 97-218




                   IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                      No. 97-218

                   ___________________________________

JAMES P. CHALLINOR and                  )
BETTY E. CHALLINOR,                     )
                                        )
          Plaintiffs and Appellants,    )
                                        )                                                       O P I N I O N
     v.                                 )                                                               AND
                                        )                                                          O R D E R
GLACIER NATIONAL BANK and               )
DOUGLAS B. REMICK,                      )
                                        )
          Defendants and Respondents.   )
          ___________________________________


          Respondents in the above-entitled action move this Court to dismiss the appeal
for
failure of Appellants to file a notice of appeal within the time allotted.
Appellants oppose
the motion, contending that the District Courtþs grant of an extension of time in
which
to file a brief in support of a post-trial motion effectively suspended the time
allotted until
the brief was filed. We conclude that the District Court cannot change the time in
which
an appeal must be filed by granting post-trial extensions.
      The following dates are relevant to the calculation of the time allotted in
which to
file a notice of appeal:
      1. On December 13, 1996, notice of entry of judgment in the underlying case is
filed;
      2. On January 2, 1997, the Plaintiffs/Appellants file a post-trial motion to
alter
or amend the judgment;
      3. On February 3, 1997, the District Court grants the Plaintiffs/Appellants an
extension of time in which to file a reply brief regarding the post-trial motion.
The
District Court orders the reply brief filed on or before February 19, 1997;
      4. On March 18, 1997, the District Court denies the post-trial motion;
      5. On April 17, 1997, the Appellants file their notice of appeal.
      Respondents, in moving to dismiss the appeal, note that the District Court had
60
days from the filing of the post-trial motion in which to rule on it. If a District
Court
does not rule on a post-trial motion within the time allotted, the motion is deemed
denied.

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Rules 59(g) and 59(d), M.R.Civ.P.    Since the post-trial motion was filed on January
2,
1997, Respondents contend this time allotted expired on March 3, 1997, and the motion
was then deemed denied. Respondents then had 30 days after the motion was deemed
denied in which to file their notice of appeal. Rule 5(a)(1), M.R.App.P.
Respondents
contend this time allotted expired on April 2, 1997. They therefore contend that
Respondents notice of appeal, filed on April 17, 1997, was not timely filed.
      Appellants respond by arguing that the District Courtþs grant of additional
time in
which to file their reply brief to the post-trial motion had the effect of tolling
the running
of the time clock until the end of the extension period. Since the District Court
granted
them an additional sixteen days in which to file their brief, the Appellants contend
the
District Court then had an additional sixteen days in which to consider the motion,
and
that they had an additional sixteen days in which to file the notice of appeal once
the
District Court denied their post-trial motion. They therefore argue that their
notice of
appeal, filed fifteen days after the time would have expired absent an extension, was
timely filed.
      In support of their position, the Appellants cite Britton v. Burlington
Northern,
Inc. (1979), 184 Mont. 107, 601 P.2d 1192, in which this Court held that "[t]he
District
Courtþs order extending the time for filing a supporting brief by necessary
implication
extends the time for its ruling on the motion." Britton, 601 P.2d at 1193. We
reasoned
that the continued running of the time clock in the face of the District Courtþs
grant of
an extension would place the District Court "in the untenable position of having to
rule
on the motion before appellantþs brief [on the motion] was submitted or the motion
would
be deemed denied." Britton, 601 P.2d at 1194. We held that this would be
unconscionable. 601 P.2d at 1194.
      In subsequent cases, however, this Court has held that the time requirements of
Rule 59, M.R.Civ.P., are jurisdictional and must be complied with exactly. For
example, in Lerum v. Logue (1982), 198 Mont. 194, 645 P.2d 419, this Court noted
that a party has 30 days from the date his or her motion is deemed denied in which
to file
a notice of appeal. Lerum, 645 P.2d at 419. We further stated:
      While we have acknowledged that this rule may, in some cases, work harsh
      results, we have also emphasized that the public has the right to the
      expectation of finality of judgments. The time and procedural limitations
      for motions subsequent to judgment set out in Rule 59, M.R.Civ.P., are
      mandatory and are strictly enforced.
Lerum, 645 P.2d at 419 (emphasis added; citations omitted). In Marvel Brute Steel

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 97-218


Bldg.
v. Bass (1980), 189 Mont. 480, 616 P.2d 380, this Court noted that Rule 6(b),
M.R.Civ.P. prohibits a district court, faced with a Rule 59(g), M.R.Civ.P. motion to
amend a judgment, from granting extensions outside of those expressly provided in the
Rule itself. We noted that:
      [a]ccepting the defendantsþ argument that the motion for a new trial was to
      be considered submitted to the trial court, only upon completion of briefing
      by both sides, would mean that a time period for an appeal to run could
      never be fixed. The parties could control the time period simply by not
      getting the briefs expeditiously filed. . . . Furthermore, the defendantsþ
      interpretation would result in an untenable situation extending the time for
      appeal thirty days after the District Court ruled, whenever that may be.
Marvel, 616 P.2d at 382.
      A district court cannot grant extensions under Rule 59(g), M.R.Civ.P. for
additional briefing time. Rule 6(b), M.R.Civ.P. To the contrary, a district court
must
rule on the motion within the time allotted without regard to the status of the
briefing.
If a district court fails to rule on the motion within the time allotted, the motion
is
deemed denied. Rules 59(g) and 59(d), M.R.Civ.P. Therefore, the district court had
60
days from the date the motion was filed in which to rule on it. This time expired on
March 3, 1997. At that time, the motion was deemed denied. From the denial of the
motion, Appellants had 30 days, or until April 2, 1997, in which to file their
notice of
appeal. Since they did not file a notice of appeal until after that date, the
notice was not
timely filed.
      The failure of Appellants to file their notice of appeal within the time
allotted is
an absolute jurisdictional bar to this Courtþs consideration of the appeal. Rule 4,
M.R.App.P.; Winn v. Winn (1982), 200 Mont. 402, 409, 651 P.2d 51, 54. For this
reason, Respondentsþ motion to dismiss is granted and the appeal is dismissed.
      The Clerk of this Court is directed to mail a copy of this order to counsel of
record.
      DATED this 10th day of June, 1997.

                                                            /S/        J. A. TURNAGE
                                                            /S/        WILLIAM E. HUNT, SR.
                                                            /S/        W. WILLIAM LEAPHART
                                                            /S/        KARLA M. GRAY
                                                            /S/        JAMES C. NELSON
                                                            /S/        JIM REGNIER
                                                            /S/        TERRY N. TRIEWEILER




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