No. 01-293
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 110N
DEBRA L. LONG,
Plaintiff and Respondent,
v.
MELINDA A. DELAROSA, a/k/a MELINDA
DELAROSA FONTAINE, a/k/a MELINDA DELAROSA
TANNER, a/k/a MELINDA DELAROSA DAMASCUS;
JESSE FONTAINE; et al.,
Defendants and Appellants.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula,
The Honorable John W. Larson, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Quentin M. Rhoades, Sullivan, Tabaracci & Rhoades, P.C., Missoula,
Montana
For Respondent:
P. Mars Scott, Patrick G. Sandefur, Law Offices of P. Mars Scott, Missoula,
Montana
Submitted on Briefs: October 4, 2001
Decided: May 23, 2002
Filed:
__________________________________________
Clerk
Justice Jim Regnier delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c) Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Debra L. Long filed a complaint against Melinda Fontaine and
Jesse Fontaine claiming constructive trust, resulting trust, quiet
title, rescission of the promissory note, breach of contract,
damages and punitive damages. During discovery in this matter, the
Fourth Judicial District Court, Missoula County, issued an order
requiring the Fontaines to deposit a lump sum of $12,960 plus
$1,050 per month from and after December 2000. Appellants Melinda
Fontaine and Jesse Fontaine filed an interlocutory appeal. We
affirm.
¶3 The following issue is presented on appeal:
¶4 Did the District Court exceed its statutory authority by
requiring the Fontaines to deposit money with the clerk of court?
BACKGROUND
¶5 In 1998, Melinda Fontaine and Jesse Fontaine hoped to buy a
home on Zaugg Drive in Missoula, Montana, but were unable to secure
financing. They then asked Debra L. Long to help. She agreed to
assist them by securing a mortgage in the amount $118,000 so that
the Fontaines could acquire the property. The Fontaines, in turn,
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agreed to make the monthly mortgage payments of $1,080.
Unbeknownst to Long, however, the loan was actually secured by a
mortgage on her own home instead of the one on Zaugg Drive.
Because of this, the Fontaines obtained title to the Zaugg Drive
property free and clear of any encumbrances.
¶6 According to Long, the Fontaines never made any of the
promised mortgage payments. On February 25, 2000, Long sued the
Fontaines alleging constructive trust, resulting trust, quiet
title, rescission of the promissory note, breach of contract,
damages and punitive damages. The parties entered an Agreed
Scheduling Order on August 9, 2000. In that order, the parties
agreed to finish all discovery by January 2, 2001. Long scheduled
a deposition of Melinda Fontaine for October 13, 2000. On the
afternoon before the scheduled deposition, Melinda’s attorney
advised Long’s attorney that Melinda would not be available for her
deposition because she had been called out of town on urgent
business. Long contends that she and several third parties
notified her attorney that they had seen Melinda Fontaine in
Missoula while she was purportedly out of town on business.
¶7 Long requested, and the court granted, a hearing to discuss
the difficulties in scheduling the deposition. At the hearing on
October 13, 2000, Melinda’s lawyer acknowledged that they had
canceled three of Melinda’s depositions in three months. The court
ordered Melinda to be available for a deposition on October 20,
2000. On the afternoon before the deposition, Melinda’s attorney
again called Long’s counsel to advise them that Melinda would not
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attend. Melinda’s attorney stated that a psychiatrist had written
a letter suggesting that she may commit suicide if she had to
undergo a deposition.
¶8 On October 30, 2000, Long filed a motion for contempt and an
imposition of sanctions for Melinda’s failure to attend her
depositions. Long’s attorney also deposed Melinda’s psychiatrist,
Dr. Noel L. Hoell, M.D., to ascertain the nature of Melinda’s
illness and why it prevented her from giving a deposition. During
the deposition, Dr. Hoell continued to express concerns that a
deposition could exacerbate Melinda’s emotional condition and that
judging what safeguards might effectively protect her was
difficult.
¶9 On November 15, 2000, Long filed a Motion and Brief for Order
of Deposit or Delivery, pursuant to § 25-8-101, MCA, asking that
the court order the Fontaines to place a deposit of $12,960 with
the court and make monthly payments of $1,080 beginning after
December 1999. On January 23, 2001, the District Court denied this
motion. In denying her motion, the court held that Long did not
meet the statutory requirements set forth in § 25-8-101, MCA.
