No. 93-400
IN THE SUPREME COURT OF THE STATE OF MONTANA
1994
GARY D. FJELSTAD, as Conservator of
MAREIA ELLEN FJELSTAD, a Protected Person,
Plaintiff, Respondent,
and Cross-Appellant,
APPEAL FROM: District Court of the Sixteenth Judicial District,
In and for the County of Treasure,
The Honorable Kenneth R. Wilson, Judge presiding.
COUNSEL OF REKORD:
For Appellant:
R. H. Bellingham, T. Thomas Singer, and
Harlan B. Krogh, Moulton, Bellingham,
Longo & Mather, Billings, Montana
For Respondent:
Donald W. Molloy, Molloy Law Offices,
Billings, Montana
Theodore R. Dunn, Goetz, Madden & Dunn,
Bozeman, Montana
Lee R. Kerr, Kerr Law Office, Hysham, Montana
Submitted on Briefs: February 10, 1994
Decided: October 25, 1994
Filed:
Justice Terry N. Trieweiler delivered the opinion of the Court.
Plaintiff Gary D. Fjelstad commenced this action in the
District Court of the Sixteenth Judicial District in Treasure
County to recover damages for personal injuries sustained by his
daughter Mareia as a result of an automobile collision that
occurred on December 18, 1988. Following trial, a Treasure County
jury returned its verdict in favor of defendant State of Montana,
finding that it was not negligent. Fjelstad moved for a new trial
based on insufficiency of the evidence to support the jury's
verdict and based on newly discovered evidence which the State had
known of prior to trial but had not disclosed. Fjelstad also moved
the District Court to impose sanctions against the State because of
its failure to disclose the newly discovered evidence in response
to prior discovery requests. The District Court granted Fjelstadls
motion for a new trial, but denied his motion for sanctions. The
State appeals from the District Court's order granting a new trial.
Fjelstad cross-appeals fromthe District Court's order which denied
his motion for the imposition of sanctions. We affirm the District
Court's order granting a new trial and remand for further
proceedings regarding the issue of sanctions.
The issues raised by the parties are as follows:
1. Did the District Court abuse its discretion when it
granted Fjelstad's motion for a new trial based on newly discovered
evidence pursuant to M. R. Civ. P. 60(b)?
2. Did the District Court abuse its discretion when it
granted Fjelstad's motion for a new trial pursuant to M. R. Civ. P.
59, and 5 25-11-102, MCA, based on insufficiency of the evidence to
support the jury's verdict?
3. Did the District Court err when it refused to impose
sanctions pursuant to M. R. Civ. P. 26(g), for defendant's failure
to disclose material evidence in response to written
interrogatories?
FACTUAL BACKGROUND
On December 18, 1988, Ellen Fjelstad was operating her motor
vehicle in a westerly direction on Interstate Highway 94 at a point
approximately 9.7 miles east of Custer in Treasure County, Montana.
For some reason, Ellen's attention was distracted fromthe highway,
she swerved to her right, left the highway, and struck the end of
a guardrail while attempting to correct her vehicle and return to
the highway.
The guardrail with which Ellen collided included a concrete
endpost reinforced with steel and was anchored to the ground by a
steel cable attached to buried concrete. Ellen's car struck the
concrete post, hooked onto the cable and flipped over on top of the
guardrail so that it was upside down and facing east. Ellen and
Jessica Simenson, a two-year-old passenger in the rear seat, were
killed as a result of the collision. Ellen's daughter, Mareia, who
was a passenger in the front seat of the vehicle was thrown from
the vehicle for a distance of approximately 50 feet and sustained
severe head injuries.
Mareialsfather, Gary, commenced this action against the State
of Montana to recover damages which Mareia has sustained because of
her injuries. In his complaint, Gary Fjelstad alleged that the
guardrail with which his wife Ellen collided was negligently
designed, installed, and maintained by the State of Montana, and
that the State's negligence was a cause of Mareia's injuries.
