                                No. 83-291
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                     1984



HOWARD E. FRANZ a Personal Representative
for the Estate of Juanita Franz, Deceased,

                        Plaintiff and Appellant,


T. T. BEDNAREK, M.D.,     and ST. VINCENT'S
HOSPITAL,
                        Defendants and Respondents.




APPEAL FROM:    District Court of the Thirteenth Judicial District,
                In and for the County of Yellowstone,
                The Honorable William J. Speare, Judge presiding.

COUNSEL OF RECORD:
         For Appellant:

                Charles A. Collins argued, Minneapolis, Minnesota
                Frank C. Richter; Richter & Associates, Billings,
                Montana (Co-counsel)
         For Respondents :
                Anderson, Brown Law Firm; Richard F. Cebull,
                Billings, Montana (St. Vincent's)
                Crowley Law Firm; Chris Mangen argued, Billings,
                Montana (Bednarek)
         For Amicus Curiae:
                Gerald J. Neely, for Montana Medical Association,
                Billings, Montana


                                 Submitted:   January 12, 1984
                                  Decided:    March 14, 1984



Filed:            ,&
                  t
                  3
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
       Plaintiff (Appellant) appeals a final order entered bl7
the     Thirteenth        Judicial     District          Court,    County      of
Yellowstone, dismissing plaintiff's complaint.                     We reverse.
       Appellant     filed a malpractice           action and included a
prayer for money damages in violation of section 25-4-311,
MCA.    Defendant moved to dismiss.            The court entered an order
dismissing the complaint after the statute of limitations had
run so that appellant could not refile.
       The sole issue on appeal is whether the trial court
abused its discretion in dismissing the complaint rather than
in allowing an amendment.
       Respondent     contends       that   the        statute    forbidding   a
specific     reference to money         damages in the prayer of a
complaint     can    only   have     meaning      if    the   complaint is a
nullity.     Appellant argues that it was an abuse of discretion
not    to   permit   an     amendment to       the pleadings because           a
dismissal of the complaint, following running of the statute
of limitations, would deny appellant any remedy.
       Section 25-4-311, MCA, does not in any way suggest that
a complaint, containing a prayer for damages, is a nullity.
The statute simply precludes pleading for a specific dollar
amount.     No remedy for violation of the statute is provided.
Dismissal of the complaint under these circumstances was an
abuse of discretion on the part of the trial court.                         The
trial court should have granted leave to either strike the
dollar amount from the complaint or should have granted leave
to file an amended complaint with the prayer being drafted in
conformity with section 25-4-311, MCA.
       W r e v e r s e and remand t o t h e t r i a l c o u r t w i t h d i r e c t i o n s
        e

to    reinstate        the     complaint         and    order      the    specific         dollar

amount o f t h e p r a y e r s t r i c k e n .




W concur:
 e


                             lAAd7.q
Chief J u s t i e




Justices


        I concur        i n t h e foregoing opinion.                   I n doing so,         I do

not    in     any    way      approve       the     specific        reference         to    money

damages i n t h e c o m p l a i n t which i s f o r b i d d e n by s t a t u t e .




~ 4 r . J u s t i c e D a n i e l J . Snea w i l l f i l e a s e p a r a t e c o n c a r r i n g
opinion l a t e r .
                SPECIALLY CONCTJRRING OPINION
                OF MR. JUSTICE DANIEL J. SHEA


FFANZ v. BEDNARECK
Mr. Justice Daniel J. Shea, specially concurring:


       I agree this case requires reversal and remand, but for
a      different      reason,   section    25-4-311,    NCA ,    is
unconstitutional on its face because it infringes on the
Court's rulemaking authority under 1972 Mont. Const., Art.
VII,    5 2.    That action provides the Supreme Court may make
rules     governing    appellate   procedure   and   practice   and
procedure      for all other courts.      Section 25-4-311, MCA,
directly affects procedure because it deprives plaintiffs of
the right to pray for damages in certain circumstances.
