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- ,, [ g '/7 L

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