Nystrom v. Melcher

NO. 93-024

IN THE SUPREME COURT OF THE STATE OF MONTANA

1993

KARL NYSTROM and RUTH NYSTROM,
Plaintiffs and Appellants,
vs.
xgTf?L~ Tg y --Y-,.:~ 'y-
ROBERT C!. MELCHER; DUANE SCHNITTGEN: 't', .,,:'. 2
MORRISON, YOUNG, MELCHER, BROWN & y ki
& i&l .f~~.<&>< ;, r:; .?ZC.. "Ii<
RICHARDSON, an entity of assumed name;
ROBERT D. MORRISON: CHRIS R. YOUNG; b&f23 2993
STEPHEN R. BROWN, JR.: and KATHLEEN H.
RICHARDSON, fg .sdd
CLERK OF gJPAm3!3~ COUecTl
Defendants and Respondents. STAni w. rcWv@J~
.~

APPEAL FROM: District Court of the Twelfth Judicial District,
In and for the County of Hill,
The Honorable Robert J. Boyd, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Mort Goldstein, Goldstein Law Firm, Havre, Montana
For Respondents:
Stuart C. MacKenzie, Burns, Solem & MacKenzie,
Chinook, Montana (for Duane Schnittgen); Neil E.
Ugrin, Ugrin, Alexander, Zadick & Slovak, Great
Falls, Montana

Submitted on Briefs: September 9, 1993
Decided: November 23, 1993
Filed:

Clerk
Justice Fred J. Weber delivered the Opinion of the Court.

Plaintiffs appeal from the order of the District Court of the
Twelfth Judicial District, Hill County, dismissing their complaint
with prejudice for their repeated failure to plead in conformity
with the Montana Rules of Civil Procedure. We affirm.
The sole issue for review is whether the District Court erred
in dismissing the plaintiffs' complaint with prejudice because of
their failure to comply with the Montana Rules of Civil Procedure
and failure to comply with an order of the court.
This case stems from prior litigation between Karl and Ruth
Nystrom (the Wystroms) and respondent Duane Schnittgen
(Schnittgen), in which Schnittgen was represented by respondent
Robert C. Melcher (Melcher). This litigation was an action upon a
contract covering real and personal property; it was initiated by
Schnittgen and culminated in a trial before District Court Judge
Peter L. Rapkoch. Judge Rapkoch denied relief on all claims and
counterclaims. After the completion of and in response to that
action, the Nystroms filed a complaint, subsequently amended,
against Schnittgen, Melcher and the law firm of Morrison, young,
Melcher, Brown & Richardson.
The Wystroms' amended complaint asserted claims for l~malicious
fraudulent prosecution," "intentional abuse of process," and
"unlawful intentional infliction of emotional distress." The
amended complaint contained 76 paragraphs in 26 pages of
allegations. The District Court determined that "the form and
substance of this pleading was vindictive, argumentative, and

2
repetitive" and "not within the contemplation of the Montana Rules
of Civil Procedure and was not a pleading to which the defendants

should or could reasonably be expected to respond." The
respondents Melcher and the law firm of Morrison, Young, Melcher,

Brown & Richardson filed a motion to strike the amended complaint

or, in the alternative, for a more definite statement and were

joined by Schnittgen in their motion. Judge Robert J. Boyd issued
an order striking the Nystroms' amended complaint and ordered them

to make their complaint conform to Rules 8(a), 8(e)(l) and 12,

M.R.Civ.P.
The Nystroms filed a second amended complaint, this time

alleging "intentional malicious fraudulent prosecution,"