¶10 On February 14, 2001, during a hearing regarding discovery,
the District Court ordered the Fontaines to provide information on
the insurance they were carrying on the Zaugg Drive property, the
name of the property manager caring for the house and the dates
Melinda Fontaine would be available for deposition. Melinda never
complied with the court’s order. Therefore, on March 6, 2001, the
District Court found that Melinda had violated the court’s
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discovery orders and, pursuant to Rule 37(b), M.R.Civ.P., withdrew
its January 23, 2001, Order and directed the Fontaines to deposit
with the Clerk of Court $12,960 plus $1,050 per month from and
after December 2000. The Fontaines appeal.
STANDARD OF REVIEW
¶11 The Fontaines ask us to review the District Court’s
conclusions of law de novo, citing Carbon County v. Union Reserve
Coal Co. (1995), 271 Mont. 459, 469,
898 P.2d 680, 686. We agree
that we review a trial court’s conclusions of law de novo to see
whether they are correct. See Mularoni v. Bing,
2001 MT 215, ¶ 22,
306 Mont. 405, ¶ 22,
34 P.3d 497, ¶ 22. This matter, however,
implicates the District Court’s imposition of sanctions for
discovery abuse. When considering whether a district court imposed
proper sanctions for discovery abuse, we determine whether the
district court abused its discretion. See Bulen v. Navajo Ref.
Co.,
2000 MT 222, ¶ 18,
301 Mont. 195, ¶ 18,
9 P.3d 607, ¶ 18. In
these situations, we defer to the trial court because it is in the
best position to tell whether a party has disregarded another
party’s rights and to determine which sanction is most appropriate.
Bulen, ¶ 18.
DISCUSSION
¶12 Did the District Court exceed its statutory authority by
requiring the Fontaines to deposit money with the clerk of court?
¶13 The Fontaines argue that the District Court exceeded its
statutory authority by ordering the Fontaines to deposit funds
pursuant to § 25-8-101, MCA. They argue that the facts presented
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to the court did not meet the requirements of this statutory
provision. Section 25-8-101, MCA, requires, in part, that, for a
court to order a deposit or delivery, a party must admit “by the
pleading or shown upon the examination of a party that he has in
his possession or under his control any money . . . which belongs
or is due to another party.” The Fontaines contend that the court
did not meet this requirement because they raised an affirmative
defense that Long rejected the Fontaines’ offer of full
performance. This, they claim, eviscerates Long’s contention that
they possess money that belongs to Long. On January 23, 2001, the
District Court agreed with the Fontaines and denied Long’s request
for a deposit of money. Long counters that the District Court’s
later order of March 6, 2001, effectively struck the Fontaines’
affirmative defense as a sanction under Rule 37(b), M.R.Civ.P.
¶14 Long initially asked for a deposit pursuant to § 25-8-101,
MCA, and the District Court denied this request. The court
subsequently ordered the Fontaines to disclose certain information
concerning the disputed property and arrange for Melinda’s
deposition. The Fontaines did not comply with these requests.
Long then filed a motion for a sanction of $1,000 plus contempt of
court against the Fontaines’ for their failure to comply with the
court’s order.
¶15 The day after Long submitted her motion, the court issued the
Order that the Fontaines now appeal. In the Court's order, it
stated that:
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Pursuant to Rule 37(b), M.R.Civ.P., the Court finds
Defendant Melinda [S. Fontaine] has violated this Court’s
discovery orders of February 14, 2001, and accordingly,
IT IS HEREBY ORDERED that Defendants’ failure to provide
insurance information as requested and ordered by this
court is a sufficient basis for the Court to withdraw its
earlier order of January 23, 2001. Defendants are hereby
directed and ordered to deposit with the Clerk of the
above-entitled Court the sum requested by Plaintiff of
$12,960 plus $1,050 per month from and after December
2000.
