author: JUSTICE TRIEWEILER

text:
    THOMAS JAY HARWOOD, ELSIE RUBY HARWOOD and THOMAS JOSEPH ARKINSON, Plaintiffs and Appellants, v. GLACIER ELECTRIC COOPERATIVE, INC., a Montana Utility Company, Defendants and Respondents.
    No. 97-088.
    Submitted on Briefs October 30, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1257. 949 P.2d 651.
    285 Mont. 481.

      For Appellants: Patrick A. Flaherty, Attorney at Law, Great Falls; Randy S. Laedeke, Laedeke Law Office, Billings.
    For Respondent: Larry D. Epstein and Thane P, Johnson; Werner, Epstein & Johnson; Cut Bank.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiffs, Thomas J. Harwood, Elsie Ruby Harwood, and Thomas Joseph Arkinson, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County, in which they alleged that the defendant, Glacier Electric Cooperative, Inc., had been negligent and that its negligence caused the destruction of their home by fire. Venue was transferred to the District Court for the Ninth Judicial District in Glacier County, which ordered that the trial be conducted in Toole County. Following trial by jury, a verdict was returned in favor of Glacier Electric. The plaintiffs appeal. We affirm the judgment of the District Court.

There are six issues presented on appeal:

1. Did the District Court err when it failed to dismiss this case and defer to Tribal Court jurisdiction?

2. Did the District Court err when it denied the plaintiffs’ attempts to introduce evidence of and instruct the jury regarding the National Electrical Code and the National Electrical Safety Code?

3. Did the District Court err when it held that the doctrine of negligence per se did not apply?

4. Did the District Court err when it denied admission of several items of evidence offered by the plaintiffs?

5. Did the District Court engage in conduct prejudicial to the plaintiffs based on comments made during plaintiffs’ closing argument?

6. Did the District Court deny the plaintiffs a fair trial?

FACTUAL BACKGROUND

Ruby Harwood and her stepson, Thomas Harwood, each own an interest in real estate in Pondera County, which is also within the boundaries of the Blackfeet Indian Reservation. In December 1989, Ruby and Tom Arkinson, a foster child, lived in the home located on the property.

On December 9, 1989, Ruby informed the Glacier Electric Cooperative, the electrical supplier to the home, that the lights in her home were flickering. Glacier Electric sent two linemen to the home, where they discovered that the stab knob supporting electrical wires had detached from its anchor to the home. As a result, the wires which brought power into the house had been damaged. The linemen repaired the wires and reattached the stab knob. The next day, the home and all its contents were destroyed by fire.

The Harwoods filed a complaint on December 9, 1991, in the Thirteenth Judicial District in Yellowstone County. They alleged that Glacier Electric negligently repaired the wires and that its negligence caused the fire. On December 9, 1992, they filed an amended complaint to add Arkinson as a plaintiff. After Glacier Electric moved to change venue, the District Court granted the motion and transferred the case to the Ninth Judicial District Court in Glacier County. A year later, the plaintiffs filed a complaint in the Blackfeet Tribal Court and moved the District Court to defer jurisdiction to the Tribal Court, pursuant to Rule 41(a)(2), M.R.Civ.P. The District Court denied that motion.

The parties agreed to bifurcate the liability and damage portions of the trial. The plaintiffs were concerned about their ability to select a jury of nonmembers of the Glacier Electric Cooperative and, therefore, moved the District Court to change the place of the trial. On September 5, 1996, the District Court decided to try the first phase of the bifurcated case in Toole County. After a three-day trial in October 1996, the jury found by a special verdict that Glacier Electric had not been negligent.

ISSUE 1

Did the District Court err when it failed to dismiss this case and defer to Tribal Court jurisdiction?

The decision whether to grant a motion for voluntary dismissal pursuant to Rule 41(a)(2), M.R.Civ.P., is within the discretion of the trial court, and we review the district court’s decision to determine if the district court abused its discretion. See Petritz v. Albertsons, Inc. (1980), 187 Mont. 102, 107, 608 P.2d 1089, 1092. See also May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. “[T]he court should consider the expense and inconvenience that will result to the defendant, other prejudicial consequences, and whether terms and conditions attached to the dismissal may make the defendant reasonably whole.” Petritz, 187 Mont. at 107, 608 P.2d at 1092.

Here, the plaintiffs brought their motion for a voluntary dismissal in October 1995, almost four years after they filed their original complaint and after considerable discovery and multiple proceedings had occurred. The District Court considered the “significant efforts and expense” incurred by Glacier Electric to prepare for trial in the years prior to the plaintiffs’ motion, and it also found that the plaintiffs had not been diligent in their efforts to bring this case to trial. Based on these considerations, the District Court found unpersuasive the plaintiffs’preference for another forum.

The parties agree that the District Court and the Tribal Court have concurrent jurisdiction and, therefore, that it was appropriate for the District Court to consider the nature of the claim. Plaintiffs concede that, even though they are enrolled Tribal members and the home was on Tribal land, this action does not involve any special issues of Blackfeet sovereignty or issues that require the unique expertise of the Tribal Court. The plaintiffs maintained significant control of this action from the time that they initiated it, and they chose not to seek Tribal jurisdiction until almost four years after its commencement. Accordingly, we conclude that the District Court did not abuse its discretion when it denied the plaintiffs’ motion to dismiss and remand to the Tribal Court.

