No. 89-344 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

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TOM M. FIELDS and VICKI J. FIELDS, Z 

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Plaintiffs and Appellants, ",zz 

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MAE WELLS, rno 3: r- 3 

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Defendant and Respondent. 00;" cn 

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APPEAL FROM: District Court of the First Judicial District, 

In and for the Co.unty of Lewis & Clark, 

The Honorable Jeffrey Sherlock, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Tom and Vicki Fields, pro se, Mentor, Ohio 

For Respondent: 

John H. Grant; Jackson, Murdo & Grant, Helena, 

Montana 

Submitted on Briefs: Sept. 15, 1989 

Decided: October 17, 1989 

Filed: 
Justice Diane G. Barz delivered the Opinion of the Court. 

Plaintiffs, Thomas M. and Vicki J. Fields, filed a 

complaint in the District Court of the First Judicial 

District, Lewis and Clark County, seeking monies allegedly 

due from defendant, Mae Wells. The District Court dismissed 

the complaint with prejudice. Plaintiffs appeal. We affirm. 

On appeal, each party sets forth its own version of the 

issues. However, the germane issues raised on appeal are: 

1. Whether the District Court abused its discretion in 

denying plaintiffs' request for a continuance of the May 5, 

1989 trial. 

2. Whether the District Court erred in granting 

defendant's motion to dismiss plaintiffs1 complaint. 

3. Whether the District Court erred in denying 

plaintiffs' requests to order defendant to post bond and to 

name others as codefendants in the action. 

4. Whether defendant is entitled to her attorney fees 

that were incurred as a result of this action. 

Thomas M. and Vicki J. Fields, plaintiffs, brought this 

action in January, 1987, alleging that Mae Wells, defendant, 

breached a contract for the sale of a mobile home and 

therefore owed them over $4,000. After a series of 

unforeseen delays, a scheduling conference was held on March 

3, 1989 and the trial was set for May 5, 1989. The Fieldses, 

who currently reside in Mentor, Ohio, did not attend the 

scheduling conference. Therefore, pursuant to Montana 

Uniform District Court Rule No. 10, Wells sent the Fieldses a 

notice dated March 13, 1989, advising them of the trial date, 

the scheduling conference order, and that they should either 

appear at trial or hire an attorney to enter an appearance on 

their behalf. The Fieldses responded with a "Reply to Court 

Order filed Mar. 6, 1989" dated March 11, 1989 and "Various 

Motions" dated March 19, 1989. In these documents, the 

Fieldses informed the court that they felt confident that the 
court could fairly judge the case based upon their March 11, 

1989 letter and without them being present for the May 5, 

1989 trial. 

In a March 30, 1989 letter to the Fieldses, the District 

Court stated explicitly that if they did not attend the May 

5, 1989 trial, they would automatically lose and the case 

would be dismissed. The District Court further explained 

that although it may bend certain procedural rules for 

individuals not represented by attorneys, certain rules 

cannot be waived, including a party's right to require the 

opponents to appear and to cross-examine them. 

The Fieldses subsequently filed a letter with the court 

dated April 3, 1989, stating that they ,understood that they 

would automatically lose the case if they did not appear for 

the May 5, 1989 trial, but nonetheless asserted that they 

should not be required to appear. The Fieldses then filed a 

request for continuance dated April 24, 1989 with the 

District Court. A copy was not sent to Wells or her 

attorney. In their "motion for continuance," the Fieldses 

stated that they have sought to obtain competent counsel but 

asserted that the attorneys they contacted "felt that the 

financial condition of the defendant and the size of the 

amount owed [could not] justify the cost that the court is 

asking [them] to incur." The District Court denied the 

motion. 

The Fieldses did not appear at the May 5, 1989 trial 

nor did an attorney appear on their behalf. The District 

Court therefore granted FJells' motion to dismiss, stating 

that the Fieldses failed to file a pretrial order by April 

24, 1989, as ordered by the court; they failed to appear for 

the May 5, 1989 trial; and they failed to comply with the 

court's scheduling order. The court dismissed the complaint 

with prejudice and awarded Wells the costs of her suit. The 

Fieldse~ appeal. 
The first issue raised on appeal is whether the District 

Court abused its discretion in denying the Fieldses' request 

for a continuance of the May 5, 1989 trial. 

Sections 25-4-501 and -503, MCA, are the two statutory 

grounds under which a district court is authorized to grant a 

continuance. Section 25-4-501, MCA, states that " [a] motion 

to postpone a trial on grounds of the absence of evidence 

shall only be made upon affidavit showing the materiality of 

the evidence expected to be obtained and that due diligence 

has been used to procure it." Section 25-4-503, MCA, states 

that "[ulpon good cause shown and in furtherance of justice, 

the court may, in its discretion, postpone a trial or 

proceeding upon other grounds than the absence of evidence 

under such conditions as the court may direct." The District 

Court denied the Fieldses' motion for continuance on the 

grounds that they failed to provide a good reason. 