¶16 Although the District Court did not issue Long’s requested
sanction, a court may issue sanctions that the opposing party does
not specifically request. See McKenzie v. Scheeler (1997), 285
Mont. 500, 512,
949 P.2d 1168, 1175. The court effectively
reversed its order of January 23, 2001, and implicitly dismissed
the Fontaines’ affirmative defense. Rule 37(b)(2)(C), M.R.Civ.P.,
allows a court to do this by issuing “[a]n order striking out
pleadings or parts thereof . . . or rendering a judgment by default
against the disobedient party.”
¶17 The purpose of imposing sanctions is to stop a party’s
dilatory tactics regarding discovery. See Maloney v. Home & Inv.
Center, Inc.,
2000 MT 34, ¶ 19,
298 Mont. 213, ¶ 19,
994 P.2d
1124, ¶ 19. Here, the Fontaines have frustrated Long’s repeated
attempts to develop the facts surrounding this case. In an effort
to facilitate discovery, the District Court ordered the Fontaines
to provide certain information by a certain time. They did not do
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this. Meanwhile, they possessed the Zaugg Drive property with
little financial obligation. Long, on the other hand, remained
responsible for mortgage payments on a mortgage on her own home.
The Fontaines thus enjoyed a free ride that provided them with no
incentive to speed along the litigation process.
¶18 A court should punish, rather than encourage, a party’s abuse
of discovery. See Mularoni, ¶ 45; Delaware v. K-Decorators, Inc.,
1999 MT 13, ¶ 87,
293 Mont. 97, ¶ 87,
973 P.2d 818, ¶ 87. Ordering
the Fontaines to begin making monthly payments was a sure way for
the court to motivate them to quicken the discovery process. The
Fontaines offer no argument why the court could not strike out
their affirmative defense from the pleadings in this case. In
fact, they fail to address the issue of sanctions at all.
¶19 A court should not deal leniently with a party’s abuse of
discovery that results in unnecessary delay. See Delaware, ¶ 87.
The policy behind this judicial intolerance is the concern over
crowded dockets and the need to maintain fair and efficient
judicial administration of pending cases. See Delaware, ¶ 87.
Given our policy on issuing sanctions for discovery abuses; the
fact that the Fontaines fail to give any reason that sanctions are
not appropriate in this case; and the Fontaines’ lack of incentive
to speed along the process, we conclude that the District Court did
not abuse its discretion by sanctioning the Fontaines through its
order to make a monetary deposit with the clerk of court.
¶20 We note, in passing, that the Fontaines also contend that the
court’s order to pay money to the clerk of court was subject to the
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statutory requirements of an affirmative injunction. The Fontaines
cite no authority, however, that suggests how either sanctions or
an order for deposit or delivery under § 25-8-101, MCA, implicates
the statutory requirements for an injunction. They simply cite
Grosfield v. Johnson (1935), 98 Mont. 412, 422,
39 P.2d 660, 664,
for the proposition that a court may grant a mandatory injunction
to return the matter to the status quo although a party had already
completed the act causing the injury before the suit was brought.
Because the requirements for an injunction are part of a different
chapter of the Montana Code than the requirements of either
sanctions or an order for deposit, we conclude that the
requirements of an injunction are inapplicable to the District
Court’s order.
¶21 Therefore, we conclude that the District Court did not exceed
its statutory authority by requiring the Fontaines to deposit money
with the clerk of court.
¶22 Affirmed.
/S/ JIM REGNIER
We Concur:
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
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Justice Patricia O. Cotter concurs.
¶23 I agree with the merits of the majority’s legal analysis. I
write separately to state that I do not believe the District
Court’s order was an appealable order in the first place. As the
majority notes, the court’s order was issued as a sanction,
pursuant to Rule 37(b), M.R.Civ.P. Rule 1, M.R.App.P., does not
permit an appeal from an interlocutory order of sanctions.
Therefore, I would have dismissed the appeal for lack of
jurisdiction. However, because in either instance the ultimate
result would be the same (the court’s order of sanctions would
stand), I concur.
/S/ PATRICIA COTTER
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Justice Terry N. Trieweiler dissents.
¶23 I dissent from the majority opinion.
¶24 I cannot tell from the record exactly what the District Court
did in this case, but I know it did not do what the majority gives
it credit for doing. Specifically, there is no indication in the
District Court order that it struck the Defendants' affirmative
defenses as a sanction for failure to comply with discovery. In
fact, the language from the District Court's order suggests just
the opposite.