ISSUE 2

Did the District Court err when it denied the plaintiffs’ attempts to introduce evidence of and instruct the jury regarding the National Electrical Code and the National Electrical Safety Code?

The standard of review of a district court’s refusal to give jury instructions is whether the district court abused its discretion. See Northwest Truck & Trailer Sales, Inc. v. Dvorak (1994), 269 Mont. 150, 157, 887 P.2d 260, 264. A district court has broad discretion regarding the instructions it gives or refuses to give to a jury. See Savik v. Entech, Inc. (1996), 278 Mont. 152, 158, 923 P.2d 1091, 1095; Lacock v. 4B’s Restaurants, Inc. (1996), 277 Mont. 17, 20, 919 P.2d 373, 375.

The plaintiffs contend that the District Court erred when it disallowed their proposed jury instructions regarding the NEC and the NESC. Glacier Electric, on the other hand, contends that the instructions were properly withheld from the jury because the plaintiffs failed to present any evidence at trial regarding the NEC or the NESC. We stated in King v. Zimmerman (1994), 266 Mont. 54, 64, 878 P.2d 895, 902, that “[a] party [is] not prejudiced by a refusal of his proposed instructions where the subject matter of the instruction is not applicable to the pleadings and facts, or not supported by the evidence introduced at trial.” See also Busta v. Columbus Hosp. Corp. (1996), 276 Mont. 342, 359-60, 916 P.2d 122, 132; Cottrell v. Burlington N. R.R. Co. (1993), 261 Mont. 296, 306, 863 P.2d 381, 387.

Upon review of the record, we agree with the District Court and conclude that although the plaintiffs at certain times during the trial referred to the NEC or the NESC, at no time did they offer evidence of how either standard applies to the alleged facts of this case such that it would merit an instruction to the jury or be relevant to their deliberation. Therefore, we conclude that the District Court did not abuse its discretion when it denied the proposed jury instructions.

The plaintiffs assert that they attempted, through expert testimony, to introduce evidence of the NEC and the NESC at trial, but that the District Court improperly denied those attempts. We stated in Busta, 276 Mont, at 353,916 P.2d at 128, that a district court has broad discretion to determine if evidence is admissible, and absent an abuse of discretion, we will not reverse the district court’s determination. Furthermore, “all questions of law, including the admissibility of testimony, [and] the facts preliminary to such admission ... must be decided by the court.” Section 26-1-201, MCA.

Here, the District Court stated that “[the plaintiffs’ expert] will not be allowed to testify as to the legal burdens that [the NEC and the NESC] impose upon the Co-op .... That’s a legal conclusion and he doesn’t get to testify on that.” See generally Crow Tribe of Indians v. Racicot (9th Cir. 1996), 87 F.3d 1039, 1045 (stating that the role of expert testimony is to interpret and analyze factual evidence, not to testify about the law). We conclude after a review of the record that the District Court did not abuse its discretion when it excluded the testimony based on its determination that there were insufficient factual grounds to establish the relevancy of the NEC and the NESC, and furthermore, that the plaintiffs’ expert testimony regarding the NEC and the NESC was directed to a question of law. We affirm the District Court’s evidentiary rulings regarding the NEC and the NESC and its subsequent denial of proposed jury instructions related to those sources.

ISSUE 3

Did the District Court err when it held that the doctrine of negligence per se did not apply?

We review a district court’s conclusion of law to determine whether its interpretation of the law is correct. See Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. See also Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674; Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603-04.

The plaintiffs moved for a directed verdict at the conclusion of the evidence. They relied on testimony that the Glacier Electric linemen violated certain company procedures when they repaired the damaged wires, and asserted that those violations constituted negligence per se. Although the record supports the plaintiffs’ contention that the linemen, in fact, violated company procedures during their repairs at the Harwood home, the District Court denied the motion based upon the issue of causation. Thereafter, the plaintiffs proposed that the jury be instructed regarding negligence per se; however, the District Court denied the instructions. The District Court stated that the plaintiffs failed to satisfy the essential elements of negligence per se in Montana law and, therefore, were not entitled to an instruction on that theory of liability.

Negligence per se requires that: (1) the defendant violated a particular statute; (2) the statute was enacted to protect a specific class of persons; (3) the plaintiff is a member of that class; (4) the plaintiff’s injury is of the sort which the statute was enacted to prevent; and (5) the statute was intended to regulate members of the defendant’s class. See Patten v. Raddatz (1995), 271 Mont. 276, 283-84, 895 P.2d 633, 638; Hislop v. Cady (1993), 261 Mont. 243, 247, 862 P.2d 388, 391. In order to impute liability to a defendant as a matter of negligence per se, this Court has repeatedly stated that the defendant must have violated a statute, as opposed to merely an administrative regulation, safety code, or professional standard. See Thayer v. Hicks (1990), 243 Mont. 138, 150, 793 P.2d 784, 792; Taylor, Thon, Thompson & Peterson v. Cannaday (1988), 230 Mont. 151, 155, 749 P.2d 63, 65-66; Cash v. Otis Elevator Co. (1984), 210 Mont. 319, 326-27, 684 P.2d 1041, 1045; Stepanek v. Kober Constr. (1981), 191 Mont. 430, 438, 625 P.2d 51, 56. The violation of a non-statutory standard may be used as evidence of negligence, but it is insufficient grounds on which to find the defendant negligent per se. Thayer, 243 Mont. at 150, 793 P.2d at 792; Cannaday, 230 Mont. at 155, 749 P.2d at 66; Cash, 210 Mont. at 326-27, 684 P.2d at 1045.

