No. 90-524
IN THE SUPREME COURT OF THE STATE OF MONTANA
1991
ERNEST EASTON,
Plaintiff and Appellant,
-vs-
REX COWIE, d/b/a COWIE CRANE SERVICE,
Defendant and Respondent,
and
REX COWIE, d/b/a COWIE CRANE SERVICE,
Counter-Plaintiff,
-vs-
ERNEST EASTON,
Counter-Defendant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Pondera,
The Honorable R. D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
John F. Lynch, Esq., Great Falls, Montana
For Respondent:
Tracy Axelberg; Jardine, Stephenson, Blewett &
Weaver, Great Falls, Montana
Fl"{
. FD ..J i~ued Submitted on Briefs:
Decided:
January 10, 1991
February 7,
Clerk
Justice John Conway Harrison delivered the Opinion of the court..
Ernest Easton appeals from an October 15, 1990, judgment of
the District Court of the Ninth Judicial District, Pondera County,
dismissing his wrongful discharge claim against Rex Cowie. We
affirm.
The sole issue is whether the District Court abused its
discretion by refusing to allow the service of an answer to a
request for admission sixteen days after the response was due.
I
On August 14, 1989, Easton filed an action against Cowie
alleging that he was wrongfully discharged from his employment with
Cowie Crane Service. Cowie counterclaimed for a $1,000 down
payment and materials for remodeling which Cowie allegedly provided
to Easton for a mobile home Easton purchased from Cowie. A
pretrial conference was held on July 9, 1990, and the matter was
set for trial on February 11, 1991.
On July 26, 1990, Cowie served written discovery requests upon
counsel for Easton. The document contained 24 items. Item 23 was
labeled llDISCOVERY
REQUEST NO. 23" and stated, "Please admit that
your employment with Cowie Crane Service was terminated for just
cause.11 According to Cowie, due to a mix-up in office procedure,
he made no response to the discovery requests within the thirty-
day limit required by Rules 33(a) and 36(a), M.R.Civ.P. Allowing
three days for mailing, Easton should have answered the discovery
..
requests and request for admission by August 28, 1990.
On September 13, 1990, Cowie filed a motion for summary
judgment, citing Easton1s failure to respond to the request for
admission, thereby admitting that he was terminated for just cause.
Easton wrote a letter to Cowie on September 14, 1990, explaining
the reason for the delay and answering the request for admission.
On October 1, 1990, the District Court heard oral arguments,
and on October 5, 1990, the District Court granted Cowiels motion
for summary judgment on the basis that no motion for an extension
of time had been made. On October 9, 1990, Easton moved for an
extension of time. The District Court denied the motion and
dismissed the wrongful discharge claim.
Did the District Court abuse its discretion by refusing to
allow the service of an answer to a request for admission sixteen
days after the response was due?
Rule 36(a) states in relevant part:
A party may serve upon any other party a written
request for the admission, for purposes of the pending
action, only, of the truth of any matters within the
scope of Rule 26(b) set forth in the request that relate
to statements or opinions of fact or of the application
of law to fact . . . .
Each matter of which an admission is requested shall
be separately set forth. The matter is admitted unless,
within 30 days after service of the request, or within
such shorter or longer 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 addressed to the matter . . . .
Rule 36(a), I4.R.Civ.P.
Easton argues that the law strongly favors disposition on the
merits of the case and full litigation of all the issues brought
before the trial court. Wagner v. Glasgow Livestock Sales Co.
(1986), 222 Mont. 385, 389, 722 P.2d 1165, 1168. He relies on
Heller v. Osburnsen (1973), 162 Mont. 182, 510 P.2d 13, for the
proposition that a district court may properly allow a delay caused
by a mixup in office procedure as long as the litigant acts in good
faith and the other party has not been prejudiced. Heller, 162
Mont. at 191, 510 P.2d at 17-18.
In Heller we held that the trial court had not abused its
discretion under Rule 36(a), M.R.Civ.P., by allowing an extension
of time to file answers to requests for admissions. The trial
court's decision to grant or deny an extension of time will not be
disturbed on appeal absent manifest abuse of discretion. Garrett
v. PACCAR Financial Corp. (Mont. 1990), 801 P.2d 605, 47 St.Rep.
2185. Filing a late response is not a matter of right, but lies
within the trial court's discretion. Garrett, 801 P.2d at 606, 47
St.Rep. at 2186; Morast v. Auble (1974), 164 Mont. 100, 105, 519
P.2d 157, 160.
We hold that the District Court, in compliance with Rule
36 (a), M.R. Civ.P., did not abuse its discretion by granting summary
judgment to Cowie and denying Easton1s motion for an extension of
time to answer the request for admission.
Affirmed.
P
We concur: fl
/ Chief Justice
Justices