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No. 80-124

IN THE SUPREME COURT OF THE STATE OF MONTANA

MARCUS DALY MEMORIAL HOSPITAL
CORPORATION, A MONTANA CORPORATION,

Plaintiff and Respondent,

JEROME F. BORKOSKI, et al:;,
Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial District,
In and for the County of Ravalli.
Honorable Jack L. Green, Judge presiding.

Counsel of Record:

For Appellants:

Milodragovich, Dale and Dye, Missoula, Montana Harold V. Dye argued, Missoula, Montana Garlington, Lohn and Robinson, Missoula, Montana Datsopoulos, MacDonald & Lind, Missoula, Montana Curtis C. Cook, Hamilton, Montana Terry A. Wallace, Missoula, Montana Jon E. Ellingson, Missoula, Montana
For Respondent:

Johnson and Johnson, Hamilton, Montana Lawrence D. Johnson argued, Hamilton, Montana Boone, Karlberg & Haddon, Missoula, Montana Sam Haddon argued, Missoula, Montana
Submitted: November 21, 1980

Decided: March 4, 1981
Filed: MAR 4- I~H-
Mr. Justice Daniel J. Shea delivered the Opinion of the

Court.

Defendant, Jerome F. Borkoski, the purchaser of the
Marcus Daly Memorial Hospital in Hamilton, appeals from the
order of the Ravalli County District Court granting summary

judgment to the defendant seller, Marcus Daly Memorial
Hospital, Inc. The order declared that the buyer had
forfeited his right to any interest in the hospital building.

Borkoski, as buyer, raises three issues on appeal. He

first claims that the seller elected the remedy of specific
performance by choosing to accelerate all amounts due under
the contract and therefore should be estopped from canceling
the contract and declaring a forfeiture. His second claim
is that he is statutorily entitled to be relieved of a
forfeiture. He raises these issues for the first time on
appeal. His third claim is that the trial court erred in
refusing to accept and consider his affidavit and brief
filed in opposition to the summary judgment motion, which
affidavit and brief was filed on the day of the hearing. We
affirm.

Plaintiff-seller has moved this Court to dismiss the
appeal because of several procedural irregularities in per-
fecting the appeal. The buyer failed, within the time
periods allowed by the Rules of Appellate Civil Procedure,
to order a transcript; he failed to file an undertaking,
to transmit the record to this Court; and finally, he failed
to post a supersedeas bond. Although the buyer eventually
complied with each of these requirements, the seller urges
dismissal of the appeal because of these dilatory tactics.
We choose, however, to decide the appeal rather than to
dismiss for failure to comply with the Rules of Appellate
Civil Procedure. See, Rules 3, 10 and 21, M.R.App.Civ.P.;

see also, Hannifin v. Retail Clerks International Ass'n.
(19731, 162 Mont. 170, 172-73, 511 P.2d 982, 984.

The purchase contract for the Marcus Daly Memorial Hospital
was signed on October 11, 1977. The agreed purchase price
was $80,000. The contract called for downpayment of $21,000,
including $10,000 which was to be allowed as a credit for a
previous contract if the buyer paid the second half of the
1976 taxes on the Hospital within one year. The remaining
balance of $59,000 was to be paid in monthly installments of
$1,000 beginning November 11, 1977, with interest accruing
at 8 percent per annum. The deferdant-seller was to pay the
taxes on the property after July 1, 1976, as well as insurance
premiums.

The buyer made the downpayment and the first three
monthly installments, but then went into default. He has
made no installment payments on the contract since January
1978. As of the time this appeal was heard, he had failed
to pay the taxes through the year 1978 and had not paid the
insurance premiums for which he was contractually responsible.

On April 28, 1978, the seller, acting under the default
clause in the agreement between the parties, sent the buyer
a notice of default accelerating all payments to be made
under the contract and declaring the seller's intention to
cancel the contract if the default was not cured within 30

days. The buyer failed to make the payment within the 30-
day period, and the seller then filed suit against the buyer
to cancel the contract. ~t the same time, the seller filed

suit against several mechanic's lienholders--suppliers of
materials to the buyer, which materials were used in renovating
the building. The buyer filed a general denial and pleaded
no affirmative defenses.

-3-
On September 24, 1979, the seller moved for summary

judgment against the buyer. The court held a hearing on
October 26, 1979. On December 10, 1979, the court granted
summary judgment to the seller. On August 26, 1980, the
court amended its order nunc pro tunc, certifying the case
for appeal under Rule 54(b), M.R.Civ.P. See Roy v. Neibauer

(1980) Mont. , 610 P.2d 1185, 37 St.Rep. 897.
The buyer first claims that the seller, in choosing to
accelerate all amounts due under the contract, elected the
remedy of specific performance, and therefore should be
estopped from canceling the contract and declaring a forfeiture.

Second, the buyer claims that alternatively, he is statutor- ily entitled to be relieved of a forfeiture. These are affirmative defenses and should have been pleaded as such in his answer. Rule 12(b), M.R.Civ.P. Because he failed to do so, we will not consider these defenses raised here for the first time. See, Chadwick v. Giberson (1980), -Mont. -I 618 P.2d 1213, 1215, 37 St.Rep. 1723, 1726.
We emphasize that the record of the proceedings shows
no extenuating circumstances to justify the buyer's failure
to assert in trial court the defenses he now urges in his
appeal. To the contrary, the procedural history of this case
demonstrates the buyer's attempt to unjustifiably prolong
the litigation and frustrate the judicial process. He
failed to appear at a court-ordered deposition on June 29,
1979. On July 6, 1979, the trial court ordered him to pay
costs and attorney fees incurred by the parties who did
attend. Later, in a deposition taken on July 27, 1979, he
failed to bring all the documents requested of him. By
agreement, the parties gave the buyer ten working days to
produce the documents. He failed to do so, and on October

26, 1979, the trial court again ordered him to pay attorney

fees. Never, at any time, did the buyer make any effort to

amend his answer to assert the affirmative defenses he now
asserts in this appeal.

The last claim of the buyer is that the trial court erred in not considering his affidavit and brief filed on the day of the hearing on the seller's motion for summary judgment. The hearing on motion for summary judgment was first scheduled for October 12, 1979, almost three weeks after the motion was filed. Before the day of the hearing, the buyer approached the trial judge -ex parte and asked for a new hearing date because he anticipated testifying at the hearing and would not be able to attend on the scheduled date. The trial court granted his request and reset the hearing for October 26, 1979. The buyer did not testify at the hearing.
It was not until the day of the hearing that the buyer's atorney filed an affidavit and brief opposing the seller's motion for summary judgment. Counsel for the seller asked the trial court not to consider the affidavit and brief because they were untimely filed under Rule 6 (d) , M.R.Civ.P. Rules 6(d) and 56(c), M.R.Civ.P., require the party opposing the motion for summary judgment, to file opposing affidavits before the date of the hearing. Under the facts of this case, we cannot say that the trial court abused its discretion in refusing to consider the affidavit. The buyer offered no compelling excuse for his untimely filing. When this untimely filing is considered with all the unwarranted delays already caused by the buyer, it is clear that the trial court properly exercised its discretion in refusing to consider the affidavit.
The judgment of the District Court is affirmed.

We Concur:
Chief Justice  
Justices
This cause was submitted prior to January 5, 1981.

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