"intentional abuse of process, II *'unlawful intentional infliction of
emotional distress," and "interference with business relation" and

also purported to state a claim for "conspiracy." The second

amended complaint contained 130 paragraphs of allegations plead in

13 counts over 43 pages. It essentially repleaded the claims

alleged in the first complaint and included claims distinct from

and not indicated by the first amended complaint. Judge Boyd also
found that the second amended complaint remained "vindictive,

argumentative, and repetitive in form and substance.lN

In response to the second amended complaint, respondents filed

a motion to dismiss the complaint pursuant to Rule 41(b),

M.R.Civ.P., based on the Rystroms repeated failure to plead in

conformity with the Montana Rules of Civil Procedure and for

failing to obey the District Court's order directing them to

3
"strictly observe" Rules 8 and 12, M.R.Civ.P., in any subsequent
amended complaint. The District Court heard oral arguments on the
motion and subsequently dismissed the Nystroms' second amended

complaint with prejudice. Although the court concluded that the
plaintiffs' "abusive pleading tactics " had needlessly protracted

litigation and added to its cost, it declined to grant the

respondents' request for sanctions under Rule 11, M.R.Civ.P.

Specifically, the District Court concluded:

7 . The second amended complaint is parallel to, or
more egregious than, the violation of the rules committed
by plaintiffs in their first amended complaint. The
second amended complaint is in direct violation of the
Court's order of January 3, 1992, as well as the Montana
Rules of Civil Procedure. The second amended complaint
does not strictly observe the requirements of Rules 8 and
12, Mont. R. Civ. P., and, as such, dismissal with
prejudice is warranted under Rule 41(b), Mont. R. Civ. P.

8 . Plaintiffs' motion for leave to amend the second
amended complaint is without merit. Plaintiffs' seek to
amend their second amended complaint in order to more
particularly plead fraud allegations. Fraud and fraud-
related allegations were pleaded without particularity in
the first amended complaint, and plaintiffs demonstrated
n o effort to plead these allegations with greater
brevity, clarity! or particularity in the second amended
complaint, despite the admonition of the Court. A
further request to replead is not warranted under the
circumstances herein. In addition, the plaintiffs seek
leave to amend the second amended complaint to more
clearly plead their conspiracy count. The conspiracy
count was not pleaded in the first amended complaint.
Given the prior admonition of the court, and in light of
the specious manner in which this count was pleaded in
the second amended complaint, the Court concludes that
leave to amend is not warranted.

In the first action, Judge Rapkoch concluded that Schnittgen

had alleged an oral contract which was "for all intents and

purposes a subterfuge." In this action, the Nystroms' complaint

attempted to state a cause of action against defendants for

4
deliberately fabricating a fraudulent suit to deceptively obtain
property belonging to the Nystroms. The Nystroms argue that there
were other alternatives available to the District Court in lieu of
the drastic and unprecedented measure of dismissal with prejudice.

Did the District Court err in dismissing the plaintiffs'
complaint with prejudice because of their failure to comply with
the Montana Rules of Civil Procedure and failure to comply with an
order of the court?
The District Courtdismissedthe second amended complaint with
prejudice under Rule 41(b), M.R.Civ.P., because it did not strictly
observe the requirements of Rules 8 and 12, M.R.Civ.P. Rule 41(b),
M.R.Civ.P., provides in pertinent part:
Rule 41 (b). Involuntary dismissal -- effect
thereof. For failure of the plaintiff to . . . comply
with these rules or any order of court, a defendant may
move for dismissal of an action or of any claim against
the defendant. Unless the court in its order for
dismissal otherwise specifies, a dismissal under this
subdivision . . . operates as an adjudication upon the
merits.
Rule 41(b), M.R.Civ.P., has no application to a motion to dismiss
for failure to state a claim under Rule 12(b), M.R.Civ.P.; we
therefore do not need to address the sufficiency of the claim in
stating a cause of action.
At the time Judge Boyd ordered the first amended complaint
stricken, he allowed the Nystroms 30 days in which to file a second
amended complaint "strictly observing the requirements of Rule 8(a)
and 8(e)(l), as well as the mandates of Rule 12, M.R.Civ.P." These
rules provide in pertinent part:
Rule 8(a). Claims for relief. A pleading which
sets forth a claim for relief, whether an original claim,
counterclaim, cross-claim or third-party claim, shall
5
 contain (1) a short and plain statement of the claim
showing that the pleader is entitled to relief . . .
Rule 8(e). Pleading to be concise and direct --
consistency. (1) Each averment of a pleading shall be
simple, concise, and direct. No technical forms of
pleading or motion are required. . . .
Rule Z?(e). Motion for more definite statement. If
a pleading to which a responsive pleading is permitted is
so vague or ambiguous that a party cannot reasonably be
required to frame a responsive pleading, the party may
move for a more definite statement before interposing a
responsive pleading. . . . If the motion is granted and
the order of the court is not obeyed within 10 days after
notice of the order or within such other time as the
court may fix, the court may strike the pleading to which
the motion was directed or make such order as it deems
just.
Rule 12 (f). Motion to strike. . . . upon motion
made by a party within 20 days after the service of the
pleading upon the party or upon the court's own
initiative at anytime, the court may order stricken from
any pleading any insufficient defense or any redundant,
immaterial, impertinent, or scandalous matter.

