No. 81-108 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

JOHN BRYMERSKI AND ALICE BRYMI3RSK1, Plaintiffsand Appellants,

CITY OF GREAT FALLS, a municipal corp. of the Stateof Montana, THOMAS C. MATHER, SHIRLEY R. PAPPIN, Personal Representativeof the Estateof Robert F. Pappin, Defendants and Respondents.

Appeal from: District Court of the Eighth Judicial District, In and for the County of Cascade, The Honorable Joel G. Roth, Judge presiding.

Counsel of Record: For Appellant: Dzivi, Conklin & Nybo, GreatFalls, Montana

For Respondent: Smith, Baillie & Walsh, Great Falls, Montana Swanberg, Koby, Swanberg & Matteucci, Great Falls, Montana Alexander & Baucus, Great Falls, Montana David Gliko, Great Falls, Montana

Submitted on Briefs: September 3, 1981 Decided: 

### m251fi

Filed: 

## l!4ov 25

## 1981Mr. Chief Justice Frank I. Haswell delivered the Opinion of the Court.

This is an appeal by plaintiffs from an order of the Eighth Judicial District Court granting defendants1motion to dismiss the plaintiffs1action for failure 

### to prosecute. We

reverse. Between the summer of 1975and the summer of 1976, defendants Robert and ShirleyPappin and Thomas Mather (hereinafterreferred 

### to as Pappin/Mather) 

### were responsible for the construction of 

### streets, the installation of curbs and gutters, and the excavation of soilnear the location of the plaintiffs1residence in the 

### West HillAddition to the City of Great Falls, Montana. During June and July of 1976, heavy rainfallswashed mud and filldirtfrom a "fill" 

### area created by Pappin/Mather into the plaintiffs1yard and basement causing damage to the plaintiffs1property. The plaintiffs filed a complaint against the defendants on July 14, 1976, seeking damages for negligence and forbreach of a written agreement between Pappin/Mather and the City of Great Falls. On August 3, 1976, defendantsPappin/Mather filed a motion 

### todismiss, and a hearing 

### was scheduled for September 15, 1976, tohear 

### oral arguments on the motion. There is nothing inthe record 

### to indicate that the District Court ruled on thismotion. On October 8, 1976, Pappin/Mather filed an answer, and on October 12they filed written interrogatories. On November 15, the City of Great Falls filed consolidated motions to dismiss, 

### to make more definite and certainand 

### to strike. Oral arguments on these motions were set forDecember 15, but it does not appear that these motions 

### were ruled on by the District Court. Nothing further was filed inregard to this action untilMay 16, 1980. InJanuary, 1979

## ,John McCarvel

## , the plaintiffs' attorney, became a judge and shortlythereafter he advised the plaintiffs

### to find 

### a new attorney. In February 

### of thatyear, the plaintiffscontacted William Conklin and asked him to represent them. Mr. Conklin informed the plaintiffson March 6 that he would take their case, and he did some preliminary research during March and April. He 

### was unable to find 

### time to further proceed with the case, however, untilMay, 1980; and during the interim period one of the defendants, Robert Pappin, died. On May 16, 1980, plaintiffs filed a document to substitute counsel and a motion to substituteShirley R. Pappin, personal representative of the 

### estate of Robert F. Pappin, forRobert Pappin 

### as a party defendant. The District Court granted the motion on May 29, 1980. Then inJune plaintiffs filed answers 

### to the Pappin/Mather interrogatories of 1976 and served written interrogatorieson defendants Pappin/Mather and defendant City of Great Falls. In September, ~appin/Matherfiled their answers 

### to plaintiffs' interrogatories and also filed 

### a motion 

### to dismiss for failure 

### to prosecute. After the motion to dismiss 

### was filed, the plaintiffsdeposed several individuals with knowledge of factspertinent 

### to the 

### case. On November 10, a hearing 

### was held on the Pappin/Mather motion todismiss for failure toprosecute. Atthe hearing the City of Great Fallsorallyjoined inthe motion. On January 9, 1981, the District Court issued an order granting the motion to dismiss, and the plaintiffsappeal. The plaintiffs

### raise the following issueson appeal: 1. Whether the District Court erred innot considering the statutory time period set forth inRule 41(e), M.R.Civ.P., when making its decision regarding the motion to dismiss for failure to prosecute. 2. Whether the 