The plaintiffs failed at trial to assert that the linemen had violated any statute. Nonetheless, they contend that the Glacier Electric policies are in fact statutory, based upon Glacier Electric’s status as a licensed Montana corporation and its attendant obligation to follow its own corporate bylaws and procedures. We decline to recognize such a tenuous connection as sufficient grounds to elevate what are essentially just a private corporation’s internally created rules to the same status as a statute passed or a code adopted by this State’s Legislature. Accordingly, we hold that the plaintiffs do not allege the threshold elements of a negligence per se claim, and that the District Court was correct when it refused to direct the verdict or offer jury instructions based on negligence per se.

ISSUE 4

Did the District Court err when it denied admission of several items of evidence offered by the plaintiffs?

We review a district court’s evidentiary rulings to determine whether the district court abused its discretion. Busta, 276 Mont. at 353, 916 P.2d at 128; Galbreath v. Golden Sunlight Mines, Inc. (1995), 270 Mont. 19, 22, 890 P.2d 382, 384.

First, the plaintiffs sought to introduce a video of their expert witness conducting an experiment with wires to demonstrate evidence of arcing, and then again to rebut testimony from the Glacier Electric expert. Wire arcing generally involves a small flow of electricity between two wires, which, although usually not capable of blowing a circuit breaker, is able to create intense heat of up to 4000 degrees Fahrenheit. Plaintiffs alleged that the fire occurred after the wires in the house had been damaged and then arced. Based on the plaintiffs’ failure to establish an adequate foundation for the video, the District Court refused to allow its use.

Plaintiffs contend that arcing was a legitimate issue at trial and, as such, that they should have been allowed to present the video demonstration for the jury’s understanding. However, Glacier Electric alleged and the plaintiffs did not deny that the conditions of the arcing experiment in the video differed significantly from the conditions at the Harwood home.

We have held that to provide a proper foundation for demonstrative evidence of an experiment, the offering party must establish that the experiment was conducted in substantially similar conditions to the conditions at the time of the original occurrence. See Richardson v. Farmers Union Oil Co. (1957), 131 Mont. 535, 548, 312 P.2d 134, 142. See also Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 194-95, 657 P.2d 594, 599; Bernhard v. Lincoln County (1968), 150 Mont. 557, 561, 437 P.2d 377, 380. Moreover, the admissibility of evidence of an experiment depends on whether it would assist the jury to more intelligently consider the issue. See Barmeyer 202 Mont. at 194-95, 657 P.2d at 599. Here, we hold that the District Court did not abuse its discretion when it found that the conditions in the experiment were not similar enough to establish a foundation for the video, and when, based upon the substantial expert testimony already presented, it found that the jury had heard sufficient testimony to understand the concept of arcing and did not need a further demonstration.

Second, the plaintiffs also sought to submit as an exhibit asbestos shingles from the Harwood home. An investigator for the plaintiffs testified that he had retrieved the shingles from inside the home’s foundation after the fire. The record reveals that although all the shingles on the home were of the same material, the shingles which the plaintiffs offered as evidence had been cracked, broken apart, and pieced together again by the investigator. Glacier Electric objected to admission of the shingles as an exhibit, but stipulated to their use as demonstrative evidence. The District Court admitted them for that purpose.

The plaintiffs contend that the District Court should have admitted the shingles unconditionally because they were relevant to demonstrate that the wires may have been damaged by the sharp shingles and, therefore, been made more likely to arc. The record reflects that the plaintiffs could not show that the shingles which they sought to admit were in fact the shingles that surrounded the area where the wires entered the home. Therefore, it was not an abuse of discretion for the District Court to conclude that the shingles offered were not in the same condition as those shingles which the wires may have actually contacted. As demonstrative evidence, the shingles still permitted the plaintiffs to provide the jury with an understanding of the shingles’ texture and their potential for damaging the wires, without the risk of suggesting that the shingles at issue were in the identical condition. Accordingly, we conclude that the District Court did not abuse its discretion when it limited the shingles’ use as demonstrative evidence.

ISSUE 5

Did the District Court engage in conduct prejudicial to the plaintiffs based on comments made during plaintiffs’ closing argument?

The standard of review of discretionary trial court rulings is abuse of discretion. See May v. First Nat’l Pawn Brokers, Ltd. (1995), 270 Mont. 132, 134, 890 P.2d 386, 388. Discretionary trial court rulings include such things as trial administration issues, scope of cross-examination, post-trial motions, and similar rulings. See Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 604.

Here, the District Court interrupted the plaintiffs’ closing argument and instructed counsel in chambers to “stop testifying” as to facts not in the record. The District Court stated that some of the statements and demonstrations that the plaintiffs were making in their closing argument were not proven. Before the plaintiffs continued their closing argument, the District Court instructed the jury as follows:

I previously instructed you on a couple of occasions, that what attorneys say or do in the course of opening arguments or closing arguments is not evidence. The evidence in this case is what you have heard from witnesses who appeared in the witness box and from the exhibits which were admitted into evidence and those which you will take into the jury room.

