              IN THE SUPREME COURT OF THE STATE OF MONTANA




In the Matter of the Estate of
FRED PELZMAN, DECEASED.




APPEAL FROM:        District Court of the Ninth Judicial District,
                    In and for the County of Teton,
                    The Honorable R. D. McPhillips, Judge presiding



COUNSEL OF RECORD:

             For Appellant:

                    Gary S. Deschencs, Steven T. Fagensirom, Dcschenes Law Office, Great
                    Falls, Montana

             For Respondent:

                    Kenneth R. Olson, Great Falls, Montana



                                                         Submitted on Briefs: July 17, 1997

                                                                      Decided: December 1 6 ,
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the Court.


       Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1995 Internal

Operating Rules, the following decision shall not be cited as precedent and shall be published

by its filing as a public document with the Clerk of the Supreme Court and by a report of its

result to State Reporter Publishing Company and West Group.

       Fred F. Pelzman (Appellant) is an heir to the estate of his father, Fred P e l m ~ a n
                                                                                            (the

Estate). He appeals kom an order entered April 26, 1990, by the Ninth Judicial District

Court, Teton County, holding that Appellant was untimely in exercising hiis option to

purchase land under his father's will. We dismiss the appeal on the ground of laches.

       In 1972, Fred Pelzman (Father) executed a will in which he granted Appellant an

option to purchase certain parcels of land. The will provided that Appellant must exercise

his option within two years from the date of Father's death. Later, in 1978, Father and fellow

ranchers, Joe and Floie Lee (the Lees), entered into a written agreement providing the Lees

with a "first option" to purchase the Pelzman ranch. Father died on May 18, 1986.

       Shortly after Father's death, the Lees notified the Estate of their intent to exercise their

option to purchase the Pelzman ranch. The Estate refused to sell, arguing that the alleged

"option contract" was instead a right of first refusal. The Lees thereafter filed an action for

specific performance. That action was decided in favor of the Estate, was appealed, and was

affinned in 1991. See Lee v. Shaw (1991), 251 Mont. 118,822 P.2d 1061.

       On August 4, 1989, more than two years after Father's death and while the            action

                                                2
was pending, Appellant notified the Estate of his intent to exercise his testamentary option

to purchase certain parcels of the ranch. However, the Estate refused to sell because

Appellant had not exercised his option within the time period provided by the will.

Appellant then filed a petition for declaratory judgment, seeking an extension of the time

period and enforcement of his testamentary option. On April 26, 1990, the District Court

entered its Order in favor of the Estate. Six years later, on December 12, 1996, Appellant

filed his Notice of Appeal.

       Although Appellant's appeal is based on the substantive issue of whether the District

Court's Order was erroneous, we hold the dispositive issue In this case to be whcther

Appellant's appeal is barred by application of the doctrine of estoppel by laches.

       We have previously stated that:

       Laches is a concept of equity that can apply when a person is negligent in
       asserting a right, and can apply when there has been an unexplained delay of
       such duration or character as to render the enforcement of the asserted rights
       inequitable. Each case must be determined on its own unique facts.

In Re Maniage of Hahn and Cladouhos (1994); 263 Mont. 315, 318, 868 P.2d 599, 601

(citations omitted). In determining whether a person was negligent in asserting a right, we

look to whether the person was actually or presumptively aware of his rights but failed to act.

Sperry v. Montana State University (1989), 239 Mont. 25,31,778 P.2d 895, 899. h person

is held to be aware of his rights "where the circumstances he . . . knows of are such as to put

an ordinarily prudent person on inquiry."   a, P.2d at 899.
                                             778

       In the instant case, Appellant has neither alleged nor shown a lack of awareness of his

                                               3
rights. Appellant claims that the Estate cannot prove that he was served with a formal notice

of entry ofjudgment. However, Appellant does not claim that he never received a copy of

the court's Order. Appellant does not claim any error on behalf of his legal counsel. As an

heir to the Estate, Appellant was privy to information concerning all of the goings on of the

Estate, and had the wherewithal to be informed of the court's decision regarding his option.

          Similarly, Appellant has set forth no plausible explanation for the six-year delay in

filing his appeal. Appellant claims that an immediate appeal would have been fmitless in

light of the fact that the sale of the land was tied up in htigation with the Lees. The fact that

the sale of the land was tied up in litigation with the Lees is even more reason for Appellant

to file his appeal, as doing so would have allowed the court to more efficiently determine the

rights of all parties. Allowing Appellant to file his appeal late would be inequitable to the

Estate, as the Estate is entitled to some measure of repose in litigating the sale of the land.

We also note that the subject land has already been sold to purchasers unrelated to this

action.

          We hold that the doctrine of laches is appropriate for this case, and we dismiss

Appellant's appeal with prejudice.                          ,'




We Concur:
                                       December 16, 1997


                                  CERTIFICATE OF SERVICE

I hereby certify that the following certified order was sent by United States mail, prepaid, to the
following named:

GARY S. DESCHENES, STEVEN T. FAGENSTROM
DESCHENES LAW OFFICE
BOX 3466
GREAT FALLS MT 59403-3466

KENNETH R. OLSON
ATTORNEY AT LAW
600 CENTRAL PLAZA, SUITE 3 16
GREAT FALLS MT 59401



                                                     ED SMITH
                                                     CLERK OF THE S U P E M E COURT
                                                     STATE OF MONTANA

                                                     BY:   ,d-
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