                                         No. 01-561

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                        2002 MT 95


STEPHEN G. ALLEN and CYNTHIA A. ALLEN,

              Plaintiffs/Counterclaim Defendants/Respondents,

         v.

D.L. HUBBARD,

              Defendant/Counterclaimant/Appellant.



APPEAL FROM:         District Court of the Fourth Judicial District,
                     In and for the County of Missoula,
                     The Honorable Edward P. McLean, Judge presiding.


COUNSEL OF RECORD:

              For Appellant:

                     Robert J. Phillips, Phillips & Bohyer, Missoula, Montana

              For Respondents:

                     Richard A. Reep, Kristine J. Beal, Reep, Spoon & Gordon, Missoula,
Montana


                                            Submitted on Briefs: January 17, 2002

                                                                       Decided: May 9, 2002
Filed:


                     __________________________________________
                                       Clerk
Justice Jim Regnier delivered the Opinion of the Court.

¶1    Duncan Hubbard appeals from the Opinion and Order of the

Fourth     Judicial     District      Court,     Missoula   County,   dismissing

Hubbard’s appeal from small claims court as untimely.                 We affirm.

¶2    The following issue is dispositive of this appeal:

¶3    Did the District Court err by including weekends and holidays

when it calculated the ten-day, statutory appeal time set forth in

§ 25-35-803, MCA?

                                     BACKGROUND

¶4      The relevant facts in this case are few and undisputed.

Stephen G. Allen and Cynthia A. Allen (collectively, the “Allens”)

sued Hubbard to recover land survey costs.                On December 12, 2000,

Justice of the Peace Karen A. Orzech of the Justice Court, Missoula

County, Small Claims Division, entered a judgment in Allen’s favor.

 Hubbard filed a Notice of Appeal on December 27, 2000.                   Judge

Edward McLean dismissed Hubbard’s appeal as untimely and awarded

fees and costs to the Allens on May 21, 2001.               Hubbard appeals the

District Court’s dismissal.
                                STANDARD OF REVIEW

¶5    We review a district court’s conclusions of law de novo to

determine whether they are correct.                See Babcock v. Farmers Ins.

Exch., 2000 MT 114, ¶ 5, 299 Mont. 407, ¶ 5, 999 P.2d 347, ¶ 5.




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                                  DISCUSSION

¶6    Did the District Court err by including weekends and holidays

when it calculated the ten-day, statutory appeal time set forth in

§ 25-35-803, MCA?

¶7    A party has ten days to file a notice of appeal with the

district court if dissatisfied with the judgment of a small claims

court.       See § 25-35-803, MCA.            Here, Hubbard waited fifteen

calendar days to file his notice of appeal to the District Court.

He argues, however, that when calculating the statutory time limit,

a    court    should   not    include       weekends   or   holidays   in   its

calculations.     Under such a calculation, Hubbard would have filed

his notice of appeal exactly ten days after the date of the small

claims court’s judgment.
¶8    When interpreting a statute, we look to the plain meaning of

the words.     See State v. Fauque, 2000 MT 168, ¶ 10, 300 Mont. 307,

¶ 10, 4 P.3d 651, ¶ 10.           Our aim is “simply to ascertain and

declare what is in terms or in substance contained therein, not to

insert what has been omitted or to omit what has been inserted.”

Section 1-2-101, MCA.        If the language is clear and unambiguous, we

do not need to conduct further interpretations.             See Fauque, ¶ 10.



¶9    The language of § 25-35-803, MCA, is clear concerning the

length of time a party has to file an appeal.                It states that,

“[a]n appeal shall be commenced by giving written notice to the

small claims court and serving a copy of the notice of appeal on

the adverse party within 10 days after entry of judgment.”             Section



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25-35-803(1), MCA.    Hubbard, however, urges us to look at two other

statutory   provisions    to    conclude   that   we   should    not    include

weekends or holidays in our calculations.