The State denied that it was negligent and alleged that its
conduct with regard to the guardrail conformed to the applicable
standard of care at all times prior to the date of this accident.
To understand the nature of Gary Fjelstad's claim, and the
basis for the District Court's order granting a new trial, it is
necessary to briefly summarize the history of guardrail end
treatment in Montana in general, and the history of the involved
guardrail in particular.
Interstate Highway 94 through Montana was constructed in 1962.
Guardrail was and is used along various locations of the highway to
help prevent accidental runoff from the highway and reduce the
frequency of physical injury and property damage. However, it was
conceded by the Department of Highways that a guardrail itself
constitutes a hazard on the highway and that the end treatment of
guardrails has evolved over the years out of concern for the hazard
it presents. The first guardrails constructed along Interstate 94
used an end known as a llblunt
end." It is more accurate to say the
original guardrails involved no treatment at all. The guardrail
simply ended. That type of design presented a hazard when struck
by vehicles because the rail would enter the passenger compartment
of the car and spear the passenger or driver.
During the early 1960s, the state of Texas developed a
guardrail end treatment known as the Texas twist. That design
featured an end treatment which was twisted 90 degrees and anchored
to the ground. It provided several advantages. First, it anchored
the entire length of the rail to provide greater longitudinal
strength and resistance to damage from collision. Second, the
design was more crash worthy than the blunt end because there was
no rail with which colliding vehicles could be speared. The Texas
twist was adopted by Montana as its standard for guardrail end
treatment in 1967 and remained the State's standard until 1971.
Although the date is unclear from the record, a Texas twist end
treatment was constructed at the scene of Ellen Fjelstadls fatal
accident in the Hysham hills sometime prior to 1971 and remained
there until it was replaced by a buried anchor end treatment in
1977.
In 1971, Montana adopted the buried anchor end treatment as
its standard. This design is also referred to as the California
end anchorage, indicating the state in which it was developed.
This design is similar to the blunt end treatment originally used
in Montana. However, additional tensile force was provided by
anchoring the guardrail to a concrete slab placed in the ground a
few feet from the endpost. The guardrail and the concrete slab
were connected by a steel cable attached to the buried concrete
slab and connected to the rail between the first and second posts.
The buried anchor end treatment was adopted from a California
standard which required that the endpost be composed of wood and
that the end treatment be flared away from the road so that it was
located beyond the clear zone or at least 30 feet from the fog line
on the highway. However, when the buried anchor end treatment was
installed at the scene of Ellen Fjelstadrscollision, the endpost
was constructed from concrete reinforced with steel bars and was
located only 20 feet from the travelled portion of the highway.
In the mid-1970s, highway designers began development of an
end treatment for guardrails know as the "break away cable
treatment" (BCT). The BCT was developed to improve the crash
worthiness of guardrail end treatments and became the adopted
standard for Montana on June 1, 1979. The BCT provided stability
to the guardrail by use of longitudinal tension provided by a steel
cable which passed through and attached to the first post.
However, the first and several subsequent posts are designed to be
constructed of wood so that they break away on impact. In theory,
when the first post breaks the cable is released and the rail
should buckle more easily during impact and reduce the likelihood
of spearing the passenger compartment of the vehicle. The Staters
experts agreed that penetration of a vehicle with the BCT end
treatment is less frequent than with the buried anchor design.
They further agreed that the dynamics of Ellen Fjelstadssaccident
and the forces which caused Mareia's injuries would have been
different had the BCT been in place at the accident scene in 1988.
In 1984, after the BCT was adopted as the standard for
guardrail end treatments in Montana, the State Highway Department
engaged in an overlay project on the stretch of highway where
Ellen's accident occurred. In an overlay project, an asphalt mat
is placed on top of the roadway to preserve the riding surface.
The State offered evidence that while they would occasionally raise
guardrails during an overlay project to maintain the necessary
height above the travelling surface of the roadway, it was not the
State's policy in 1984 to upgrade end treatments on guardrails to
conform to existing standards. However, that policy changed on
August 20, 1986, when Steven C. Kologi, a pre-construction engineer
for the Montana Department of Transportation, signed a memorandum
to the Federal Highway Administration indicating that on future
resurfacing projects the State would upgrade all guardrail end
treatments for break away cable treatment. That change was to be
effective January 1, 1987.
At trial, Gary Fjelstad alleged that the State Department of
Highways was negligent in several respects with regard to the end
treatment that existed at the time of Ellen's accident.
1. He alleged that the State was negligent for switching
from the "Texas twist,Iv which provided crash worthy features, to
the "buried anchor" treatments, which had no crash worthy features;
2. He contended that the State was negligent for failing to
replace the unsafe buried anchor treatment with the break away
cable treatment during the overlay project which occurred during
1984; and
3. He contended that, even if you assume that the buried
anchor treatment was reasonable when installed, the State was
negligent for using a reinforced concrete endpost and constructing
the dangerous end treatment within the 30 foot "clear zone"
recommended by the standard from which the buried end treatment was
adopted.
The State, on the other hand, defended on the basis that the
Texas twist presented hazards unique to its design: that the
federal government at one time encouraged use of the buried anchor
design; and that it was not unreasonable to retain that design in
1984 during the overlay project. By its verdict, the jury agreed.
PRETRIAL DISCOVERY
Prior to trial, Fjelstad submittedwritten interrogatories and
requests for production to the State. Interrogatory No. 33 was as
follows:
Prior to the date of the accident alleged in the
complaint, did any person, organization or any of your
employees recommend or advise any repairs, alterations,
or changes in guardrails on any interstates in Montana
which did not meet standards which were current as of
that date? If so, for each recommendation, state:
a. The name of the person, organization or employee;
b. The date made;
c. What the recommendation or advice was;
d. Whether any action was taken by you as a result
of such recommendation or advice;
e. The action taken.
On March 20, 1991, the State provided the following objection
and answer to Fjelstad's interrogatory:
Defendant objects to this interrogatory on the grounds
that it is overbroad, unduly burdensome and oppressive.
To answer this interrogatory fully would require this
defendant to question every employee who has ever worked
for the State of Montana. Without waiving its
objections, defendant states that a reasonable search of
the record has revealed no complaints responsive to this
request.
The State's answer to Interrogatory No. 33 was never amended prior
to trial.
Prior to trial, Fjelstad scheduled depositions of several
Highway Department officials. Served with their notices of
deposition were subpoenas duces tecum requiring that they produce
at the time of their deposition, "any and all documents . . . which
relate, pertain, or refer to the guardrail design, replacement, or
assessment located at Montana interstate highway 94, 9.7 miles east
of custer. .. ." Neither of the documents which were the subject
of the District Court's order granting a new trial were produced in
response to those subpoenas.
POST-TRAIL DEVELOPMENTS
The trial of this case began on March 17, 1993, and the jury
returned its verdict in favor of defendant on March 19. The jury,
by its verdict, found that defendant was not negligent by its
installation or maintenance of the guardrail end treatment with
which Ellen Fjelstad collided. Judgment was entered for the State
on March 29, 1993.
On April 5, 1993, pursuant to M. R. Civ. P. 59, and
§ 25-11-102, MCA, Fjelstad moved for a new trial based on the
insufficiency of the evidence to support the jury's verdict. The
basis for that motion was that the State's employees admitted that
when they adopted the buried anchor end treatment as its standard
in 1971, its standard was patterned after design requirements which
were not followed in this case.
