*1 492

WESTMARK INTERNATIONAL CORP., Corporation,

a Nevada Respondent, and Plaintiff v. INC.; GOLD HILL PLACERS, THOMAS R. CAMPBELL and LINDA M. CAMPBELL, individually; THOMAS R. CAMPBELL and partners, doing

LINDA M. CAMPBELL, style business under the firm name and CAMPBELL PARTNERSHIP; PROPERTIES

HAROLD REID; DONALD WOGAMON; HAROLD JIM REID, BRADY & DONALD partners, WOGAMON, GOLD HILL d/b/a PLACERS; DONALD HARPER M. and partners, RONALD P. HARPER, d/b/a MISSOULA MINING; BRIAN LOUCKS, STORM,

TOM HATLER, ROGER and partnership, MINES, TOWNSEND a limited d/b/a ANTELOPE B & PLACERS; B MINING

PARTNERSHIP, LTD; SEAHAWK,INC.; WILLIAM LSE, C. the heirs BALTRUSH; INC.; any if

and of Defendants, deceased; devisees personal representatives Defendants; persons, claiming,

all other unknown or might any right, who estate title, claim or upon a lien or in, interest or encumbrance any part property real or thereof, adverse ownership any Plaintiffs or cloud Plaintiffs such or title thereto whether claim

possible contingent claim be including any possible claim of dower, claim accrued,

in chaote or Appellants. Defendants and No. 02-289. 24, Briefs October 2002. Submitted on Rehearing May 2003. Denied April Decided 2003.

2003 MT 119. 315 Mont. 492. 70 P.3d 731. *2 Vainio, Law, Attorney For Kevin E. at Butte. Appellants: Budewitz, Law, Attorney For Thomas A. at Respondent: Helena. Opinion

JUSTICE REGNIER delivered the of the Court. (Westmark) filed a Respondent Corp. Westmark International Court, title in the Judicial District Broadwater complaint quiet to First defendants, County. Although complaint Appellant named several (Gold Hill) Placers, As only appear. Hill Inc. was the defendant to agree Hill to proceeded, the case Westmark and Gold were unable delay, this the District Court a final order. Frustrated stated if failed to a final February the trial date set for the case would be vacated. The parties failed to present by February 25, 2002; however, the case to trial as scheduled. Gold Hill failed to appear at the and the District Court entered in favor ofWestmark. Gold Hill subsequently filed a motion for new trial. The motion, District Court denied the and Gold Hill appeals. We affirm. We restate the sole issue on appeal as follows: Did the District Court abuse its discretion when it denied Gold Hill’s motion for a new trial?

BACKGROUND August 27,1998, On Westmark filed a complaint quiet to title on certain real property located in County, Broadwater Montana. The complaint named defendants; however, several Gold Hill only was the defendant appear. to The District Court subsequently entered judgment by against default the remaining defendants. On November Westmark, filed a counterclaim against asserting that it was entitled to take possession disputed property, or alternative, damages recover from Westmark in the amount of $3,700,000.00. A pretrial conference was held 2002. Counsel for

both Westmark and Hill appeared conference; however, Gold at the the parties were not agree upon able to a final pretrial order. Frustrated delay, this the District Court stated that if parties the failed to present a final pretrial by February 25, 2002, order the trial date set for the case 4, would be vacated. The case was set for trial on March 27, February 2002, 2002. On Gold Hill filed a stay motion to the trial date, parties as the agreement failed to reach an regarding the final pretrial order. The District Court denied Gold Hill’s motion on 28, February 2002. 4, Gold Hill failed appear 2002, to at the March

¶6 trial. On March 5, 2002, the fact, District Court entered its findings of conclusions of law, judgment, and in it title quieted disputed which of the property in favor ofWestmark. Gold Hill filed a motion for a new trial on March 15, 22, 2002, 2002. On order, March the District Court an issued stating $23,507.50 attorney’s Westmark was entitled to recover in fees, $1,904.10 costs, and in from Gold Hill. The District Court denied 26, Gold Hill’s motion for a trial new on March 2002. Hill Gold (1) appealed fact, law, the District findings Court’s: of conclusions of (2) (3) 22, 2002, order; and judgment; March denial of its motion 23, 2002. April a new for REVIEW

STANDARD OF a motion for court’s denial of of review of a district The standard Medlin, 2002 v. abuse of discretion. a new trial is manifest Satterfield 33, to 234, 14, 14. The decision 14, 59 P.3d ¶ MT 312 Mont. ¶ ¶ the trial the sound discretion of deny new trial is within grant or a showing manifest abuse of absent a of judge and will not be disturbed Satterfield, 14. that discretion. ¶