The plaintiffs contend that the District Court’s interruption of their argument and its subsequent instruction to the jury constituted interference and prejudiced the jury.

Section 25-7-301(6), MCA, states in relevant part that “[c]ounsel, in arguing the case to the jury, may argue and comment upon the law of the case as given in the instructions of the court, as well as upon the evidence in the case.” Furthermore, it is well-accepted that a party may not in his or her closing argument discuss or introduce facts not previously proven. See, e.g., People v. Roberts (Cal. 1992), 826 P.2d 274, 294; State v. Potts (Kan. 1970), 468 P.2d 78, 83.

Here, the District Court interrupted the closing argument when the plaintiffs’ attorney began to discuss and demonstrate how the shingles allegedly cracked and wore the wire bare. Upon review of the record, we conclude that the District Court did not err when it determined that the plaintiffs had failed to present any evidence that the wires were in fact cracked or stripped bare from the shingles. Accordingly, we conclude that the District Court did not abuse its discretion when it interrupted the closing argument and directed the plaintiffs’ attorney not to introduce or discuss evidence that was not already a matter of record.

As to the plaintiffs’ assertion that the District Court inappropriately interrupted the closing argument and prejudiced their case, we conclude otherwise. The court’s statement to the jury made no specific reference to the statements in the plaintiffs’ closing, nor to their theory of the case. Its initial interruption of the argument in front of the jury was similarly benign: “Excuse me, Mr. Flaherty, will you approach — let’s go into chambers. Ladies and gentlemen of the jury, we’ll be right back.” Therefore, we hold that the District Court did not abuse its discretion by its interruption and admonition during plaintiffs’ closing argument.

ISSUE 6

Did the District Court deny the plaintiffs a fair trial?

The plaintiffs allege a number of other errors by the District Court, the cumulative result of which they assert was an unfair trial. However, they cite no relevant legal authority in support of their claims. Furthermore, after a review of the record, we conclude that their allegations that the District Court erred and acted with bias throughout the trial are without merit. Accordingly, we hold that the District Court did not deny the plaintiffs a fair trial.

We affirm the judgment of the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART and HUNT concur.


source: Caselaw Access Project

license: Public Domain

text:
    DEBORA L. YARBOROUGH, Plaintiff and Appellant, v. GLACIER COUNTY, MONTANA, A POLITICAL SUBDIVISION OF THE STATE OF MONTANA, Defendant and Respondent.
    No. 97-339.
    Submitted on Briefs October 9, 1997.
    Decided November 25, 1997.
    54 St.Rep. 1274. 948 P.2d 1181.
    285 Mont. 494.
    For Appellant: Ann C. German, Attorney at Law, Libby.

      For Respondent: Gary M. Zadick; Ugrin, Alexander, Zadick & Higgins, P.C.; Great Falls.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiff, Debora L. Yarborough, filed a complaint in the District Court for the Ninth Judicial District in Glacier County in which she alleged that the defendant, Glacier County, had breached the written contract by which it had agreed to employ her. Glacier County moved to dismiss the complaint based on its contention that Yarborough’s summons was not served in compliance with Rule 41(e), M.R.Civ.P. That motion was granted by the District Court and the complaint was dismissed with prejudice. Yarborough appeals from the District Court’s order dismissing her complaint. We reverse the order and judgment of thé District Court.

The issue on appeal is whether Rule 41(e), M.R.Civ.P., requires the summons which was originally issued within one year from the date on which the action was commenced be served, or whether an identical duplicate issued more than one year after the commencement of the action can serve the same purpose.

FACTUAL BACKGROUND

The plaintiff, Debora L. Yarborough, filed her complaint in the District Court on July 8, 1993. She alleged that on June 3, 1991, the defendant, Glacier County, had contracted with her in writing to pay her a salary and benefits for her services, but that the County had breached the contract by refusing to perform according to its terms. She sought damages based on the salary which the County had allegedly agreed to pay, plus other benefits which were promised by the written agreement.

On the same day that her complaint was filed, Yarborough had issued, by the Clerk of Court, an original summons. That summons, together with a copy of the complaint, was sent by Yarborough’s attorney to the Glacier County Attorney with a request that he acknowledge service on February 14, 1994. On the following day, the Glacier County Attorney responded by letter that he would not accept service and that the summons and complaint would have to be personally served on the Chairman of the County Commissioners.

At some time subsequent to February 15, 1994, the original summons was lost. Yarborough’s attorney then sent a duplicate of the original summons to the Clerk of the District Court and requested that it be reissued. The duplicate summons was identical to the original summons. In fact, it appears to have been photocopied, except that it was retitled “duplicate summons” and bears the following statement at the bottom prior to the Clerk’s signature line: “NOTE: DUPLICATE SUMMONS ISSUED this 23rd day of June, 1995.”

The duplicate summons was served with a copy of the complaint on the Glacier County Commissioners on October 3, 1995.

On October 18, 1995, Glacier County moved for dismissal of Yarborough’s complaint based on her failure to serve the summons and complaint as required by Rule 41(e), M.R.Civ.P., and'based on her alleged failure to prosecute her cause of action. The basis for its motion was its contention that the duplicate summons was not issued within one year from the date on which the action was commenced and, therefore, was untimely. The District Court denied that motion for the reason that the original summons was issued on time and the duplicate summons, which was identical in all significant respects, was served on time. The District Court further found no prejudice which would warrant dismissing Yarborough’s complaint for failure to prosecute pursuant to Rule 41(b), M.R.Civ.P.

On March 31, 1997, following this Court’s decisions in Busch v. Atkinson (1996), 278 Mont. 478, 925 P.2d 874, and Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 926 P.2d 1364, Glacier County moved the District Court to reconsider its prior order denying its motion to dismiss and grant that motion based on these subsequent decisions. Glacier County contended that these cases require that Rule 41(e) be applied literally and that doing so requires dismissal of Yarborough’s complaints.

The District Court agreed, and on April 18, 1997, it vacated its prior order which denied’ Glacier County’s motion to dismiss and ordered that Yarborough’s complaint be dismissed with prejudice.

DISCUSSION

Does Rule 41(e), M.R.Civ.P., require the summons which was originally issued within one year from the date on which the action was commenced be served, or does an identical duplicate issued more than one year after the commencement of the action serve the same purpose?

The District Court’s order which dismissed Yarborough’s complaint was based on a conclusion of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Haugen v. Blaine Bank of Montana (1996), 279 Mont. 1, 5, 926 P.2d 1364, 1366.

The relevant part of Rule 41(e), M.R.Civ.P., provides as follows: [A]ll actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein ... unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action, or unless appearance has been made by the defendant or defendants therein within said 3 years.

Yarborough contends that it is inconsistent with the purpose and substance of Rule 41(e) to hold that merely because the original piece of paper, which was timely issued, is lost after the first year from its issuance, timely service cannot be satisfied by substitution of an identical copy. In reliance on our decision in Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517, she contends that the Rules of Civil Procedure should be construed to facilitate the resolution of disputes on their merits, rather than arguable procedural irregularities. She contends that she was perfectly authorized to have an additional summons issued by Rule 4C(1), M.R.Civ.P., and the mere fact that she referred to it as a “duplicate” rather than a “separate or additional summons” should not be a basis for dismissal of her complaint.

Glacier County counters that the Rules of Civil Procedure do not provide for a “duplicate” summons; that pursuant to our decisions in Association of Unit Owners v. Big Sky (1986), 224 Mont. 142, 729 P.2d 469, Busch, and Haugen, Rule 41(e) is to be applied literally; and that in this case Yarborough did not literally comply with Rule 41(e) because she did not serve a summons which had been issued within a year on Glacier County.

We conclude that the cases relied upon by the County and the District Court are distinguishable on their facts and in important respects, and that by serving, within three years, an identical copy of an original summons which had been issued within one year, Yarborough complied with the substance and literal purpose of Rule 41(e), M.R.Civ.P. We conclude that to require more would exalt form over substance and do nothing to further the resolution of controversies on their merits which, after all, as we explained in Larango, is the ultimate purpose of our Rules of Civil Procedure. Larango, 196 Mont. at 47, 637 P.2d at 519.

In Association of Unit Owners, the plaintiffs had a summons issued within one year from the date on which their complaint was filed, but that summons did not name all of the defendants who were ultimately listed in the amended complaint. Fifteen months after the original summons was issued, additional summonses were issued which were marked “duplicate summons”; however, the “duplicate” summonses were altered to the extent that they added the names of additional defendants. Association of Unit Owners, 224 Mont. at 148, 729 P.2d at 471. We noted that our Rules do not provide for a “duplicate” summons, but more importantly, stated that “[w]e disregard the terminology in the title of the summons.” Association of Unit Owners, 224 Mont. at 148, 729 P.2d at 472. In other words, in that case the content of the summons was more important than its title. We held in that case that the summonses issued more than a year after the action was commenced did not relate back to the date on which the original summons was issued because the content of the summons had been changed. We specifically stated:

We are not able to relate the actual service back to the summons properly issued on February 18,1983, because that summons failed to name any of the six defendants in its caption or anywhere else in the summons. As a result, that summons would have been inadequate to give notice to these six defendants because of the absence of the defendants’ names in the summons.

Association of Unit Owners, 224 Mont. at 148, 729 P.2d at 472 (emphasis added).

In Association of Unit Owners, we affirmed the district court’s dismissal pursuant to Rule 41(e), but specifically because the summonses issued after one year had expired were changed in substance from the original summons. Those are not the facts in this case.

In Busch, we held that a plaintiff’s complaint would not be dismissed for failure to issue the summons within one year of the date on which the action was commenced pursuant to Rule 41(e) because, pursuant to Rule 4C(1), it was the clerk of court’s obligation to issue the summons. Busch, 278 Mont. at 485, 925 P.2d at 878.

In Haugen, we affirmed the dismissal of the plaintiffs’ complaint when, contrary to the plain language of Rule 41(e), the sheriff’s affidavit that the summons had been served was not filed with the clerk of court within three years after the commencement of that action. We held that the plaintiffs had shown a lack of diligence, and that the delay which resulted was the kind of delay Rule 41(e) was intended to prevent. Haugen, 279 Mont. at 6-7, 926 P.2d at 1367. Neither the facts nor the legal issues presented in Busch and Haugen are present in this case.

