No. 85-17
IN THE SUPREME COURT OF THE STATE OF MONTANA
1985
DALE C. BEDFORD,
Plaintiff and Appellant,
E. E JORDEI?, individually and
.
d/b/a MOORE LANE VETERINARY
HOSPITAL,
Defendants and Respondents.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Diane G. Barz, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Ziskind Law Firm, Billings, Montana
For Respondents:
Moulton, Bellingham, Longo & Mather, Billings,
Montana
Submitted on Briefs: March 14, 1985
~ecided: April 30, 1985
Filed: njfJk( , ;985
Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
This is an appeal from a summary judgment granted in
the District Court of the Thirteenth Judicial District of the
State of Montana, the Honorable Diane G. Barz presiding, in
and for the County of Yellowstone. We affirm.
This action was brought by Dale C. Redford, appellant,
on an amended complaint on two counts seeking special damages
in the amount of $750, unspecified general damages, and
S50,000 in punitive damages against E. E. Jorden, a Billings,
Montana veterinarian and his partnership. The first count of
,
complaint alleges that the defend.ant Dr. Jorden, willfully
or by gross negligence broke, or all-owed to be broken a wing
of a parrot belonging to the appellant, Bedford. The second
count alleges that Dr. Jorden and his business willfully,
wantonly or maliciously failed. to provide adequate care for
the parrot. The defendant, Dr. Jorden, denied any negligence
or basis for liability.
The District Court entered a judgment in favor of the
defendant, E. E. Jorden and his partnership, after Bedford
failed to appear in a court-ordered pretrial conference;
failed to appear at the hearing on summary judgment; and
failed to respond in any fashion to the merits of Jorden's
motion for summary judgment until two weeks after the
properly scheduled hearing, and after the entry of judgment.
The appellant moved to set aside the judgment, but did not
file any response to the motion on the merits until after a
hearing on the motion to set aside the judgment was held.
The District Court denied the appellant's motion to set aside
the judgment, he now appeals.
The issue presented on review is whether the District
Court abused its discretion in entering judgment in favor of
the defendant, Jorden.
The facts involved an orange-winged Amazon parrot,
purchased by the appellant in May of 1982, for the sum of
$200. The bird's name was Jigs, and according to his
description, was a beautiful bird in a gilded cage. Shortly
after he was purchased from the Animal Farm Pet Store in
Billings, he evidenced signs of illness and was taken to the
defendant's veterinary clinic for treatment. The defendant
is a practicing veterinary surgeon in the Billings, Montana
area and according to the testimony, had experience with the
treatment of birds. The bird was examined at the clinic by
Dr. Jorden. As part of his examination, Dr. Jorden drew a
blood sample from the bird to determine the cause of the
illness. According to the allegations, during this procedure
the parrot struggled and broke a bone in its wing. The wing
was splinted and set, and the parrot was given antibiotics.
Bedford was informed of what had occurred and was given
instructions for the bird's subsequent care.
A short time after Bedford took the bird home, the bird
showed no signs of improving, and the appellant returned the
bird to Dr. Jorden. A few days into the bird's second stay
at the clinic, it was found dead in its cage at the
veterinary hospital.
Bedford failed to pay the veterinary bill and after
several months, his account was assigned to a credit bureau
which began collection procedures. It was at that time
Bedford brought his lawsuit. Bedford never complained about
the treatment the bird had received until after the lawsuit
was filed, almost a year after the bird had been treated.
In the exchange of interrogatories, appellant's counsel
took four depositions; Bedford's counsel took none. The
action was set for trial on October 29, 1984. Prior to
trial, the District Court set a pretrial conference on the
matter for August 2, 1984. Neither Bedford nor his counsel
appeared for the pretrial conference as ordered. On August
21, 1984, some nineteen days after the matter had been set
for pretrial, counsel for Dr. Jorden moved for summary
judgment and gave notice for hearing on September 6, 1984.
Again neither Bedford nor his counsel appeared for the
hearing on summary judgment. The matter was delayed for
one-half hour on the day set for hearing when neither
appellant nor his counsel appeared, and the motion for
summary judgment was granted.
Notice of the summary judgment of September 6, 1984,
was sent to the appellant and his counsel. Five days later
the appellant moved to set aside the judgment. Appellant did
not file any kind of opposition to the merits on the motion
for summary judgment. The record indicates the memorandum in
opposition to summary judgment was not filed until September
20, 1984, after the court had heard oral argument on the
motion to set aside the summary judgment. In addition, it is
interesting to note that this Court on February 20, 1985
issued an order directing the appellant to file and serve a
written statement showing good cause for his failure to file
a brief as required by the rules of this Court. Once again,
the appellant ignored the judicial machinery and slept on his
rights. Our file reveals appellant's counsel stated that
reason for the lateness of their brief was due to changes in
office personnel. Counsel for respondent notes and the file
indicates that appellant's counsel used the same excuse for
failing to appear for the pretrial conference and for failing
to appear for the hearing on summary judgment.
Several reasons were given by the trial court for
disposing of this case at the trial level. The court
indicates in its judgment, that it reviewed the record,
including the appellant's motion, brief, affidavit, and the
record as a whole, and found that summary judgment was well
warranted. The court noted, and we concur, that the facts in
the record indicate that there was no genuine issue of
material fact to show that Dr. Jord-en was not entitled to
summary judgment. The interrogatories and depositions of all
witnesses, including the appellant, indicate that there was
no evidence produced that would establish a prima facie case
of negligence, let alone intentional cruelty or inhumanity to
animals. In our opinion, after reviewing the facts presented
in the briefs and the file, there have been few cases to come
before this Court that have had less merit than the case at
bar.
In a long series of cases concerning the handling of
summary judgment matters, this Court has held summary
judgment is not generally favored and courts should strive to
allow parties to a lawsuit to have their day in court.
However, this Court has also held that a party who ignores
the judicial system and slumber on his rights, does so at his
peril. See Johnson v. Murray (Mont. 1982), 656 P.2d 170, 39
St.Rep. 2257; Pretty on Top v. City of Hardin (1979), 182
Mont. 311, 597 P.2d 58; Dudley v. Stiles (1963), 142 Mont.
566, 386 P.2d 342; Schalk v. Bresnahan (1960), 138 Mont.
129, 354 P.2d 735.
The judgment of the District Court is affirmed.
We concur: