text:
    THOMAS L. TOPE and Anna Tope, Plaintiffs and Appellants, v. LILLIAN RUTH TAYLOR, Defendant and Respondent.
    No. 86-184.
    Submitted on Briefs Aug. 21, 1986.
    Decided Nov. 20, 1986.
    728 P.2d 789.

      Emmons & Coder, Robert L. Emmons, Great Falls, for plaintiffs and appellants.
    Hoyt & Blewett, Alexander Blewett, III, Great Falls, for defendant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

On March 25, 1986, final judgment was entered in the District Court of the Twelfth Judicial District, County of Chouteau, granting defendant, Lillian Ruth Taylor’s motion for summary judgment. Thomas L. Tope and Anna Tope appeal. We reverse the judgment and remand this cause because material issues of fact exist.

On May 24, 1974, Leslie Taylor drew his last will and testament in the law offices of Hauge, Hauge, Ober and Spangelo in Havre, Montana. Lester Hauge, attorney, retained a copy. By his will, Leslie Taylor gave 240 acres to Rodney Fraser, $10,000 to his sister, Lillian Taylor, and the remainder of his estate, later valued at $506,000, to Tom and Anna Tope, in equal shares. Tom Tope and Anna Tope were named as executor and alternative executrix, respectively. It is undisputed that Lillian, Anna and Tom were each aware of the will. This dispute arises because the original will was not produced after Leslie died.

Two or three weeks after Leslie’s death, Lillian, Anna and Tom met at Lillian’s home to discuss the handling of Leslie’s affairs. The depositions of the parties presented the trial judge with a wide array of facts respecting that meeting. For purposes of a summary judgment motion, we view the facts in the light most favorable to the party opposing the motion. Further, the party opposing the motion is “afforded the benefit of all reasonable inferences which may be drawn from the offered proof.” Reaves v. Reinbold (Mont. 1980), 189 Mont. 284, 615 P.2d 896, 898, 37 St.Rep. 1500, 1502.

The trial judge ostensibly followed this rule of law by adopting Anna’s version of the facts. However, we find significant discrepancies between Anna’s “facts” and the “facts” as presented by Tom Tope. Tom’s facts and the reasonable inferences therefrom are at times more beneficial to plaintiffs’ position than are Anna’s. We therefore adopt the proof most beneficial to plaintiffs, regardless its source.

In his deposition, Tom stated that Leslie Taylor brought his will to Tom’s house and showed it to Tom the same day it was executed. Although various conversations were subsequently had between Tom and Leslie with respect to treatment of ranch assets upon Leslie’s death, the two had no other conversations specifically about the will. Leslie never indicated to Tom that he had changed his original will. Tom, as well as Anna, believed that had Leslie changed his will, Leslie would have so informed them.

At the time of Leslie’s death, Tom did not think the will itself had been changed. As confirmation of Tom’s beliefs, Lester Hauge informed Tom upon Leslie Taylor’s death that Tom was heir to practically everything and executor of Leslie’s estate. The attorney’s copy of Leslie’s will dated May 24,1974, was in existence at the time of Leslie’s death and had not been altered.

Regarding Tom’s and Anna’s conversation with Lillian two to three weeks following Leslie’s death, Tom stated Lillian told him “there had been some changes,” but did not specify “changes in what.” Tom assumed the changes were due to the recent sale of grazing land, but he did not know precisely to what she was referring.

Tom assumed Lillian possessed Leslie’s will because she had his other personal items. Lillian never specifically told Tom or Anna that she had the will. Anna stated that Lillian offered to let Tom and her read the will, but that they declined. Tom did not recall that conversation.

Lillian later claimed Leslie burned his will immediately prior to entering the hospital for the last time. There was no corroboration for Lillian’s testimony that her brother either changed or burned the will.

Finally, both Tom and Anna agree that at the meeting shortly after Leslie’s death, Lillian promised that she would do the best she could to carry out Leslie’s wishes. Tom assumed that Leslie’s will and Leslie’s wishes were one and the same. By inference then, Tom assumed that he would receive the majority of Leslie’s estate whether or not the will was produced.

The will was never produced. Lillian petitioned for letters of administration of intestacy and requested distribution of the estate to herself as sole lawful heir. She was appointed personal representative of the estate. Under the decree of final distribution entered in March of 1976, Lillian received the entire estate, with appraised assets of over $500,000.

Between 1976 and 1982, Lillian paid or gave to the Topes assets from the estate and cash totaling over $250,000. Two of those presentments required the signing of promissory notes by the Topes in favor of Lillian, the validity of which is now questioned.

In October of 1982, when the recently divorced Topes were facing financial disaster, Lillian told Anna that she was going to “start from the ground up” with respect to distribution of the estate to them. Upon learning of Lillian’s statement, Tom decided to probate Leslie’s will in an effort to obtain what Tom believed was rightfully his. This Court, in In the Matter of the Estate of Taylor (Mont. 1984), [207 Mont. 400,] 675 P.2d 944, 41 St.Rep. 34, held that Tom’s petition to probate the will was barred by the applicable three-year statute of limitations. See Sec. 72-3-122, MCA. However, we further stated that Tom could proceed through “any other remedy available to him.’’ Estate of Taylor, [207 Mont. 400,] 675 P.2d at 947, 41 St.Rep. at 38.

Tom filed his original complaint in this action on March 24, 1984. An amended complaint was served in July of 1984, with Anna joined as a plaintiff. The Topes plead several theories of recovery, including fraud, constructive fraud, laches and estoppel. They seek to recover Leslie’s entire estate, punitive damages from Lillian, cancellation of the promissory notes they had executed in favor of Lillian and attorney’s fees. Upon consideration of all the evidence before him, including the depositions of Anna, Tom and Lillian, the trial judge determined no genuine issue of material fact existed and granted summary judgment to Lillian Taylor on each of the theories raised by the Topes.

On appeal, the Topes raise numerous issues. Because reversal of the summary judgment requires reversal of the trial judge on only one of the theories presented by the Topes, we find two issues to be dispositive.

1. Does a genuine issue of material fact exist?

2. Has a case for promissory estoppel been made?

I.

Two genuine issues of material fact were decided by the trial judge. First, the judge found that Leslie Taylor made long-hand changes in his will of May 24, 1974. The only evidence in support of this determination is Lillian’s statement that the will had been changed. In response, Tom and Anna both stated they believed that if Leslie had changed his will, they woúld have been told. The Topes both denied being told of any changes.

Lillian, as the party moving for summary judgment, has the burden of proving the absence of an issue of fact as to whether changes were made in the will. Bonawitz v. Bourke (1977), 173 Mont. 179, 182, 576 P.2d 32, 34. The standard required of the movant is strict:

“To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”

Kober v. Stewart (1966), 148 Mont. 117, 122, 417 P.2d 476, 478, citing 6 Moores Federal Practice 2d, Section 56.15 [3], at 2335 (2d ed. 1986).

In Reaves, supra, defendant submitted an affidavit, a letter written by plaintiff and an admission by plaintiff concerning facts which would support a finding that an oral contract existed. Plaintiff countered with a denial that a contract ever existed. We held that defendant had not met his burden of proof. Likewise, the self-serving statement of Lillian with respect to the changes in the will is insufficient to meet the burden of proof imposed upon her. Nor does it clearly indicate the truth.

That a fact-finder should be provided the opportunity to determine whether Leslie Taylor altered his will becomes even more apparent in light of Lillian’s statements that Leslie burned his will prior to entering the hospital for the last time. The trial judge assumed the will to be in existence at the time of Leslie’s death. If a fact-finder were to determine the will was not destroyed, aspersions would be cast upon Lillian’s credibility, thus undermining her claim that the will had been altered.

The second genuine issue of material fact is what agreement, if any, was reached by the parties at the meeting at Lillian’s house shortly after Leslie’s death. The parties all agree that Lillian stated she would abide by Leslie’s wishes to the best of her ability. But, what did the parties understand Leslie’s wishes to be?

There is of course an argument that Lillian’s statement is “void for vagueness.” The test is:

“It is an elementary rule of law that, to constitute an enforceable contract, the agreement of the parties to it must be sufficiently certain and explicit that their full intention may be ascertained to a reasonable degree of certainty. (Citation omitted.)
“ ‘If an agreement be so vague and indefinite that it is not possible to collect from it the full intention of the parties, it is void; for neither the court nor the jury can make an agreement for the parties.’ Price v. Stipek, 39 Mont. 426, 104 P. 195.”

Schwab v. McVey (1918), 54 Mont. 422, 425, 171 P. 277, 278. However, if it is found that the will was not changed or destroyed, the exact terms of the promise from Lillian to Topes is capable of being ascertained because all parties may have understood the testator’s wishes to be those expressed in the will.

II.

Pursuant to Section 72-3-301(l)(c), MCA, Tom could have, within three years, submitted the lawyer’s copy of Leslie’s will for probate. “ . . . A petition for formal probate of a will:

“(c) states whether the original of the last will of the decedent is in the possession of the court or accompanies the petition. If the original will is neither in the possession of the court nor accompanies the petition and no authenticated copy of a will probated in another jurisdiction accompanies the petition, the petition also must state the contents of the will and indicate that it is lost, destroyed, or otherwise unavailable.”