Rule 12(e), M.R.Civ.P., clearly allowed the District Court to

strike the first amended complaint in this action and also to order

that the second amended complaint be dismissed with prejudice as

contemplated under Rule 41(b), M.R.Civ.P.

Dismissal under Rule 41(b), M.R.Civ.P., however, is a harsh

remedy. This Court has previously stated that because the result
is severe, district courts should refrain from thus dismissing an

action %nless there is no other adequate remedy available" and

"the facts sufficiently call for such a result." Chisholm v. First

Nat'1 Bank of Glasgow (1988), 235 Mont. 219, 220, 766 P.2d 868,

869. In Chisholm, 766 P.2d at 872, we quoted Von Poppenheim v.

Portland Boxing and Wrestling Comm'n (9th Cir. 1971), 442 F.2d

1047, 1049, cert. denied 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d

6
731, reh'g denied 405 U.S. 999, 92 S.Ct. 1246, 31 L.Ed.2d 469:
Because a dismissal under Rule 41(b) is such a harsh
remedy, and because such dismissals are frequently
occasioned by inattention of counsel rather than by
plaintiff's own wrongdoing, courts are rightfully
reluctant to employ 41(b) sanctions for failure to comply
with an order of the court . . . It is equally clear,
however, that aggravated circumstances may make dismissal
under 41(b) appropriate . . . In those cases the
district judge will be reversed only if he has abused his
discretion in dismissing the action.

Montana Rule 41(b), M.R.Civ.P., parallels the federal rule and also

places a decision to involuntarily dismiss a pleading within the
sound discretion of the district court.

We emphasize again that a Rule 41(b) dismissal of a complaint

is not determined by whether or not the complaint can withstand a

Rule 12(b)(6) motion to dismiss for failure to state a claim for

which relief can be granted.
Under the identical federal rule, the Ninth Circuit Court of

Appeals has held that the court is not required to exhaust all

possible sanctions prior to dismissing a case with prejudice.

Nevijel v. North Coast Life Ins. Co. (9th Cir. 1981), 651 F.2d 671,

674. In Neviiel, the original complaint was "verbose, confusing

and almost entirely conclusoryV* and consisted of 48 pages with 23

pages of addenda and exhibits. The plaintiffs were ordered to file

an amended complaint. The amended complaint was 23 pages long with

24 pages of addenda, named additional defendants without leave of
the court and was equally as verbose, conclusory and confusing as

the first version of the complaint. The plaintiffs contended on

appeal that they should be granted leave to amend the complaint.

The Ninth Circuit affirmed the lower court's dismissal with

7
prejudice, holding that the district court did not abuse its
discretion, although there were numerous other sanctions available.

Neviiel, 671 P.2d at 674.
The Eighth Circuit similarly affirmed a district court's

dismissal with prejudice, concluding that the plaintiff's

deliberate persistence in refusing to conform his pleadings to the

requirements of Rule 8 justified dismissal with prejudice.