On appeal, this Court's function is to determine 

whether the District Court abused its discretion. In the 

present case, the Fieldses did not meet the requirements 

mandated in either of the statutes that allow postponement of 

a trial. The Fieldses submitted neither an affidavit that 

showed the materiality of the evidence that they expected to 

obtain nor did they demonstrate a good cause that would allow 

the District Court, in its discretion, to postpone the trial. 

The Fieldses merely stated that they were attempting to 

locate an attorney to represent them and then provided a list 

of attorneys they supposedly contacted. 

The record reveals that the Fieldses had ample time in 

which to locate an attorney to represent them. They were 

first notified by a letter dated March 13, 1989 from Wells' 

attorney suggesting they procure an attorney to represent 

them and then subsequently by a letter from the District 

Court dated March 30, 1989. The Fieldses did not set forth a 

good cause as to why they were unable to obtain a counsel. 
The District Court therefore did not abuse its discretion in 

denying Fieldses' motion for a continuance. 

The second issue raised on appeal is whether the 

District Co.urt erred in granting Wells' motion to dismiss the 

Fieldses' complaint. 

The District Court sent a letter to the Fieldses dated 

March 30, 1989, stating explicitly that they would 

automatically lose the case if they did not appear for the 

May 5, 1989 trial. The Fieldses did not appear at the 

required time set for the trial. The District Court 

therefore granted Wells' motion to dismiss, stating that the 

Fieldses failed to appear at the time and place set for trial 

and that they also failed to comply with the court's 

scheduling order regarding preparation and filing of a 

pretrial order. 

The Fieldses argue that considering the excessive cost 

they "feel that unless [Wells] can demonstrate a need for 

[their] appearance at the hearing, there is no reason for 

it." The Fieldses reason that the case rests upon the 

documents already submitted to the court, and that any 

questions about these documents can be answered either by 

mail or by checking the public repositories for such records. 

Unfortunately, the Fieldses' misunderstanding of the law 

and their decision to ignore court directives has resulted in 

a failed attempt to bring a successful lawsuit. The Fieldses 

insist that they did not need to attend the May 5, 1989 

trial, however, the law dictates otherwise. The Fieldses 

rely upon their March 11, 1989 letter to the District Court 

as sufficient evidence upon which the District Court could 

"fairly judge" the case. An examination of the March 11, 

1989 letter, however, demonstrates that it is replete with 

hearsay. Hearsay is defined in our statutes as "a statement, 

other than one made by the declarant while testifying at the 

trial or hearing, offered in evidence to prove the truth of 

the matter asserted. " Rule 801 (c) , M.R.Evid. The March 11, 
1989 letter contains numerous statements regarding the sale 

of the mobile home to Wells. The unsworn written statements 

were made out of court and did not afford Wells the 

opportunity to confront the writers--the Fieldses--or to 

question them as to the veracity of the statements. Under 

Rule 802, M.R.Evid., "[hlearsay is not admissible except as 

otherwise provided by statute, these rules, or other rules 

applicable in the courts of this state." No exceptions are 

applicable in this case. The District Court therefore did 

not abuse its discretion in granting Wells' motion to dismiss 

the Fieldses' complaint. 

The third issue raised on appeal is whether the District 

Court erred in denying the Fieldses' requests to order Wells 

to post bond and to name others as codefendants. 

In light of the disposition of issues number one and 

two, we do not need to address this issue. 

The last issue raised on appeal is whether Wells is 

entitled to her attorney fees that were incurred as a result 

of this action. 

The contract underlying this dispute provides that "[ilf 

legal action is necessary to enforce any of the provisions of 

this agreement, the successful party is entitled to his costs 

and reasonable attorney fees as determined by a court of 

competent jurisdiction." Wells requested her costs and 

attorney fees in her counterclaim that she filed with the 

court dated March 24, 1987. In its May 12, 1989 Memorandum 

and Judgment, the District Court ordered the case dismissed 

with prejudice and awarded Wells the costs of her suit, but 

did not address the issue of attorney fees. 

We have previously stated that a party's right to 

attorney fees is based upon either a statute or an underlying 

contract which provides for their recovery. Northwestern 

Nat'l Rank v. Weaver-Maxwell, Inc. (1986), 224 Mont. 33, 44, 

729 P.2d 1258, 1264; Diehl and Assocs. v. Houtchens (1979), 

180 Mont. 48, 53, 588 P.2d 1014, 1017. In this case, the 
underlying contract provides for the recovery of attorney 

fees for the successful party in the lawsuit. The District 

Court issued a final judgment by dismissing the Fieldses' 

complaint with prejudice. Wells therefore emerged as the 

successful party. We therefore remand this case to the 

District Court for a determination of reasonable attorney 

fees due Wells as a result of this lawsuit--fees generated 

from both the District Court action and the appeal--and for 

any additional costs that she incurred as a result of this 

appeal. 

Affirmed and remanded. 

Justice \ \ 

We concur: 

Justices 

Justice John C. Sheehy recuses himself from participation 

in this case.