On the basis of Lillian’s promise to abide by Leslie’s wishes if Tom did not probate the will, Tom did not offer the will for probate. The will, if not changed, named Tom as the primary beneficiary. Tom therefore gave up substantial potential rights on the basis of Lillian’s promise. The doctrine of promissory estoppel is thus invoked.

This Court has defined the elements of promissory estoppel as:

“(1) a promise clear and unambiguous in its terms; (2) reliance on the promise by the party to whom the promise is made; (3) reasonableness and foreseeability of the reliance; (4) the party asserting the reliance must be injured by the reliance. (Citations omitted.)”

Keil v. Glacier Park, Inc. (1980), 188 Mont. 455, 462, 614 P.2d 502, 506.

Lillian’s promise to Topes might be construed to be that Lillian would follow Leslie’s wishes as expressed in his will, giving the bulk of the estate to Topes. It might be proven that the Topes relied on this promise because they in fact did not attempt to timely probate the will. Such reliance was arguably not only reasonable and foreseeable to Lillian, but expected. Since the Topes have not received the estate given them in the will, they would be injured by their supposed reliance.

Furthermore, the promissory estoppel claim may not be barred by laches. Tom testified he did not become aware of his possible injury until October of 1982, when he was told Lillian was going to “start from the ground up” with respect to his disbursements from the estate. His complaint was filed 17 months later. Under these facts, the doctrine of laches could not be invoked. Brabender v. Kit Mfg. Co. (1977), 174 Mont. 63, 568 P. 2d 547. The Topes are entitled to go forward with their case.

We do not foreclose other theories of recovery for Topes. That will depend upon the record developed at trial. We only hold that under the facts already developed, a case premised upon promissory estoppel requires reversal of summary judgment.

Lillian was also granted summary judgment with respect to Anna’s and Tom’s requests that the promissory notes not be repaid and that attorney’s fees be awarded the Topes. The evidence is in conflict as to whether the Topes were to repay the notes. Attorney’s fees are properly left to the discretion of the trial judge. We therefore vacate the summary judgment in its entirety and remand for further proceedings in conformance with this opinion.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and GULBRANDSON concur.


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    JAMES ROBINSON and Lorraine Robinson, Plaintiffs and Appellants, v. FIRST SECURITY BANK OF BIG TIMBER, Montana, and Leonard Brien, Defendants and Respondents.
    No. 86-261.
    Submitted on Briefs Aug. 7, 1986.
    Decided Nov. 20, 1986.
    728 P.2d 428.
    John Houtz, Forsyth, for plaintiffs and appellants.
    Landoe, Brown, Planalp, Kommers & Johnstone, Gene I. Brown, Bozeman, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the summary judgment entered in favor of defendant bank by the District Court of the Sixth Judicial District, Sweet Grass County. Plaintiff appeals. We affirm.

There is one issue in this case: Did the District Court err in granting summary judgment?

Appellants and Leonard K. Brien and Venetta F. Brien were partners in the purchase and operation of the Grand Hotel and Bar in Big Timber. First Security Bank of Big Timber loaned the Grand Hotel $35,000 on the personal guarantees of the Briens and the appellants. The Bank also made several other loans for operation of the Grand Hotel, and loans to Leonard Brien and appellants for an outside real estate venture. Appellants initially disputed some of these loans saying they were made to Briens personally. In April, 1982, the appellants and Briens were in default on the loan of $68,942.90 havihg failed to make payments for the prior 16 months. Appellants and Briens signed a new note for $72,942.90 (including $4,000 new money and a renewal of the existing obligation). The new note was secured by a mortgage on the Grand Hotel property. In May, 1982, an additional $6,500 was loaned for expenses. In October, 1982, the Bank filed a foreclosure action on the Grand Hotel property. In December, 1982, the Bank, appellants, and the Briens entered into an agreement. The appellants and the Briens were represented by counsel. The Bank agreed to stay the foreclosure proceedings for six months and reduce the interest rate on outstanding obligations to 10% per annum effective September, 1982. The appellants and Briens agreed that the sum of $96,865.35 was “properly due and owing” to the Bank by them and that the debt was secured by a mortgage on the Grand Hotel property. They agreed:

“The [appellants and Briens] hereby irrevocably consent to entry by the court of judgment in favor of the [Bank] and against [them] in the foregoing amounts . . . .”

The agreement further provided:

“7. It is contemplated that near the end of the extension period, the parties may agree to a sale of the premises at private auction upon terms and conditions to be agreed upon between the parties. In the event that the terms of such a sale can be agreed upon by the parties, [appellants and Briens] shall execute a deed to the purchaser at such sale, free and clear of any right of redemption in [them], and consent to entry of a deficiency judgment in favor of the [Bank] and against [them] in the amount of the difference between the amounts owing to the [Bank] and the net proceeds of sale after expenses of sale, payment of the underlying obligation and any other amounts that may be required to be paid in order to convey good title to purchaser. In the event the parties are unable to agree, the property shall be sold at Sheriffs sale as provided in the law, and the purchaser [sic] shall be liable for any deficiency.”

The Grand Hotel and Bar property was sold and appellants signed a note for the $19,000 deficiency.

In May, 1985, appellants filed this action alleging the Bank was negligent in loaning money to the Briens, and in not advising Robin-sons they would be held responsible for the money loaned to the Briens, and initiating a foreclosure proceeding. Robinsons argue that even if the consent agreement is valid, summary judgment should not have been granted because of the Bank’s actions subsequent to the agreement, including the Bank’s involvement in attempted sales and lease and later foreclosure. They contend their signature on the consent agreement was involuntary and obtained by duress. They contend the agreement is a fraud because it is not an accurate reflection of the money owed by the Robinsons. They contend the Bank should be estopped from taking advantage of its own wrong while asserting its strict legal right. Appellants seek damages for breach of fiduciary duty, implied covenant of good faith and fair dealing, misrepresentation, constructive fraud, negligence, unfair trade practices, and deceptive practices.

The District Court granted summary judgment in favor of the Bank. In so doing, it stated:

“Plaintiffs Robinson not only signed a new promissory note to the bank for about $72,000.00 in April, 1982 which encompassed various prior notes and advances to Briens that Robinson (sic) now complain about, but Robinsons and Briens all signed a written agreement with the bank in December, 1982 reciting and settling their various loans and interest up to that time, upon which transaction Robinsons and Briens were all represented by counsel, and then Robinsons also signed another note after the foreclosure for a $19,000.00 deficiency .... Robinsons would now impeach and renounce all of their former actions and the instruments they executed by a suit filed several years later, but I feel their position is not only inconsistent with all their prior actions and declarations, but so legally and equitably unsound as to require summary judgment for the bank.”

The sole issue before us is whether the District Court erred in granting summary judgment. We hold that it did not. Rule 56, M.R.Civ.P. permits summary judgment if “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” In their shot-gun approach, appellants attempt to raise many factual disputes and theories that would preclude the granting of summary judgment. We will not respond to each theory and factual contention individually because this Court has held that “a compromise agreement, when the basis for a final judgment operates ‘as a merger and bar all preexisting claims and causes of action.’ ” Webb v. First National Bank of Hinsdale (Mont. 1985), [219 Mont. 160,] 711 P.2d 1352, 1355, 42 St.Rep. 1919, 1921. In the same case, we held a compromise agreement which results in a dismissal with prejudice of the claims asserted constitutes a final judgment on the merits which bars any new actions. Id., at 1355, 42 St.Rep. at 1922.

In this case, the appellants not only signed a new promissory note in April, 1982, which encompassed all prior loans, but they also acknowledged the debt in the December, 1982, consent agreement, then signed another note for the deficiency after the hotel was sold.

The claims that appellants now seek to enforce all arose out of the amount loaned to the Robinsons and its repayment. These claims were all compulsory counterclaims pursuant to Rule 13(a), M.R.CÍV.P. because they all arose out of the same transaction or occurrence that was the subject matter of the Bank’s foreclosure suit. O’Neal, Booth and Wilkes v. Andrews (Mont. 1986), [219 Mont. 496,] 712 P.2d 1327, 43 St.Rep. 120; Wellman v. Wellman (1982), 198 Mont. 42, 643 P.2d 573.

Since all these claims were compulsory counterclaims, the dismissal with prejudice of the first claim based on the consent agreement concluded all pre-existing claims between the parties. The claims appellants raise now are res judicata, and summary judgment was properly granted. Judgment of the District Court is affirmed.

MR. JUSTICES WEBER, MORRISON, GULBRANDSON and SHEEHY concur.


author: MR. JUSTICE WEBER

text:
    ASSOCIATION OF UNIT OWNERS OF THE DEER LODGE CONDOMINIUM; Larry Burnside; Mary Burnside; Mel’s Remodeling, Inc.; Robert Fousignant; Gerald Tereich; Carolyn Tereich; Bruce J. Hedbloom; Emil Eschenburg; Dolly Eschenburg; Raymond D. Ryan; Ernest M. Schewchuk; Maurice Lobe; Murray B. Stevens; W. Keith Stinson, et al., Plaintiffs and Appellants, v. BIG SKY OF MONTANA, INC.; Big Sky of Montana Realty, Inc.; Boyne USA, Inc.; Chrysler Realty Corp.; Thomas & Co. (General Electric Pension Trust); Meridian Investing & Development Corp.; Continental Oil Co.; the Montana Power Co.; St. Louis and Kansas City Land Co. (Burlington Northern, Inc.); Northwest Airlines, Inc., et al., Defendants and Respondents.
    No. 86-121.
    Submitted Oct. 21, 1986.
    Decided Nov. 24, 1986.
    729 P.2d 469.

