Chicago Title Insurance v. Wheat , 216 Mont. 98 ( 1985 )

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 & P4cGregor; Karl Knuchel, Livingston,
Montana
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 (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
i nsurance with extended .
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 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 consol-idated for trial.
Since 1974, the Wheats employed and were represented by
as many as eight different attorneys. One left the case
because he became a district judge. 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, claims,
counterclaims and third-party claims were filed. 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 and
dismissed the case in its entirety on August 10, 1984.
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. The trial court
determined their delays were 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
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.
We Concur:
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