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Smith v. Butte-silver Bow County5/6/1996
53 St.Rep. 421
Submitted on Briefs February 1, 1996.
The Estate of Richard A. Smith (Estate) appeals from the judgment entered by the Second Judicial District Court, Silver Bow County, on its order dismissing the Estate's complaint with prejudice. We reverse and remand.
The issue on appeal is whether the District Court abused its discretion in dismissing the Estate's complaint with prejudice pursuant to Rule 37(b)(2)(C), M.R.Civ.P.
This is the second time that this case has been before us on appeal. The facts underlying the Estate's complaint are set forth in Smith v. Butte-Silver Bow County (1994), 266 Mont. 1, 878 P.2d 870, and need not be repeated here. In Smith, the primary issues on appeal related to prosecutorial immunity and amendment of pleadings; we reversed the District Court on the former issue and affirmed it on the latter. Smith also presented the issue of whether the District Court erred in dismissing the Estate's action without prejudice under Rule 37, M.R.Civ.P., for failure to comply with its orders compelling discovery and requiring a psychological examination of Richard Smith's children. Smith, 878 P.2d at 876. We declined to address the propriety of that dismissal due to the inadequacy of the record and the court's language indicating that it dismissed without prejudice in order to facilitate our review of rulings not appealable under Rule 1, M.R.App.P. Smith, 878 P.2d at 877. We vacated the order of dismissal without precluding the availability on remand of further proceedings on that issue. Smith, 878 P.2d at 877.
On remand, Butte-Silver Bow County (County) again moved the District Court to dismiss the Estate's complaint based on the alleged discovery abuses which were the basis of the earlier dismissal. The District Court denied the County's motion on February 21, 1995, and, in doing so, rejected the County's reliance on discovery abuses alleged to have occurred prior to the appeal. The court gave the Estate thirty days from the date of its order denying the motion to dismiss "to adequately answer or supplement the discovery requests" and required the Estate to " rovide complete answers to all unanswered interrogatories and fully disclose all experts, their opinions and the basis for those opinions in accordance with Rule 26, M.R.Civ.P." The court warned that " f this order is not fully complied with, then the court will be left with no other alternative but to dismiss this case with prejudice or impose other appropriate sanctions."
On February 24, 1995, the Estate moved for an order of clarification, requesting the District Court to specifically list "any further evidence" to be provided to the County. Approximately ten days later, the Estate provided the County with "Plaintiff's Rule 26(b)(4) Disclosure" stating that the opinions of its expert witnesses were based on facts and materials set forth in their depositions.
The District Court issued an order of clarification and memorandum (hereinafter "clarification order") directing the Estate to provide to the County:
1. The names of individuals who provided care to the minor children from January 1, 1989 through June, 1991;
2. Information about Richard Smith's Social Security Benefit Claim for a leg injury; and
3. Information about [the Estate's] expert witnesses, their opinions and basis for them or in the alternative this Court must reopen the depositions of [the Estate's] experts to answer questions about the basis of their opinions.
In response to the clarification order, the Estate provided the required information regarding the children's caregivers and the leg injury <
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