      Berg, Coil, Stokes & Tollefsen, Michael C. Coil argued, Bozeman, for plaintiffs and appellants.
    Boone, Karlberg & Haddon, Sam E. Haddon argued, Missoula, for Chrysler Realty.
    Jerry Ashby, Houston, Tex., Rockwood Brown argued, Billings, for GE & BN.
    Poore, Roth & Robinson, Urban Roth argued, Butte, for Conoco.
    Patrick Fleming argued, Butte, for MPC.
    Loble & Pauly, Thomas Hopgood argued, Helena, for Northwest Airlines.
    John Bobinski, Dept, of Admin., Helena, for the State and Bruce Houston.

      Moulton Law Firm, Billings, for Douglas Moe Architects, Inc., Corette, Smith, Pohlman & Allen, Butte, for respondents.
    Schulz, Davis & Warren, John S. Warren, Dillon, for Big Sky and Mt. Realty.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Association of Unit Owners of the Deer Lodge Condominiums and others (owners) brought an action to recover damages resulting from a fire that occurred in Deer Lodge Condominiums located at Big Sky, Montana. The District Court for Madison County, Fifth Judicial District, granted the motions to dismiss of six defendants pursuant to Rule 41(e), M.R.Civ.P. (Rule 41(e)), on the grounds that there was a failure to comply with the rule as to service of process. We affirm in part and reverse in part.

The issues are:

1. Did the District Court err by granting the defendants’ motions to dismiss based on Rule 41(e), M.R.Civ.P.?

2. Did the District Court err when it denied owners’ motion to amend the original and duplicate summons?

3. Did the District Court err by not granting owners additional time within which to file their brief opposing the motion to dismiss of Burlington Northern?

On January 18, 1983, owners filed a complaint naming each of the defendants in this action. No summons was issued at that time. On February 18, 1983, owners filed a first amended complaint and issued a summons captioned “Association of Unit Owners of the Deer Lodge Condominium, et al, Plaintiffs, versus Big Sky of Montana, Inc., et al., Defendants.” The summons did not otherwise name any other defendant. Service was made on four defendants who are not involved in this present appeal. Service of the February 18, 1983 summons was not made on Continental Oil Company (Conoco), St. Louis and Kansas City Land Company (Burlington Northern), Northwest Airlines, Inc. (Northwest), Chrysler Realty Corporation (Chrysler), Montana Power Company (Montana Power), and Thomas and Company (General Electric), who are the respondents in this action. The amended complaint in its caption listed all of the plaintiffs and all of the defendants.

In May 1984, about 15 months after the original summons was issued, a number of additional summons were issued which were marked “duplicate summons” and these summons were served on Conoco, Burlington Northern, Northwest Airlines, Montana Power Company, and General Electric. As an example, the caption of the “duplicate summons” served on Burlington Northern read: “Association of Unit Owners of the Deer Lodge Condominium, et al., Plaintiffs, versus Burlington Northern; et al, Defendants.” Chrysler was served with a “duplicate summons” on August 21,1984. Because the appearance of each of the defendants is so important, a brief summary of their appearances and relevant court order dates after they were served is presented.

Burlington Northern

June 14, 1984: Burlington Northern filed its motion to dismiss raising Rule 41(e) and supporting memorandum.

July 9, 1984: Burlington Northern dismissed from suit.

Chrysler

October 5, 1984: Chrysler appeared by Rule 12(b) M.R.Civ.P. (Rule 12(b)), motion and moved for change of place of trial and moved to dismiss for failure to comply with Rule 41(e).

August 6, 1985: Chrysler dismissed from suit.

Conoco

June 11, 1984: Conoco moved to dismiss not raising Rule 41(e) and at the same time asked for additional briefing time to August 17, 1984.

June 20, 1984: Conoco’s motion to dismiss was denied.

August 2, 1984: Court order granting Conoco’s motion to rescind the court’s previous order denying its motion to dismiss was granted and Conoco was given until August 17, 1984 to file and serve its brief in support of its motion to dismiss.

August 20, 1984: Conoco filed a brief raising Rule 41(e) without having filed a motion to dismiss on that ground.

July 9, 1985: Conoco dismissed from suit.

Northwest

July 31, 1984: Northwest filed motion to dismiss and supporting brief not raising Rule 41(e).

August 17, 1984: Without court authorization, Northwest filed an amended motion to dismiss raising Rule 41(e).

July 9, 1985: Northwest dismissed from suit.

General Electric

June 11, 1984: General Electric filed a general motion to dismiss not raising Rule 41(e).

July 23, 1984: General Electric moved the court for additional time to file a memorandum in support of its motion to dismiss.

August 2, 1984: Additional time granted.

October 31, 1984: General Electric filed its memorandum. Without court authorization, it also filed an amended motion to dismiss raising Rule 41(e).

July 9, 1985: General Electric dismissed from suit.

Montana Power Company

June 8, 1984: Montana Power Company filed a motion to dismiss not raising Rule 41(e).

August 20, 1984: Without court authorization, Montana Power Company filed an amended motion raising Rule 41(e) with supporting memorandum and affidavit.

July 9, 1985: Montana Power Company dismissed from suit.

Owners resisted the above motions to dismiss with their own motions and briefs. On October 22, 1984, owners filed a motion for leave to amend the summons and to correct the variations in the date of issuance shown on the original summons and the duplicate summons. The District Court heard oral argument on all the foregoing motions and on July 9, 1985, granted the motions to dismiss of Burlington Northern, Conoco, Northwest, General Electric, and Montana Power . . for the reason that there was a fatal failure of Plaintiffs to comply with the rule as to service of process.” The District Court also denied owners’ motion for leave to amend the summons. On July 17, 1985, the court granted Chrysler’s motion to dismiss.

I

Did the District Court err by granting the defendants’ motion to dismiss based on Rule 41(e), M.R.Civ.P.?

The District Court dismissed the six defendants involved in this appeal based upon Rule 41(e), M.R.Civ.P., which provides:

“No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a party or not, unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and return made and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years. When more than one defendant has been named in an action, the action may within the discretion of the trial court be further prosecuted against any defendant who has appeared within 3 years, or upon whom summons which has been issued within 1 year has been served and return made and filed with the clerk within 3 years as herein required.”

The six defendants contend that because the original summons dated February 18, 1983, failed to name any of them, and because the so called duplicate summons were not issued until more than one year after the commencement of the action, each of the six defendants should be dismissed from the suit. The record shows that the duplicate summons served upon each of these six defendants were issued more than one year after the commencement of the action and the filing of the first amended complaint. Our rules do not contain a provision for the issuance of a “duplicate” summons. We disregard that terminology in the title of the summons, and conclude that the service of such a summons fails to meet the requirements of Rule 41(e), M.R.Civ.P., which requires that the summons be issued within one year after the commencement of the action. We are not able to relate the actual service back to the summons properly issued on February 18, 1983, because that summons failed to name any of the six defendants in its caption or anywhere else in the summons. As a result, that summons would have been inadequate to give notice to these six defendants because of the absence of the defendants’ names in the summons. We therefore affirm the conclusion of the District Court that the attempted service on Burlington Northern, Chrysler, Conoco, Northwest, General Electric, and Montana Power was insufficient under Rule 41(e), M.R.Civ.P.

We now must determine if the appearances of each of these six defendants are sufficient to constitute a waiver of the insufficiency of service of process defense. Rule 12(h)(1), M.R.Civ.P., contains the following provisions with regard to waiver of the insufficiency of service of process defense:

“(1) A defense of lack of jurisdiction over the person, insufficiency of process, or insufficiency of service of process is waived (A) if omitted from a motion in the circumstances described in subdivision (g), or (B) if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.”

Rule 12(g), M.R.Civ.P., referred to in the above quotation states in pertinent part:

“. . . If a party makes a motion under this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted, . . .”

A number of the initial motions filed by the six defendants were motions to dismiss for failure to state a claim upon which relief can be granted as provided for under Rule 12(b), M.R.Civ.P.

In substance, the foregoing rules require that if a defendant makes a motion to dismiss for failure to state a claim upon which relief can be granted, or any other motion under the provisions of Rule 12, he must raise a contention of insufficiency of service of process in that first motion or the objection is waived. The purpose of Rule 12(b), M.R.Civ.P., “is to afford an easy method for the presentation of defenses but at the same time prevent their use for purposes of delay.” 2A J. Moore, Moore’s Federal Practice Paragraph 12.02 (1985). As appears from the foregoing summary, several of these defendants made an initial motion to dismiss for failure to state a claim upon which relief could be granted and failed to make any reference to the insufficiency of service in the original motion. Thereafter, some of the defendants filed amended motions without permission of the District Court raising the Rule 41(e) question on insufficiency of service. Regarding the amendments of motions, 2A J. Moore, Moore’s Federal Practice Paragraph 7.05 (1985) states:

“Where the rules require a motion to be made within a specified time, may a timely motion be amended after expiration of that period to state new grounds? The prevailing view is that the purpose of the time limitation would be defeated if a party could file a skeleton motion and later fill it out, possibly adding new grounds. (Citing Martinez v. Trainor (7th Cir. 1977), 556 F.2d 818.)”