Michaelis v. Nebraska State Bar Ass'n (8th Cir. 1983), 717 F.2d

437, 439.
Our standard of review in discretionary trial court rulings is

whether the court abused its discretion. Steer Inc. v. Department

of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604. We

encourage the cautious exercise of that discretion in involuntary

dismissal actions, but will reverse the district court only if the

court has abused its discretion in dismissing the action.
Chisholm, 766 P.2d at 872. Chisholm further held that the district

court has discretion to dismiss the entire action and is not bound

to dismiss only those claims which are related to the court order

with which plaintiff failed to comply. Chisholm, 766 P.2d at 872.

As stated above in the quote from Von Ponnenheim, frequently a

failure to comply with an order of the court for failure to plead

according to the rules is attributable to the attorney rather than

the party. However, "it is entirely clear that the party cannot

avoid the consequences of the acts or omissions of his freely

chosen attorney.*' 9 C. Wright h A. Miller, Federal Practice and

Procedure: Civil § 2369 (1971).

8
 In this case, the District Court ordered the Nystroms to
comply with Rule 8(a) and (e), M.R.Civ.P., in any repleading of
their complaint. These rules require a short and plain statement
that is simple, direct and concise. The Nystroms responded with an
amended complaint which was even more confusing, vague and
redundant than the first amended complaint and nearly twice as
long.
This Court has stated that an important factor to consider in
reviewing a dismissal of a complaint under Rule 41(b), M.R.Civ.P.,
is whether the offending party had a prior warning that such
conduct could result in dismissal. Doug Johns Real Estate, Inc. v.
Banta (1990), 246 Mont. 295, 299, 805 P.2d 1301, 1304. See also
Becky v. Norwest Bank Dillon, N.A. (1990), 245 Mont. 1, 798 P.2d
1011. In dismissing a complaint for failure to prosecute, this
Court stated in Cox v. Myllymaki (1988), 231Mont. 320, 322-23, 752
P.2d 1093, 1095, that another important factor in such an action
was the availability of alternative sanctions.
The Nystroms were given prior warning and allowed to replead
their complaint, provided they comply with the Montana Rules of
Civil Procedure. They now contend that they should be allowed to
further amend their complaint and that dismissal with prejudice was
inappropriate. In dismissing the second amended complaint in this
case, the District Court stated:
5. Plaintiffs' second amended complaint is
needlessly long, confusing, redundant, scandalous,
onerous, and harassing. Plaintiffs' second amended
complaint does not comply with the letter nor spirit of
Rules 8 and 12, Mont.R.Civ.P., despite the Court's
admonition to strictly observe the requirements therein.
9
 Plaintiffs' second amended complaint is not a
simplification of the first amended complaint. The
verbose, derogatory, and imprecise ,~nature of the
pleading, as well as the intermingling of claims and
parties therein, does not permit the defendants to
respond responsively, nor should the defendants be
expected to frame a responsive pleading. The second
amended complaint is an abuse of the rules of civil
procedure and this Court's order. The plaintiffs'
persistent refusal to conform their pleading to the
Montana Rules of Civil Procedure and the order of this
Court warrants dismissal of the second amended complaint,
with prejudice.
An example of the Nystroms' pleading in the first amended
complaint is as follows:
16. Defendant *'MelcheP had the ulterior purpose of
concealing that he had been an active participant in
Schnittgen's deliberately false and fraudulent ulterior
scheme and Court allegations. Melcher knew and was
convinced that his client's claim was sham, unmeritorious
and unfounded. Melcher knew that no probable cause for
the trial of Schnittgen's false and fraudulent claims
existed. "MelcheP not only believed his client's claims
were not meritorious, prior to and during the trial
concerning Hill County Cause No. DV-88-248, but Melcher
knew that the only way that Schnittgen's claims could
have succeeded was if Schnittgen and Melcher were
successful in intentionally deceiving the Court by
presenting manufactured false testimony.
This is essentially the same as, although shorter than the
following paragraph taken from the second amended complaint:
109. Defendant Melcher had the ulterior purpose of
concealingthathe had been an active knowing participant
in Schnittgen's deliberate, false and fraudulent ulterior
scheme and falsified Court allegations. Melcher knew and
was convinced that his client's claim was sham,
unmeritorious and unfounded and that there was no
substantial purpose in presenting or alluding to
Schnittgen's false "value" claim in the District Court.
Melcher did not believe his client's claims to be
meritorious, under any honest presentation of facts.
Melcher knew that the only way that Schnittgen's claims
could have possibly succeeded was if Schnittgen and
Melcher were successful in intentionally deceiving the
Department of State Lands, as well as the Hill County
District Court through the presentation of manufactured
10
 false testimony and or testimony having no actual bearing
on the relevant 1987 "valueS* of the property that was the
subject of Hill County Cause No. DV-88-248.
This is representative of the second amended complaint when