¶25 What the District Court did do is reverse its prior decision
to deny Plaintiff's motion for an order requiring deposit or
delivery pursuant to § 25-8-101, MCA. However, since the prior
decision was correct, I conclude the District Court was without
authority to do so.
¶26 On October 30, 2000, the Plaintiff moved the Court, pursuant
to § 25-8-101, MCA, for an order requiring the Defendants to
deposit in court $1,080 per month which Plaintiff contended was
admittedly owed based on Defendants' answer to the complaint. On
November 15, 2000, the Plaintiff enlarged her motion to request a
lump sum deposit of $12,960 plus interest in addition to the
previously requested monthly payment. However, after the issue was
briefed by the parties, the District Court correctly concluded that
it had no authority to order a deposit or delivery pursuant to §
25-8-101, MCA. In an order dated January 23, 2001, the Court noted
that that statute authorizes the district court to order deposit or
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delivery when a party admits that he or she owes another party
money but that:
Turning to the pleadings filed in this case,
Fontaines have not admitted, and indeed have disputed
Long's allegation that Fontaines owe Long funds
. . . . In support of their argument Fontaines cite to their
First Amended Answer and Counterclaims, specifically
paragraphs 111 and 115, which dispute the validity of the
contract upon which Long bases her claim. Essentially
Fontaines claim that they owe Long nothing because Fontaines
offered to fully perform under the contract and Long refused
that offer of performance . . . . Under MCA § 25-8-101 a
party must either admit that he or she is holding funds
belonging to another, or examination of the party must show
that the party is holding funds belonging to another. While
it is true that Fontaines have admitted they have made no
payments to Long since December of 1999, Fontaines have not
admitted that they owed any payments to Long after December of
1999 . . . . Therefore the requirements of MCA § 25-8-101
have not been satisfied. It would therefore be inappropriate
for this Court to order delivery or deposit of funds.
¶27 Nothing changed regarding the respective claims of the parties
from January 23, 2001, when the District Court initially denied the
motion for deposit or delivery, and March 6, 2001, when the
District Court reversed itself. Nor, in reversing itself, did the
District Court strike those affirmative defenses which were the
bases for its previous denial of the Plaintiff's motion. In fact,
doing so would have been the equivalent of default judgment and
default judgment is something that Defendant Delarosa was
threatened with by the District Court order if she did not comply
with discovery efforts in the future.
¶28 In the order appealed from, the District Court stated:
IT IS HEREBY ORDERED that Defendants' failure to
provide insurance information as requested and ordered by
this Court is a sufficient basis for the Court to
withdraw its earlier order of January 23, 2001.
Defendants are hereby directed and ordered to deposit
with the Clerk of the above-entitled Court the sum
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requested by Plaintiff of $12,960 plus $1,050 per month
from and after December 2000.
IT IS FURTHER ORDERED that Defendant Melinda A.
Delarosa shall advise this Court and opposing counsel of
her next visit to Missoula, Montana. If none is
currently scheduled, she is directed to pick a business
day after March 30, 2001, and before May 31, 2001, when
she will be in Montana for her deposition and the
deposition of Plaintiff. Such disclosure shall be made
before FRIDAY, MARCH 16, 2001, AT 5:00 P.M. If defense
counsel does not provide the above information to
Plaintiff's counsel on or before the above date, the
Court will enter sanctions which may include surrender of
the property to Plaintiff, her default in this action
together with dismissal of her counterclaim. Rule 37(b),
M.R.Civ.P. [Italics added.]
¶29 There is no mention made of affirmative defenses in the
District Court's order. However, it seems to me the District Court
had no intention of striking affirmative defenses. If it had
intended to do so, it would have had no basis for threatening entry
of default against the Defendant in the future. As pointed out in
the District Court's previous order, Defendants' affirmative
defenses were their only bases for concluding that the amount
claimed was disputed in the first place.
¶30 For these reasons, I dissent from the majority opinion which,
in order to affirm an arguably equitable result, gives the District
Court credit for doing something it did not do and ignores the
legally incorrect and statutorily unauthorized decision that it
actually made.
/S/ TERRY N.
TRIEWEILER
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