We agree with the rationale behind the prevailing view stated above. However, as Wright and Miller point out, the ability to amend a motion should be left to the discretion of the trial judge, and his ability to deny leave to amend when he believes the amendment process is being abused provides a sufficient safety valve. Wright and Miller Federal Practice and Procedure Section 1194 (1986 Supplement). We hold that prior approval of the District Court is a prerequisite to the proper filing of an amended Rule 12(b) motion.

In this case, both Burlington Northern and Chrysler raised the insufficiency of service of process defense under Rule 41(e) in their initial motions to dismiss. We conclude that they raised the Rule 41(e) defense in their first motion as required by Rule 12, and further conclude that the District Court properly dismissed Burlington Northern and Chrysler.

Conoco filed a motion to dismiss which did not raise Rule 41(e) and also moved for additional briefing time until August 17, 1984. While Conoco’s motion to dismiss was denied, the subsequent order of the District Court rescinded that denial and granted Conoco until August 17, 1984, in which to brief their motion to dismiss. In that brief Conoco argued for dismissal based upon Rule 41(e). Conoco did not raise the Rule 41(e) issue in a motion or an amended motion. A brief cannot be construed either as a pleading or a motion under Rule 12. As stated in 5 Wright and Miller, Federal Practice and Procedure Section 1347 (1969):

“The purpose of Rule 12(b) is to promote the expeditious and simultaneous presentation of defenses and objections. In order to accomplish this objective, the rule provides that all defenses and objections must be raised in one of two ways. First, every defense, in law or in fact, may be asserted in the responsive pleading. Second, seven enumerated defenses may be made by a single preliminary motion or by responsive pleading, whichever appears to be the more advantageous procedure to the party who wishes to assert one or more of them.”

Conoco failed to raise the objection in the motion which constituted its original appearance, and therefore did not meet the requirements of Rule 12(b). We conclude that Conoco was improperly dismissed by the order of the District Court.

Northwest Airlines filed a motion to dismiss and motion for a more definite statement and a supporting memorandum without raising Rule 41(e). About 16 days later, and without court permission, Northwest filed an amended motion to dismiss and motion for a more definite statement which raised Rule 41(e). Northwest failed to raise the Rule 41(e) defense at its first appearance and therefore did not meet the requirements of Rule 12(b). Northwest did not get prior approval of the District Court to file its amended motion. The fact that Northwest filed an amended motion to dismiss within twenty days of its original motion does not cure these defects because Rule 15(a) and Rule 15(c), M.R.Civ.P., regarding amendments and relation back of amendments, pertain only to pleadings. Rambur v. Diehl Lumber Company (Mont. 1964), 144 Mont. 84, 394 P.2d 795. We conclude that Northwest was improperly dismissed by order of the District Court.

General Electric filed a general motion to dismiss which did not mention Rule 41(e). About a month and a half later, General Electric filed a motion for additional time to file its brief in support of its motion to dismiss which was granted. General Electric then filed an amended motion to dismiss raising Rule 41(e) and a motion for a more definite statement, with accompanying memorandum. General Electric was not given permission by the court to file the amended motion to dismiss. From the time General Electric filed its motion to dismiss to the time it filed its amended motion to dismiss, over three and one-half months had elapsed. This is precisely the type of delay that Rule 12(b) attempts to prevent. In addition, General Electric did not raise Rule 41(e) at its first appearance and was not give court permission to file the amended motion to dismiss.. Accordingly, we conclude that General Electric was improperly dismissed by order of the District Court.

Montana Power Company filed a motion to dismiss which did not raise Rule 41(e). About two and a half months later, without court permission, it filed an amended motion to dismiss and a supporting memorandum which raised Rule 41(e). Montana Power failed to raise the Rule 41(e) defense at its first appearance, and therefore did not meet the requirements of Rule 12(b). Montana Power was not given prior approval of the District Court to file its amended motion to dismiss. Therefore, we conclude that the Montana Power was improperly dismissed by order of the District Court.

II

Did the District Court err when it denied owners’ motion to amend the original and duplicate summons?

The owners maintain that they should have been allowed to amend the date on the “duplicate summons” issued to each defendant to correspond to the date in the original summons. Under Rule 4D(7), M.R.Civ.P., a court, in its discretion, may allow any process or proof of service to be amended unless material prejudice would result to the party against whom the process was issued.

The owners cite Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517, in support of their argument that a court has discretion to allow amendments of process. However, Larango is distinguishable from this case on two grounds. First, the altered summons in Larango was issued within nine days after the action was commenced as opposed to over one year in this case. Second, the defendants may have been substantially prejudiced in this case because of lack of notice of the lawsuit and lack of knowledge of prior discovery proceedings which commenced during the one year after the amended complaint was filed. Whether a defendant is substantially prejudiced is a question for the district court.

On appeal, this Court will not substitute its judgment for that of the district court but rather will only consider whether substantial credible evidence supports the district court’s findings. Those findings will not be overturned by this Court unless there is a clear preponderance of the evidence against them, Phennicie v. Phennicie (1979), 185 Mont. 120, 604 P.2d 787.

We hold that the District Court did not err when it denied owners’ motion to amend the original and duplicate summons. The District Court had reason to believe substantial prejudice would develop against the defendants if the amendment was allowed and this Court will not overturn the District Court unless there is a clear preponderance of the evidence against the District Court’s findings.

Ill

Did the District Court err by not granting owners additional time within which to file their brief opposing the motion to dismiss of Burlington Northern?

The owners contend that the District Court abused its discretion by allowing various defendants extensions to file briefs and not allowing owners an extension to file their brief opposing the motion to dismiss of Burlington Northern. In the lower court’s action, owners filed a motion asking the court to reconsider its dismissal of Burlington Northern. On December 16, 1984, oral arguments were presented by owners on that issue. After the oral arguments, the District Court, on July 9, 1985, reaffirmed its previous order dismissing Burlington Northern.

We hold that the District Court did not err by not granting owners additional time to file their brief opposing Burlington Northern’s motion to dismiss.

In summary, we hold that the District Court properly dismissed Burlington Northern and Chrysler from this suit. Conoco, Northwest, General Electric, and Montana Power were improperly dismissed by the District Court and should be reinstated as parties in this suit.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT, SHEEHY and MORRISON concur.

MR. JUSTICE GULBRANDSON did not participate in this decision.


text:
    MARILYN JESMAIN, Plaintiff and Respondent, v. MARGARET MILLS, Defendant and Appellant.
    No. 86-235.
    Submitted on Briefs Sept. 4, 1986.
    Decided Nov. 24, 1986.
    728 P.2d 800.
    Emmons & Coder, H. William Coder, Great Falls, for defendant and appellant.
    Alexander & Baucus, Floyd Corder, Great Falls, for plaintiff and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an action for a declaratory judgment brought by Marilyn Jesmain. The District Court of the Eighth Judicial District, Cascade County entered summary judgment in her favor. Margaret Mills appeals. We affirm.

The appellant raises four issues on appeal:

1. Did the District Court err in granting plaintiffs motion for summary judgment?

2. Did the District Court err in concluding that appellant was not a judgment debtor or creditor as defined by law.

3. Did the District Court err in concluding that there were no material issues of fact which required resolution?

4. Did the District Court err in its conclusion that appellant’s redemption was invalid?

In 1978, Marilyn Jesmain and Margaret Mills acquired title to real property in Cascade County. Jesmain paid $29,000 down and Mills promised she would fnake the monthly payment to eliminate the remaining $20,000 balance. Both women executed a promissory note and mortgage to Albert Lawson for the remaining $20,000. In 1981, Jesmain and Mills executed another promissory note and trust indenture covering the same property to Safeco Title Insurance Company as trustees for Aetna Finance Company for $6,259.46.

Mills failed to make payments on the original note and in November, 1983, Jesmain filed a complaint against Mills asking that sole right, title and interest in the real property be vested in Jesmain or alternatively, she moved for partition of the property. Lawson was named as sole lienholder on the property.

The Court entered default judgment against Mills in March, 1984. The court decreed:

“1. That [Jesmain] is the owner in fee simple of those certain lands and premises [at issue] . . . free and clear from all claims, rights, titles, estates, interest, liens or encumbrances of the Defendant Margaret Mills in that the Defendant Margaret Mills does not have any right, title, estate or interest in, or lien or encumbrance upon the said upon described property lands and premises or any thereof and that her claims to the same, or any part thereof, are null, void, and of no effect, and that the fee simple title of the Plaintiff is subject to a mortgage executed by Plaintiff and Margaret Mills which is a first lien on the real property, which mortgage is recorded at Reel 127, Document 554 of the records filed in the office of the Clerk and Recorder of Cascade County, Montana, which mortgage was in the original principal amount of $20,000.00
“2. That Defendant Margaret Mills is forever barred and, restrained from asserting any claim whatsoever in or to the above-described premises.”

No appeal was taken from that judgment. In a counterclaim in the same proceeding, Albert Lawson sought to foreclose his mortgage on the real estate. A foreclosure judgment was entered in his favor in June, 1984. The property was ordered to be sold at sheriff’s sale and the deficiency, if any existed, to be entered against Jesmain and Mills personally. The property was sold at sheriffs sale in August, 1984. It sold for more than the outstanding mortgage so no deficiency was entered. The real property was redeemed by Mills on July 30, 1985. The next day, July 31, 1985, Jesmain tendered the redemption amount to the sheriff and was informed that Mills had already redeemed.

