FIRST BANK (N A )-BILLINGS v HEIDE
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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 Murphy, Billings, Montana & Mather;~GregoryG. Submitted on Briefs: Oct. 24, 1985 Decided: January 7, 1986 Filed: 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 mid-1950's. (N.A.)-Billings (Bank) since the 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. behind in repaying the loan. Heidemas fell The Bank made repeated efforts to assist them in working out a plan for reducing their debt, to no avail. Ralph Frequent letters from agricultural loan officer Stenehjem detailing the financial situation were ignored. precariousness of their 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 t o a l t e r o r amend an o r d e r o f a t t a c h m e n t . Later counsel d e f e n d a n t s by claim. again appeared a motion on behalf t o dismiss for Three weeks of the failure t o Defendants d i d n o t f i l e a b r i e f named state a i n support of the motion and p u r s u a n t t o Rule 5 o f t h e Rules o f t h e D i s t r i c t Court o f the Thirteenth Judicial denied. Louis Heidema died in District, July t h e motion was 1982, and Jimmy Ray Heidema was a p p o i n t e d p e r s o n a l r e p r e s e n t a t i v e o f t h e e s t a t e . The Bank moved defendant. to substitute Thereafter, in the estate 1982 and for the 1983, deceased the parties exchanged w r i t t e n d i s c o v e r y . In September, counsel. on 1982, Soon a f t e r , Heidemas' behalf of all scheduled. Heidemas moved to substitute new c o u n s e l f i l e d an answer defendants. pre-trial or t r i a l setting. were defendants First A pre-trial took Bank requested c o n f e r e n c e and t r i a l depositions of two o f f i c i a l s and t h e n moved f o r c o n t i n u a n c e o f t h e t r i a l . being fired, counsel. Jimmy Heidemas' new counsel moved The t r i a l d a t e was c o n t i n u e d . Ray Heidema to seek counsel and a to bank After withdraw as The c o u r t a d v i s e d that it would not a c c e p t f u r t h e r d e l a y by r e a s o n o f f a i l u r e t o o b t a i n c o u n s e l . T h e r e a f t e r Heidemas f i l e d a f l u r r y o f p r o se motions. The court allowed counterclaim, them to file an but denied a request amended answer and a f o r a j u r y t r i a l on t h e grounds t h e y had waived t h e r i g h t by f a i l i n g t o demand a j u r y trial within M.R.Civ.P. the time Heidemas allotted appealed by the Rule denial 38(b) and and the (d), Supreme C o u r t d i s m i s s e d t h e a p p e a l on t h e grounds t h e o r d e r was n o t an a p p e a l a b l e o r d e r . The failure to record appear is replete for timely with examples noticed of Heidemas' 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. also failed to appear at the Bank's They 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. inordinate We find it did not. patience, and a In fact, the court showed 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 When litigants use cooperation 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. cannot give way to abuse. But flexi-bility 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.
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