NO. 81-08
IN THE SUPREME COURT OF THE STATE OF MONTANA
1981
PHYLLIS J. PETERS,
Plaintiff, Cross-Defendant and Appellant,
-vs-
CLARENCE T. NEWKIRK,
Defendant, Cross-Plaintiff and Respondent.
Appeal from: District Court of the Thirteenth Judicial District,
In and for the County of Carbon, The Honorable
William J. Speare, Judge presiding.
Counsel of Record:
For Appellant:
Joseph E. Mudd, Bridger, Montana
For Respondent:
Thomas L. Bradley, Laurel, Montana
Submitted on Briefs: July 30, 1981
Decided: September 15, 1981
Filed: SEP 1 5 198f
Clerk
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the
Court.
Plaintiff appeals from an order granting summary judgment
against her, dismissing her complaint and dismissing defendant's
cross-complaint.
Plaintiff Phyllis Peters filed an unlawful detainer action
against defendant Clarence Newkirk for triple damages. The com-
plaint alleged an agreement by defendant to purchase, breach there-
of by defendant, damages, and unlawful detainer by defendant. De-
fendant filed a general denial for answer and a cross-complaint
for specific performance of the purchase contract. Plaintiff
answered the cross-complaint substantially denying the facts on
which defendant's claim for specific performance was based.
The pleadings were completed on December 8, 1975. On
December 31, 1975, plaintiff filed a note of issue indicating the
case was ready for trial before the court sitting without a jury.
The District Court set the trial for January 22, 1976. This trial
setting was vacated on January 21.
In January 1977, the District Court gave notice of the
intention to dismiss the action on its merits unless good cause
was shown by February 3 why the case should not be dismissed. The
date for showing cause was continued to March 3.
The case was reset for trial on April 14, 1977. The trial
setting was vacated on that date at request of counsel pending
settlement.
On April 13, 1978, the District Court gave a second notice
of its intention to dismiss the case unless good cause was shown
by April 27. The date for showing cause was continued seven times
thereafter, the last continuance being at the convenience of court
and counsel.
On January 17, 1980, the District Court gave another notice
of its intention to dismiss the case unless good cause was shown
by January 28. The date for showing cause was continued one time.
On February 29, defendant filed his motion to dismiss the
case in the interests of justice, or in the alternative for sum-
mary judgment. On March 10 a hearing was held. A minute entry on
that date shows that "Counsel agreed that summary judgment may be
entered and an order will be presented for the court's signature."
On November 17, 1980, the District Court ordered that summary
judgment be entered for defendant, that plaintiff's complaint be
dismissed, and that defendant's cross-complaint be dismissed.
Plaintiff appeals from this order.
Three issues are presented for review:
(1) Was dismissal of the complaint proper?
(2) Was summary judgment proper?
(3) Does equitable estoppel bar plaintiff's claim of lack
of authority in counsel to stipulate for entry of summary judg-
ment?
We need only address the first issue in deciding this
appeal. This case is almost six years old. The pleadings were
completed and the case set for trial over five years ago. The
trial setting was vacated twice. The District Court notified
counsel by three separate written notices in 1977, 1978, and 1980
of its intention to dismiss the case unless good cause was shown
by specific dates why the case should not be dismissed. The rec-
ord discloses no such showing. The date for showing cause was
continued 9 different times over a period of approximately three
years.
Rule 41(b), M.R.Civ.P. provides in pertinent part:
"Involuntary dismissal -- effect thereof. For
failure of the plaintiff to prosecute or to comply
with . .
. any order of court, a defendant may
move for dismissal of an action or of any claim
against him . . . Unless the court in its order
for dismissal otherwise specifies, a dismissal
under this subdivision and any dismissal not pro-
vided for in this rule ... operates as an ad-
judication upon the merits."
Here the record discloses the January 21, 1976, trial date
was vacated as the case was settled and that the April 14, 1977,
trial setting was vacated pending settlement. The record fur~her
discloses no cause shown by plaintiff to the trial court why the
case should not be dismissed. Inaction for three years and lack
of any excuse has been found unreasonable. Calaway v. Jones (1978),
177 Mont. 516, 582 P.2d 756. The delay here was unreasonable for
the same reason.
Where an unreasonable delay has occurred, the burden rests
upon plaintiff to come forward and demonstrate an excuse for his
inaction. Calaway, supra; Cremer v. Braaten (1968), 151 Mont. 18,
438 P.2d 553. The record discloses no cause shown to the trial
court by the plaintiff for the delay after April, 1977.
Prejudice to the defendant due to unreasonable delay is
presumed. Cremer, supra; State ex rel. Johnstone v. Dist. Ct. (1957),
132 Mont. 377, 319 P.2d 957.
The action of the trial court on a motion for dismissal
for lack of prosecution is addressed to the trial court's sound
discretion. It is presumed that the trial court acted correctly
and its decision will not be overturned absent an abuse of that
drscretion, Calaway, supra; Cremer, supra; Johnstone, supra; Silver
v. Eakins (1918), 55 Mont. 210, 175 P. 876; State Savings Bank
v. Albertson (1909), 39 Mont. 414, 102 P. 692. Here there is no
abuse of discretion by the trial court.
Plaintiff for the first time in his reply brief suggests
that the delay is attributable to the infrequent appearances of a
district judge in Carbon County. This contention loses much of
its credibility because plaintiff has waited over five years to
raise it. No substantiation of that contention is offered. More-
over, this Court will not review a matter raised for the first time
on appeal. Northern Plains v. Board of Natural Resources (1979),
Mont . , 594 P.2d 297, 36 St.Rep. 666, and cases cited there-
in.
In view of our ruling on the first issue on appeal, it
is unnecessary to reach the last two issues.
The order of the trial court dismissing the complaint and
cross-complaint is affirmed.
Chief Justice
We concur: