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Sprinkle v. Burton12/27/1996
party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B). Noting that the issue of Dr. Burton's fees had been raised in the underlying cases but not resolved prior to dismissal and citing our decision in Schweigert v. Fowler (1990), 240 Mont. 424, 784 P.2d 405, the court concluded that, as it was the trial court in both cases, it implicitly had the duty to rule on issues of fees for expert witnesses, including Rule 35 examiners, for discovery which it ordered. On that basis the court determined that Cascade County was the proper county for the place for trial of Plaintiffs' suit against Dr. Burton.
While the designation of a county as a proper place for trial is not jurisdictional, ยง 25-2-112, MCA, the trial court's ruling on Dr. Burton's motion for change of venue was to a great extent bound up with the notion that the court retained or had continuing jurisdiction of Plaintiffs' instant case because it had presided over the underlying lawsuits and because Plaintiffs' motions for adjustment of Dr. Burton's deposition charges were first raised in the underlying litigation and were then within the authority of the court to resolve under Rule 26(b)(4)(C), M.R.Civ.P. Accordingly, we address this aspect of the trial court's decision first.
Clearly, as Dr. Burton concedes, during the pendency of the underlying cases the District Court would have had jurisdiction under Rule 26(b)(4)(C) to resolve the issue raised by Plaintiffs' motions. Rule 26(b)(4)(C), M.R.Civ.P., provides:
Unless manifest injustice would result, (i) the court shall require that the party seeking discovery pay the expert a reasonable fee for time spent in responding to discovery under subdivisions (b)(4)(A)(ii) and (b)(4)(B) [pertaining to Rule 35 experts] of this rule; and (ii) with respect to discovery obtained under subdivision (b)(4)(A)(ii) of this rule the court may require, and with respect to discovery obtained under subdivision (b)(4)(B) of this rule the court shall require the party seeking discovery to pay the other party a fair portion of the fees and expenses reasonably incurred by the latter party in obtaining facts and opinions from the expert.
While Schweigert says nothing to the contrary, we conclude that case does not provide the authority for the trial court's decision in the instant case. In Schweigert, the issue of the payment of expert witness' fees was raised in a post-trial motion to alter or amend the judgment. The underlying litigation was still pending when the trial court denied the motion. In affirming the district court, we simply held that the rule does not require the court to order payment of expert witness deposition fees, unless the court had ordered this discovery, and even then the court may not order payment if manifest justice would result. Schweigert, 784 P.2d at 411-12.
Here, despite the District Court's statement to the contrary, the court did not order Dr. Burton's depositions to be taken. Rather, the depositions were taken by agreement of counsel. More importantly, however, the motions for adjustment of Dr. Burton's deposition charges were not ruled upon during the pendency of the underlying litigation, contrary to what occurred in Schweigert. Rather, here, both cases were dismissed with prejudice leaving the motions concerning Dr. Burton's deposition charges unresolved.
We have held, albeit in a criminal case, that when a case is dismissed "with prejudice" the trial court thereafter loses jurisdiction of the underlying litigation, other than to correct clerical errors. State, ex rel. Torres v. District Court (1994), 265 Mont. 445, 453
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