No. 90-119 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

DOUG JOHNS REAL ESTATE, INC., a Montana Corporation, 

Plaintiff and Appellant, 

-vsVESTER R. BANTA and THEILA C. BANTA, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael H. Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Is: 

3 Daniel D. Johns, Murphy, Robinson, Heckathorn & 

C 1 

~d '-) Phillips, Kalispell, Montana <I_ 

: ' I For Respondent : < 11 

Linda Osorio St. Peter, Missoula, Montana - 

c, 

Lj -. 

Submitted: October 11, 1990 

Decided: October 30, 1990 

Filed: 
Justice John C. Sheehy delivered the Opinion of the Court. 

In this case we reverse the order of the District Court, 

Eleventh Judicial District, Flathead County, which dismissed the 

plaintiff Is complaint under Rule 41 (b) , M.R. Civ. P. for lack of 

prosecution. 

Doug Johns Real Estate, Inc., (Johns) is a Montana corporation 

doing business as a real estate broker in Kalispell, Montana. On 

June 15, 1987, Vester R. Banta and Theila C. Banta executed and 

delivered to Johns a standard listing contract, listing for sale 

certain real property owned by them in Flathead County. On August 

25, 1987, Johns received and forwarded to the defendants an 

agreement signed by prospective buyers to purchase the Bantas' 

property. The agreement of purchase was rejected by the Bantas. 

It is apparent from the pleadings that the real estate agent 

claims that the prospective buyers1 agreement to purchase met the 

terms of the listing agreement. The Bantas contend that the terms 

and conditions of the proposed purchase agreement did not meet the 

listing agreement. Johns contends that it has performed its 

broker's agreement pursuant to the terms of the listing contract 

and is thereby entitled to a real estate commission equal to 10 

percent of the sales price or $3,000. 

Johns1 attorney made written demand for payment of the 

commission on November 3, 1987, upon the Bantas who reside in 

~alifornia. Thereafter William L. Feeney, an attorney practicing 

in Lake Port, California, got in touch with counsel for Johns. 

Negotiations between counsel apparently failed and Johns1 attorney 
r # 

1 I 

filed a complaint in the District Court against the Bantas on March 

30, 1988. A copy of the complaint was forwarded to the Bantas with 

a request that they acknowledge service as an alternative to being 

personally served by Johns. 

As far as the filings in the District Court record reveal, 

nothing further occurred in the matter until October 25, 1988, when 

a written acknowledgement of service was filed on behalf of the 

Bantas by their local counsel, Linda Osorio St. Peter of Missoula. 

On November 10, 1988, Bantasg Montana counsel filed an answer and 

counterclaim. The answer in general denies the allegations of the 

Johnsg complaint, and counterclaims for reasonable attorneys fees 

and costs. 

On September 27, 1989, Montana counsel for the Bantas filed 

a motion to dismiss for failure to prosecute pursuant to Rule 

41 (b) , M. R. Civ. P. Johns responded to the motion on October 6, 

1989, objecting to the motion to dismiss, and requesting that the 

court issue a scheduling order pursuant to Rule 16(b), M.R.Civ.p. 

Johns filed a reply to the counterclaim on October 10, 1989. 

After briefs were submitted by each counsel respecting the 

motion to dismiss, the District Court ordered the complaint to be 

dismissed on January 16, 1990. The principal grounds stated by the 

District Court for its order follows : 

In the instant case, Plaintiff did nothing after filing 

his complaint. Service was not perfected on Defendants 

until seven (7) months after filing the action. He 

instituted no discovery, made no motion for scheduling 

order, and failed to respond to the counterclaim until 

the motion to dismiss was filed. Additionally, Plaintiff 

has given the court no reason that the action was in a 

Igholding patterngg after he filed a complaint in March, 
1988. The Supreme Court, in Thomas v. Wilson, P. 2d , 46 St.Rep. 160 (1989) affirmed dismissal of a 

complaint in which the appellant (plaintiff) conducted 

no discovery and delayed any response to respondent's 

discovery requests. The Court noted a conspicuous 

absence of any reasonable excuse for the appellants1 lack 

of prosecution. 

The defendants filed a notice of entry of judgment based upon 

the January 16, 1990, order of the District Court and Johns timely 

appealed from the order. Still pending in District Court is the 

motion of the defendant for summary judgment requesting the 

District Court to set reasonable attorneys fees for the Bantas. 

This Court has had several occasions to deal with involuntary 

dismissals under Rule 41(b), M.R.Civ.P. See for example Thomas v. 

