NO. 85-271 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1985 

FIRST BANK (N.A. ) -BILLINGS 

Plaintiff and Respondent, 

JIMMY RAY HEIDEMA, Personal Representative 

of the estate of Louis Heidema, et al., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Charles Luedke, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Jimmy Ray & Leilla May Heidema, pro se, Sheperd, 

Montana 

Agnes Heidema, pro se, Billings, Montana 

Louis J. Heidema, pro se, Billings, Montana 

Judith Gail Heidema, pro se, Billings, Montana 

For Respondent : 

AP.c., 

Moulton, Bellingham, Longo & Mather;~Gregory G. 

Murphy, Billings, Montana 

Filed: 

Submitted on Briefs: Oct. 24, 1985 

Decided: January 7, 1986 

f~# 

Clerk 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from an order of the District Court 

of the Thirteenth Judicial District, the Honorable Charles 

Luedke presiding, in and. for Yellowstone County, Montana, 

awarding plaintiff certain sums of principal and interest 

owing on a note, and ordering defendant to pay plaintiff's 

attorney fees and costs. We affirm. 

Louis and Agnes Heidema, husband and wife, had been 

customers of First Bank (N.A.)-Billings (Bank) since the 

mid-1950's. Their loans had been administered by various 

lending officers. One loan taken out prior to 1976 was 

criticized by the bank examiner. In order to give additional 

substance to the loan and get it off the classified list, the 

Bank applied for and received a loan guarantee from the 

Farmers Home Administration (FHA). Subsequently First Bank 

loaned the Heidemas $350,000 on which they were to make an 

annual $50,000 payment, plus accrued interest. Heidemas fell 

behind in repaying the loan. The Bank made repeated efforts 

to assist them in working out a plan for reducing their debt, 

to no avail. Frequent letters from agricultural loan officer 

Ralph Stenehjem detailing the precariousness of their 

financial situation were ignored. At one point the Bank even 

refunded some $9,000 interest Heidema believed he had been 

overcharged. When the complaint was filed Heidemas had at 

least two notes outstanding, including the one guaranteed by 

FHA. 

This case is one of delay and avoidance by Heidemas. 

The complaint was filed and a writ of attachment issued in 

June, 1982, against the defendants d/b/a Heidema Partnership. 

Counsel in Billings, Montana, appeared for the partnership by 
motion to alter or amend an order of attachment. Three weeks 

Later counsel again appeared on behalf of the named 

defendants by a motion to dismiss for failure to state a 

claim. Defendants did not file a brief in support of the 

motion and pursuant to Rule 5 of the Rules of the District 

Court of the Thirteenth Judicial District, the motion was 

denied. Louis Heidema died in July 1982, and Jimmy Ray 

Heidema was appointed personal representative of the estate. 

The Bank moved to substitute the estate for the deceased 

defendant. Thereafter, in 1982 and 1983, the parties 

exchanged written discovery. 

In September, 1982, defendants moved to substitute 

counsel. Soon after, Heidemas' new counsel filed an answer 

on behalf of all defendants. First Bank requested a 

pre-trial or trial setting. A pre-trial conference and trial 

were scheduled. Heidemas took depositions of two bank 

officials and then moved for continuance of the trial. After 

being fired, Heidemas' new counsel moved to withdraw as 

counsel. The trial date was continued. The court advised 

Jimmy Ray Heidema to seek counsel and that it would not 

accept further delay by reason of failure to obtain counsel. 

Thereafter Heidemas filed a flurry of pro se motions. 

The court allowed them to file an amended answer and a 

counterclaim, but denied a request for a jury trial on the 

grounds they had waived the right by failing to demand a jury 

trial within the time allotted by Rule 38(b) and (d), 

M.R.Civ.P. Heidemas appealed the denial and the Supreme 

Court dismissed the appeal on the grounds the order was not 

an appealable order. 

The record is replete with examples of Heidemas' 

failure to appear for timely noticed depositions. They 
failed to appear at a hearing on the Bank's motion to compel 

production of documents. Twice they failed to appear at a 

hearing on a motion to take depositions, they did not appear 

for the depositions, nor did they produce any documents. 

This despite court orders directing them to appear. They 

also failed to appear at the Bank's deposition of loan 

officer Ralph Stenehjem. 

When the Bank served notice on the Heidemas that it 

intended to move for entry of judgment at the pre-trial 

hearing, none of the Heidemas appeared at the hearing to 

contest the motion. Their absence made it impossible to work 

out a pre-trial order and make other arrangements for tria.1. 

The District Court entered a judgment in favor of First Bank 

and Heidemas appeal. 

Although Heidemas assert some nine issues for review by 

this Court, the only genuine issue is whether the District 

Court abused its discretion in entering judgment in favor of 

First Bank. We find it did not. In fact, the court showed 

inordinate patience, and a refusal to act would have 

prejudiced the rights of First Bank. 

Resolution of the issue depends on the application of 

Rule 37(b), (c) and (d) , M.R.Civ.P. Rule 37 (d) gives the 

court the power to enter an order of judgment if a party 

fails to attend his own deposition or to produce documents. 

Rule 37(b) and (c) gives the court the discretionary power to 

enter an order of judgment when a party refuses to comply 

with court orders directing responses to discovery. Heidemas 

refused to attend their own deposition, refused to produce 

documents, and ignored court orders directing them to comply. 

This Court's attitude towards dilatory discover tactics 

is unequivocal: 
In adopting a position that dilatory 

discovery actions are no longer to be 

dealt with leniently, we are in accord 

with the recent trend of cases intent 

upon punishing transgressors rather than 

patiently trying to encourage their 

cooperation . . . When litigants use 

willful delay, evasive responses, and 

disregard of court direction as part and 

parcel of their trial strategy, they must 

suffer the consequences. 

Owen v. F.A. Buttrey (Mont. 1981), 627 P.2d 1233, 1235, 1236, 

The emerging standards for willfullness in the Ninth 

Circuit should dispel1 any reluctance on the part of trial 

judges to apply sanctions. 

Where it is determined that counsel or a 

party has acted willfully or in bad faith 

in failing to comply with rules of 

discovery or with court orders enforcing 

the rules or in flagrant disregard of 

those rules or order, it is within the 

discretion of the trial court to dismiss 

the action or to render judgment by 

default against the party responsible for 

the default. . . Litigants who are 

willful in halting the discovery process 

act in opposition to the authority of the 

court and cause impermissible prejudice 

to their opponents. It is even more 

important to note, in this era of crowded 

dockets, that they also deprive other 

litigants of an opportunity to use the 

courts as a serious dispute-settlement 

mechanism. 

G-K Properties v. Redevelopment Agency, Etc. (9th Cir. 1978), 

While we are predisposed to give pro se litigants 

considerable latitude in proceedings, that latitute cannot be 

so wide as to prejudice the other party, as happened in the 

case at bar. To do so makes a mockery of the judicial system 

and denys other litigants access to the judicial process. It 

is reasonable to expect all litigants, including those acting 

pro set to adhere to the procedural rules. But flexi-bility 

cannot give way to abuse. We stand firm in our expectation 
that the lower courts hold all parties litigant to procedural 

standards which do not result in prejudice to either party. 

The judgment ordered by the lower court in this case was well 

within the boundaries of its discretion and it is affirmed.