In this case, Yarborough’s summons was issued within one year from the date on which her action was commenced and would have been served within three years from that date had it not been lost. When it was lost, a summons which was identical except for the title was issued and, although not issued within one year from the date on which the action was commenced, it was served within three years from that date. As we stated in Association of Unit Owners, “[w]e disregard that terminology in the title of the summons” and look to its substance. Association of Unit Owners, 224 Mont. at 148, 729 P.2d at 472. In substance, the summons served on Glacier County was identical to the original summons which had originally been issued. Glacier County received the same notice in exactly the same form it would have received had the original summons not been lost. While Glacier County complains about the delay in service, the delay is authorized by statute. In this case, an exact copy of the original summons was served on the County in less than three years from the date on which the action was commenced. Rule 41(e) gave Yarborough three years to serve and file her summons. Therefore, no prejudice can be demonstrated by Glacier County from the mere fact that it received a copy of the original summons, rather than the original.

In any given suit, significant interests may be at stake. The success or failure of a business, title to the family homestead, or the quality of a life could hinge on the outcome. No system of justice worthy to be identified as such would resolve those interests on the basis that the original piece of paper (intended solely to notify the other party of the suit) was lost when an exact copy can serve the same purpose.

A system, hundreds of years old, which exists solely to resolve controversies on their merits, cannot be paralyzed by the loss of one piece of paper which does no more than tell the other party to file an answer in twenty days. While literal consideration of our Rules of Procedure is a necessary starting point, common sense is also necessary to people’s confidence in the law.

For these reasons, we conclude that the plaintiff, Debora L. Yarborough, has complied with Rule 41(e), M.R.Civ.P. We reverse the order and judgment of the District Court and remand this case to the District Court for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, LEAPHART and HUNT concur.


author: JUSTICE GRAY JUSTICE LEAPHART,

text:
    James R. McKenzie, Plaintiff and Appellant, v. VALENTINE M. SCHEELER, Defendant and Respondent.
    No. 97-106.
    Submitted on Briefs June 19, 1997.
    Decided December 2, 1997.
    54 St.Rep. 1277. 949 P.2d 1168.
    285 Mont. 500.

      For Appellant: Terry Wallace, Attorney at Law, Missoula.
    For Respondent: John R. Gordon; Reep, Spoon & Gordon, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

James R. McKenzie (McKenzie) appeals from the judgment entered by the Fourth Judicial District Court, Missoula County, on its order dismissing his complaint with prejudice and from the District Court’s subsequent order denying his motion to alter or amend the order of dismissal. We affirm.

We restate the issue on appeal as whether the District Court erred in dismissing McKenzie’s complaint with prejudice for failing to comply with discovery procedures and scheduling orders.

BACKGROUND

On December 8, 1994, McKenzie, a Canadian citizen, filed a complaint against Valentine M. Scheeler (Scheeler) for damages allegedly resulting from a vehicle accident which occurred north of St. Ignatius, Montana, on December 9, 1992. The complaint alleged that McKenzie had suffered property damages, personal injuries, pain and suffering, emotional stress, medical expenses and loss of wages as a result of the accident. After Scheeler answered the complaint, the District Court issued an order directing McKenzie to consult with Scheeler regarding the scheduling of pretrial matters and submit a proposed scheduling order by June 23, 1995. When McKenzie failed to submit a proposed order, Scheeler filed his own proposed scheduling order and the court adopted it. The scheduling order set deadlines for amending pleadings, providing expert witness disclosure statements, exchanging lay witness and exhibit lists, completing discovery and filing pretrial motions. The order also designated dates by which a settlement conference would be held and a pretrial order would be filed.

Scheeler served McKenzie with interrogatories and requests for production of documents on April 17, 1995, which included requests for medical records regarding any injury or medical condition McKenzie suffered from prior to the December 9, 1992, accident; records of medical expenses incurred by McKenzie as a result of the accident; copies of all documentary evidence McKenzie expected to offer at trial; copies of McKenzie’s income tax returns for a ten-year period; and copies of prescriptions and prescription receipts for any drugs McKenzie purchased or used during the year prior to the accident. McKenzie did not respond until November 13, 1995. In addition to his failure to serve the discovery responses within the 30-day time limit provided in Rules 33(a) and 34(b), M.R.Civ.P., McKenzie’s responses to many of the interrogatories and requests for production admittedly were incomplete, erroneous or otherwise inadequate. During his deposition in January of 1996, McKenzie stated he would produce additional medical, employment and financial records. He eventually provided Scheeler with several additional documents in June of 1996, but the documents did not include the medical records and tax returns Scheeler had requested in April of 1995.

The District Court’s scheduling order required the parties to conduct a settlement conference by March 25, 1996. The settlement conference was not held and, when the court noted that a settlement master report had not been filed, it ordered the parties to file a status report. McKenzie’s status report stated that the case was behind schedule, in part, because of his inability to provide the complete information Scheeler had requested. McKenzie requested the court to modify the scheduling order to reopen discovery, which originally was to have been completed by February 1, 1996.

Scheeler’s status report outlined McKenzie’s failure to respond adequately to the requests for production of medical and financial documents. Scheeler also pointed out that McKenzie had failed to meet the deadlines contained in the court’s scheduling order for serving Scheeler with expert witness disclosure statements, lay witness lists and exhibit lists. Additionally, Scheeler reported that McKenzie had not arranged for a settlement conference or even proposed a settlement master; nor had he submitted a proposed pretrial order to Scheeler. Scheeler advised the District Court that he was reluctant to agree to any extensions of the time frames set out in the scheduling order and requested that, in the event the court extended those time frames, specific deadlines be set which would result in dismissal of the complaint if not met by McKenzie.