On April 28, 1993, Fjelstad filed a second motion entitled
"Motion for Relief from Judgment and for Sanctions1'pursuant to
M. R. Civ. P. 60 (b) and 26 (g) . The basis for his Rule 60 (b) motion
was that subsequent to trial he discovered relevant evidence which
had been in the State's possession prior to trial and which would
have been beneficial to his case but which was not disclosed by the
State, in spite requests for its identification and production. In
support of that motion, Fjelstad filed the affidavit of his
attorney who stated that while discussing this case with another
Montana attorney following trial, he was provided by that attorney
with documents discovered from the State in another case which
related to the issue of upgrading guardrails during overlay
projects. Those documents, which were attached to that affidavit,
included a November 21, 1978, memorandum from the Director of
Engineering for the Federal Highway Administration's Department of
Transportation to regional Federal Highway Administrators and a
December 13, 1978, letter fromthe Federal Highway Administration's
Division Administrator to the Director of the Montana Department of
Highways, which passed on a copy of the November 21, 1978,
memorandum. The November 21, 1978, memorandum related to upgrading
guardrail installations during overlay projects and stated in
relevant part that:
The purpose of this memorandum is to remind personnel
responsible for project program and PS&E reviews,
construction and final inspections, and maintenance
inspections that they should be vigilant for the need to
adjust guardrails or other highway appurtenances. TheV
should also be alert to o~portunities UDqrade obsolete
to
barrier installations .... [Emphasis added.]
The December 13, 1978, cover letter from the Federal Division
Administrator to Montana's Director of the Department of Highways
stated in relevant part that:
When construction and maintenance forces add overlays it
is important that the guardrail be corrected to the
proper height. Existins substandard quardrails should be
u~qraded wherever possible. Please take appropriate
action necessary to alert your personnel of the
importance of obtaining standardguardrail installations.
... [Emphasis added.]
Fjelstad argued that the withheld documents supported his
contention that the reasonable practice in 1984, when the Hysham
Hills overlay project was completed, was to upgrade substandard
guardrail end treatments and that disclosure of the documents would
have, in all likelihood, changed the outcome of this trial. He
also contended that since the State had these documents in its
possession since 1978, and was sufficiently aware of them to
disclose them in another case, the State's failure to do so in this
case violated M. R. Civ. P. 26(g) because the State's response to
Interrogatory No. 33 was interposed for an improper purpose and
will cause Fjelstad the undue burden and expense of a second trial.
In response to Fjelstad's Rule 60(b) motion the State
acknowledged that on March 10, 1992, nearly one year prior to
trial, Carl S. Peel, assistant pre-construction engineer for the
Department of Highways, faxed the two documents in question to
counsel for defendant but contended that since the documents
related only to guardrail height requirements, counsel for
defendant correctly concluded that they were irrelevant when he
withheld them.
On May 25, 1993, the District Court granted Fjelstad's motion
for a new trial based on both the insufficiency of the State's
evidence and the discovery of new evidence. In its order, the
District Court found that the documents in question were directly
related to Fjelstad's discovery requests, were known to the State
since 1978, and had been provided to defendant's attorney more than
one year prior to trial. The District Court, furthermore, found:
that Fjelstad exercised diligence in his efforts to discover the
information prior to trial; that given the State's position, he was
unable to discover the documents prior to trial; and that had the
documents been provided, the outcome of the trial, in all
probability, would have been different.
Without explanation, plaintiff's motion for sanctions pursuant
to Rule 26(g) was denied.
I
Did the District Court abuse its discretion when it granted
Fjelstad's motion for a new trial based on newly discovered
evidence pursuant to M. R. Civ. P. 60(b)?
We have previously held that, "[tlhe decision to grant a new
trial is within the sound discretion of the trial judge and will
not be overturned absent a showing of manifest abuse of
discretion." Stanhope v Lawrence (1990), 241 Mont. 468, 471, 787 P.2d
.
1226, 1228. We have recently reiterated the "manifest abuse of
Excavating Service, Inc. v HKMAssociates (Mont.
discretion" standard in Jirn@s .
1994), 878 P.2d 248, 259, 51 St. Rep. 623, 631.