Jesmain filed the instant action for declaratory judgment seeking to set aside Mills’ redemption of the property. The District Court granted summary judgment in Jesmain’s favor. The Court concluded that when one joint tenant’s interest in real property has been canceled prior to a foreclosure sale that tenant no longer has the right to redeem.

Although appellant raises four issues on appeal, those issues can be summarized as, did the District Court err in granting summary judgment for Jesmain?

We begin with the standard of review for summary judgments. It is well settled that summary judgment is proper if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Clarks Fork National Bank v. Papp (Mont. 1985), [215 Mont. 494,] 698 P.2d 851, 42 St.Rep. 577; Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 637 P.2d 509. There are no issues of material fact in this case, so we turn to the issue of which party is entitled to judgment as a matter of law.

The issue is who has the right to redeem from sheriffs sale? Section 25-13-801, MCA provides:

“(1) Property sold subject to redemption, as provided by 25-13-710, or any part sold separately may be redeemed in the manner hereinafter provided by the following persons or their successors in interest:
“(a) the judgment debtor, the judgment debtor’s spouse, or his successor in interest in the whole or any part of the property and, if the judgment debtor or successor be a corporation, a stockholder thereof;
“(b) a creditor having a lien by judgment, mortgage, or attachment on the property sold or on some share or part thereof subsequent to that on which the property is sold. If a corporation be such creditor, then any stockholder thereof may redeem.”

This Court has held that the term judgment debtor “refers exclusively to the debtor whose land was subject to forced sale.” Marcellus v. Wright (1916), 51 Mont. 559, 563, 154 P.714, 716. In the case at hand, Mills’ interest in the property had been terminated prior to the foreclosure, hence she was not a judgment debtor pursuant to Section 25-13-801, MCA. She was also not a redemptioner as provided by Section 25-13-801(2), MCA because she was not a creditor who held a lien on the property.

Appellant contends that because Mills’ statutory right of redemption was not pled or proved in the original termination proceeding or in the foreclosure action, the judgments are both valid. In effect, appellant seeks to collaterally attack and reopen both judgments. We will not do that. Mills’ right of redemption was terminated when her right, title and interest in the property was terminated. It did not exist at the time of the foreclosure action, nor does it exist now. Mills is a stranger to title who has no right of redemption.

Appellant’s last contention centers around the Aetna mortgage. That mortgage was satisfied in 1985, and a deed of reconveyance was issued to Jesmain and Mills by Aetna. Appellant contends that the deed of reconveyance creates an after-acquired interest which entitles Mills to redeem. We disagree. The deed of reconveyance merely conveyed Jesmain’s interest in the property back to her. The deed of reconveyance could not create a new interest in the property in Mills.

We affirm the judgment of the District Court in all respects.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY GULBRANDSON, HARRISON and MORRISON concur.


author: MR. JUSTICE MORRISON

text:
    CITY OF BILLINGS, Plaintiff and Respondent, v. RAYMOND K. PEETE, Defendant and Appellant.
    No. 86-303.
    Submitted Sept. 18, 1986.
    Decided Nov. 24, 1986.
    Rehearing Denied Jan. 13, 1987.
    729 P.2d 1268.
    Sandall, Cavan, Smith, Howard & Grubbs, John J. Cavan, Billings, for defendant and appellant.
    Bonnie Sutherland, City Attorney’s Office, Billings, for plaintiff and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Raymond K. Peete, defendant, was convicted in Billings City Court of violating Section 61-8-401(l)(a), MCA, driving while under the influence of alcohol. He appealed his conviction to Yellowstone County District Court. Defendant filed a motion to dismiss, alleging that he was not operating a motor vehicle “upon the ways of the state open to the public,” as required by the statute. The motion to dismiss was denied. Defendant was again convicted of violating Section 61-8-401(1)(a), MCA. Defendant appeals the District Court’s failure to grant his motion to dismiss. We affirm.

Defendant’s motion to dismiss was accompanied by a stipulation of facts. The following facts are taken from that stipulation:

Defendant was arrested at approximately 10:30 p.m., August 2, 1984, in the Northern Hotel parking garage for driving while under the influence of alcohol.

The parking garage is a privately owned and operated facility. It consists of five levels of parking spaces. The spaces on the ground level and the below-ground level are rented on a monthly basis. The top three levels are available to the general public for an hourly fee. After 5:00 p.m., the general public may also use unoccupied spaces on the two lower levels.

Use of the garage is controlled by employees of the owner of the garage. The parking attendant occupies a ticket booth located between the entry and exit lanes of the facility. Patrons entering the garage receive a ticket from the attendant who is stationed at the ticket booth. Upon exiting the parking facility, the patron must stop at the ticket booth, show the attendant his ticket and pay the appropriate fee. All patrons use the same entry and exit. However, monthly renters need not stop at the booth.

Defendant rents a parking space on the below-ground level. On the night he was arrested, defendant was exiting the lowest level via an up-ramp when his vehicle collided with a motorcycle parked in an area near the ramp reserved for bicycles and motorcycles. Defendant advised the parking attendant of the accident and was subsequently arrested.

The sole issue raised on appeal is:

Did defendant, Raymond Peete, operate a motor vehicle “upon the ways of the state open to the public”, within the meaning of Section 61-8-401, MCA, when he operated his vehicle within a privately owned and operated parking garage in Billings, Montana?

The statute under which defendant was charged, Section 61-8-401, MCA, states:

“Persons under the influence of alcohol or drugs. (1) It is unlawful and punishable as provided in 61-8-714 for any person who is under the influence of:
“(a) alcohol to drive or be in actual physical control of a vehicle upon the ways of this state open to the public.”
“Ways of this state open to the public” is defined at Section 61-8-101(1), MCA, as “any highway, road, alley, lane, parking area, or other public or private place adapted and fitted for public travel that is in common use by the public.”

Defendant contends that the Northern Hotel’s parking garage is neither “adapted and fitted for public travel” nor “in common use. by the public” because there is only one way to access the facility, access is achieved only upon obtaining a ticket from the parking attendant and use of the facility requires payment of a monthly or hourly fee. The City of Billings contends that the statute refers to any parking area, including private parking garages; or, in the alternative, that the garage is “adapted and fitted for public travel that is in common use by the public” because the general public is permitted to use the facility for a small fee.

Section 61-8-401(1), MCA, was enacted in its present form by the 1983 Montana legislature. Because the language defining “the ways of this state open to the public” is less than clear, especially the term “in common use by the public”, we turn to the legislative history to determine what the legislature had in mind.

Our statute is patterned after a City of Seattle traffic ordinance, Seattle Traffic Code Sections 11.12.1020 and 11.14.715.

“. . . any road, alley, lane, parking area or any place, private or otherwise, adapted to and fitted for travel, that is in common use by the public with the consent, express or implied, of the owner or owners thereof.”

The initial legislation before our 1983 legislature included the words “with the express or implied consent of the owner” at the end. The phrase was deleted, however, to eliminate the burden of proving consent when the arrest was made in a private parking lot.

“[Betty Wing, Deputy County Attorney for Missoula County] also advised that when they go to court they have to prove everything that is in this language and the language on the end says ‘with the express or implied consent of the owner’; she did not think that this adds anything, and it is just one more thing they are going to have to prove. She indicated that they would have to bring in the manager of K-Mart to show that they do have express or implied consent and this would just be another hassle for them.
C< * * sfe
“CHAIRMAN BROWN said that he has problems understanding the language ‘with the express or implied consent of the owner’ as this could get in the way in connection with parking lots, the lot in front of the bar, or the lot at the shopping center and he wondered if . . . any of this would be a major problem with this language left as it is. MS. WING replied that it is hard to look at the future, but it appears to be one more conflict that can come up in a trial and she felt that clearly, in any parking lot or driveway, [one] does have the express or implied consent of the owner but it gets technical in legal terms to prove what implied consent is.”

House Judiciary Committee Minutes, March 11, 1983, pp 4, 6.

Furthermore, when Chairman Brown questioned whether “the language ‘in common use by the public’ would imply that the bar parking lot, etc. would not be affected”, Representative Keyser claimed that the whole phrase “fitted for public travel that is in common use by the public”, would cover private parking lots. House Judiciary Committee Minutes, March 22, 1983, p. 16. Granted, a legislator’s thoughts on what a statute means are not binding on this Court. However, from the discussion had in both the House and Senate Judiciary Committees with respect to this statute, it is clear that the statute was intended to include the operation of a motor vehicle within a private parking lot, as long as that lot is fitted for public travel and in common use by the public. The Northern Hotel’s parking garage fits the definition.

This decision is consistent with Washington court opinions interpreting the City of Seattle’s traffic ordinance.

In City of Seattle v. Wright (1967), 72 Wash.2d 556, 443 P.2d 906, defendant was arrested for driving, while intoxicated, upon an improved, 25 foot wide, hard-surface road owned by the Union Pacific Railroad. One of the four entries onto the two-block road was posted “Private Thoroughfare — 10 M.P.H.” However, local residents parked along the sides and used the road to access their homes. Commercial vehicles also regularly used the road. The Washington Supreme Court found the road to be a “road . . . adapted to and fitted for travel, that is in common use by the public with the consent, express or implied, of the owner . . .” because its surface was similar to nearby public thoroughfares and because the only restriction on travel imposed by the owner was a ten mile per hour speed limit.

Likewise, here, the parking garage is paved. Driving areas are clearly indicated and the only restriction on travel imposed by the owner is that of the payment of a fee.