### District Court abused 

### its discretion in granting the motion to dismiss for failure to prosecute 

### as thefailure 

### to activelyprosecute the case 

### was due 

### to inaction on the part 

### of plaintif£sfattorneys. 3. Whether the ~istrict Court erred ingranting the motion todismiss for failure to prosecute as the case 

### was being activelyprosecuted for approximately three and one-ha1f months prior 

### to the time the motion 

### to dismiss

### was filed. 4. Whether the plaintiffs

### were entitled 

### to relyon the local District Court custom of giving notice before dismissing inactive cases. 5. Whether the District Court erred ingranting the motion 

### to dismiss for lackof prosecution as the notice received by the plaintiffs to appoint new counsel 

### was not given in the specificmanner prescribed by the local court rule. 6. Whether the District Court erred inrefusing to admit certainof plaintiffsf exhibits into evidence at the hearing on the motion 

### to dismiss for failure 

### to prosecute. 

### We find that only the third issue needs 

### to be addressed in reaching a decision in this 

### case. The rule of civilprocedure which governs the dismissal of

an action for failure toprosecute 

### is Rule 41(b),M.R.Civ.P. It provides in part 

### as follows: "For failure of the plaintiff to prosecute

# .. . a defendantmay move fordismissal of an action II 

# ... In Montana the 

### law is wellestablished that an action may be dismissed for failure of the plaintiff to prosecute if the action 

### is not prosecuted with due diligence, absent a sufficient showing of excuse. Calaway v. Jones (1978), 177Mont. 516, 582 p.2d 756, and cases cited therein. It is alsowell established in Montana 

### lawthat it is within the sound discretion of the trial court 

### to dismiss an action for failure of the plaintiff to prosecute. Calaway, supra, and cases therein cited. We agree with the Colorado Court of Appeals, however, in that "[the 

### trial courtfs]discretion 

### isnot without bounds

# .

# ..and it must be borne inmind that courts 'exist primarily 

### to afford a forum 

### to settle litigable 

### matters between disputing parties. 

### " Farber v. Green Shoe Mfg. Co. (1979)

## ,42 Colo.App. 255, 596 P.2d 398, citingMizar v. Jones (1965) 157 CO~O.535, 403 P.2d 767. In this 

### case the plaintiffs had been activelyprosecuting their 

### case forover three and one-half months prior to the 

### time the defendants Pappin/Mather filed theirmotion 

### to dismiss for failure to prosecute. 

### We adopt the rule that a motion 

### to dismiss for failure 

### to prosecute 

### willnot be granted if the plaintiff 

### is diligentlyprosecutinghis 

### claim 

### at the 

### time the motion 

### is filed, even if 

### at

some earlier 

### time the plaintiff may have failed to act with due diligence

# . Support for this position is found in severaljurisdictions. See FirstNational Bank of Fairbanks v. Taylor (Alaska 1971) 488 P.2d 1026; Farber, supra; Ayers v. D. F. Quillen & Sons, Inc. (1963), 55 Del. 481, 188A.2d 510; Spiegelman v. Gold Dust Texaco (1975)

## ,91Nev. 542, 539 P.2d 1216; Rorie v. Avenue Shipping Co. (Tex.Civ.App.l967), 414 S.W. 2nd 948. If a plaintiff has actively resumed the prosecution of

a 

### case, the policy favoring the resolution of a case on 

### its 

### merits is 

### more compelling than the policy underlying Rule 41(b) which is to prevent unreasonable delays. We hold that the motion to dismiss for failure to prosecutewas untimely in this 

### case even though the defendants claim tohave been actuallyprejudiced by the delay inprosecution due to the death of defendant Robert Pappin during the period of time plaintiffs 

### were not activelyprosecuting the 

### case. We note firstof all thatnearlyeveryone involved in the development of the Pappin/Mather project is still available to testify, including the cityengineer, Pappin/Matherls project engineer, the contractor's job superintendent, as 

### well as Mr.Mather and 

### Mrs. Pappin. Also, various records and filesconcerning the project 

### are available as evidence. Moreover, Mr. Pappin died severalmonths before the plaintiff

### s resumed active prosecution of this

### case, and no objection 

### came from the defendants until 

### some three and one-half months after active prosecution had commenced. For the foregoing reasons, 

### we reverse the decisionof the District Court and remand the case for trial.

Chief Justice



### We concur: