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                                                               No. 99-513

                          IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                             2000 MT 141N



                                                 CREDIT SERVICE CO., INC.,

                                                      Plaintiff and Respondent,

                                                                      v.

                                        GLENN LAGERQUIST and FRANCES M.

                                           LAGERQUIST and THE FRANCES M.

                                                      LAGERQUIST TRUST,

                                                    Defendants and Appellants.



                         APPEAL FROM: District Court of the Thirteenth Judicial District,

                                             In and for the County of Yellowstone,

                                        Honorable Susan P. Watters, Judge Presiding



                                                     COUNSEL OF RECORD:

                                                             For Appellant:

                                        Glenn Lagerquist, Pro Se, Billings, Montana

                                                            For Respondent:



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                                Benjamin J. LaBeau, Harper Law Firm, Billings, Montana



                                             Submitted on Briefs: January 13, 2000

                                                        Decided: May 25, 2000

                                                                    Filed:

                                    __________________________________________

                                                                     Clerk


Chief Justice J. A. Turnage delivered the Opinion of the Court.


¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number, and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.

¶2 The respondent, Credit Services Co., Inc., brought an action in the Thirteenth Judicial
District Court, Yellowstone County, against the appellants, the Lagerquists, to collect on a
bill assigned to it. The Lagerquists filed an answer pro se, generally denying all parts of
Credit Services' complaint. They did not state any defense or make a counterclaim. After
they filed their answer, the Lagerquists did not participate in any of the pretrial
proceedings. Six days before trial, the Lagerquists' attorney filed a notice to appear and a
motion for continuance. At trial, neither the Lagerquists nor their attorney was present
when the District Court denied the motion for continuance. The Lagerquists' attorney
arrived after the trial began. The District Court did not allow him to introduce a breach of
contract argument, and ultimately it decided in Credit Services' favor. From this, the
Lagerquists appeal pro se. We affirm.

¶3 The Lagerquists address two issues on appeal:

¶4 1. Did the District Court abuse its discretion when it denied their motion for

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continuance?

¶5 2. Did the District Court abuse its discretion when it did not allow their attorney to
introduce a breach of contract argument at trial?

                                                                 ISSUE 1

¶6 Did the District Court abuse its discretion when it denied the Lagerquists' motion for
continuance?

¶7 The District Court has discretion to postpone a trial pursuant to § 25-4-503, MCA, "[u]
pon good cause shown and in furtherance of justice, . . . under such conditions as the court
may direct." Our standard in reviewing a district court's denial of a motion for continuance
is whether the district court abused its discretion. See Matter of M.M. (1995), 274 Mont.
166, 172, 906 P.2d 675, 678.

¶8 In the motion for continuance, the Lagerquists' attorney asserted that he needed
additional time to prepare a defense because he had just been retained. The District Court
denied the request because the Lagerquists had had over nine months to retain counsel but
failed to do so until six days before trial. This Court has upheld a District Court's denial of
a motion for continuance, deciding that less time than this was ample time to locate an
attorney. See, e.g., Fields v. Wells (1989), 239 Mont. 392, 395, 780 P.2d 1141, 1143. The
Lagerquists have not demonstrated an abuse of the District Court's discretion.

¶9 The Lagerquists argue that because the District Court did not rule on the motion for
continuance until trial, they did not have adequate notice of the denial and lost their
opportunity to be heard. They argue that their due process rights were violated.

¶10 Due process requires that a party have notice of an action or judgment and a
reasonable opportunity to be heard. See Matter of Adoption of R.M. (1990), 241 Mont.
111, 116, 785 P.2d 709, 712. The Lagerquists had notice of trial, ample time to retain an
attorney, and the opportunity to appear at trial to be heard. The fact that they failed to
participate in the pretrial proceedings or show up at trial was of their own design.
Therefore, their contention that they were denied due process lacks merit. Cf. Matter of
Adoption of J.M.H. (1994), 264 Mont. 381, 386-87, 871 P.2d 1326, 1329.

¶11 Thus, we conclude that the District Court did not abuse its discretion when it denied


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the Lagerquists' motion for continuance.

                                                                 ISSUE 2

¶12Did the District Court abuse its discretion when it did not allow the Lagerquists'
attorney to introduce a breach of contract argument at trial?

¶13 The Lagerquists believe that their general denial to Credit Services' complaint was
sufficient to raise a breach of contract argument later at trial. In its findings of fact, the
District Court noted that the "Defendants did not include a counterclaim for breach of
contract against Plaintiff or the providers in their Answer." In its conclusions of law, the
District Court stated: "Any claims or evidence by Defendants of breach of contract have
not been properly raised pursuant to Rule 12(b) M.R.Civ.P. and any evidence of such a
claim is, therefore, inadmissible, pursuant to Rule 104 and 402, M.R.Evid."

¶14 We agree with the District Court that the Lagerquists' breach of contract argument
was not properly raised in their answer or at any time before trial. Rule 12(b), M.R.Civ.P.,
requires that every defense to a claim, counterclaim or third-party claim be raised in the
responsive pleading. See Holtman v. 4-G's Plumbing & Heating, Inc. (1994), 264 Mont.
432, 438, 872 P.2d 318, 322. Rule 8(a), M.R.Civ.P., requires that a pleading which sets
forth a claim for relief, such as a counterclaim, must contain a short and plain statement of
the claim and a demand for judgment for the relief sought. See Jim & Tracy's Alignment,
Inc. v. Smith, 1998 MT 203, ¶ 16, 290 Mont. 368, ¶ 16, 966 P.2d 731, ¶16. Despite the
Lagerquists' contention, these rules are upheld under our Constitution. A general denial
such as the one the Lagerquists made is not sufficient to raise a breach of contract claim at
trial.

¶15 Accordingly, it was not error for the District Court to prohibit Lagerquists' attorney
from introducing any facts pertaining to the breach of contract argument. Rulings on the
admissibility of evidence are within the sound discretion of the trial court and will not be
overturned on appeal absent an abuse of discretion. See Zimmerman v. Robertson (1993),
259 Mont. 105, 110, 854 P.2d 338, 341.

¶16 The Lagerquists summarily argue that they lacked enough money to hire an attorney
and that they were not aware there was a breach of contract until February 1999, four
months after they filed their answer. Nonetheless, they had at least five more months to
pursue their breach of contract claim before trial was scheduled to begin, and they could


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have pursued their claim pro se. Thus, we are not persuaded by their argument.

¶17 We conclude that the District Court did not abuse its discretion when it did not allow
the Lagerquists' attorney to introduce a breach of contract claim at trial.

¶18 The District Court's decision is affirmed.

                                                        /S/ J. A. TURNAGE

                                                               We concur:

                                                /S/ WILLIAM E. HUNT, SR.

                                               /S/ W. WILLIAM LEAPHART

                                                      /S/ KARLA M. GRAY

                                         Justice Terry N. Trieweiler concurring.

¶19 I concur with the majority's conclusion that the District Court did not abuse its
discretion when it denied the Defendant's motion for a continuance.

¶20 I also concur with the majority's decision to affirm the District Court's exclusion of
evidence related to breach of contract. However, I do not agree with the District Court's,
nor the majority's reasons for excluding that evidence.

¶21 Rule 12(b), M.R.Civ.P., is not applicable to the circumstances in this case. It simply
requires that a defense to a claim for relief shall be asserted in the responsive pleading and
then notes those exceptions which may be raised by motion. Rule 8(b), M.R.Civ.P., sets
forth the form and substance of the responsive pleading that is required and merely
requires a "short and plain" statement admitting or denying the allegations in the
complaint. In this case, there were no specific allegations in the Plaintiff's complaint.
There was one paragraph pertaining to this claim and the Defendants' one paragraph denial
was sufficient to raise an issue about whether the allegation in the complaint was true.

¶22 However, when at trial, the Defendants conceded that services had been performed for
them, but sought to admit evidence which would permit them to avoid any obligation for
those services, that evidence was in the nature of an affirmative defense. The applicable

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rule then became Rule 8(c), M.R.Civ.P. which provides in relevant part that:

        In pleading to a preceding pleading, a party shall set forth affirmatively . . . failure
        of consideration . . . and any other matter constituting an avoidance or affirmative
        defense.



I conclude, based on the facts presented to the District Court and those facts argued on
appeal by the Defendants, but which were not admitted by the District Court, that the
evidence was offered to prove lack of consideration for the services for which Plaintiff
sought to recover. For that reason, Defendants had an obligation to affirmatively raise lack
of consideration or breach of contract in their answer as bases for avoiding their obligation
to pay for the services that were performed.

¶23 For these reasons, I concur with the result of the majority opinion, but not the reasons
given for that opinion.

                                                /S/ TERRY N. TRIEWEILER




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