City of Seattle v. Tolliver (1982), 31 Wash.App. 299, 641 P.2d 719, concerned an individual charged with operating a vehicle, while intoxicated, upon a private parking lot located at a major intersection. The parking lot was held by the court to be an area covered by the traffic ordinance because of its easy access to adjoining streets and its history of use by the public frequenting two taverns.

Similarly, the Northern Hotel’s parking garage not only has a history of use by the public, the public is encouraged to use the facility. The facility is obviously fitted for public travel and in common use by the public. It is thus covered by Sections 61-8-101(1) and 61-8-401(l)(a), MCA.

Defendant’s conviction is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, HUNT and GULBRANDSON concur.


author: MR. JUSTICE MORRISON MR. JUSTICE HUNT,

text:
    WARREN E. SIBLE, Plaintiff and Appellant, v. LEE ENTERPRISES, INC., an Iowa Corp.; Donald Schwennesen; and Max Salisbury, Defendants and Respondents.
    No. 85-181.
    Submitted on Briefs June 12, 1986.
    Decided Nov. 25, 1986.
    Rehearing Denied Jan. 13, 1987.
    729 P.2d 1271.

      Alan J. Lerner, Bigfork, for plaintiff and appellant.
    Milodragovich, Dale & Dye, Harold V. Dye, Missoula, for defendants and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

This is an appeal from the Flathead County District Court jury trial and verdict finding the respondents had not published a newspaper article with actual malice.

We reverse and remand for a new trial.

On December 29, 1982, The Missoulian published an article authored by Donald Schwennesen headlined “Ex-detective accuses Flathead County sheriff of cover-up, harassment.” The article concerned an allegation by a former Flathead County Sheriff’s detective, Max Salisbury, that appellant, Sible, had stolen a meat smoker and covered up the investigation concerning the theft.

Numerous issues are raised in this Court but we find two to be dispositive and to require reversal. Appellant contends that the court improperly instructed the jury on duties owed by The Missoulian to appellant, Sible. Further, appellant contends that the court erred in applying the “shield law” to protect Schwennesen’s notes from being discovered once he had testified as a witness. We find the appellant to be correct on both counts.

First, we must review the evidence in a light most favorable to the appellant and then determine whether the court’s instructions adequately presented appellant’s case to the jury. For our purposes, we assume that appellant was a public official and that the “malice” standard articulated in New York Times Co. v. Sullivan (1964), 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686, applies to the case we here review.

In summary, in viewing the evidence in a light most favorable to the appellant, The Missoulian article charged that appellant had been investigated for theft and indicated that he may have misused his official position by participating in a cover-up of his crime. Specifically, the article states that Max Salisbury filed a notarized statement with the Governor of Montana charging “his investigation of a theft involving a fellow officer (appellant) was covered up.” The article further stated that appellant harassed Salisbury and forced him to terminate his employment.

The charges of theft concerning appellant arose as the result of a “smoker” allegedly taken from one William Eckerson. Eckerson lost his “smoker” in 1974. The “smoker” was worth between $15 and $20. Appellant did in fact have a similar “smoker”, but he obtained his “smoker” in 1970. A subsequent internal investigation within the Sheriff’s Department determined that appellant’s “smoker” was not the one taken from Eckerson and the matter was dropped. The “smoker caper” was generally known to the Kalispell journalism community. Dan Black, managing editor of The Daily Interlake, in Kalispell, refused to publish a story because of the unreliability of the charges made by Salisbury against appellant.

Salisbury’s statement regarding appellant was made during a time of political controversy. Sheriff Rierson, the incumbent Flathead County Sheriff, was engaged in a hot election contest during the fall of 1982. Salisbury was supporting Rierson’s opponent. On October 6, 1982, Rierson’s opponents gathered at the home of one Stevens for the purpose of developing campaign strategy. Salisbury attended this meeting. Stevens informed Salisbury during the meeting that they needed a statement from Salisbury charging appellant with stealing the “smoker” so that they could embarrass Rierson by showing appellant, who worked for Rierson, covered up the investigation of his own theft. At the meeting, Stevens told Salisbury that his friend, the reporter Schwennesen, promised to write an article after the statement was prepared.

Schwennesen knew Stevens disliked Rierson’s administration. Schwennesen informed Stevens that a written notarized statement was necessary for him to write a story. Schwennesen admitted he knew Salisbury’s statement resulted from Stevens’ encouragement and that he knew Stevens was helping Rierson’s opponent. Schwennesen further knew that Stevens had assisted Salisbury in preparing the statement which provided the basis for the subject story ifi The Missoulian. Salisbury became very nervous about Schwennesen doing a story on the “smoker caper.” One John Christian was an investigating officer on the “smoker” allegation. Salisbury asked Schwennesen to contact Christian about the truth of the charges, stating Christian would be open and honest. Both Schwennesen and his editor were aware that Salisbury was nervous about the charges and had requested Christian be contacted to confirm the truth or falsity of the allegation before an article was published.

Schwennesen promised to make an independent investigation of the truth of the charges and contact Christian before publishing an article. Despite his promise, Schwennesen eventually published the story without contacting Christian and without determining in his own mind if Salisbury’s charges were true of false.

Specifically, with reference to the instructions which are hereafter discussed, Schwennesen testified that it occurred to him Salisbury might have signed a false statement. Schwennesen testified under oath that he knew Christian could shed light on the charges of “theft”, “cover-up” and “harassment”. Despite this fact, Schwennesen failed to interview Christian, although Christian was available and willing to be interviewed. Christian testified at the trial that the charges made by Salisbury were without merit and that he would have so advised Schwennesen had he been contacted by Schwennesen prior to publication.

Eckerson, the man who lost his “smoker” in 1974, attempted to dissuade Schwennesen from printing an article. Eckerson told Schwennesen the story was “garbage” which should not be published and further advised Schwennesen that The Missoulian would be sued for publishing the article. Despite Eckerson’s misgivings, Schwennesen informed Eckerson that the story would be published no matter what he said.

With this evidence before the jury, although disputed, the District Judge gave the following three instructions:

“INSTRUCTION NO. 11
“As a matter of law, Plaintiff is a public official, and the newspaper article in question concerned his official conduct. As such, he may not recover against either Defendant unless he proves that the newspaper article was false, unprivileged, and defamatory, and that it was published with malice, that is, with knowledge that it was false, or with a reckless disregard of the truth.
“INSTRUCTION NO. 12
“The term ‘reckless disregard of the truth,’ as used in these instructions, does not mean mere negligence, or even gross negligence or wanton conduct. Rather, it means publishing an article with a high degree of awareness of its probable falsity, or that the Defendants, in fact, entertained serious doubts as to the truth of the publication.
“INSTRUCTION NO. 13
“The following are examples of the types of conduct which constitute malice in publishing a statement or allegation:
“1) The story was fabricated by the Defendant; or,
“2) The story was the product of the Defendants’ imagination; or,
“3) The story was based wholly on an unverified and anonymous telephone call; or,
“4) The story contains allegations that are so inherently improbable that only a reckless person would put them into circulation; or,
“5) The story was published despite obvious reasons to doubt the veracity of the informant upon whom the article was based, or to doubt the accuracy of his reports.
“This list is provided to aid you in determining whether malice has been shown by the evidence in this case. By providing it, the Court does not mean to suggest that the list is all-encompassing and therefore exclusive, nor does it suggest that the evidence supports or does not support the presence of any such conduct in this case.”

Instruction No. 11 is taken from New York Times Co. v. Sullivan, supra. The instruction is a correct statement of the law. Instruction No. 12 is fatally defective in that it defines “reckless disregard of the truth”, as used in Instruction No. 11, as being equivalent to having serious doubts about the truth of the statement. Instruction No. 13 is erroneous in that it seeks to itemize instances of malice to the exclusion of other instances which may not have occurred to the District Judge. Lists such as the one set forth in Instruction No. 13 are seldom appropriate.

The effect of Instruction No. 12 is to shield a newspaper where it knows that the source of its information is highly suspect but fails to investigate. The newspaper is shielded because it failed to investigate and find out that certain information was false, choosing rather to close its eyes and publish with no actual serious doubts about the falsity of the material. Such a rule encourages irresponsible journalism. When a newspaper has facts that indicate material is highly suspect, it should, and it does, have a duty to investigate before publishing.

Instruction No. 11 correctly stated the law. A newspaper is only liable for malice where it publishes with knowledge of falsity or with a reckless disregard of the truth.

The erroneous instructions may well have influenced the outcome of this case. Schwennesen and his editor had reason to believe that Salisbury’s statement was highly suspect. Schwennesen failed to interview Christian, who would have told him that the statement was without any substance or merit. The Missoulian published Salisbury’s statement without fully investigating and therefore, without actually knowing the statement was false. Under the instructions of the court, the jury could have found that The Missoulian was reckless in failing to investigate but nevertheless found there was no malice because The Missoulian did not entertain serious doubts about the actual truth of the statement. Upon remand, the court will instruct upon the proper standard without embellishment.

