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                                                                No. 98-431

                           IN THE SUPREME COURT OF THE STATE OF MONTANA

                                                               1999 MT 314

                                                              297 Mont. 255

                                                               991 P.2d 459



STEVEN AND SANDRA ROSE,

Plaintiffs and Appellants,

v.

LUKE AND DEBRA ABRAHAMS,

Defendants and Respondents.




                                                          APPEAL FROM: District Court of the Twentieth Judicial
                                                          District,

In and for the County of Lake,

The Honorable C. B. McNeil, Judge presiding.




COUNSEL OF RECORD:

For Appellants:

Richard R. Buley, Tipp & Buley, P.C.; Missoula, Montana

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For Respondents:

Luke and Debra Abrahams, Pro Se; Plains, Montana



Submitted on Briefs: October 14, 1999

Decided: December 14, 1999

Filed:




__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the opinion of the Court.

      1. ¶ The Plaintiffs, Steven and Sandra Rose, appealed to the District Court for the
         Twentieth Judicial District in Lake County from the judgment of the Justice Court in
         Lake County which dismissed the Plaintiffs' complaint and awarded default
         judgment to the Defendants. The District Court dismissed the Plaintiffs' appeal for
         Plaintiffs' failure to timely respond to the Defendants' motion to dismiss. The
         Plaintiffs appeal from the Order of the District Court. We reverse and remand for
         further proceedings.
      2. ¶ The Plaintiffs filed their appellate brief with this Court on September 16, 1998.
         The Defendants have not filed a brief. On August 18, 1999, this Court ordered the
         Defendants to show good cause for failure to file a brief. Defendants have failed to
         respond, and therefore, this case was submitted for decision based on the Plaintiffs'
         brief.
      3. ¶ The following issue is dispositive:
      4. ¶ Did the District Court err when it dismissed Plaintiffs' appeal for failure to timely
         respond to the Defendants' motion to dismiss pursuant to Rule 2 of the Uniform
         District Court Rules?

                                                     FACTUAL BACKGROUND

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     5. ¶ On August 5, 1997, the Plaintiffs, Steven and Sandra Rose, filed a complaint in
        the Justice Court for Lake County to recover damages for unpaid rent and property
        damage from the Defendants, Luke and Debra Abrahams. On December 1, 1997,
        the Justice Court dismissed the complaint with prejudice and awarded default
        judgment to the Defendants. On February 17, 1998, Plaintiffs appealed the Justice
        Court decision to the District Court. The District Court scheduled a pretrial
        conference for April 1, 1998. On March 11, 1998, the District Court rescheduled the
        pretrial conference for March 31, 1998. On March 16, 1998, Plaintiffs filed a motion
        for substitution of counsel. However, notice of the rescheduled pretrial conference
        had been sent to the Plaintiffs' previous counsel and Plaintiffs' substituted counsel
        did not receive notice of the new date.
     6. ¶ On March 31, 1998, the District Court held the rescheduled pretrial conference
        and neither the Plaintiffs nor their attorney appeared. Based on the Plaintiffs' failure
        to appear, the District Court ordered their appeal dismissed on that date. On April 3,
        1998, the Plaintiffs filed a motion for relief from the District Court's order of
        dismissal on the basis that the Plaintiffs' counsel had not received notice of the
        rescheduled pretrial conference. On April 21, 1998, the District Court granted the
        Plaintiffs' motion for relief and rescinded its March 31, 1998 order.
     7. ¶ On March 24, 1998, prior to the District Court's dismissal of the Plaintiffs' action
        for failure to appear at the pretrial conference, the Defendants had filed a motion to
        dismiss the appeal for failure to timely appeal from the Justice Court's decision. On
        May 5, 1998, following the District Court's recision of its order to dismiss Plaintiffs'
        action for failure to appear, the District Court granted the Defendants' motion to
        dismiss based on its sua sponte conclusion that the Plaintiffs had failed to file an
        answer brief within the ten-day time period required by Rule 2 of the Montana
        Uniform District Court Rules.

                                                      STANDARD OF REVIEW

     8. ¶ We review a district court's conclusion of law to determine whether it is correct.
       Geissler v. Sanem (1997), 285 Mont. 411,414, 949 P.2d 234, 236-37.

                                                                DISCUSSION

     9. ¶ Did the District Court err when it dismissed Plaintiffs' appeal for failure to timely
       respond to the Defendants' motion to dismiss pursuant to Rule 2 of the Uniform
       District Court Rules?

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  10. ¶ The Plaintiffs contend that the District Court erred when it dismissed their appeal
      for failure to respond to the Defendants' motion to dismiss within ten days as
      required by Rule 2 of the Uniform District Court Rules. The District Court
      concluded that the time to respond to the Defendants' motion was tolled during the
      period of time the Plaintiffs' action had been dismissed for failure to appear but that
      when the District Court rescinded its order to dismiss, the Plaintiffs had only so
      much time remaining as had been remaining when the appeal was first dismissed.
      However, Plaintiffs assert that they were entitled to ten days from the time this
      appeal was reinstated within which to respond to the Defendants' motion to dismiss.
  11. ¶ We have not previously addressed these unique circumstances and know of no rule
      nor case law which resolves the issue presented.
  12. ¶ We are guided, however, by our repeated observation that the ultimate purpose of
      our Rules of Civil Procedure is to resolve controversies on their merits. See
      Yarborough v. Glacier County (1997), 285 Mont. 494, 497, 948 P.2d 1181, 1183.
  13. ¶ Accordingly, we conclude that, without notice to the contrary, it was reasonable
      for the Plaintiffs to assume that they had ten days from the reinstatement of their
      appeal to respond to the Defendants' motion to dismiss their appeal, and that their
      appeal was dismissed for a second time before that time had elapsed. Therefore, we
      conclude that the District Court erred when it dismissed the Plaintiffs' action for
      failure to timely respond to the Defendants' motion. We reverse the judgment of the
      District Court and remand for further proceedings consistent with this opinion.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ KARLA M. GRAY

/S/ W. WILLIAM LEAPHART

/S/ JAMES C. NELSON




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