No. 93-447 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1994 

RICHARD DeJANA, Individually 

and on behalf of OLESON and 

DeJANA LAW FIRM, a partnership, 

Plaintiff/Appellant, 

-VH.JAMES OLESON and E.EUGENE 

ATHERTON. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Frank M. Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard DeJana, DeJana Law Firm, Kalispell, Montana 

For Respondent: 

H. James Oleson, Oleson Law Firm, Kalispell, Montana 

Filed: 

Submitted on Briefs: January 17, 1994 

Decided: February 24, 1994 
Justice Fred J. Weber dalivered the Opinion of the Court. 

This is an appeal from a dismissal by the Eleventh Judicial 

District Court, Flathead County, of an action involving the 

parties' law firm. We reverse. 

The appellant has raised several questions for review. We 

consider only one as determinative of the action before us: 

Did the District Court err by dismissing this case without 

notice to the parties after five years of inaction on the case? 

Appellant and respondent were partners in a Kalispell law firm 

from July of 1984 until August of 1985. During August, the 

partnership dissolved with each partner agreeing to account for 

respective unbilled billable hours and hours on contingency fee 

cases. 

A complaint was filed by DeJana on December 24, 1987, alleging 

various failures on the part of Oleson to account for unbilled 

billable and contingency hours, failure to account for funds that 

had been diverted by Oleson, and alleging such things as theft, 

conversion of funds, and breach of the covenant of good faith and 

fair dealing. 

During May of 1988, DeJana served various Requests for 

Admission and Production. Following these requests, Oleson sought 

a protective order from the court and DeJana sought an order to 

compel arbitration. These matters were heard by the court which 

issued an omnibus order on June 16, 1988. The order dismissed the 

action as to Atherton which has not been appealed. The order 

granted Oleson's motion for a protective order and further ordered 

2 
that both parties were to cease discovery. DeJana1s request for 

appointment of an arbitrator was denied as was DeJanals demand for 

a jury trial because the court considered this an action in equity. 

The court also granted the parties thirty days to reach a 

settlement. 

DeJana objected to the ruling but the court did not rule on 

the objection. Nothing further was done in this proceeding and 

nothing was filed until, without notice, the court dismissed the 

case with prejudice on July 13, 1993, due to lack of any action for 

five years. 

Did the District Court err by dismissing this case without 

notice to the parties after five years of inaction on the case? 

DeJana argues that the court abused its discretion by 

dismissing the action. He points out that the District Court 

orderedthat both DeJana and Oleson cease further discovery efforts 

in this cause and concluded that the case is an accounting which 

the court would resolve on equitable principles. Finally, the 

court in its June 16, 1988 order, provided that the parties were 

granted thirty days to effect a compromise and " [i]n the absence of 

settlement, the Court will schedule a trial before the Court, 

sitting without a jury." Oleson argues that no requirement exists 

for warning prior to dismissal. We conclude that a warning was 

appropriate under the facts of this case. 

It is true that a district court is accorded broad discretion 

in determining whether a cause of action should be dismissed for 

failure to prosecute. Shackleton v. Neil (1983), 207 Mont. 96, 672 

P.2d 1112. However, because dismissal for failure to prosecute is 
a harsh remedy, the cobrt does not have unlimited discretion to 

grant an involuntary dismissal. Becky v. Norwest Bank (1990), 245 

Mont. 1, 798 P.2d 1011. Courts exist primarily to afford a forum 

to settle litigable matters between disputing parties. Brymerski 

v. City of Great Falls (1981), 195 Mont. 428, 636 P.2d 846. 

Therefore, the district courts must balance the concerns of 

judicial efficiency embodied in Rule 41(b), M.R.Civ.P., against a 

party's right to meaningful access to the judicial system. Timber 

Tracts, Inc. v. Fergus Elec. Co-op, Inc. (1988), 231 Mont. 40, 753 

P.2d 854. 

Both parties in the present case cite Becky as precedent for 

the factors that we must consider when determining whether a court 

abused its discretion in dismissing an action for failure to 

prosecute. Those factors are: (1) the plaintiff's diligence in 

prosecuting his or her claims, (2) the prejudice to the defense 

caused by the plaintiff's delay, (3) the availability of alternate 

sanctions; and (4) the existence of a warning to plaintiff that his 

or her case is in danger of dismissal. Becky, 245 Mont. at 8, 798 

P.2d at 1015. Oleson argues that a warning is not mandatory. 

Becky emphasizes that the facts of each case control, stating: 

There is no precise formula for determining when an 

action may properly be dismissed for failure to 

prosecute. Each case turns on its own particular set of 

circumstances, and lapse of time in and of itself is 

insufficient to justify dismissal. 

Beckv, 245 Mont. at 7, 798 P.2d at 1015. Here, the court gave no 

reason for its dismissal except for the time that had elapsed: 

"There being no action in this cause since August 16, 1988, this 

case is by the Court hereby DISMISSED with prejudice." 
A review of the record indicates that no action existed 

because the court, in its omnibus order of June 16, 1988, cut off 

all alternatives for the parties except for "compromise and 

settlement of the litigation." The court stated that if the 

parties did not settle, it dould set a trial date. DeJana objected 

to the court's denial of his trial by jury and failure of the court 

to appoint an arbitrator. Oleson then moved the court for partial 

adjudication which the court granted on August 18, 1988. The last 

sentence of that order states: 

This order is without prejudice to any right of the 

Plaintiff on any pending issue in this cause. 

The District Court effectively eliminated further action by the two 

parties. Under all these circumstances we conclude that the 

warning was necessary on the part of the court prior to dismissal. 

We hold the District Court abused its discretion in dismissing the 

case. 

Reversed and remanded for further proceedings consistent with 

this opinion. 

We Concur: 
February 24, 1994 

CERTIFICATE OF SERVICE 

I hereby certify that the following order was sent by United States mail, prepaid, to the following 

named: 

RICHARD DeJANA 

DeJana Law 

P.O. Box 1757 

Kalispell, MT 59901 

H. JAMES OLESON 

Oleson Law Firm 

P.O. Box 2036 

Kalispell, MT 59903-2036 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE QF MONTANA