Appellant further raises error in the District Court’s ruling which applied the “shield law” to protect Schwennesen’s notes. Generally, a reporter’s sources are privileged. The applicable statutes are found in the “Media Confidentiality Act”, Sections 26-1-901, et seq., MCA. Section 26-1-902, MCA, provides:

“(1) Without his or its consent no person, including any newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service or any person connected with or employed by any of these for the purpose of gathering, writing, editing, or disseminating news may be examined as to or may be required to disclose any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of his employment or its business.
“(2) A person described in subsection (1) may not be adjudged in contempt by a judicial, legislative, administrative, or any other body having the power to issue subpoenas for refusing to disclose or produce the source of any information or for refusing to disclose any information obtained or prepared in gathering, receiving, or processing information in the course of his or its business.”

The above-quoted statute protects a reporter’s sources. Schwennesen’s notes were shielded by this statute until he took the witness stand or testified by way of deposition. Section 26-1-903(2), MCA, provides:

“(2) If the person claiming the privilege voluntarily offers to testify or to produce the source, with or without having been subpoenaed or ordered to testify or produce the source, before a judicial, legislative, administrative, or other body having the power to issue subpoenas or judicially enforceable orders, he or it waives the provision of 26-1-902.”

Under this provision, Schwennesen waived his privilege to keep his notes confidential. Upon retrial the notes are subject to discovery if Schwennesen testifies.

Judgment in favor of The Missoulian is vacated. The case is remanded for a new trial in accordance with the view herein expressed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HARRISON, GULBRANDSON and SHEEHY concur.

MR. JUSTICE HUNT,

concurring:

I concur with the majority opinion concerning the jury instructions given by the Court and I concur in the reversal of the action on that basis. However, I do not agree with the majority that the facts are as clear as they present them.

My review of the record indicates that the article contains errors and omissions, and in the final analysis proved to be false. However, the fact that the article ultimately proved to be false does not change my belief that Sible has failed to clearly and convincingly prove that the article was published with actual malice. As stated in New York Times Co. v. Sullivan (1964), 376 US. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.

“The constitutional protection does not turn upon ‘the truth, popularity, or social utility of the ideas and belief which are offered.’ (Citation omitted.)
“[E]rroneous statement is inevitable in free debate, and . . . must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need ... to survive . . .’ (Citation omitted.)”

376 U.S. at 271-72, 84 S.Ct. at 721, 11 L.Ed.2d at 701.

Montana is also committed to the notion that freedom of expression should be as broad and unfettered as possible recognizing such freedom must be weighed against an individual’s right of privacy and reputation. 1972 Mont. Const., Art. II, Section 7; Cox v. Lee Enterprises (Mont. 1986), [222 Mont. 527,] 723 P.2d 238, 43 St.Rep. 1476.

Sible raises a number of errors and omissions in the article, but especially finds fault with respondents’ failure to adequately investigate the story, and with the use of the words “theft” and “coverup.” Investigatory failures alone are insufficient to establish reckless disregard of the truth. Instead, Sible must show that the respondents’ conduct was highly unreasonable and constituted “an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.” Curtis Publishing Co. v. Butts (1967), 388 U.S. 130, 155, 87 S.Ct. 1975, 1991, 18 L.Ed.2d 1094, 1111.

Here, while respondents’ investigation could have been more thorough, it was not so unreasonable as to constitute an extreme departure from responsible publishing standards.

Prior to his work on this story, Schwennesen had never met Salisbury, and knew Sible only by appearance. Sible testified he did not believe Schwennesen or anyone else at The Missoulian was “out to get him.” Schwennesen interviewed all the major participants involved except one, a deputy named Christian. He attempted to contact Christian twice but he was on vacation. Schwennesen did not contact Christian after he returned from vacation because by that time, Sible had admitted to Schwennesen that he had the smoker. The Missoulian also consulted with its legal counsel prior to publication.

Schwennesen testified that Salisbury appeared to be candid, forthright, and “sincerely believed what he was telling” him. Further, Schwennesen verified the majority of facts in the story. He confirmed that the smoker was missing and that Sible admitted having it in his possession. Salisbury’s investigation into the matter was authorized by Sheriff Rierson who later put Sible in charge of the detective division. Salisbury’s subsequent reprimand, transfer to patrol, and ultimate resignation were verifiable facts. I do not agree that respondents’ investigatory failures were so extreme as to amount to reckless disregard of the truth.

Sible argues respondents’ use of the words “theft” and “cover-up” in the article constitutes reckless disregard of the truth. None of the sources for the story used those words and Sible argues their use by Schwennesen amounted to fabrication and publication of a known falsehood. I do not agree.

The owner of the smoker, Eckerson, told Schwennesen that he had seen a smoker that looked like his on property he believed to be Sible’s. Eckerson further testified that he thought Sible had taken his smoker, but did not want to make an issue of it. In Salisbury’s notarized statement which Schwennesen read, he states that a man, Eckerson, told him Sible “stole his smokehouse.” Salisbury went to Sible’s residence and “located the smokehouse.” Although no one used the word “theft,” it was implied from the statements and interviews Schwennesen had prior to publication.

The use of the word “cover-up” derived from the fact that after Sible was placed in charge of the detective division, Salisbury was reprimanded for failure to solve cases and his demeanor with female complainants. He later transferred to the patrol division and ultimately resigned.

I do not agree that respondents acted in reckless disregard of the truth in using the words “theft” and “cover-up.” Instead, the article was based upon interviews with the major participants and probable conclusions from verified facts.

Furthermore, I do not believe Schwennesen waived the shield law as set out in Section 26-1-902, MCA, by taking the stand.

Schwennesen was named defendant in this action. He did not file a counterclaim or a cross-claim, but did take the stand in his own defense. He testified in great detail as to the circumstances involving preparation of the article. However, at no time did Schwennesen offer to introduce any portion of his notes into evidence, nor did he refer to his notes in his testimony to refresh his recollection or bolster his testimony. I cannot agree that Schwennesen ever “voluntarily offered” to produce or testify concerning the contents of his notes.

The case of Lal v. CBS, Inc. (E.D.Pa. 1982), 551 F.Supp. 364, Aff’d (3d Cir.1984), 726 F.2d 97 is similar. In that case, a federal district court judge held a reporter’s notes privileged under Pennsylvania’s shield law even though the reporter had already revealed her primary sources. In this case, Schwennesen revealed his sources and testified concerning preparation of the article. He did not voluntarily testify concerning his notes or their contents.

Section 26-1-902, MCA, was written to encourage a free and dynamic press by protecting journalists and related media personnel from compelled disclosure of sources and confidential information. It is our duty to uphold legislative intent whenever possible. Therefore, I would conclude that the District Court was correct in refusing to compel production of Schwennesen’s notes.

Because I agree that the jury was not properly instructed as to actual malice, I concur with the majority in reversing and remanding for new trial.


text:
    ROBERT H. BURKLAND, Claimant and Appellant, v. COP CONSTRUCTION, Employer, and State Compensation Insurance Fund, Defendants and Respondents.
    No. 86-74.
    Submitted on Briefs Oct. 23, 1986.
    Decided Nov. 25, 1986.
    728 P.2d 806.
    Nye & Meyer, Jerrold L. Nye, Billings, for claimant and appellant.
    Crowley Law Firm, William J. Mattix, Billings, for defendant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Claimant, Robert H. Burkland (Burkland) appeals the decision of the Workers’ Compensation Judge to deny claimant an award of costs and attorney’s fees. We affirm the decision of the lower court.

Burkland fractured the neck of his left femur on April 1, 1983, while employed by COP Construction. COP Construction’s insurer, the State Compensation Insurance Fund (State Fund), agreed the injury was compensable. Temporary total disability benefits at the statutory rate of $254.93 per week were paid by State Fund from April 18, 1983, until March 19, 1985.

Burkland achieved maximum medical healing by March 15, 1984. At that time, Burkland’s physician determined his permanent physical impairment rating to be 25%. After a September 4, 1984, visit, Burkland’s physician determined that Burkland’s leg had regained 90 - 95% of its musculature strength and that there was a very low probability of future difficulties. Burkland was therefore released to return to work as a truck driver.

On March 19, 1985, the State Fund converted Burkland’s temporary total disability benefits to permanent partial disability benefits of $131.50 per week. Burkland expressed apprehension about competing with younger, healthier individuals for truck driver positions. He determined that his ability to support himself would improve if he owned either a home or his own truck. Negotiations were thus commenced with the State Fund for a lump-sum settlement.

Burkland initially suggested $45,000, a figure based on the temporary total disability benefits rate rather than the permanent partial disability rate. The State Fund countered with an initial offer of $16,437.50 as a “compromise settlement.” That figure represents the rate of $131.50 per week over 500 weeks, rather than the scheduled term of 300 weeks for a leg, diminished by 25%. Subsequent to that offer, the State Fund made a lump-sum payment of $6,500 to Burk-land and increased its settlement offer to $19,200, including the $6,500.

Burkland refused the offer and filed a petition for hearing with the Workers’ Compensation Court requesting the Court to find and order the following:

1. That Burkland suffered a compensable injury;

2. That Burkland has been totally disabled since the date of that injury and will remain so until obtaining employment;

3. That Burkland’s earning capacity has been impaired, resulting in a permanent partial disability;

4. That the State Fund is liable for Burkland’s injuries;

5. That Burkland shall receive a lump-sum settlement; and

6. That Burkland shall receive from the State Fund his reasonable attorney’s fees and costs.

Thereafter, on April 15, 1985, Burkland started driving truck again, part-time. He was still employed as a truck driver and earning approximately $200 a week at the time of the hearing on his petition. The hearing consisted primarily of testimony from Burk-land and rehabilitation and vocational counselors as to Burkland’s prospects for employment comparable in earnings to his previous employment at COP Construction.

