Franz v. Bednarek

Montana Supreme Court

Franz v. Bednarek

678 P.2d 217, 208 Mont. 383

CourtMontana Supreme Court

DecidedMarch 13, 1984

Docket83-291

StatusPublished

This text of 678 P.2d 217 (Franz v. Bednarek) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Franz v. Bednarek, 678 P.2d 217, 208 Mont. 383 (Mo. 1984).

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Opinions

MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiff (Appellant) appeals a final order entered by 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 the 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.

We reverse and remand to the trial court with directions to reinstate the complaint and order the specific dollar [385]*385amount of the prayer stricken.

MR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur. MR. JUSTICE SHEA will file a separate concurring opinion later.

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MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiff (Appellant) appeals a final order entered by 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 the 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.

We reverse and remand to the trial court with directions to reinstate the complaint and order the specific dollar [385]*385amount of the prayer stricken.

MR. CHIEF JUSTICE HASWELL and MR. JUSTICES HARRISON, SHEEHY and GULBRANDSON concur. MR. JUSTICE SHEA will file a separate concurring opinion later.

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Bluebook (online)

678 P.2d 217, 208 Mont. 383, Counsel Stack Legal Research, https://law.counselstack.com/opinion/franz-v-bednarek-mont-1984.