NO. 8 8 - 3 2 7
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
JAMES THOMAS and LINDA THOMAS,
Plaintiffs and Appellants,
-vs-
KENNETH R. WILSON,
Defendant and Respondent.
APPEAL FROM: The District Court of the Sixteenth Judicial District,
In and for the County of Custer,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Patten Law Firm; James A. Patten, Billings, Montana
For Respondent:
Crowley, Haughey, Hanson, Toole & Dietrich; Sherry
S. Matteucci, Billings, Montana
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Submitted on Briefs: Dec. 22, 1 9 8 8
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Mr. Justice John Conway Harrison delivered the Opinion of the
Court.
James and Linda Thomas appeal from a judgment of the
Sixteenth Judicial District, Custer County, Montana.
Appellantsv legal malpractice action against respondent
Kenneth R. Wilson was dismissed with prejudice for failure to
prosecute under Rule 41(b), M.R.Civ.P. We affirm.
Appellants filed a complaint and jury demand on
September 9, 1985, against attorney FJilson. The complaint
alleges Wilson committed legal malpractice in his
representation of the appellants in a civil suit filed
against them in Richland County, Montana. Appellants alleged
Wilson failed to respond properly to discovery; failed to
resist a motion for partial summary judgment, which
eliminated the appellants' counterclaim; and. failed to keep
the appellants informed of the progress of the matter and
misled them as to the status of the case. Appellants alleged
these failures constituted. malpractice which forced them into
an unfavorable settlement of the suit.
On September 9, 1985, appellants also filed two motions
for substitution of judge. Upon these motions, Judge Sorte
accepted jurisdiction of the action on September 12, 1985.
On October 25, 1985, respondent filed an answer and
counterclaim in which he denied the allegations of
malpractice and sought attorney's fees and expenses for his
representation of the action. On November 5, 1986,
respondent filed requests for admission and production, and
interrogatories. On December 3, 1986, appellants responded
to the request for admission only. On March 9, 1987,
respondent filed a second request for production and a second
set of interrogatories. No further responses were made. On
July 6, 1987, respondent filed a brief in support of motions
to compel answers to the interrogatories and to dismiss for
failure to prosecute pursuant to Rules 41 (b) and 37 (dl,
M.R.Civ.P., although the District Court file does not reveal
whether these motions were made.
On July 8, 1987, Judge Sorte ordered appellants to file
exceptions or objections to respondent's first
interrogatories no later than July 21, 1987. On July 27,
1987, appellants filed answers to respondent's first
interrogatories. Because appellants' attorney would be
called to testify at trial, he moved to withdraw from the
case, and the motion was granted, on October 21, 1987.
On April 6, 1988, respondent renewed his motion to
dismiss for failure to prosecute. After the motion to
dismiss was set for hearing, appellants filed a motion for
trial setting on May 2, 1988. While there is no transcript
of the hearing on the motion to dismiss, Judge Sorte
considered the evidence and heard the parties by way of a
telephone conference call. On May 18, 1988, Judge Sorte
entered a judgment of dismissal for appellants' failure to
prosecute pursuant to Rule 41(b), M.R.Civ.P.
The parties agree that it is within the sound
discretion of the District Court whether to dismiss a case
for failure to prosecute. While no precise rule or formula
sets forth what period of inactivity is necessary to find a
failure to prosecute, it is well established that the court's
decision will not be disturbed on appeal absent a clear abuse
of discretion. Cook v. Fergus Electric Cooperative, I n c .
(Mont. 1988), P.2d , 45 St.Rep. 2285; Timber Tracts,
Inc. v. Fergus Electric Cooperative, Inc. (Plant. 1988), '3
5
P.2d 854, 45 St.Rep. 415.
Conspicuously missing from this case is any reasonable
excuse for the appellants' lack of prosecution. Although
appellants arque they have diligently pursued prosecution of
this action, the facts reveal that very little activity
followed the filing of the complaint. Appellants conducted
no discovery and delayed response to nearly all of the
discovery requests. While a plaintiff Fs not required to use
discovery, he or she must respond to those requests filed by
the defendant. If appellants' were ready to proceed against
the respondent, they should have attempted to bring this case
to trial long before their motion for trial setting was filed
on May 2, 1988. As stated in Cook, supra:
[W]e note that no discovery had been
conducted .. . If the discovery had been
completed, plaintiffs had a duty to
pursue the prosecution and bring the case
to trial. If discovery was not complete,
it was their duty to see steps were taken
to ensure it was conducted. Rule 41(b),
M.R.Civ.P. The plaintiffs pursued
neither course of action, showing the
court no indication of their desire to
bring the case to trial.
- - P.2d
Cook, at , 45 St.Rep. at 2288.
Finally, appellants argue their delay should be excused
because they were without counsel since October 21, 1987,
when their counsel withdrew from the case. Although there is
some evidence the appellants were still being advised by
their first attorney when the motion to dismiss was filed,
the appellants were notified, as unrepresented parties, that
they should either obtain new counsel or proceed pro se and
make a personal appearance. The appellants chose to proceed
pro se and may not now complain they were without counsel.
Since no abuse of discretion has been shown, the
judgment of the District Court is affirmed.
We concur: