                              No. 81-407
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                 1981


DALE P. HART,
                        Plaintiff and Appellant,


NEW PARK HOTEL, INC.,
                        Defendant and Respondent.


Appeal from:     District Court of the Fourth Judicial District,
                 In and for the County of Missoula
                 Honorable Douglas Harkin, Judge presiding.
Counsel of Record:
     For Appellant:
          Terry A. Wallace, Missoula, Montana
     For Respondent :
          Morales, Volinkaty and Harr, Missoula, Montana


                                 Submitted on briefs: November 18, 1981
                                             Decided: JAN   7-   ,,
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Filed :    ~i '1,\
            m,
Mr. J u s t i c e Gene B . D a l y d e l i v e r e d t h e O p i n i o n of t h e C o u r t .

           This      is     an     appeal        from        an    order        entered         in    the

D i s t r i c t C o u r t of t h e F o u r t h J u d i c i a l D i s t r i c t of t h e S t a t e

of    Montana,       i n and       for    t h e County o f M i s s o u l a .              Honorable

D o u g l a s H a r k i n i s s u e d a n o r d e r on J u n e 1 6 , 1 9 8 1 , r e q u i r i n g

the plaintiff             and h i s      a t t o r n e y t o p a y a sum c e r t a i n a s a

s a n c t i o n and t o p a y a t t o r n e y f e e s i n c u r r e d by t h e d e f e n d a n t .

The p l a i n t i f f a p p e a l s from t h a t o r d e r .

           This     action         initially          arose        when     a     complaint           was

filed     i n M i s s o u l a C o u n t y on November 1 4 , 1 9 7 8 .                   The a c t i o n

s o u g h t t o compel s p e c i f i c p e r f o r m a n c e o f a p u r p o r t e d a g r e e -

ment t o s e l l t h e P a r k H o t e l which i n c l u d e d h o t e l b u i l d i n g ,

l a n d and l i q u o r      license.           The c a s e        continued           t o be    liti-

g a t e d t h r o u g h o u t 1979 u n t i l      a n o t i c e of         e n t r y of    judgment

was    served       on     the     parties       in     May        1980.         The    plaintiff,

however,       waited       until        July    7,    1980,        to     file    a motion f o r

s u b s t i t u t i o n of judge f o r t h e Honorable J a c k L.                      Green under

section        3-1-801(4),             MCA.           The     defendant,           Park         Hotel,

objected       t o t h i s m o t i o n and s o u g h t             relief       in the District

Court, t h e Honorable Robert H o l t e r p r e s i d i n g .

           Judge H o l t e r found t h a t t h e p l a i n t i f f ' s o n l y p u r p o s e

b e h i n d t h e p u r p o r t e d d i s q u a l i f i c a t i o n of J u d g e G r e e n was t o

"hinder,       d e l a y and       cloud      the     issues."             The    plaintiff           was

o r d e r e d t o pay a t t o r n e y f e e s o f           $2,462.50 t o t h e defendant

and     was     fined       $1,000         for      hindering            and      delaying           the

proceedings.

           The m a t t e r       came b e f o r e      the    a t t e n t i o n of      t h i s Court

when t h e p l a i n t i f f a p p e a l e d t h e o r d e r of J u d g e H o l t e r .              This

C o u r t i s s u e d a n o r d e r on A p r i l 2 1 , 1 9 8 1 , w h i c h : a f f i r m e d t h e

findings       of    fact        and   conclusions            of    law of        Judge H o l t e r ;
determined     that   the    attempted      disqualification    of    Judge
Green in District Court Cause No. 49061 was without merit,
untimely and for the purpose of hindering and delaying Cause
1 0 49061.; ordered that a sanction be imposed against Dale
 1.
P. Hart and his attorney jointly and severally, consisting

of a $500 fine to be paid to Missoula County within thirty
days; and ordered the District Court to proceed                   to final
hearing of Cause No. 49061 without delay.
         On June 1 , 1981, plaintiff and his attorney filed in

this Court a motion for reconsideration of the April 21.,
1981, order.     This Court denied the motion for reconsidera-
tion on August 21, 1981, and ordered that the stay in the
proceedings      of    Cause    No.    49061.    be    vacated,      denied
relator's     request for a prehearing conference, and denied
relator's request for bifurcation of the proceedings.                   The

matter was then returned to the District Court in Missoula
County   where   Judge      Harkin    had    entered   the   order    which
provided in pertinent part:
         "It is hereby ordered that Plaintiff Dale P.
         Hart and his attorney, Terry A. Wallace,
         jointly and severally, are ordered to pay the
         sum of $500.00 ordered paid by the Supreme
         Court as a sanction, no later than 5:00
         o'clock P.M. Friday, June 19, 1981.
         "It is further ordered that Plaintiff Dale P.
         Hart and his attorney Terry A. Wallace,
         jointly and     severally, pay reasonable
         attorney's fees incurred by Defendant as
         Relator in the Supreme Court matter in the
         sum of $2,460.50 on or before July LO, 1981.."
         We   find that the order           of the District Court was
proper and in conformance with our initial order issued on
April 21, 1981.       This case has been before this Court on two
previous occasions; we will not reconsider the issues for a
third time.
         The appeal is hereby dismissed.



                                        ,,,d
                                           &/ Justice
                                                          /

W concur:
 e




/  Jus    IC




                     I d i s s e n t . I disagreed with the o r i g i n a l d e c i s i o n
         o r d e r i n g t h a t a t t o r n e y Wallace and h i s c l i e n t pay $500 t o
                                                                               - -
         b e p a i d a s a f i n e , and           o so a g a i n t o d a y .


                                           Justice    0