At the close of the hearing, both parties were ordered to submit proposed findings and conclusions to the lower court. From those documents and accompanying briefs, it is clear that both parties agree Burkland is entitled to benefits of $131.50 per week. The controversy centers around the number of weekly payments to which Burkland is entitled. Burkland contends he is entitled to the statutory maximum of 300 weeks. See Sections 39-71-705 and -706, MCA. State Fund contends Burkland is entitled to at least 75 weeks of $131.50 per week benefits. Then, at that point, the State Fund requests the right to adjust Burkland’s benefit rate to more accurately reflect his actual diminution in earnings.

In addition, Burkland, in his proposed findings and conclusions, contends that because the law at that point in time allowed the State Fund to reduce any lump-sum entitlement to present value, a lump-sum award would serve no useful purpose to Burkland and should be denied.

The Workers’ Compensation Judge found that “[t]he parties’ proposed findings substantially limit the issues before the court.” He then stated that Burkland is not entitled to a lump-sum; that claimant’s proper current benefit rate is $131.50 per week; and that the maximum duration of those benefits is 300 weeks. Having thus eliminated several of the issues before him, the Workers’ Compensation Judge stated the two remaining issues to be:

1. Is the State Fund entitled to a periodic update in Burkland’s income status so that the State Fund may determine whether an adjustment of claimant’s benefit rate is appropriate?

2. Is Burkland entitled to attorney’s fees and costs?

In his order, the Workers’ Compensation Judge granted the State Fund leave to petition the court one year after the date of trial for a review of claimant’s earnings and awarded Burkland attorney’s fees and costs. The State Fund petitioned for rehearing on the issue of attorney’s fees and costs. Upon review, the judge reversed his earlier decision and refused to grant attorney’s fees and costs to Burkland.

The sole issue on appeal is whether Burkland is entitled to attorney’s fees under Section 39-71-612, MCA. That section states in pertinent part:

“Costs and attorneys’ fees that may be assessed against an employer or insurer by workers’ compensation judge. (1) If an employer or insurer pays or tenders payment of compensation under Chapter 71 or 72 of this title but controversy relates to the amount of compensation due, the case is brought before the workers’ compensation judge for adjudication of the controversy, and the award granted by the judge is greater than the amount paid or tendered by the employer or insurer, a reasonable attorney’s fee is established by the workers’ compensation judge if the case has gone to a hearing may be awarded by the judge in addition to the amount of compensation.”

Burkland contends that the sum awarded him by the court, $39,450 ($131.50 x 300 weeks), exceeds the compromise settlement offer of $19,200 made by the State Fund prior to trial. Therefore, “the award granted by the judge is greater than the amount . . . tendered by the . . . insurer” and he is entitled to attorney’s fees.

The State Fund contends, on the other hand, that the $19,200 was an offer for a lump-sum settlement made in response to Burkland’s initial request for a lump-sum payment of $45,000. Because Burk-land’s request for a lump-sum settlement was dropped, the award granted by the judge had nothing to do with the original lump-sum settlement offer. Claimant walked out of court with nothing more than with what he had walked in, $131.50 a week for a maximum of 300 weeks. Because Burkland’s award was not greater than what the State Fund had previously paid, there is no ground for an award of attorney’s fees. The Workers’ Compensation Judge agreed with the State Fund, as do we.

We find Burkland’s argument that the pre-trial settlement offer by the State Fund was not one for a lump-sum payment to be without merit. Burkland himself started the pre-trial settlement negotiations because he wished to purchase his own truck and/or trailer and become an independent truck driver. The reasons proffered by Burk-land for the lump-sum payment are identical to the statutory purpose of lump-sum payments, to make more probable claimant’s ability to sustain himself. See Section 39-71-741(2), MCA. In addition, Burkland’s first letter to the State Fund refers to the settlement as a lump-sum payment. The State Fund termed its offer a “compromise settlement,” because it was offered in lieu of going to trial. It was still a lump-sum settlement, however, as opposed to a structured settlement.

Section 39-71-612, MCA, governs the award of attorney’s fees when the claimant prevails in a hearing where the issue centers around a lump sum settlement. Polich v. Whalen’s O.K. Tire Warehouse (Mont. 1981), 634 P.2d 1162, 38 St.Rep. 1572. However, there is no controversy with respect to a lump-sum payment as Burkland withdrew his request for one. The award granted Burkland by the Workers’ Compensation Judge is no greater than the weekly benefits paid to Burkland prior, to the hearing. There is no basis for an award of attorney’s fees to Burkland.

The decision of the lower court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur.


text:
    FREDERIC D. DASSORI, Plaintiff and Appellant, v. ROY STANLEY CHEVROLET CO., and Roy Stanley, individually, Defendants and Respondents.
    No. 86-268.
    Submitted on Briefs Sept. 25, 1986.
    Decided Nov. 25, 1986.
    728 P.2d 430.
    Murphy, Robinson, Heckathorn & Phillips, Debra D. Parker and Dana Christensen, Kalispell, for plaintiff and appellant.
    Warden, Christiansen, Johnson & Berg, Gary R. Christiansen, Kalispell, for defendants and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Frederick D. Dassori appeals the April 18, 1986, order of the Eleventh Judicial District Court dismissing, with prejudice, Dassori’s complaint against Roy Stanley Chevrolet Co. and Roy Stanley, individually (defendants). We affirm the dismissal of the complaint.

Dassori, a lawyer residing in the state of Maryland, represented defendants in a dispute with General Motors Company. On October 16, 1984, Dassori filed a complaint against defendants seeking to recover $71,042.59, in attorney’s fees incurred in the action with General Motors Company. An amended complaint was filed October 24, 1984. An answer was subsequently filed and on January 14, 1985, defendants filed and had served their first set of interrogatories and a request for production.

Dassori filed a motion February 13, 1985, for an extension of time in which to answer those interrogatories. The motion was granted February 22, 1985, extending the time in which to respond to March 18, 1985. No response was forthcoming. Therefore, on October 24, 1985, defendants filed a motion to dismiss Dassori’s complaint pursuant to Rule 37(d), M.R.Civ.P., for failure to answer interrogatories. A hearing on the motion was set for November 5,1985, but was subsequently vacated. The hearing was finally held March 13, 1986.

In the interim, defendants filed a counterclaim against Dassori. Dassori’s motion to dismiss the counterclaim as untimely was denied February 11, 1986.

Dassori appeared personally at the March 13, 1986, hearing on defendants’ motion to dismiss. He also supplied the court with answers to the interrogatories and the requested documents at that time. Nevertheless, the trial judge dismissed Dassori’s complaint by order dated April 18, 1986. Dassori’s motion for reconsideration was denied at a hearing on May 22, 1986.

The sole issue on appeal is whether the trial judge abused his discretion when he dismissed Dassori’s amended complaint against defendants. Dassori contends the trial judge abused his discretion in several ways. First, if any sanction should have been imposed, it should have been less severe than dismissal of the case. Second, no sanction should have been imposed as the District Court never issued an order to compel the answers and Dassori eventually responded.

This Court has addressed the imposition of Rule 37, M.R.Civ.P., sanctions several times in the recent past. The primary thread binding each of those decisions is the deference this Court gives to the decision of the trial judge. Rule 37, M.R.Civ.P., sanctions exist in order to deter dilatory parties. They provide the trial judge with a way to prevent an excessive back-log of cases. The trial judge is in the best position to know the extent of the back-log and to know which parties callously disregard the rights of their opponents and other litigants seeking their day in court. The trial judge is also in the best position to determine which sanction is the most appropriate.

“[W]hen it is not possible for this Court to make a ready, confident, and accurate determination of a party’s good faith in the discovery process, we presume the correctness of the District Court’s action under Rule 37.”

Owen v. F. A. Buttrey Co. (Mont. 1981), 627 P.2d 1233, 1237, 38 St.Rep. 714, 719, citing National Hockey League v. Metropolitan Hockey Club, Inc. (1976), 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747.

Rule 37(d), M.R.Civ.P., on which defendant’s motion to dismiss is based, states in pertinent part:

“Failure of party to attend at own deposition or serve answers to interrogatories or respond to request for inspection. If a party . . . fails ... (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of Subdivision (b)(2) of this rule.” (Emphasis supplied.)

Those authorized actions are:

“(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
“(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
“(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.” (Emphasis supplied.)

Clearly, a permitted sanction is dismissal of the action. We find no abuse of discretion by the trial judge in imposing that sanction.

Unlike in Rule 37(a), M.R.Civ.P., no mention is made in Rule 37(d), M.R.Civ.P. of a motion to compel. Indeed, a motion to compel is not necessary in Rule 37(d), M.R.Civ.P. actions. See Vehrs v. Piquette (Mont. 1984), [210 Mont. 386,] 684 P.2d 476, 480, 41 St.Rep. 1110, 1115.

Furthermore, a party cannot cure his dilatory actions by presenting the requested answers and documents at the hearing on the motion to dismiss when that hearing is held 14 months after the interrogatories and request for production were received. Dassóri’s “last-minute tender of relevant documents could not cure the problem [he] had previously created.” G-K Properties v. Redevelopment Agency of the City of San Jose (9th Cir. 1978), 577 F.2d 645, 647. To hold otherwise would contribute even more to the delay presently inherent in actions.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, SHEEHY and HUNT concur.