¶10   Hubbard first directs us to the Montana Uniform Rules for the

Justice and City Courts (the “Uniform Rules”).              Rule 21 of the

Uniform Rules states that “[w]hen the period of time prescribed or

allowed is ten days or less, intermediate Saturdays, Sundays, and

legal holidays shall be excluded.”          Hubbard argues that Rule 21

applies because Rule 1(a) of the Uniform Rules states that “[t]hese

rules, together with the Montana Justice and City Court Rules of

Civil Procedure, govern the practice in all justice and city courts

of the State of Montana.”       Contrasting the language of the Uniform

Rules with that of the Montana Justice and City Court Rules of

Civil Procedure, the latter of which specifically excludes small

claims   actions   from   its    scope,    Hubbard     maintains   that    the

Legislature clearly intended the Uniform Rules to apply to small

claims actions.      Compare Rule 1, Mont. Justice and City Court

R.Civ.P. (stating that “[t]hese rules govern the procedure in the

justice and city courts . . . except in small claims actions.”

(emphasis added)) with Rule 1(a) Mont. Unif. R. for the Justice and

City Courts (stating that “[t]hese rules . . . govern the practice

in all justice and city courts,” without mentioning small claims

actions).    Examining    the    language   of    both   the    Small   Claims

Procedure and the Uniform Rules, however, we cannot agree that the

Uniform Rules apply to § 25-35-803, MCA.




                                     4
¶11   The    rules   for    Small    Claims   Procedure     vary   in     several

significant ways from the Uniform Rules.                  For instance, Small

Claims Procedure rules do not allow for a form of pleadings other

than a complaint or counterclaim.             See § 25-35-607, MCA.             The

Uniform Rules, on the other hand, allow for answers and motions for

orders.      See Rules 8 & 9, Mont. Justice and City Court R.Civ.P.

Additionally,     Small    Claims    Procedure    rules    limit   the    use   of

counsel, while the Uniform Rules specifically allow counsel to

represent a party.     Compare § 25-35-505, MCA, with Rule 14, Uniform

Rules.      Given these differences, we cannot agree that the Uniform

Rules necessarily apply to all procedures in small claims actions.
¶12   Alternatively,       Hubbard     suggests    we     apply    Rule     6(a),

M.R.Civ.P., when calculating         the time allowed in § 25-35-803, MCA.

 Rule 6(a) states that “[w]hen the period of time prescribed or

allowed is less than 11 days, intermediate Saturdays, Sundays and

holidays shall be excluded in the computation.”              In support of his

argument, Hubbard directs us to several of our prior decisions for

the proposition that Rule 6 applies to appeals to the District

Court.      None of these cases, however, deals with an appeal from a

small claims court.        See In re Adoption of S.E. (1988), 232 Mont.

31, 755 P.2d 27 (applying Rule 2 of the Uniform Rules, which

specifically cites Rule 6(a), to a post-hearing motion in district

court); DeTienne Assoc. Ltd. Partnership v. Montana Rail Link, Inc.

(1993), 261 Mont. 238, 862 P.2d 1106 (interpreting Rule 6(a) in

context of a motion for a new trial in district court); State, By

and Through Dept. of Highways v. Helehan (1977), 171 Mont. 473, 559



                                        5
P.2d 817 (applying Rule 6(a) to Rule 6(e) in context of an appeal

from a commissioners’ award).

¶13    Hubbard also relies on Rule 1, M.R.Civ.P, which defines the

scope of the Rules of Civil Procedure.               Rule 1 states that the

Rules “govern the procedure in the district courts of the state of

Montana . . . with the exceptions stated in Rule 81.”                  In turn,

Rule    81(b)   states    that   “[t]hese   rules    do    not    supersede   the

provisions of statutes relating to appeals to or review by the

district courts, but shall govern procedure and practice relating

thereto insofar as these rules are not inconsistent with such

statutes.”      We do not dispute that situations will arise where

these three provisions must work in concert to complement each

other.     Nevertheless, we find Hubbard’s arguments unpersuasive in

this case.
¶14    The language of § 25-35-803, MCA, is unambiguous.             It clearly

states that a party has ten days in which to file a notice of

appeal, without mentioning the exclusion of weekends and holidays.

