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Ruby Valley National Bank v. Wells Fargo Delaware Trust Co., N.A.

Supreme Court of Montana

July 10, 2013

RUBY VALLEY NATIONAL BANK, Plaintiff and Appellee,
v.
WELLS FARGO DELAWARE TRUST COMPANY, N.A.; VERICREST FINANCIAL, PNC, Defendants and Appellants.

ORDER

Plaintiff and Appellee Ruby Valley National Bank (Ruby Valley) has moved to dismiss this appeal on grounds that (1) the notice of appeal was not timely filed, and (2) Appellant has failed to file a transcript on appeal. Appellants Wells Fargo Delaware Trust Company, N.A., and Vericrest Financial, Inc., (Appellants) have filed a response in opposition to the motion to dismiss.

Ruby Valley points out that the summary judgment from which this appeal is taken was entered on March 8, 2013, and that notice of appeal was not filed until April 15, 2013. Ruby Valley maintains the notice of appeal was filed outside the 30-day time allowed under M. R. App. P. 4(5)(a)(i). However, Appellants point out that, when notice of entry of judgment is required, the time for filing a notice of appeal does not begin to run until the day on which notice of entry of judgment is served. See M, R. App. P. 4(5)(a)(i). According to Appellants, Ruby Valley is required under M. R. Civ. P. 77(d) to serve, but has not yet served, notice of entry of judgment in this case.

M R. App. P. 8(2) requires an appellant to "present the supreme court with a record sufficient to enable it to rule upon the issues raised." Ruby Valley states that, although the notice of appeal filed in this case provides "that the transcript for the hearing in this matter has been contemporaneously ordered with the filing of this Notice of Appeal, " it does not appear that the Appellants have ever ordered a transcript. Appellants respond that their oversight in failing to file a transcript is not grounds for dismissal of this appeal because (1) they do not believe a transcript is necessary for this Court to rule upon the issues they wish to raise on appeal, and (2) if Ruby Valley believes a transcript is necessary, Appellants will order the certified transcript and have it filed with the Court.

The Court has reviewed and considered the motion and response. We observe that, under M. R. App. P. 4(5)(a)(ii), a notice of appeal filed after the announcement of a decision or order but before service of the notice of entry of judgment shall be treated as filed on the date the notice of entry of judgment is served. As to the matter of transcripts, we accept Ruby Valley's position that no transcript is necessary for the issues it wishes to raise on appeal.

Therefore,

IT IS ORDERED that the motion to dismiss this appeal is DENIED. Appellees are directed to serve notice of entry of judgment forthwith, pursuant to M. R. Civ. P. 77(d).

IT IS FURTHER ORDERED that, should either party deem any transcripts necessary for this appeal, they shall order such transcripts within 11 days of the date of this Order.

The Clerk is directed to provide copies of this order to all counsel of record.


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