction . . . .
Furthermore, in Zell v. Zell(1977), 172 Mont. 496,498, 565 P.2d 31 1, 312, we held
that: "It is well settled in Montana that an untimely notice of appeal is a jurisdictional defect,
which renders this Court powerless to hear the appeal."
Finally, we note that in their appellate brief, Banderobs concede that, pursuant to the
plain language of Rule 5, M.R.App.P., and the principles delineated in Northwestern
National Insurance Co. and Zell, their "request for filing a late notice of appeal was untimely
and that the court lacks jurisdiction to entertain their motion."
We therefore conclude that Banderobs failed to comply with the applicable Montana
Rules of Appellate Procedure and that such jurisdictional defects are fatal to their claims on
appeal. Accordingly, we hold that the District Court did not err when it denied Banderobs'
motion to file a late notice of appeal.
We Concur:
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Justices