No. 86-409
IN THE SUPREME COURT OF THE STATE OF MONTANA
1987
PAUL R. LANDAUER,
Plaintiff and Appellant,
-vs-
MELFORD KEHRWALD ,
Defendant and Respondent.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable James B. Wheelis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Terry A. Wallace, Missoula, Montana
For Respondent :
Ellingson & Moe; Jon E. Ellingson, Missoula, Montana
Submitted on Briefs: Dec. 4, 1986
Decided: February 13, 1987
Filed: FEB 13 1387
Mr. Justice L. C. Gulbrandson delivered the Opinion of the
Court.
Paul R. Landauer appeals a Missoula County District
Court order dismissing his complaint against Melford
Kehrwald. The issue on appeal is whether the District Court
abused its discretion by dismissing the complaint. We
affirm.
In 1981, Kehrwald purchased real property at a
sheriff's sale in Missoula County, Montana, subject to
certain statutory rights of redemption. Landauer claimed he
redeemed the property from Kehrwald in 1982 but Kehrwald
refused to relinquish possession to Landauer. Kehrwald then
filed for declaratory relief asking the court to determine
that Kehrwald owned the property and that Landauer had not
timely redeemed. Kehrwald continued to collect rents
generated by the property and refused to pay the property
taxes, ultimately paid by Landauer. In April 1985, the court
found that Landauer redeemed the property from Kehrwald in
1982 and was entitled to immediate possession. Landauer then
filed suit to recover the lost rental income from Kehrwald.
Kehrwald counterclaimed for malicious prosecution and
included a prayer for punitive damages. Discovery then
commenced. Kehrwald filed his first set of interrogatories
and requests for production on July 22, 1985. Request No. 3
asked for "Plaintiff's personal state and federal income tax
returns for the years 1980 through 1984." On September 5,
1985, the court ordered that discovery be completed by
October 31, 1985 "unless a party . .
. requests otherwise,
and good cause is shown . .. " Landauer filed his answers
to the interrogatories on October 1, 1985, but failed to
respond to the requests for production. Landauer filed his
first set of interrogatories on October 11, 1985 but by doing
so failed to give Kehrwald the allowed thirty days time to
answer before the October 31, 1985 deadline for completion of
discovery. On November 5, 1986, Landauer moved the court to
amend the complaint and add claims for fraud and conspiracy.
Landauer also requested an extension of the discovery
deadline. Kehrwald filed a motion to compel production of
the documents requested (Landauer's federal and state tax
returns) and on November 22, 1985, a hearing was held.
Landauer produced cover sheets to the federal returns, but
not copies of the actual federal or state returns as
requested by Kehrwald. The court ordered Landauer to file
the returns within twenty days, but he failed to do so.
Kehrwald filed another motion to compel and hearing was held
on February 21, 1986. The court again ordered Landauer to
file complete copies of his federal and state returns within
ten days, and warned that failure to comply would result in
dismissal of the complaint with prejudice. Landauer's
attorney apparently misread the order and only filed the
federal tax returns within the ten day deadline. On March
28, 1986, Kehrwald moved to dismiss Landauer's complaint, and
noticed the motion for April 11, 1986. Upon receiving the
motion, Landauer's attorney asked Landauer, residing in
Colorado, to provide his Colorado returns. The state tax
returns were hand-delivered to the court at the April 11,
1986 hearing. The court dismissed Landauer's complaint with
prejudice on April 24, 1986 as a sanction under Rule 37 (b),
M.R.Civ.P. Landauer obtained new counsel and filed a motion
for reconsideration but the court refused to grant the
motion.
-..
Rule 37(b), M.R.Civ.P. reads in relevant part:
(2) Sanctions by court in which action
is pending. If a party... fails to
obey an order to provide or permit
discovery,... the court in which the
action is pending may make such orders
in regard to the failure as are just and
among others the following:
(C) An order striking out pleadings or
parts thereof, or staying further
proceedings until the order is obeyed,
or dismissing the action or proceedinq
- -
or any part thereof, or renderins a
judgment by default against -the
disobedient party; (Emphasis added. )
Rule 37 sanctions exist for the purpose of deterring
dilatory parties.
They provide the trial judge with a way
to prevent an excessive back-log of
cases. The trial judge is in the best
position to know the extent of the
back-log and to know which parties
callously disregard the rights of their
opponents and other litigants seeking
their day in court. The trial judge is
also in the best position to determine
which sanction is the most appropriate.
Dassori v. Roy Stanley Chevrolet (Mont. 1986), 728 ~ . 2 d430,
[Wlhen it is not possible for this Court
to make a ready, confident, and accurate
determination of a party's good faith in
the discovery process, we presume the
correctness of the District Court's
action under Rule 37.
Owen v. F. A. Buttrey Co. (Mont. 19811, 627 P.2d 1233, 1237,
38 St.Rep. 714, 719, citing National Hockey League v.
~etropolitanHockey Club, Inc. (1976), 427 U.S. 639, 96 S-Ct.
In Dassori, we affirmed the lower court's dismissal of
an action in which the plaintiff, an attorney, presented
answers to interrogatories and the requested documents at the
hearing on the motion to dismiss the complaint some fourteen
months after the interrogatories and requests had been
received by the plaintiff. As we stated in Owen, 627 P.2d at
1235, this Court follows the recent trend of cases intent
upon punishing transgressors rather than patiently trying to
encourage their cooperation.
Counsel in the case before us was delinquent in filing
his client's discovery, and twice failed to obey the clear
mandates of a court order that he produce his client's
federal - state tax returns for the years requested. The
and
second order gave warning that failure to comply would result
in dismissal of the complaint with prejudice. By ignoring
the court orders, counsel should have realized he was placing
his client's case in jeopardy. Landauer, according to his
affidavit, was informed in 1985 that Kehrwald had requested
the production of his "tax returns" and that cover or face
sheets of the federal returns would be sufficient. The court
4
found otherwise and ordered Landauer to produce copies of the
federal and state returns within twenty days. Again,
Landauer failed to comply. Landauer claims he heard nothing
about the matter until February 21, 1986, five days before
the second hearing on the motion to compel discovery, when he
received a letter from counsel advising him to produce his
federal returns. He claims counsel told him nothing about
any court order to produce the returns. Landauer sent the
federal returns to counsel and was advised a month later that
Kehrwald had moved to dismiss his claim because he had not
produced his state (Colorado) tax returns.
Counsel should not have been surprised that his client's case
was ultimately dismissed. More importantly, counsel should
have realized his duty to the court. A party displaying an
attitude of unresponsiveness to the judicial process warrants
the imposition of sanctions, including dismissal. As we
stated in Dassori, 728 P.2d at 431, the trial judge is in the
best position to determine the most appropriate sanctions.
Finally, in answer to Landauer's claim that he complied
with the court's order by producing the state tax returns at
the April 1986 hearing, we again quote Dassori, 728 P.2d at
432:
[A] party cannot cure his dilatory
actions by presenting the requested
answers and documents at the hearing on
the motion to dismiss...
The District Court did not abuse its discretion.
Affirmed .
,/
,
We concur: