No. 80-241 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

TIMOTHY J. CALAWAY, 

Plaintiff and Respondent, 

VS. 

SID JONES, 

Defendant and Appellant. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Cascade. 

Honorable H. William Coder, Judge presiding. 

Counsel of Record: 

For Appellant: 

Randono & Donovan, Great Falls, Montana 

For Respondent: 

Marra, Wenz, Johnson & Hopkins, Great Falls, Montana 

Filed: 

Submitted on briefs: December 11, 1980 

Decided: MAR 4 - 1981 

I/ 4 v Y Clerk 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

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 Judicial District, Cascade County. 

On December 5, 1972, Timothy J. Calaway filed a 

complaint against Sid Jones seeking damages for the loss of 

a potato crop allegedly caused by Jones's failure to provide 

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., 

Sinpson Timber 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 

District Court 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 that Jones had failed to take 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), 177 Mont. 516, 582 P.2d 756. 

Following this Court's aff irmation 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, the District Court issued an order 

for pretrial conference and directed that copies of the same 

be sent to the respective counsel for the parties. Included 

in the order was the following provision: 

"That in event of a failure of a party or 

parties to appear, pursuant to this Order, 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, states he forwarded it to 

Jones by ordinary mail, together with a carbon copy of a 

letter sent to the district judge who signed the order and a 

note suggesting that Jones contact an attorney. The letter 

McCabe sent to the district judge was dated August 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 secretary as a matter of routine. 

Jones denies having received any correspondence from 

McCabe or a copy of the order for pretrial 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 at a rate of 6 percent per 

annum from September 1, 1971. 

On November 15, 1979, Jones moved the District Court 

for an order setting aside the judgment and dismissal of his 

counterclaim. Following a hearing, the District Court 

denied the motion 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 the judgment and order of dismissal. 

The sole fact presented to move the discretion of the 

trial court was a contention by Jones that he failed to 

receive any notice of 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 

situations where 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, 8 L.Ed.2d 734, reh. denied 371 

U.S. 873, 83 S.Ct. 115, 9 L.Ed.2d 112. 

Throughout this action Jones has displayed an 

attitude of unresponsiveness. Such attitude is evidenced by 

Jones's failure to timely respond to interrogatories; to 
appear at depositions; and in his failure to seek substitute 

counsel for more than eight months after his first attorney 

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 failing to attend the 

pretrial conference if Jones received notice of the 

conference and his required attendance. 

The evidence concerning the notice was conflicting. 

In reviewing the submitted record, however, in a light most 

favorable to Calaway as the prevailing party and in relation 

to Jones's continual unresponsive attitude, we conclude 

there is sufficient evidence to support the District Court's 

finding that Jones received information concerning the time 

and place of the pretrial conference. We find no abuse of 

discretion. 

The judgment in favor of Calaway and the dismissal of 

Jones's counterclaim as entered by the District Court are 

hereby affirmed. 

We concur: 

pen +% 

Chief Justice 4