In cases that are more on point, we have previously held that
the standard of review of a district court order granting a new
trial based on newly discovered evidence is simply whether the
district court abused its discretion. In State v. Lewk (1978), 177
Mont. 474, 483, 582 P.2d 346, 352, we held that "the matter of
granting or refusing a new trial for newly discovered evidence
rests largely in the discretion of the District Court. . . . II
(Citation omitted.)
Whether or not we specifically intended a less demanding
standard of review for orders granting a new trial based on newly
discovered evidence, than from orders granting a new trial on some
other basis, is unclear. However, for the purpose of consistency
we will review the District Court's order in this case granting
Fjelstad's Rule 60(b) motion, and we will review future orders
granting a new trial based on newly discovered evidence consistent
with the 'manifest of abuse of discretion" standard most recently
set forth in Jim 1s Excavating Service.
Rule 60(b) provides in relevant part that:
On motion and upon such terms as are just, the court may
relieve a party or a party's legal representative from a
final judgment, order, or proceeding for the following
reasons: ... (2) newly discovered evidence which by due
diligence could not have been discovered in time to move
for a new trial under Rule 59(b); ... [tlhe motion
shall be made within a reasonable time, and for reasons
(I), (2), and (3) when a defendant has been personally
served ... not more than 60 days after the judgment,
order or proceeding was entered or taken, or, in a case
where notice of entry of judgment is required by Rule
77(d), not more than 60 days after service of notice of
entry of judgment.
Our prior decisions establish additional criteria for the
consideration of Rule 60(b) (2) motions. We have held that the
factors which must be considered by the District Court include:
1. The alleged "newly discovered1' evidence came to a
party's knowledge after the trial;
2. It was not a want of diligence which precluded its
earlier discovery;
3. The materiality of the evidence is so great it would
probably produce a different result on retrial: and
4. The alleged "new evidence1'is not merely cumulative,
and not tending to impeach or discredit witnesses in the
case.
SeeKemganv.Kemgan (1943), 115 Mont. 136, 144-45, 139 P.2d 533, 535;
Kartesv.Kartes (1977), 175 Mont. 210, 214, 573 P.2d 191, 193; Barmeyer
v. Montana Power Company (1983), 202 Mont. 185, 203, 647 P.2d 594, 603.
In this case, the State does not deny that the evidence first
came to Fjelstad's attention after trial, nor does the State
contend that by the exercise of diligence he could have discovered
it sooner. On appeal from the District Court's order, the State
argues that Fjelstad failed to satisfy the last two requirements
for a new trial based on newly discovered evidence.
Specifically, the State contends that (1) the newly discovered
documents related only to guardrail height, not to end treatments,
and therefore, were not material; (2) if material, the documents
were merely cumulative of the State's own guidelines and
recommendations to which the State subscribed; and (3) for the
previous two reasons, there was no reasonable probability that the
newly discovered documents would produce a different result if this
case is retried.
Based upon our independent review of the pre-trial discovery,
the trial transcript, and the respective positions of the parties
as expressed throughout these proceedings, we disagree with the
State's argument.
First, it is clear that the recommendations included in the
documents generated by the federal government pertain to more than
simply guardrail height. The November 21, 1978, memo from the
Federal Highway Administration was for the stated purpose of
reminding highway personnel that "they should also be alert to
opportunities to upgrade obsolete barrier installations" and refers
State personnel to the AASHTO (American Association of State
Highway and Transportation Officials) "Guide for Selecting,
Locating, and Designing Traffic Barriers" for that purpose. By
that time the AASHTO guide specifically recommended the
installation of break away cable design for guardrail end
treatment. Furthermore, the Federal Highway Administration's
December 13, 1978, memo specifically stated that when overlays are
added to existing highways, "substandard guardrails should be
upgraded whenever possible." There was no suggestion in the
government's memorandum that only those guardrails which are
substandard due to their height needed to be upgraded. Second, the
evidence was not cumulative of the State's own standards or those
standards established by the AASKTO. The State's witnesses plainly
testified that the State had no policies requiring that guardrail
end treatments be upgraded until 1986, and that while it
occasionally considered AASHTO guidelines, it was not the State's
policy to routinely follow them,
Instead, the State's witnesses testified that its decisions
were more routinely dictated by the Federal Highway Administration
and even implied that the FHA approved its failure to upgrade the
guardrail end treatment from the buried anchor design that was in
place at the time of its overlay project in 1984.
