CHICAGO TITLE INSURANCE COMPANY, a corporation, Plaintiff and Respondent, and Helena Abstract and Title Company, a Montana corporation, аnd Prudential Federal Savings and Loan Association, a United States corporation, Third-Party Defendants and Respondents, v. HAROLD N. WHEAT and MARIE WHEAT, husbаnd & wife, Defendants and Appellants.
No. 84-448
Supreme Court of Montana
Submitted on Briefs April 4, 1985. Decided May 13, 1985.
699 P.2d 597 | 216 Mont. 98
Hughes, Kellner, Sullivan, & Alke, John Alke, Helena, for Chicago Title.
Luxan & Murfitt, Gary L. Davis, Helena, for H.A.& T.
McCaffery & Peterson, John L. Peterson, Butte, Charles Graveley, Skedd, Ashley, McCаbe & Weingartner, Helena, for P.F.S.
Harold and Marie Wheat appeal a judgment of the Lewis and Clark County District Court which granted respondents’ motion to dismiss thе lawsuit under
The sole issue presented is whether the District Court erred in granting the mоtion to dismiss for failure to prosecute the action.
In 1971, Harold and Marie Wheat retained a general contractоr to renovate and enlarge a building they owned in Helena, Montana. They arranged financing through Prudential Federal Savings and Loan Association (Prudential). Helena Abstract & 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. (CTI) to issue title insuranсe with extended coverage, i.e., no exception for mechanic‘s lien 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 becamе insolvent, and unpaid subcontractors, materialmen and laborers filed liens against the property. 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 consolidated for trial.
Since 1974, the Wheats employed and were represented by as many as eight different attorneys. One left the case because he be-
Between 1974 and 1977, many motiоns, claims, counterclaims and third-party claims were filed. The first case was eventually resolved, with the court holding that the interеst 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 thе case broke down. On December 28, 1977, the District Court ordered the Wheats to file a more definite statement of their claim. For 6 1/2 years, the Wheats allowed the claim to lie dormant. The only CTI attorney familiar with the files, stopped practicing law. Mаny 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, Wheats’ 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 аmended 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
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 notеd 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 failеd 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 fаilure to prosecute, but plaintiff was diligently pursuing the claim for three months prior to the filing of the motion to dismiss. Nearly all the witnessеs were available to testify, the files and records were available as evidence, and plaintiff had actively resumеd prosecution of the matter.
The factors in this case do not sufficiently favor the Wheats to bring them within thе 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. The trial court determined their delays were unreasonable and without justification, all to respondents’ prejudice.
“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 exсuse for his inaction. Prejudice due to unreasonable delay is presumed. Peters v. Newkirk (Mont. 1981), 633 P.2d 1210, 1212, 38 St.Rep. 1526, 1528. No such excuse was ever offered.
We hold the District Court acted well within its discretion in dismissing the action.
We affirm.
MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.