In light of the status reports, the District Court set a hearing for June 26, 1996, regarding the parties’ scheduling and discovery disagreements. At the hearing, McKenzie’s counsel admitted that McKenzie’s discovery responses had been both late and inadequate, but asserted that he was experiencing some difficulties in obtaining the information required because of McKenzie’s Canadian residency. The District Court granted McKenzie until August 15, 1996, to provide the information Scheeler requested and stated that, if McKenzie failed to provide the necessary information by that deadline, it likely would impose sanctions, which could include dismissal of the action, for failure to comply with the scheduling order under Rule 16, M.R.Civ.P. The District Court further stated that Scheeler would have 10 days after McKenzie’s response to object to any insufficient response and scheduled a hearing for September 4,1996, to review the status of discovery matters. It also expressly ordered McKenzie to be present, personally and with counsel, at the September 4, 1996, hearing. The Minutes and Note of Ruling following this hearing reiterated that McKenzie was granted until August 15, 1996, to provide the requested information and that sanctions could be imposed if he failed to comply by that date.

McKenzie delivered some of the requested documents to Scheeler by the August 15, 1996, deadline. Thereafter, Scheeler filed a timely “Notice of Insufficiency and Objection to Plaintiff’s Tender of Discovery” stating that McKenzie still had not produced the complete medical records and income tax returns requested. The notice also summarized McKenzie’s continued failure to provide full expert witness disclosure statements, a lay witness list, an exhibit list, a proposed pretrial order and a suggested settlement master, as required by the original scheduling order. Scheeler pointed out that McKenzie had not offered any explanation for failing to comply with either the discovery requests or the court’s orders, and requested that the court dismiss the complaint.

Neither McKenzie nor his counsel appeared at the September 4, 1996, hearing as ordered by the District Court. Scheeler’s counsel appeared and reiterated his objections to McKenzie’s failure to comply with the original scheduling order and the court’s June 26, 1996, order. The District Court entered a Note of Ruling in which it dismissed McKenzie’s complaint, but specifically allowed 10 days within which McKenzie could move to set aside the dismissal order on a showing of good cause for his failure to respond or appear; alternatively, the court scheduled a hearing for September 13, 1996, at which, if he appeared with all the requested discovery documents, McKenzie could move to set aside the dismissal.

McKenzie’s counsel appeared at the hearing on September 13, 1996, and apologized for his absence from the prior hearing, stating that he had misread the notice scheduling the September 4, 1996, hearing; McKenzie did not appear. McKenzie’s counsel then moved the District Court to set aside its dismissal of the complaint, asserting that there had been no violations of the scheduling order and that, after reasonable and diligent efforts, he simply had been unable to locate the additional documents requested by Scheeler. The District Court subsequently entered a written order dismissing the action with prejudice for McKenzie’s failure to comply with discovery requests, court-ordered pretrial scheduling procedures and scheduling orders, and denying McKenzie’s motion to set aside the dismissal. McKenzie filed a Rule 59(g), M.R.Civ.P., motion to alter or amend the judgment dismissing his complaint, which the District Court denied, and McKenzie appeals.

DISCUSSION

Did the District Court err in dismissing McKenzie’s complaint with prejudice for failing to comply with discovery procedures and scheduling orders?

It has long been the law in Montana that a party’s abuse of discovery procedures which results in needless delay of a case should not be dealt with leniently; transgressors should be punished rather than patiently encouraged to cooperate in the discovery process. Smith v. Butte-Silver Bow County (1996), 276 Mont. 329, 332, 916 P.2d 91, 92-93 (citing Owen v. F.A. Buttrey, Co. (1981), 192 Mont. 274, 277-78, 627 P.2d 1233, 1235). Concerns related to crowded dockets and the responsibility to maintain fair and efficient judicial administration have shifted the traditional reluctance to impose discovery-related sanctions to a judicial intolerance of discovery abuses. Smith, 916 P.2d at 92. Thus, 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 (citations omitted).

This Court generally defers to the decision of a trial court regarding sanctions for failure to comply with discovery procedures because the trial court is in the best position to know whether parties are disregarding the rights of opposing parties in the course of litigation and which sanctions for such conduct are most appropriate. Smith, 916 P.2d at 93 (citing Dassori v. Roy Stanley Chevrolet Co. (1986), 224 Mont. 178, 180, 728 P.2d 430, 431). As a result, we review a district court’s imposition of sanctions for failure to comply with discovery procedures to determine whether the court abused its discretion. Smith, 916 P.2d at 93.

We have not previously stated the standard for reviewing a district court’s imposition of sanctions for failure to comply with a Rule 16(b), M.R.Civ.P., scheduling order. We observe, however, that failing to abide by a scheduling order constitutes a failure to comply with the rules of procedure as well as a failure to comply with a court order and, in most instances, delays the timely resolution of the action. In that regard, the District Court’s sanction for McKenzie’s noncompliance with the scheduling order was in the nature of a Rule 41(b), M.R.Civ.P., dismissal for failure “to prosecute or to comply with these rules or any order of court ....” Our standard in reviewing a district court’s Rule 41(b) dismissal is whether the court abused its discretion. Hobble-Diamond Cattle Co. v. Triangle Irr. Co. (1995), 272 Mont. 37, 40, 899 P.2d 531, 533 (citation omitted). We adopt that same abuse of discretion standard in reviewing the District Court’s dismissal of McKenzie’s complaint for failure to comply with scheduling orders.