DISCUSSION discretion when it denied Gold Did the District Court abuse its trial? Hill’s motion for new conference on entry The District Court’s minute from 22, 2002, “The Court

February following contained the statement: by Monday, to the Final Pretrial Order parties present ordered the 25,2002, parties date failed or the Trial will be vacated.” 25, 2002; however, the by February present to trial on March as scheduled. Gold Hill did case to appear not at the trial. The District Court entered in favor of Westmark on subsequently

March 2002. Gold Hill filed a motion for a new trial. did Gold Hill’s motion asserted that because the not by February final that the trial date believed Therefore, Hill alleged deprived that it was of its was vacated. (1) (2) in or an rights by: irregularity proceedings; substantive the trial in its surprise, accident or when the District Court conducted maintained Accordingly, that it was entitled to a absence. (3) (1) 25-11-102, MCA. trial either or pursuant § new subsection 25-11-102, MCA, that: provides, pertinent part, Section and a new may verdict or other decision be vacated The former any for party aggrieved on the of the granted application trial rights of following materially affecting causes the substantial party: such

(1) court, adverse jury, in the irregularity proceedings by which any order of the court or abuse of discretion party trial; a fair having either was from party prevented *4 (3) could not have ordinary prudence which surprise accident or guarded against[.] trial, the District Hill’s motion for a new considering When Gold

¶12 496

Court noted that at no point did it ever vacate the March 2002 trial date. Hill apparently recognized that the trial was still scheduled shortly because after pretrial conference it filed motion requesting that the District Court continue the trial date. The District Court denied this February 28, motion on such, 2002. As the District Court found that it was unreasonable for Gold Hill assumed, to have in light facts, 4, 2002, above that the March trial date was Therefore, vacated. the District Court denied Gold Hill’s motion for a new trial. It is apparent that the District Court was exasperated with Gold

Hill’s conduct in fact, this matter. In in its order denying the motion for a new the District Court concluded that strategy Gold Hill’s was to “muck up” the water so that Westmark difficulty would have Also, proceeding. the District Court was convinced that Gold Hill’s counsel refused to sign pretrial the final presented by Westmark’s counsel in order to frustrate process. Regardless may what the District Court have stated out of frustration at the conference, it is obvious that obligated knew was to file a formal motion seeking continuance if the trial date was to be vacated. motion, When Gold Hill filed the the District Court denied the Therefore, request. we conclude that plausible it is not that Gold Hill believed that the trial date had been vacated the parties’ failure to file order. In light conclusion, of our above we hold that Gold Hill was not (1)

deprived of rights by its substantive irregularity either: in the (2) proceedings; or an accident surprise, as contemplated in (1) (3) 25-11-102, subsections MCA.Accordingly, § we hold that the District Court did manifestly not abuse its discretion when it denied Gold Hill’s motion for a new trial. reasons, For the foregoing the judgment of the District Court is

affirmed.

CHIEF GRAY, JUSTICE COTTER, JUSTICES NELSON and LEAPHART concur.

JUSTICE TRIEWEILER dissenting. I dissent from the majority Opinion. I conclude that the District Court abused its discretion when it denied the Defendant’s motion for a new trial based on an irregularity proceedings which prevented a fair trial. District Court’s entry minute which

records what was said the court to the parties clearly on that date states that if the agree by February cannot on a *5 is No unequivocal. That statement 2002, the trial will be vacated. is February 25, 2002. It agreed order was on to the court on paying that attention anyone understandable trial continued. assumed that the date was would have recognized Hill must in 12 that Gold have majority states ¶ it motion filed a that trial had not been continued because the However, I District Court. order effect from the requesting an to that that a trial date has been nothing assuming find inconsistent about District verbally by on the representations continued based made its to a written asking the District Court to reduce decision Court and the states that the District paragraph, majority In that same order. February 28,2002. the on While Court denied motion for a continuance denying the motion to continue it is true that the District Court’s the until February 28,2002, it was not filed clerk of court is dated with the court to the by March and was not mailed clerk of Friday, the trial attorney until March 2002-the date on which Defendant’s attorney. proceeded without the Defendant its attorney Judge If District told Defendant and its on the Court the February 22 that the trial date would be continued unless there was take signed by parties, right the had a both judge’s buy argument the trial statement at face value. I do not he they just letting should assumed was off steam have attorney expressing greater frustration. While caution Defendant’s might course, the more the Defendant did not prudent have been when show the District Court’s up based the confusion created representation, the trial should continued. When have been Defendant, proceedings” “irregularity without the the Defendant fair trial. resulted which denied I reasons, majority I from the would Opinion. For these dissent of the District reverse Court.