No. 89-416
IN THE SUPREME COURT OF THE STATE OF MONTANA
1989
ELDON HUFFINE, HD COMPANY,
Plaintiff and Appellant,
-vs-
MIKE BOYLAN, MIKE BOYLAN
EXCAVATING, INC., GARTH SIME,
SIME CONSTRUCTION, INC., VALLEY
BANK OF BELGRADE, and DOES I through X I
Defendants and Respondents.
APPEAL FROM: ~istrict Court of the ~ighteenth~udicial~istrict,
In and for the County of alla at in,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Eldon Huffine, pro se, Bozeman, Montana
For Respondent:
~ichardJ. Andriolo; Berg Law ~ i r m ,
Bozeman, Montana
Submitted on briefs: Oct. 20, 1989
Decided: November 6, 1989
Filed:
Justice William E. Hunt, Sr., delivered the Opinion of the
Court.
Eldon Huffine, pro se plaintiff and appellant, appeals
from an order of the District Court of the Eighteenth
Judicial District, alla at in County, dismissing his cause of
action pursuant to Rule 37 (b)(2)(C), M.R.Civ.P. We affirm.
The sole issue raised on appeal is whether the District
Court properly granted respondents' motion to dismiss
pursuant to Rule 37(b)(2)(C), M.R.civ.P., based on
appellant's failure to comply with the court's order imposing
discovery sanctions under Rule 37(d), M.R.Civ.P.
On March 22, 1989, a ~ o t i c eof Deposition was mailed to
Huffine, which set his deposition for March 29, 1989, at 1:30
p.m. Also, on that date, defendant personally served Huffine
a subpoena duces tecum, which also notified him of the time
and place. Huffine did not attend the deposition. The
District Court entered an order pursuant to Rule 37(d),
M.R.Civ.P., on April 17, 1989, imposing discovery sanctions
in the amount of $828.50 against Huffine for failure to
attend his deposition.
Huffine appealed the order to this Court and on June 1,
1989, we dismissed on the grounds that such orders are not
appealable. Huffine has never complied with the District
Court order to pay discovery sanctions.
On June 19, 1989, a hearing was held in which defendants
moved for the dismissal of Huffine's cause of action based on
Huffine's failure to comply with the District Court's order.
The motion was granted by order of the court on June 19,
1989. From the order, Huffine appeals.
Huffine contends that he was not given proper notice of
the time and place for the taking of his deposition so he did
not attend. Consequently, he claims that he need not pay
sanctions imposed and that dismissal based upon nonpayment
was improper. We disagree.
~uffine's contention is unsupported by the evidence as
he did not submit the transcript of the June 19, 1989,
hearing for review on appeal. In Yetter v. Kennedy (1977),
175 Mont. 1, 7, 571 P.2d 1152, 1156, we stated:
[Tlhe burden of showing error by reference to
matters of record is upon the appellant.
Unless the record that he brings before the court
of appeals affirmatively shows the occurrence of
the matters upon which he relies for relief, he may
not urge those matters on appeal. (Citation
omitted. )
Hence, ~uffine's failure to transmit the transcript of
the June 19, 1989, hearing violates Rules 9 and 10,
M.R.App.P. The record, then, is the only evidence of which
this Court can rely in making a determination on the issue at
bar. The record reflects that ~uffine was indeed served
notice of his deposition both personally and by mail and,
hence, the sanctions imposed were proper.
~mposition of sanctions for failure to comply with the
rules of discovery are regarded with favor. Owen v. F.A.
Buttrey Co. (Mont. 1981), 627 P.2d 1233, 1236, 38 St.Rep.
714, 716. See also Hanzel v. Marler (Mont. 19891, 774 P.2d
426, 427, 46 St.Rep. 1020, 1022. Rule 37, M.R.civ.P.,
sanctions are imposed in order to deter unresponsive parties.
See Dassori v. Roy Stanley Chevrolet Co. (19861, 224 Mont.
178, 179-180, 728 P.2d 430, 431. In Landauer v. Kehrwald
(1987), 225 Mont. 322, 325, 732 P.2d 839, 841, we stated:
A party displaying an attitude of unresponsiveness
to the judicial process warrants the imposition of
sanctions including dismissal.
While this Court accommodates pro se litigants when
possible, Huffine is no stranger to litigation. He has been
involved in thirteen ~istrictCourt cases and has attempted
several appeals.
Because Huffine was properly served with notice of his
deposition in accordance with the Rules of Civil Procedure,
and because he deliberately and intentionally failed to
appear at the time and place set for the taking of his
deposition, the District Court properly sanctioned him by
dismissing his cause of action under Rule 37(b) (2)(C),
M.R.civ.P. Further, we conclude that this appeal is taken
without substantial or reasonable grounds and, consequently,
we impose additional damages in the amount of $300 pursuant
to Rule 32, M.R.App.P., to be paid to the respondent. See
Searight v. Cimino (Mont. 1989), 777 P.2d 335, 46 St.Rep.
1217.
Affirmed.