No

No. 98-645

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 75N

ANTHONY K. BLACKMORE

a/k/a TONY BLACKMORE, 

Plaintiff and Appellant, 

v.

RANDALL O. BRATEN, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Thirteenth Judicial 

District, 

In and for the County of Yellowstone,

Honorable G. Todd Baugh, Judge Presiding.

COUNSEL OF RECORD:

For Appellant:

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Morris J. Braden, Billings, Montana

For Respondent:

Mark D. Parker, Parker Law Firm, Billings, Montana

Submitted on Briefs: April 1, 1999

Decided: April 15, 1999

Filed:

__________________________________________

Clerk

Chief Justice J. A. Turnage delivered the Opinion of the Court. 

•1. Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be 

filed as a public document with the Clerk of the Supreme Court and shall be 

reported by case title, Supreme Court cause number, and result to the State Reporter 

Publishing Company and to West Group in the quarterly table of noncitable cases 

issued by this Court.

•2. Anthony K. Blackmore (Blackmore) appeals the order of the Thirteenth Judicial 

District Court, Yellowstone County, dismissing his complaint against Randall O. 

Braten (Braten) for breach of a livestock lease agreement. We affirm. 

•3. The sole issue on appeal is whether the District Court erred in dismissing 

Blackmore•s complaint. 

•4. The complaint in this case was filed on October 26, 1995. An answer was filed on 

December 8, 1995. The District Court held a scheduling conference and set the date 

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for trial on September 30, 1996. Prior to the time set for trial, counsel for the parties 

informed the District Court that they needed more time in which to prepare for trial 

and requested that the court vacate the trial date. 

•5. The District Court granted this request and directed counsel for Blackmore to 

prepare an order to that effect. However, no such order was ever submitted. The 

District Court, therefore, sua sponte prepared a new scheduling order setting a trial 

date for July 14, 1997.

•6. At the pretrial conference, counsel for plaintiff indicated that his office staff had 

made a scheduling error on his trial calendar, and he would require additional time 

to prepare for trial. The District Court granted plaintiff•s motion for a further 

continuance and a new trial date was set for February 9, 1998. In the scheduling 

order, the District Court set December 15, 1997, as the final day for the completion of 

discovery and further directed counsel for plaintiff to convene an attorney•s 

conference during the week of January 12, 1998, for the purpose of completing the 

final pretrial order. 

•7. Prior to the February 9, 1998 trial date, the District Court judge presiding in this 

case recused herself and a substitute judge was assigned. The reassignment of judges 

resulted in the pretrial conference being rescheduled, but did not result in a 

rescheduling of the February 9, 1998 trial date. 

•8. On January 22, 1998, Braten filed a motion to dismiss pursuant to Rule 41(b), M.

R.Civ.P. Blackmore did not respond to the motion, and the District Court, taking this 

as an admission that the motion was well taken, granted the motion and dismissed 

the complaint. Blackmore appeals. 

•9. Did the District Court err in dismissing Blackmore•s complaint ?

•10. In its order dismissing this action, the District Court notes that pursuant to Rule 

2 of the Uniform District Court Rules, a failure to respond to a motion is deemed an 

admission that the motion is well taken. Moreover, in reviewing the file in 

conjunction with Braten•s motion, the District Court noted that apart from the 

complaint, no other documents were filed by Blackmore in this action. The District 

Court also noted that the trial date had been set and reset three times and that 

Blackmore had failed to comply with more than one court order relating to trial. 

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•11. Blackmore argues that the District Court erred in dismissing his complaint 

because the criteria for dismissing an action under Rule 41(b), M.R.Civ.P., have not 

been satisfied in this instance and that his failure to respond to Braten•s motion to 

dismiss was due to his confusion regarding the appointment of a new judge, the 

rescheduling of the pretrial conference and his assumption that a new trial date 

would be set. 

•12. Rule 2 of the Uniform District Court Rules provides:

(a) Upon filing a motion or within five days thereafter, the 

moving party shall file a brief. The brief may be accompanied by 

appropriate supporting documents. Within ten days thereafter the 

adverse party shall file an answer brief which also may be 

accompanied by appropriate supporting documents. Within ten 

days thereafter, movant may file a reply brief or other appropriate 

responsive documents. 

(b) Failure to file briefs. Failure to file briefs may subject the 

motion to summary ruling. Failure to file a brief within five days 

by the moving party shall be deemed an admission that the 

motion is without merit. Failure to file an answer brief by the 

adverse party within ten days shall be deemed an admission that 

the motion is well taken. Reply briefs by movant are optional, and 

failure to file will not subject a motion to summary ruling. 

We have interpreted this Rule as allowing the trial court discretion to either grant or deny 

an unanswered motion. Maberry v. Gueths (1989), 238 Mont. 304, 309, 777 P.2d 1285, 

1289. 

Our standard of review of discretionary trial administration rulings is whether the trial 

court abused its discretion. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 

475, 803 P.2d 601, 603-04.

•13. We reject Blackmore•s argument that the District Court erred in dismissing this 

complaint under the criteria set forth in Rule 41(b), M.R.Civ.P. Blackmore•s failure 

to respond to the motion to dismiss was properly deemed an admission that the 

motion was well taken. To allow Blackmore to advance on appeal his arguments 

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regarding the merits of Braten•s motion after his failure to respond to that motion in 

the District Court would wholly undermine the purpose behind Rule 2 of the 

Uniform District Court Rules that parties be required to respond in a timely manner 

to pleadings filed before the courts. We therefore decline to address Blackmore•s 

arguments regarding the merits of Braten•s motion to dismiss for failure to 

prosecute under Rule 41(b), M.R.Civ.P. 

•14. Moreover, Blackmore•s argument that he failed to respond to the motion to 

dismiss because there had been an intervening substitution of judges is without 

merit. Blackmore cites no authority for his position that the substitution of judges in 

this case rendered Braten•s motion to dismiss moot, or otherwise excused him from 

responding to a motion properly submitted before the District Court. We therefore 

hold that the District Court did not abuse its discretion in granting Braten•s 

unanswered motion to dismiss.

•15. For the foregoing reasons, we hold that the District Court did not abuse its 

discretion in dismissing this action. The judgment of the District Court is affirmed. 

/S/ J. A. TURNAGE

We concur:

/S/ KARLA M. GRAY

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

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