NO. 81-08 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

PHYLLIS J. PETERS, 

Plaintiff, Cross-Defendant and Appellant, 

-vsCLARENCE T. NEWKIRK, 

Defendant, Cross-Plaintiff and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Carbon, The Honorable 

William J. Speare, Judge presiding. 

Counsel of Record: 

For Appellant: 

Joseph E. Mudd, Bridger, Montana 

For Respondent: 

Thomas L. Bradley, Laurel, Montana 

Filed: 

Submitted on Briefs: July 30, 1981 

Decided: September 15, 1981 

SEP 15 198f 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of the 

Court. 

Plaintiff appeals from an order granting summary judgment 

against her, dismissing her complaint and dismissing defendant's 

cross-complaint. 

Plaintiff Phyllis Peters filed an unlawful detainer action 

against defendant Clarence Newkirk for triple damages. The complaint alleged an agreement by defendant to purchase, breach thereof by defendant, damages, and unlawful detainer by defendant. Defendant filed a general denial for answer and a cross-complaint 

for specific performance of the purchase contract. Plaintiff 

answered the cross-complaint substantially denying the facts on 

which defendant's claim for specific performance was based. 

The pleadings were completed on December 8, 1975. On 

December 31, 1975, plaintiff filed a note of issue indicating the 

case was ready for trial before the court sitting without a jury. 

The District Court set the trial for January 22, 1976. This trial 

setting was vacated on January 21. 

In January 1977, the District Court gave notice of the 

intention to dismiss the action on its merits unless good cause 

was shown by February 3 why the case should not be dismissed. The 

date for showing cause was continued to March 3. 

The case was reset for trial on April 14, 1977. The trial 

setting was vacated on that date at request of counsel pending 

settlement. 

On April 13, 1978, the District Court gave a second notice 

of its intention to dismiss the case unless good cause was shown 

by April 27. The date for showing cause was continued seven times 

thereafter, the last continuance being at the convenience of court 

and counsel. 

On January 17, 1980, the District Court gave another notice 

of its intention to dismiss the case unless good cause was shown 

by January 28. The date for showing cause was continued one time. 
On February 29, defendant filed his motion to dismiss the 

case in the interests of justice, or in the alternative for summary judgment. On March 10 a hearing was held. A minute entry on 

that date shows that "Counsel agreed that summary judgment may be 

entered and an order will be presented for the court's signature." 

On November 17, 1980, the District Court ordered that summary 

judgment be entered for defendant, that plaintiff's complaint be 

dismissed, and that defendant's cross-complaint be dismissed. 

Plaintiff appeals from this order. 

Three issues are presented for review: 

(1) Was dismissal of the complaint proper? 

(2) Was summary judgment proper? 

(3) Does equitable estoppel bar plaintiff's claim of lack 

of authority in counsel to stipulate for entry of summary judgment? 

We need only address the first issue in deciding this 

appeal. This case is almost six years old. The pleadings were 

completed and the case set for trial over five years ago. The 

trial setting was vacated twice. The District Court notified 

counsel by three separate written notices in 1977, 1978, and 1980 

of its intention to dismiss the case unless good cause was shown 

by specific dates why the case should not be dismissed. The record discloses no such showing. The date for showing cause was 

continued 9 different times over a period of approximately three 

years. 

Rule 41(b), M.R.Civ.P. provides in pertinent part: 

"Involuntary dismissal -- effect thereof. For 

failure of the plaintiff to prosecute or to comply 

with . . . any order of court, a defendant may 

move for dismissal of an action or of any claim 

against him . . . Unless the court in its order 

for dismissal otherwise specifies, a dismissal 

under this subdivision and any dismissal not provided for in this rule . . . operates as an adjudication upon the merits." 

Here the record discloses the January 21, 1976, trial date 

was vacated as the case was settled and that the April 14, 1977, 

trial setting was vacated pending settlement. The record fur~her 
discloses no cause shown by plaintiff to the trial court why the 

case should not be dismissed. Inaction for three years and lack 

of any excuse has been found unreasonable. Calaway v. Jones (1978), 

177 Mont. 516, 582 P.2d 756. The delay here was unreasonable for 

the same reason. 

Where an unreasonable delay has occurred, the burden rests 

upon plaintiff to come forward and demonstrate an excuse for his 

inaction. Calaway, supra; Cremer v. Braaten (1968), 151 Mont. 18, 

438 P.2d 553. The record discloses no cause shown to the trial 

court by the plaintiff for the delay after April, 1977. 

Prejudice to the defendant due to unreasonable delay is 

presumed. Cremer, supra; State ex rel. Johnstone v. Dist. Ct. (1957), 

132 Mont. 377, 319 P.2d 957. 

The action of the trial court on a motion for dismissal 

for lack of prosecution is addressed to the trial court's sound 

discretion. It is presumed that the trial court acted correctly 

and its decision will not be overturned absent an abuse of that 

drscretion, Calaway, supra; Cremer, supra; Johnstone, supra; Silver 

v. Eakins (1918), 55 Mont. 210, 175 P. 876; State Savings Bank 

v. Albertson (1909), 39 Mont. 414, 102 P. 692. Here there is no 

abuse of discretion by the trial court. 

Plaintiff for the first time in his reply brief suggests 

that the delay is attributable to the infrequent appearances of a 

district judge in Carbon County. This contention loses much of 

its credibility because plaintiff has waited over five years to 

raise it. No substantiation of that contention is offered. Moreover, this Court will not review a matter raised for the first time 

on appeal. Northern Plains v. Board of Natural Resources (1979), 

Mont . , 594 P.2d 297, 36 St.Rep. 666, and cases cited therein. 

In view of our ruling on the first issue on appeal, it 

is unnecessary to reach the last two issues. 
The order of the trial court dismissing the complaint and 

cross-complaint is affirmed. 

Chief Justice 

We concur: