 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Arnoux v. JTL Group3/6/2001
e point of the issues on appeal, injects unsupported conclusions into the case, and blatantly attempts to play on sympathy. JTL contends that the inclusion of this information is symptomatic of Arnoux's approach throughout the long and painful history of these two cases, and her unwillingness to focus on compliance with District Court orders and the Rules of Civil Procedure. Arnoux responds that this is another example of JTL's misinformation to the Court, and declares that all of her assertions are provable and will be supported by testimony at trial. Apparently, Arnoux misunderstands the requirements of the Rules of Appellate Procedure.
It is a well-established rule that parties are bound to the record on appeal and may not supplement it with unsubstantiated matters in briefs or appendices. Bahm v. Southworth, 2000 MT 244, 11, 10 P.3d 99, 11. We will not consider off-the-record allegations in determining whether a district court erred in its findings. Bahm, 11. Arnoux has not submitted any affidavits under Rule 22, M.R.App.P., nor has she filed a statement of evidence, agreed statement, or correction or modification of the record pursuant to Rule 9, M.R.App.P. Arnoux ordered, and the Court received, a transcript of proceedings from the recorded hearings before the District Court. However, the transcript for the most part covers the procedural matters before the court, and does not document or even reference the bulk of Arnoux's alleged facts. Accordingly, the Court finds JTL's motion to be well taken, and strikes those statements, arguments, and exhibits contained in Arnoux's brief that are unsupported in the record and do not comply with the Montana Rules of Appellate Procedure.
ISSUE 2
Was the District Court correct in dismissing both of Arnoux's claims with prejudice?
We review a district court's grant of a motion to dismiss to determine whether the court abused its discretion. In re McGurran, 1999 MT 192, 7, 295 Mont. 357, 7, 983 P.2d 968, 7.
It has long been the law in Montana that a party's abuse of discovery procedures should not be dealt with leniently. McKenzie v. Scheeler (1997), 285 Mont. 500, 949 P.2d 1168, 1172 (upholding dismissal as a sanction for discovery violations). The imposition of sanctions for failure to comply with discovery procedures is regarded with favor. Huffine v. Boylan (1989), 239 Mont. 515, 517, 782 P.2d 77, 78 (upholding the dismissal of a pro se litigant's case as a sanction for discovery violations).
After striking the off-the-record allegations contained in Arnoux's brief, we are left with very little. What the record does demonstrate, though, is that Arnoux consistently failed to meet her obligations under the Montana Rules of Civil Procedure. Among other omissions, she did not timely or completely answer discovery requests, she failed to comply with the District Court's scheduling orders, and she did not respond to JTL's request for statement of damages or its motion to dismiss. While we sympathize with Arnoux's attorney over his health problems, we note they were not brought to the court's attention until nearly a year after he appeared for the plaintiff in these two cases, and well after the documented deficiencies in the prosecution of Arnoux's case were underway.
Arnoux has not advanced any cogent legal arguments to support her contention that the District Court erred in dismissing her actions with prejudice for her failure to prosecute or comply with the court's orders. Rule 23 (4), M.R.App.P., requires an appellant to cite authority in support of the positions advanced on appeal. Failure to comply with this rule is fatal to an appeal. State v. Blackcrow, 1999 MT 44
Page 1 2 3 4 Montana Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|