compared to the first amended complaint. In general, the
paragraphs of the second amended complaint are organized in a

different manner and are more verbose than in the first amended

complaint. Not only are statements redundant within the same

paragraph, they are reiterated throughout the complaint.

Further, the second amended complaint contains the same

vituperative tone throughout as did the first amended complaint.
Respondents contend that the allegations in the second amended

complaint are needlessly long, repetitive, confusing and vitriolic.

Respondents further contend that they failed to comply with the

order of the court. We agree.

This Court has previously stated that a party displaying an

attitude of unresponsiveness to judicial process warrants
imposition of sanctions, including dismissal. Landauer v. Kehrwald

t-87), 225 Mont. 322, 325, 732 P.2d 839, 841. In Landauer, we

restated our policy of following the recent trend of cases intent

upon punishing transgressors of Rule 37, M.R.Civ.P., discovery

abuses rather than patiently trying to encourage their cooperation.

Landauer, 732 P.2d at 840-41. This Court has held further that

where plaintiff's complaint was essentially the same as an earlier

complaint dismissed by another judge, differing from the earlier

complaint only in its sweeping alternative conclusions of law, the

complaint was properly dismissed. Sovey v. Chouteau County Dist.

11
Hosp. (1977), 173 Mont. 392, 395, 567 P.2d 941, 943. Further, the
district court is in the best position to know which parties

callously disregard the rights of their opponents and other

litigants and to determine which sanction is most appropriate.

Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 180,

728 P.2d 430, 431. The district court judge is also in the best

position to assess whether a party has made a good faith effort to

comply with a court order and whether a lesser sanction would be
appropriate.

In this case, the plaintiffs were warned. After the first
amended complaint was stricken, Judge Boyd ordered the Nystroms to

comply with procedural rules. They were given 30 days in which to

replead and ordered to comply with specified rules of procedure.

Despite the court's order to strictly comply with Rules 8 and 12,

M.R.Civ.P., the Nystroms' second amended complaint is even more

egregious than, albeit strikingly similar to, the complaint

previously stricken. There is no indication that the plaintiffs

made a good faith effort to comply with the court's order to tailor

their complaint to Rules 8 and 12, M.R.Civ.P. The District Court

reasonably could have concluded that there was no other adequate

remedy available and the facts of this case sufficiently called for
involuntary dismissal, according to the standard set forth in

Chisholm.

