No. 90-337
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
SAMUEL GARRETT,
Plaintiff and Appellant,
PACCAR FINANCIAL CORPORATION, a Washington
Corporation, and OH, MONTANA, INC., d/b/a
PERSONAL COLLECTIONS, and DONALD M. LEACH
d/b/a Personal Collections,
Defendants and Respondents.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas A. Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Gary L. Spaeth, Red Lodge, Montana
For Respondent:
Stephen C. Mackey; Towe, Ball, Enright & Mackey;
Billings, Montana (PACCAR Financial Corp.)
Stephen C. Pohl, Bozeman, Montana (Oh, Montana,
Inc.)
Calvin L. Braaksma; Landoe, Brown, Planalp &
Kommers; Bozeman, Montana (Donald M. Leach)
Submitted on Briefs: October 19, 1990
Decided: November 29, 1990
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
The plaintiff, Samuel Garrett (Garrett), initiated this suit
to recover damages sustained during the alleged wrongful possession
of Garrett's semi-truck. The District Court for the Eighteenth
Judicial District, Gallatin County, granted summary judgment under
Rules 36 (a) and 56 of the Montana Rules of Civil Procedure.
Plaintiff appeals. We affirm.
The issue is did the District Court err when it granted the
defendants' motion for summary judgment under Rules 36(a) and 56,
M.R.Civ.P.?
The relevant facts to the issue before this Court are
procedural. On January 11, 1989, defendant PACCAR Financial
Corporation (PFC), served its first written interrogatories on
Garrett. When Garrett failed to respond after ten months, PFC
served Garrett with a set of Requests for Admissions on October 11,
1989. The Requests for Admissions were based on the prior
unanswered interrogatories and were aimed at all of the material
allegations of Garrett's complaint. Garrett failed to respond to
the Request for Admissions and three months later, on January 4,
1990, PFC moved the court for summary judgment on the theory that
unanswered admissions are deemed admitted after 30 days under Rule
36(a), M.R.Civ.P.
Defendants, Donald M. Leach (Leach) and Oh, Montana, Inc. (Oh,
Montana) joined PFC1s motion based on the theory that Garrett's
deemed admissions address the ultimate issues of fact in the case
and are totally dispositive of Garrett's claims as to all
2
defendants.
The record shows that Garrett also failed to comply with
discovery as to defendant Leach. On July 26, 1989, Leach served
Garrett with interrogatories and Requests for Production of
Documents. When Garrett failed to respond by October 6, 1989,
Leach filed a Motion to Compel Discovery pursuant to Rule 37(a),
M.R.Civ.P. On November 8, 1989, the court ordered Garrett to file
the requested documents by November 17, 1989, and to produce income
tax returns by December 15, 1989. To date Garrett has failed to
produce the income tax returns as ordered by the court.
At the hearing on the motion for summary judgment, Garrett's
counsel's stated reasons for failure to respond included the
following: Garrett is a truck driver and fails to maintain contact
with his attorney, Garrett experienced personal problems and
illness and death in the family, counsel assumed this case from his
associate who had left the firm, counsel is busy with other
matters, and counsel believed he had a conversation with PFC1s
counsel which led him to believe he had an extension. At the time
of the hearing on January 26, 1990, Garrett had not filed any brief
in opposition to summary judgment and still had not filed any
answers to interrogatories or requests for admission.
The District Court deemed the request for admissions as
admitted under Rule 36 (a), M.R.Civ.P. , and granted summary judgment
as to all defendants under Rule 56, M.R.Civ.P.
Did the District Court err when it granted the defendants1
motion for summary judgment under Rules 36(a) and 56, M.R.Civ.P.?
Rule 36(a) states in relevant part:
The matter is admitted unless, within 30 days after
service of the request, or within such shorter or loncrer
time as the court may allow, the party to whom the
request is directed serves upon the party requesting the
admission a written answer or objection ...
PFCgs Interrogatories had gone unanswered for approximately
a year and the Requests for Admissions had gone unanswered for
three months. At no time had Garrett attempted to file answers or
to file a request for permission from the court for a longer time
as required under Rule 36(a). Garrett's deemed admission leaves
no genuine issues of material fact as to liability on the part of
any defendant. Delay or failure to respond to the requests for
admissions justifies summary judgment under Rule 56, M.R.Civ.P.
Morast v. Auble (1974), 164 Mont. 100, 105, 519 P.2d 157, 160.
The standard of review is set forth in Morast as follows:
[A] litigant's right to file a late response [to requests
for admissions] is Ignota matter of rightfvg is rather
but
"a matter resting within the discretion of the district
court and will not be disturbed on appeal unless there
is a showing of manifest abuse of dis~retion.~'
Id. at 105, 519 P.2d at 159.
A review of the record reveals no evidence showing a manifest
abuse of discretion. We hold the District Court did not err when
it granted the defendantsg motion for summary judgment under Rules
36(a) and 56 of the Montana Rules of Civil Procedure.
Affirmed.
We Concur:
/
/
A. /-
Chief Justice
L-
J'
4
5??k&j&44
C
Justices