Wilson (1989), 236 Mont. 33, 767 P.2d 1343; Chisholm v. First 

National Bank of Glasgow (1989), 235 Mont. 219, 766 P.2d 868; 

Timber Tracts, Inc. v. Fergus Electric Co-op, Inc. (1988), 231 

Mont. 40, 753 P.2d 854; Cox v. Myllymaki (1988), 231 Mont. 320, 752 

P.2d 1093; Bryrnerski v. city of Great Falls (1981), 195 Mont. 428, 

636 P.2d 846, among others. 

The general rules that may be distilled from our cases are 

that the district court's decision will not be disturbed unless the 

court clearly abuses its discretion, Timber Tracts, supra; the 

trial court's discretion should not be disturbed unless there is 

definite and firm conviction that the district dourt committed a 

clear error in weighing the relevant factors, Schackleton v. Neil 

(1983), 207 Mont. 96, 101, 672 P.2d 1112, 1115; courts exist 

primarily to afford a forum to settle litigable matters between 

disputing parties, Brvmarski, supra; a balance must be struck 
between judicial efficiency and a plaintiff's right to meaningful 

access to the justice system, Cook v. Fergus Electric Co-op, Inc. 

(1988), 235 Mont. 173, 176, 765 P.2d 1138, 1140; and because an 

involuntary dismissal is a severe result, courts should refrain 

from dismissing an action or claim unless there is no other 

adequate remedy available and the facts sufficiently call for such 

a result. Chisholm, supra. 

The principal point of the District Courtls decision, as 

appears from the paragraph we have set forth above, is that the 

District Court record revealed no activity concerning the case 

between the parties for seven months after filing the complaint. 

It does not appear that the District Court considered, however, in 

granting the motion for dismissal, copies of letters between the 

parties which appear to substantiate the contention of Johns' 

counsel that an attempt had been made to negotiate a settlement of 

the claim during those seven months. On May 9, 1988, the 

California counsel for the Bantas, Mr. Feeney, wrote a letter to 

counsel for Johns, in which the California counsel indicated his 

understanding from a telephone conversation that Johns1 counsel had 

agreed to an extension of time for the Bantas to respond to the 

complaint, and "no default will be entered pending the outcome of 

our settlement negotiation^.^^ It also appears true from those 

filings that counsel for Johns had forgotten that service had not 

been perfected until he was reminded by Montana counsel in October, 

1988. The file does reflect, however, on-going correspondence over 

the several months between the filing of the complaint and the 
filing of the the answer and counterclaim with at least one offer 

of settlement having been made. In a letter of October 17, 1988, 

Montana counsel for the Bantas acknowledged a letter from Johns1 

counsel dated October 3, 1988, and stated that service would be 

accepted on behalf of Mr. and Mrs. Banta. All of this seems in 

accordance with an apparent understanding between the parties that 

the first appearance in the lawsuit of the Bantas depended upon 

the outcome of negotiations between the parties. 

A further factor to consider is the effect of an attempt to 

serve summons and complaint under Rule 4D(b)(i), M.R.Civ.P. That 

provision allows a plaintiff to serve a defendant by mail with a 

copy of the summons and complaint together with a notice of 

acknowledgement to be signed by the defendants. The benefit to the 

defendants by such a mode of service is that they avoid the payment 

of costs for personal service which would accrue in the event of 

an adverse judgment if they did not complete and return the 

acknowledgement of receipt of summons. Rule 4D(b) (ii) , M.R. Civ. P. 

It is true, of course, following the acknowledgement of 

service and the filing of the answer to a counterclaim, that 

plaintiff did nothing further as far as the District Court file 

reveals, until the motion for dismissal was made. Thereupon Johns 

promptly filed a reply to the counterclaim, and asked that a 

scheduling order be entered by the ~istrict Court. While no 

discovery had been attempted by either party, it is also true that 

the modest amount of damages sought perhaps did not merit discovery 

beyond presenting to the District Court a pure question of law as 
to whether the proffered purchase agreement met the terms of the 

listing agreement so as to entitle one party or the other to 

judgment. Under Chisholm, supra, there was another adequate remedy 

available here, for the District Court could simply have scheduled 

the case for trial under Rule 16(b)(4), M.R.Civ.P. 

This Court has held that another factor to consider in 

determining whether an involuntary dismissal is properly granted 

is whether there has been a prior warning to the party occasioning 

the delay. Cox, 752 P.2d at 1094; Becky v. Norwest Bank Dillon, 

et al. (Mont. 1990), P.2d , 47 St.Rep. 1795, 1799. In the 

circumstances of this case, a warning would have been appropriate. 

Counsel for appellant has argued that a ten-month delay from 

the acknowledgement of service to the motion for dismissal is not 

a long enough delay to require an involuntary dismissal, and has 

cited to us examples of longer delays appearing in the several 

cases, some of which are cited above. We will not involve 

ourselves with that contention in this case. At the time the 

District Court made its order of dismissal, this case was at issue, 

although Johns' reply was prompted by the motion to dismiss, and 

an adequate remedy was available to set the cause for trial and 

determine the legal issue involved. On that basis we determine 

that the District Court abused its discretion and reverse the order 

of involuntary dismissal. Cause is remanded to District Court for 

further proceedings. 

We Concur: