Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

ECI Credit, LLC v. Diamond S Inc.

Supreme Court of Montana

July 24, 2018

ECI CREDIT, LLC, a Montana limited liability company, Plaintiff and Appellant,
v.
DIAMOND S INC., a/k/a DIAMOND S INC. CORP., a Montana corporation, Defendant, Appellee and Cross-Appellant.

          Submitted on Briefs: May 23, 2018

          District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV 12-458 Honorable Leslie Halligan, Presiding Judge.

          For Appellant: David Brian Cotner, Kyle C. Ryan, Cotner Law, PLLC, Missoula, Montana

          For Appellee: Cory R. Gangle, Gangle Law Firm, PC, Missoula, Montana

          OPINION

          Ingrid Gustafson Justice.

         ¶1 ECI Credit, LLC, (ECI) appeals from orders of the Fourth Judicial District Court, Missoula County, dismissing its case against Diamond S Inc., (Diamond) under M. R. Civ. P. 41(b), and denying its motion for relief from that dismissal under M. R. Civ. P. 60(b). Diamond cross-appeals from the District Court's order granting partial summary judgment in ECI's favor. We affirm the District Court's orders dismissing ECI's case and denying ECI's motion for relief from that dismissal. We deny Diamond's cross-appeal as moot.

         ¶2 We restate the issues on appeal as follows:

1. Did the District Court abuse its discretion when it dismissed ECI's complaint for failing to prosecute under M. R. Civ. P. 41(b)?
2. Did the District Court abuse its discretion when it denied ECI's motion for relief under M. R. Civ. P. 60(b)?
3. Did the District Court err by granting partial summary judgment in ECI's favor on the issues of duty and breach?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 In 2008, ECI purchased real property from Diamond that included several older commercial buildings, including one known as the Watercraft building. In 2010, ECI discovered the Watercraft building had suffered fire damage, including compromise of the roof trusses, at some point in its history. Although Diamond knew, and did not tell ECI, that the Watercraft building had been damaged in a fire in 1977, Diamond denied it had failed to disclose any known defects: It filed an insurance claim after the fire, a contractor repaired the damage, and Diamond believed the damage was repaired.

         ¶4 ECI filed suit in 2012, alleging claims including fraud, negligent representation, and breach of contract. On May 23, 2014, the District Court granted ECI partial summary judgment, ruling that Diamond had breached its duty to disclose a latent defect in the Watercraft building. The court reserved ruling on damages for trial.

         ¶5 On July 9, 2014, Diamond moved for relief from the summary judgment under M. R. Civ. P. 60(b). On July 28, 2014, ECI responded in opposition. On September 26, 2014, the District Court denied Diamond's motion.

         ¶6 In December 2014, Diamond's counsel wrote to ECI's counsel and proposed a scheduling order. Diamond's counsel also indicated that Diamond was willing to enter into settlement negotiations. ECI did not respond to the letter.

         ¶7 The parties took no further action in the District Court. On January 19, 2017, the District Court issued an Order Closing Case.

         ¶8 On February 22, 2017, ECI moved to reopen the case. ECI offered no explanation why it had taken no action after the summary judgment order, but argued the District Court could not dismiss the action pursuant to § 25-1-104, MCA, because it had not given the parties notice and allowed them the opportunity to recommence prosecution.

         ¶9 Diamond opposed ECI's motion. It acknowledged that the District Court could not dismiss the case under § 25-1-104, MCA, because the court did not give notice prior to dismissal. Diamond then moved to dismiss the case under M. R. Civ. P. 41(b), which does not require notice, but permits a defendant to move to dismiss a claim for failure to prosecute. Diamond argued ECI had taken no steps to move the case towards the resolution of the remaining issues, having last conducted discovery in the spring of 2013, filing only a single response brief after that point, and taking no action whatsoever since July 2014. Replying to Diamond's Rule 41(b) argument, ECI acknowledged that "there is no explanation for the delay." ECI contended Diamond had suffered no prejudice, argued dismissal was too harsh a remedy, and suggested the District Court instead issue a truncated scheduling order.

         ¶10 On May 18, 2017, the District Court issued an Order Granting Motion to Reopen Case and Granting Motion to Dismiss. The court vacated its earlier closure of the case, admitting it did not provide the notice § 25-1-104, MCA, requires. The District Court then granted Diamond's motion to dismiss under M. R. Civ. P. 41(b).

         ¶11 ECI moved for relief from the Order under M. R. Civ. P. 60(b)(1), alleging the District Court made a mistake in dismissing the case. ECI contended it diligently prosecuted its case prior to September 26, 2014, and although it did not file anything with the District Court afterward, its work on the case did not cease. Counsel stated he created a "preliminary draft" of a motion for summary judgment regarding damages. Counsel also stated in an accompanying affidavit that due to staffing changes at his law firm, the case "slipped through the cracks." ECI also alleged the lack of a scheduling order caused the case to sit idle.

         ¶12 The District Court denied ECI's motion for relief. ECI appeals.

         STANDARDS OF REVIEW

         ¶13 A district court has broad discretion in ruling on a M. R. Civ. P. 41 motion to dismiss, and we will overturn its ruling only for an abuse of discretion. Lear v.Jamrogowicz, 2013 MT 147, ¶ 16, 370 Mont. 320, 303 P.3d 790 (citation omitted). We will vacate a dismissal if, after reviewing the record, we are left with the definite and firm conviction that the district court committed a clear error in weighing the relevant ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.