The fact that other chapters of the code make such an exclusion is

notable.    In general, the Montana Unified Rules for the Justice and

City Courts govern justice and city courts, the Montana Rules of

Civil    Procedure   govern      district   courts   and    the    Small   Claims

Procedure governs small claims courts.               See generally, Rule 1,

M.R.Civ.P.; Rule 1 Mont. Unif. R. for the Justice and City Courts;

§ 25-35-501, MCA.        Two of the three statutory regimes provide that

courts should not count weekends and holidays when calculating




                                       6
times.   The rules of Small Claims Procedure, however, offer no such

provision.

¶15    We will not ignore such a noticeable absence from the Small

Claims Procedure’s language.       If the Legislature wished to exclude

weekends and holidays from the calculation in § 25-35-803, MCA,

they could easily have done so, as Rule 21 of the Uniform Rules and

Rule   6(a),   M.R.Civ.P.,   do.    Therefore,   we   conclude   that   the

District Court was correct when it included holidays and weekends

when calculating the ten-day limit in § 25-35-803, MCA.
¶16    As a final matter, the Allens request attorney’s fees and

costs under § 24-35-806, MCA.         The section they cite, however,

applies only to appeals from a small claims court to a district

court.    The Allens thus cite no authority that supports their

request for an award of attorney’s fees on appeal from the District

Court.    Therefore, we will not grant the Allens their request for

attorney’s fees incurred in this appeal.      We note only that, as the

prevailing party, the Allens are automatically entitled to costs

under Rule 33, M.R.App.P.

¶17    Affirmed.


                                         /S/ JIM REGNIER


We Concur:


/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE




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Justice Patricia O. Cotter dissents.

¶18    I dissent.      As the Court points out at ¶ 4 of its Opinion,

Hubbard filed a notice of appeal from a decision entered in favor

of    Allen   in    "Justice     Court,    Missoula     County,   Small      Claims

Division."      The Montana Uniform Rules for the Justice and City

Courts ("Uniform Rules") apply by their own language to Justice and

City courts.        Small Claims Court is a division of Justice Court.

As the majority acknowledges in ¶ 10 of its Opinion, Rule 21 of the

Uniform Rules clearly provides that, "when the period of time

prescribed or allowed is ten days or less, intermediate Saturdays,

Sundays, and legal holidays shall be excluded."              The rule is clear

and unequivocal.        Nonetheless, the majority has concluded               that

Hubbard should have gone beyond this Uniform Rule and performed an

analysis of other rules, including the Montana Justice and City

Court Rules of Civil Procedure, before determining whether Uniform

Rule 21 actually applied to his case.              I disagree.
¶19   The Uniform Rules do not exclude from their purview actions

which take place in the Small Claims division of the Justice Court.

 Hubbard was therefore entitled to rely on those rules, and should

not   lose    his    appellate    rights      because   another   set   of   rules

contradicts the Uniform Rules which, on their face, appeared to

apply squarely to his case.

¶20 Rule 81(b), M.R.Civ.P., also supports Hubbard’s position.                    It
provides:

      These rules [The Montana Rules of Civil Procedure] do not
      supersede the provisions of statutes relating to appeals
      to or review by the district courts, but shall govern
      procedure and practice relating thereto insofar as these
      rules are not inconsistent with such statutes.

                                          8
The majority has cited no statute which specifies that intervening

weekends and holidays are not to be included in the ten-day time

frame set forth in § 25-35-803, MCA.   Therefore, the application of

Rule 6(a), M.R.Civ.P., to Hubbard’s notice of appeal would not be

inconsistent with any statutes governing Small Claims procedures.

So, under Rule 81, Rule 6(a) ought to apply.

¶21   It seems to me that we should apply statutes in a manner

consistent with Hubbard’s right to appeal, instead of seeking

statutory interpretations which defeat it.    I dissent.


                                               /S/ PATRICIA COTTER




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