Kologi, who at the time of trial was in charge of planning
functions for the Department of Transportation and worked for that
department as a pre-construction engineer until 1989, testified
that the State originally went to the buried anchor treatment based
on the recommendations of the Federal Highway Administration. He
explained that recommendations from the FHA were significant to all
of the States' design decisions because on the interstate highway
system the federal government paid a little more than 90 percent of
the cost.
Kologi testified that anytime there were improvements to
portions of the interstate highway system in Montana, the drawings
for those improvements had to be submitted to the Federal Highway
Administration for their approval. He also stated that Montana
originally abandoned the Texas twist end treatment because they
were being leaned on by the FHA.
Therefore, we conclude that subsequently discovered evidence
which indicated that contrary to Montana's policy, the Federal
Highway Administration had recommended prior to 1984 that guardrail
end treatments be upgraded during overlay projects, was neither
cumulative nor did it simply tend to impeach the State's witnesses.
Third, we conclude from our review of the record that there is
substantial evidence to support the District Court's conclusion
that the newly discovered evidence would probably produce a
different result on retrial. The State defended against Gary
Fjelstad's claim on the bases that: the guardrail end treatment
about which he complained had been installed at the suggestion of
the federal government; that it was bound to follow the federal
government's recommendations in order to obtain federal funding:
and that the federal government approved its 1984 overlay project
knowing that a noncrash worthy end treatment would not be upgraded.
It can hardly be questioned that that evidence was significant to
the jury's finding that the State was not negligent, Nor can it be
questioned that the jury would have given less weight to that
evidence had it known that five and one-half years prior to the
1984 overlay project the State had been instructed by that same
Federal Highway ~dministration to upgrade obsolete barrier
installations to conform with the AASHTO guidelines which by then
called for the installation of break away cable end treatment.
For these reasons, we conclude that there has been no showing
of manifest abuse of discretion by the District Court when it set
aside the judgment entered in favor of the State of Montana and
granted Gary Fjelstadqs motion for a new trial pursuant to
M. R. Civ. P 6O(b) (2).
II
Did the District Court abuse its discretion when it granted
Fjelstadlsmotion for a new trial pursuant to M. R. Civ. P. 59, and
S 25-11-102, MCA, based on insufficiency of the evidence to support
the jury's verdict?
Based on our discussion in the previous section, and our
Courtls order granting a new
holding which affirms the ~ i s t r i c t
trial based on newly discovered evidence, we see no need, and
therefore, decline to discuss whether a new trial was also
warranted based on insufficiency of the evidence.
Did the District Court err when it refused to impose sanctions
pursuant to M. R. Civ. P. 26 (g) for defendant's failure to disclose
material evidence in response to written interrogatories?
Fjelstad moved for the imposition of sanctions against the
State of Montana pursuant to Rule 26(g), which pertains to
inaccurate discovery responses, and provides in relevant part that:
The signature of the attorney or party constitutes a
certification that the signer has read the request,
response, or objection and that to the best of the
signer's knowledge, information, and belief formed after
a reasonable inquiry it is: (1) consistent with these
rules and warranted by existing law or a good faith
argument for the extension, modification, or reversal of
existing law; (2) not interposed for any improper
purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation; and (3)
not unreasonable or unduly burdensome or expensive, given
the needs of the case, the discovery already had in the
case, the amount in controversy, and the importance of
the issues at stake in the litigation. .. .
If a certification i made in violation of the rule, the
s
court upon motion or upon its own initiative, shall
impose upon the person who made the certification ...
an appropriate sanction. [Emphasis added.]