In Von Poooenheim, 442 F.2d at 1054, the court stated:

The exercise of [the court's] discretion to dismiss
requires only that possible and meaningful alternatives
be reasonably explored, bearing in mind the drastic
foreclosure of rights that dismissal effects. Here the

12
 district judge made such reasonable opportunities and
alternatives available to plaintiff that the dismissal
was not an abuse of discretion. Somewhere along the
line, the rights of the defendants to be free from costly
and harassing litigation must be considered. So too must
the time and energies of our courts and the rights of
would-be litigants awaiting their turns to have other
matters resolved. The exact point on that line is
incapable of exact definition, but we are satisfied that
the present case went beyond it.
In this case, we are convinced that Judge Boyd granted the
plaintiffs a reasonable opportunity to amend their complaint after
the first amended complaint was stricken. They failed to comply
with his order and the pleading requirements of Rule 8, M.R.Civ.P.,
despite Judge Boyd's order.
The Nystroms did not strictly observe Rules 8 and 12; they
repleaded in the same repetitive and vituperative fashion. We
conclude that the Nystroms were adequately warned that their first
amended complaint was inadequate, they were informed of its faults
and they were given sufficient time to correct them. We further
conclude the Nystroms did not comply with the court's order and did
not conform their second amended complaint to Rules 8 and 12,
M.R.Civ.P..
We hold the District Court did not abuse its discretion in
dismissing the Nystroms' complaint with prejudice based on their
failure to comply with the Montana Rules of Civil Procedure and
failure to comply with an order of the court.
AFFIRMED.

13
We Concur:

Justices

14
Justice Karla M. Gray, dissenting.

I respectfully dissent from the Court's opinion. While I
understand the frustration of both the District Court and this
Court over the pleadings at issue here, I cannot agree that
dismissal with prejudice is appropriate. In particular, it is my
view that the Court overstates when it characterizes as l'repeated"
appellants' failure to plead in conformity with the Montana Rules
of Civil Procedure: the record is clear that one repleading
occurred prior to dismissal. Because I believe that a fair reading
of the record and the amended complaint reflects that appellants'
counsel made a good faith effort to comply, I conclude that the
District Court abused its discretion in dismissing the amended
complaint at issue here with prejudice pursuant to Rule 41(b).
This action arises out of an underlying suit by Duane
Schnittgen, a defendant herein, against Karl and Ruth Nystrom,
plaintiffs/appellants herein. It is predicated on the defendants'
conduct in initiating and prosecuting the previous litigation
against the Nystroms.
The Nystroms' original complaint was filed on September 11,
1991, and contained "Doe" defendants. Prior to any responsive
pleading, the Nystroms filed an amended complaint. The 28-page
complaint was captioned "Amended Complaint and Jury Demand for
Intentional Malicious Fraudulent Prosecution, Intentional Abuse of
Process, and Unlawful Intentional Infliction of Emotional
Distress." It contained 76 numbered allegations by both Nystroms

15
jointly, followed by a prayer for relief. No separate claims or
counts were provided.
Defendant Robert C. Melcher moved to strike "superfluous
allegations" in the amended complaint or, in the alternative, to
order the Nystroms to submit a more definite statement. The other
defendants joined in the motion. While it is clear from their
supporting brief .that the defendants were concerned with the tone
and tenor of the amended complaint, the defendants clearly and
repeatedly expressed concerns that the complaint was vague and
ambiguous in that it "does not segregate or specify the purported
claims by individual, corresponding counts." In essence, the
defendants could not ascertain which allegations were urged in
support of which theory set forth in the caption of the complaint.
The motion also related to the verbosity and redundancy in the
pleading.
The District Court granted the defendants' motion to strike,
allowing the Nystroms 30 days to replead "strictly observing the
requirements of Rule 8(a) and 8(e)(l), as well as the mandates of
Rule 12, M.R.Civ.P." No further direction or specification to the
rules was provided.
In response to the court's order, the Nystroms timely filed a
second amended complaint. The 43-page complaint set forth a total
of thirteen separate counts covering the two plaintiffs and the
seven named defendants: four counts by Ruth Nystrom against
Schnittgen, four counts by Karl Nystrom against Schnittgen, two
counts by both Nystroms against the other named defendants except

16
Melcher; and three counts by both Nystroms against Melcher
individually. The prayer for relief also was separately stated by
plaintiff, defendant and count.
The defendants responded to this amended complaint by filing
a motion to dismiss pursuant to Rule 41(b) for failure to plead in
conformity with the Montana Rules of Civil Procedure and as ordered
by the court. The thrust of the motion was the rambling, invective
nature of the amended complaint: the defendants asserted that the
complaint was not the "short and plain statement" of claim or the
"simple, concise, and direct" averment of pleading required by
Rules 8(a) and 8(3)(l) and the court's earlier order. The District
Court dismissed the complaint in its entirety with prejudice, based
primarily on the Rule 8 requirements of precision, clarity and
brevity and the Rule 12 requirements that pleadings not be
ambiguous and be free of impertinent and scandalous matter.
As stated above, both the District Court and this Court are
understandably frustrated by the length and rambling nature of the
amended complaint. However, I cannot agree that the complaint
should be dismissed with prejudice. A careful reading of (1) the
original motion to strike or for a more definite statement; (2) the
District Court's order to replead; and (3) the amended complaint,
suggests to me that appellants made a good faith effort to comply
with the court's order and the thrust of the defendants' first
motion. Because there are two appellants and seven named
defendants, the restructuring into separate counts by plaintiff and
defendant necessarily resulted in a lengthier amended complaint.

17
Thus, while the amended complaint was lengthier than would have

been necessary had counsel dropped his unfortunate habit of tedious

and repetitive adjectival phrases or simply incorporated
allegations by reference in later counts, I cannot conclude that--

under these circumstances--length alone is an appropriate basis for

a result as severe as dismissal with prejudice. To my knowledge,

we have set no page limit for complaints involving nine separate

parties and thirteen separate counts. On the basis of this record,

the amended pleading reflects a sufficient good faith effort to
avoid the harsh and final remedy of dismissal with prejudice.

Landauer, on which the Court relies, is inapposite on both the

law and the facts. First, it involved Rule 37(b), rather than

41(b); it was a discovery abuse case. Landauer, 732 P.2d at 840.

Second, the plaintiff's actions in Landauer, which supported the

dismissal sanction for discovery abuses, were much more egregious

than those of appellants here. There, counsel was dilatory in

filing his client's discovery and twice failed to obey the clear

mandates of court orders to produce tax returns. Landauer, 732

P.2d at 841. Here, appellants were never dilatory: in addition,

the court's order was nowhere near as clear as the disobeyed

mandates in Landauer. Thus the "attitude of unresponsiveness"

present in Landauer simply does not appear here.

Nor are Sovev and Dassori persuasive precedent. Here, unlike

in Sovev, appellants did not refile essentially the same complaint:

they laboriously separated each claim against each named defendant

in response to the defendants' complaint that they did not

18
"segregate or specify the purported claims by individual,
corresponding counts." Their reward for this effort to meet the
defendants' concerns is dismissal with prejudice. In this same
regard, a fair reading of the record does not result in a
conclusion that the appellants "callously disregard[ed] the rights
of their opponents," as the Court suggests by its reliance on
Dassori.

I agree that the amended pleading is far less than the ideal.
I also agree that this counsel's vituperative tone and approach
does not exemplify the ideals of practice by members of the legal
profession in Montana. I cannot agree, however, that dismissal
with prejudice--which results in a total inability of the Nystroms
to have their dispute considered by the courts of Montana--was
appropriate here. I would reverse the District Court.

\
Justices Terry T. Trieweiler and James C. Nelson concur in the
foregoing dissent.

19
 November 23, 1993

CERTIFICATE OF SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the following
named:

Mort Goldstein
Goldstein Law Firm
P.O. Box 706
Havre, MT 59501

Stuart C. MacKenzie
Burns, Solem & MacKenzie
P.O. Box 248
Chinook, MT 59523

Neil E. Ugrin
Ugrin, Alexander, Zadick & Slovak
P.O. Box 1746
Great Falls, MT 59403

ED SMITH
CLERK OF THE SUPREME COURT
STATE OF MONTANA