CHICAGO TITLE INS CO v WHEAT
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No. 84-448 IN THE SUPRZME COURT OF THE STATE OF MONTANA CHICAGO TITLE INSURAI'JCE COMPANY, a corporation, Plaintiff and Xespondent, and HELENA ABSTRACT & TITLE COMPANY, a Montana corporation, and PRUDENTIAL FEDERAL SAVINGS AND LOAN ASSOCIATION, a United States corporation, Third-Party Defendants and Respondents, HAROLD N. WHEAT and MARIE WHEAT, husband & wife, Defendants and Appellants. APPEAL FROPI: District Court of the First Judicial District, In and for the County of Lewis & Clark, The Honorable Gordon Bennett, Judge presiding. COUNSEL OF RECORD: For Appellants: Madden, Knuchel Montana & P4cGregor; Karl Knuchel, Livingston, For Respondents: Hughes, Kellner, Sullivan, Alke; John Alke, Helena, Nontana (Chicago Title) Luxan & Murfitt; Gary L. Davis, Helena, Ilontana(HA&T) McCaffery & Peterson; John L. Peterson, Butte, Montana (P.F. S) Charles Graveley; Skedd, Ashley, McCabe & Weingartner, Helena, Montana Submitted on Briefs: April 4, 1985 Decided: May 13, 1985 P r Justice William E. Hunt, Sr., delivered the Opinion of l. the Court. Harold and Marie Wheat appeal a iudgment of the Lewis and Clark County District Court which granted respondents' motion to dismiss the lawsuit und.er F-ule 41(b), M.R.Civ.P. The court concluded the Wheats failed to diligently prosecute their claims, and they failed to comply with an order of the court directing them to amend their pleadings. We affirm. The sole jssue presented is whether the District Court erred in granting the motion to dismiss for failure to prosecute the action. In 1971, Harold and Marie Wheat retained a general contractor to renovate and enlarge a building they owned in Helena, Montana. They arranged financing through Prudential Federal Savings and Loan Association Abstract & (Prudential). Helena Title Company (HAT) issued a title commitment as security for the loan. Prior to disbursement of the funds, the Wheats executed an affidavit and agreement, in which they requested Chicago Title Insurance Co. i nsurance with extended (CTI) to issue title . coverage, i e. , no exception for mechanic's liens or materialmen's liens. The Wheats agreed to indemnify and hold CTI harmless from any such liens, including costs and attorney fees. Subsequently, the general contractor became insolvent, and unpaid subcontractors, materialmen and liens against the property. laborers filed A foreclosure action was filed in 1974, which was defended by CTI. CTI concurrently filed a complaint for declaratory relief against the Wheats, and the two actions were consol-idated for trial. Since 1974, the Wheats employed and were represented by as many as eight different attorneys. because he became a district judge. One left the case Two withdrew from the case, one because of non-payment of attorney fees, and one because he could no longer get the Wheats to respond to his communications. Four were termina-ted by the Wheats due to what the Wheats described as "inaction." Between 1974 and 1977, many motions, counterclaims and third-party claims were filed. claims, The first case was eventually resolved, with the court holding that the interest of Prudential was superior to that of the mechanic's lien claimants. In the second action, CTI was allowed to amend its complaint and the Wheats then filed an amended answer which was very long and difficult to understand. It was at that point that progress in the case broke down. On December 28, 1977, the District Court ordered the Wheats to file a more definite statement of their claim. For 6 4 years, the Wheats allowed the claim to lie dormant. The only CTI attorney familiar with the files, stopped practicing law. Many of the files holding potentially crucial information concerning the case became lost and unaccounted for, and many of the witnesses became no longer available. Then in March 1982, Wheats1 attorney received a letter from HAT'S counsel which advised that a motion to dismiss for failure to prosecute would probably be filed. The Wheats filed a second amended counterclaim and answer to the amended complaint in April 1984, and an amended counterclaim along with their third-party complaint. Respondents then filed a motion to dismiss for failure to prosecute under Rule 41(b), M.R.Civ.P. The District Court granted the motion dismissed the case in its entirety on August 10, 1984. and The Wheats contend this appeal is controlled by our opinion in Brymerski v. City of Great Falls (1981), 195 Mont. 428, 636 P.2d 846. In that case we noted that while it is within the sound discretion of the trial court to dismiss an action for failure to prosecute, such motion should not be granted if the plaintiff is diligently prosecuting his claim at the time the motion is filed, even if at some earlier time the plaintiff may have failed to act with due diligence. In Brymerski, more than four years had passed between the filing of the complaint and the motion to dismiss for failure to prosecute, but pl-aintiff was diligently pursuing the claim for three months prior to the filing of the motion to dismiss. Nearly all the witnesses were available to testify, the files and records were available as evidence, and plaintiff had actively resumed prosecution of the matter. In the present case, 10 years elapsed between the filing of the complaint and the motion to dismiss. Six and one-half of those years passed between the time the court ordered the Wheats to file a more definite statement and the filing of the dismissal motion. Witnesses have moved or forgotten the facts, records and files have been lost, one of respondents1 former attorneys has given up the practice of law, and HAT has changed ownership. The Wheats have employed eight different attorneys, six of whom either resigned from t.he case because of the Wheats1 lack of cooperation or because the Wheats fired them. Further, the Wheats have disobeyed a court order to file a more definite statement. And two years before the motion to dismiss, the Wheats received a letter from opposing counsel advising them that a motion to dismiss would probably be filed. The factors in this case do not sufficiently favor the Wheats to bring them within the ambit of Brymerski. They were not diligent in the prosecution of their lawsuit. They had actual knowledge a motion to dismiss was being considered two years before it was finally filed. determined their delays were The trial court unreasonable and without justifica.tion, all to respondents' prejudice. Rule 41(b), M.R.Civ.P., provides in relevant part: "Involuntary dismissal--effect thereof. For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him." Where an unreasonable delay has occurred, the burden rests upon the plaintiff to come forward and demonstrate an excuse for his inaction. Prejudice due to unreasonable delay is Peters v. Newkirk (Mont. 1981), 633 P.2d 1210, presumed. 1212, 38 St.Rep. 1526, 1528. No such excuse was ever offered. We hold the District Court discretion in dismissing the action. We affirm. We Concur: / acted well within its
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