In its order granting Fjelstad's motion for a new trial, the
District Court found that the newly discovered documents were
Itdirectlyrelatedw to the information sought by Fjelstadlswritten
Interrogatory No. 33 and further stated
that the documents, were known to the [State] ...
1978 and were produced by "faxtttransmission to the
since
lawyers for the State in this litigation ... more than
a year before trial and well before depositions were
taken of the State's witnesses. The State's witnesses
were questioned during depositions about the existence of
a written documents [sic] regarding upgrade of guardrails
during overlay projects. They were also asked about the
federal government's role in the guardrail installation
and upgrade process. Despite having the documents they
were not produced by the State. The Court believes they
should have been produced.
The plaintiffs exercised diligence before trial and
did not get the documents at issue when they should have
been produced. The record shows that the evidence was
not discovered, nor could it have been, given the
position of the defendant, before the trial. The court
believes the documents would have altered discovery,
would have led to the disclosure of different or
additional witnesses, and would have changed the course
of the trial ...[and] that the outcome of the trial
probably would have been different.
The plaintiff's motion for imposition of sanctions
is denied.
Although we have previously affirmed the imposition of
sanctions pursuant to Rule 26 (g), see Jerome v. Pardis (1989), 240 Mont .
187, 783 P.2d 929: Eisenmengerv. Ethicon (1994), 264 Mont. 393, 871 P.2d
1313, and although we have held in Eisenrnenger that our standard of
review from an order imposing sanctions for discovery abuses is
whether the District Court abused its discretion, we have not
previously articulated a standard of review from a district court
order which denies the imposition of sanctions pursuant to
Rule 26(g). Furthermore, there are few decisions from other
jurisdictions applying Rule 26(g) since its inclusion in the
Federal Rules of Civil Procedure in 1983. There are, however,
several cases to which we look for guidance.
In Clipse v. State (Wash. Ct. App. 1991), 808 P.2d 777, the
Washington Court of Appeals affirmed the imposition of sanctions
pursuant to Rule 26(g) based upon the plaintiff's misleading and
inaccurate disclosure of expert witnesses. Quoting the Advisory
Committee Notes (1983), 97 F.R.D. 165, the court noted that the
rule l'irnposeson the attorney a duty to make a 'reasonable inquiryt
into the factual basis of a response, request, or objection ... 11
and that "what is reasonable is a m a t t e r for the court t o decide on
the totality of the circurn~tances.~Clipse, 808 P.2d at 779. The
court further noted that objective test applied and that
lv[a]lthough the nature of the sanction is a matter of judicial
discretion, the rule mandates imposing sanctions if they are
appropriate under the rule.g1 C&se, 808 P.2d at 779 (emphasis
added) .
The Washington Supreme Court elaborated upon this standard in
.
Washington State Physicians Errch. & A s n v. Fhons Cop. (Wash 1993 ) , 8 5 8 P .2d
1054. That court held that, in addition to application of an
objective standard to determine whether an attorney has made a
reasonable inquiry, the trial caurt should determine
whether an attorney has complied with the rule
[and] consider all the surrounding circumstances, the
. ..
importance of the evidence to its proponent, and the
ability of the opposing party to formulate a response or
to comply with the request.
The court further noted that:
In applying the rules to the facts of the present
case, the trial court should have asked whether the
attorneys' certifications to the responses to the
interrogatories and requests for production were made
after reasonable inquiry and (1) were consistent with the
rules, (2) were not interposed for any improper purpose,
and (3) were not unreasonable or unduly burdensome or
expensive.
Instead, the trial court considered the opinions of
attorneys and others as to whether sanctions should be
imposed. This was error. ... It is the responsibility
of the court deciding a sanction motion to interpret and
apply the law.
Fisom, 858 P.2d at 1078. As noted in Pardis, 783 P.2d at 922,
Montana adopted M. R. Civ. P., 26(g) "in 1984 along with the
amendments to its parallel, Rule 11, M.R.Civ.P., which governs
abuses in pleadings and motion practice." For that reason, it is
appropriate to look to our standard of review from orders denying
Rule 11 sanctions for guidance in this case. That standard, as set
out in DlAgostinov. Swanson (1990), 240 Mont. 435, 446 784, P.2d 919,
926, states that: (1) the district court's findings of fact will
not be overturned unless clearly erroneous; (2) the district
court's conclusion that the facts constitute a violation of Rule 11
will not be reversed absent an abuse of discretion; (3) review de
novo is appropriate only if the violation is based upon the legal
sufficiency of a plea or motion; (4) if Rule 11 has been violated
the district court must impose sanctions on the offending party,
his counsel, or both; and (5) failure to impose sanctions where the
Rule has been violated will be deemed reversible error.
We have held, however, that the type of sanction imposed for
violation of Rule 11 is uniquely within the discretion of the
district court. DvAgostino, 784 P.2d at 919.
Moreover, the notes of the Advisory Committee for the 1983
Amendments to the Federal Rules of Civil Procedure make clear the
mandatory nature of sanctions where the elements of Rule 26(g) have
been satisfied. Those notes provide that:
Because of the asserted reluctance to impose sanctions on
attorneys who abuse the discovery rules ... Rule 26(g)
makes explicit the authority judges now have to impose
appropriate sanctions and requires them to use it. ...
The new rule mandates that sanctions be imposed on
attorneys who fail to meet the standards established in
the first portion of Rule 26(g). The nature of the
sanction is a matter of judicial discretion to be
exercised in light of the particular circumstances.
97 F.R.D. 165, 220 (emphasis added).
Therefore, we adopt the following standard of review from a
district court's order denying sanctions pursuant to Rule 26(g):
1. The district court's findings of fact will not be
overturned unless clearly erroneous.
2. The district court's conclusion that the facts do or do
not constitute a violation of Rule 26(g) will not be reversed
absent an abuse of discretion.
3. If the district court concludes that Rule 26(g) has been
violated, sanctions must be imposed upon the offending party and
failure to do so will be deemed reversible error.
4. The nature and extent of sanctions imposed by the
district court pursuant to a violation of Rule 26(g) will not be
reversed absent an abuse of discretion.
In this case, we are unable to review the District Court's
order denying Fjelstad's motion for sanctions because the District
Court did not enter findings specifically pertaining to Rule 26(g),
and did not draw any conclusion whether the rule was or was not
violated. Therefore, we vacate that part of the District Court's
order which denied Fjelstad's motion for the imposition of
sanctions against the State of Montana pursuant to M. R. Civ. P.
26(q), and remand this case to the District Court for more specific
findings and its conclusion whether Rule 26(g) was or was not
violated under the circumstances in this case.
The order of the District Court granting plaintiff Gary
Fjelstad's motion for a new trial is affirmed. The order of the
District Court denying Fjelstad's motion for sanctions pursuant to
Rule 26(q) is vacated and this matter is remanded to the District
Court for further proceedings consistent with this opinion.
We concur:
Chief Jtistice
October 25, 1994
CERTIFICATE OF SERVICE
I. hereby certify that the following certified order was sent by United States maif, prepaid,
ta the following named:
Randy H. Beflingham, Esq. & Harlan B. Krogh, Esq.
Moulton, BeWgham, Longo & Mather, P. C.
P.O. Box 2559
B l i g ,MT 59103
ilns
Donald W. Molloy, Esq.
Molloy Law Offices
P.O. Box 1617
Billings, MT 59103-1617
Lee R. Kerr
Kerr Law Ofc
fie
P.O. Box 72
Hysham, MT 59038
Theodore R. Dunn and Richard Dolan
Goetz, Madden & Durn
35 North Grand
Bozeman, MT 59715
ED SMITH
CLERK OF THE SUPREME COURT
STATE O x MOWAN&--)