No. 80-241 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

TIMOTHY J. CALAWAY, Plaintiff and Respondent,

VS. SID JONES, Defendant and Appellant.

Appeal from: DistrictCourt of theEighthJudicial District, Inand fortheCounty of Cascade. Honorable H. WilliamCoder, Judge presiding. Counsel of Record: For Appellant: Randono & Donovan, Great Falls, Montana For Respondent: 

### Marra, Wenz, Johnson & Hopkins, GreatFalls, Montana

Filed: Submitted on briefs: December 11, 1980 Decided: 

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I/ 4 v Y ClerkMr. JusticeGene B. Daly delivered theOpinion of theCourt. This 

### is an appeal by the defendant from the District Court's refusal to 

### set aside a judgment in favor of the plaintiff and a dismissal of defendant's counterclaim in the Eighth JudicialDistrict, Cascade County. On December 5, 1972, Timothy J. Calaway filed a complaint against Sid Jones seeking damages for the loss of

a potato crop allegedlycausedby Jones's failuretoprovide

an irrigation system. Jones denied any responsibility for the loss and filed a counterclaim alleging sums due and owing from Calaway. Jones also filed a third party complaint seeking both affirmative relief and indemnification against Parker Irrigation Supply, Inc., SinpsonTimber Company and B. F. Goodrich Company. On May 12, 1977, Simpson Timber Company moved to dismiss the third party complaint for want of prosecution. The remaining third party defendants later joined in the motion. Following a hearing, the motion was granted by the DistrictCourt on June 7, 1977. Jones appealed the order of dismissal to this Court. We affirmed the District Court's order on June 28, 1978, finding thatJones had failedtotake any significant action towards a final determination of the case as characterized by his failure to timely respond to interrogatories and appear at a scheduled deposition. See Calaway 

### v. Jones (1978),177Mont. 516, 582 P.2d 756. Following this Court's affirmation of the dismissal of Jones's third party complaint, George N. McCabe filed a motion to withdraw as attorney of record for Jones. This motion was granted by the District Court on November 2,After waiting eight months for Jones to secure substitute counsel, Calaway, on August 1, 1979, filed a "Notice to Appoint Counsel or Appear in Person" and a "Notice of Readiness for Trial." Both notices had been served on Jones by the Cascade County sheriff on July 21, 1979. On August 6, 1979, theDistrictCourt issued an order for pretrialconference and directed thatcopies of the same be sent tothe respectivecounsel for theparties. Included in the order was the followingprovision: "That in event of a failure of a party or parties to appear, pursuant tothisOrder, an ex parte hearing shall be held and an appropriate Judgment rendered or dismissal ordered, unless continued, pursuant to request made at least 48 hours in advance, for good cause shown." Jones's copy of the order was sent to his previous counsel of record, George McCabe, even though McCabe had withdrawn with court approval some nine months earlier. McCabe, upon receiving the order, stateshe forwarded 

### it to Jones by ordinary mail, together with a carbon copy of a letter sent tothedistrictjudge who signed the order and a note suggesting thatJones contact an attorney. The letter McCabe sent tothedistrictjudge was datedAugust 20, 1979. It stated that McCabe had withdrawn as Jones's attorney of record and that he was sending a copy of the order for pretrial conference directly to Jones. McCabe further testified that the order and accompanying letter would have been mailed by his secretaryasa matter of routine. Jones denies having received any correspondence from McCabe or a copy of the order forpretrial conference.Jones failed to appear at the September 27, 1979, pretrial conference. As a result of this failure, the District Court, on October 1, 1979, issued an order of judgment in favor of Calaway and an order of dismissal of Jones's counterclaim. The judgment was for $10,379.23, together with costs and interest ata rateof 6percent per

annum from September 1, 1971. On November 15, 1979, Jones moved the District Court for an order settingaside thejudgment and dismissal of his counterclaim. Following a hearing, the District Court denied themotion on May 16, 1980. Jones now appeals. The issue presented for review 

### is whether the District Court abused 

### its discretion in denying the motion to

### set aside thejudgment and order of dismissal. The solefactpresented tomove thediscretionof the trial court was a contention by Jones that he failed to receive any noticeof the scheduled pretrial conference. Entering a default judgment or dismissal with prejudice 

### is a drastic sanction to impose as a remedy for failing to attend a pretrial conference. Consequently, the trial court should only resort to such a remedy in extreme situationswhere there 

### is a clear record of continual delay, abuse and disregard of the court's authority by the errant party. See Silas v. Sears, Roebuck & Co., Inc. (5th Cir. 1978),586 F.2d 382; Link v. Wabash Railroad Company (1962), 370 U.S. 626, 82 S.Ct. 1386, 8L.Ed.2d 734, reh. denied 371 U.S. 873, 83 S.Ct. 115, 9L.Ed.2d 112. Throughout this action Jones has displayed an attitudeof unresponsiveness. Such attitude 

### is evidenced by Jones's failure to timely respond to interrogatories; toappear atdepositions; and inhis failuretoseek substitute counsel for more than eightmonths after his firstattorney had withdrawn. Based upon this disregard of the judicial process and an apparent inclination to delay the timely resolution of this action, the District Court would have been within the permissible range of discretion in imposing sanctions of default and dismissal for failingtoattend the pretrial conference if Jones received notice of the conference and hisrequired attendance. The evidence concerning the notice was conflicting. In reviewing the submitted record, however, in a light most favorable toCalaway astheprevailingparty and inrelation to Jones's continual unresponsive attitude, we conclude there 

### is sufficientevidence tosupport theDistrictCourt's finding thatJones received information concerning the 

### time and place of the pretrial conference. We find no abuse of discretion. The judgment in favor of Calaway and thedismissalof Jones's counterclaim as entered by the District Court are hereby affirmed.

We concur:



# pen +% Chief Justice 

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