Here, the District Court determined that McKenzie failed to comply with both discovery procedures and its scheduling orders. On that basis, it dismissed McKenzie’s complaint with prejudice. We review the court’s determination of McKenzie’s noncompliance and the propriety of its dismissal sanction in turn.

NONCOMPLIANCE

As stated above, the District Court determined that McKenzie had failed to comply with both discovery procedures and the court’s scheduling orders. We first address McKenzie’s arguments regarding the court’s determination that he had not complied with discovery procedures, then address his arguments regarding his noncompliance with the scheduling orders.

a. Noncompliance with discovery procedures

With regard to the District Court’s determination that McKenzie’s noncompliance was an abuse of discovery procedures, McKenzie first asserts that any failure on his part to respond adequately to discovery requests was not an intentional trial strategy. On that basis, he contends that his noncompliance did not rise to the level of abuse of discovery procedures sufficient under our case law to warrant imposition of sanctions.

It is true that in First Bank (N.A.)—Billings v. Heidema (1986), 219 Mont. 373, 711 P.2d 1384, for example, we stated that “ ‘[w]hen litigants use willful delay, evasive responses, and disregard of court direction as part and parcel of their trial strategy, they must suffer the consequences.’ ” First Bank, 711 P.2d at 1386 (quoting Owen, 627 P.2d at 1236). However, it is equally clear that, in First Bank and Owen, “willful delay” was only one of three examples of conduct stated to be sufficient to warrant sanctions. Moreover, sanctions for abuse of discovery procedures are imposed in order to deter unresponsive parties in an action; it is the attitude of unresponsiveness to the judicial process, regardless of the intent behind that attitude, which warrants sanctions. See, e.g., Huffine, 782 P.2d at 78; Landauer v. Kehrwald (1987), 225 Mont. 322, 325, 732 P.2d 839, 841; Audit Services v. Kraus Const., Inc. (1980), 189 Mont. 94, 102, 615 P.2d 183, 187-88.

In this case, McKenzie’s initial responses to Scheeler’s discovery requests were untimely under Rules 33(a) and 34(b), M.R.Civ.P., and, in addition, were either incomplete or erroneous. Despite assurances to Scheeler that the requested information existed and would be forthcoming, McKenzie failed to deliver complete medical and financial records. The District Court eventually granted McKenzie’s request for an extension of time in which to respond to the discovery requests, but warned that sanctions — including dismissal — could result if noncompliance continued. McKenzie did not comply. Moreover, both McKenzie and his counsel failed to appear at the hearing set for September 4, 1996.

When McKenzie’s counsel did appear on September 13, 1996, he still did not produce the requested discovery. Instead, he attempted to justify the noncompliance by raising new arguments that the information requested by Scheeler was unavailable and that the requests were unreasonable. These assertions were directly contrary to McKenzie’s previous assurances that the information existed and would be produced. Moreover, McKenzie’s counsel did not support his arguments with any testimony, affidavits or other evidence establishing that the requested documents were unavailable. Unsupported arguments of counsel are not evidence and do not establish the existence of the matters that are argued. See, e.g., Montana Metal Buildings, Inc. v. Shapiro (1997), [283 Mont. 471], 942 P.2d 694, 698.

McKenzie repeatedly failed to respond adequately to Scheeler’s discovery requests. In addition, he did not comply with the District Court’s order that he respond in full to those discovery requests and offered no reasonable justification for his noncompliance. The record clearly reflects an ongoing attitude of unresponsiveness to discovery procedures and disregard of the court’s authority on McKenzie’s part throughout the course of this action.

McKenzie also argues that, pursuant to Rule 26(e), M.R.Civ.P., he was allowed to supplement or amend his previous discovery responses at any time prior to trial and that the District Court’s determination that he failed to comply with discovery procedures by not providing complete responses to Scheeler’s discovery requests effectively nullified that Rule. McKenzie’s argument is without merit.

First, Rules 33(a) and 34(b), M.R.Civ.P., require a party to respond to interrogatories and requests for production in full, unless objected to, within 30 days of being served with the interrogatories or requests. Accepting McKenzie’s interpretation of Rule 26(e) would effectively nullify that duty by allowing a party to drag out the discovery process indefinitely through continuous “supplementing” of previous responses in a piecemeal fashion, without ever fully responding to the interrogatory or request for production.

Second, McKenzie misapprehends the nature of Rule 26(e). Rule 26(e), M.R.Civ.P., addresses the limited circumstances under which a party who has responded to a discovery request “with a response that was complete when made ...” must supplement that complete response. In the present case, it is undisputed that McKenzie’s initial responses to Scheeler’s discovery requests were not complete. Thus, Rule 26(e), M.R.Civ.P., is inapplicable here.

We conclude that McKenzie repeatedly failed to fully and timely comply with discovery requests propounded by Scheeler and that the District Court did not err in determining that McKenzie’s noncompliance was an abuse of discovery procedures.

b. Noncompliance with scheduling orders

McKenzie also contends that the District Court erred in determining that he failed to comply with its scheduling orders. In this case, the scheduling orders at issue consist of the original June 30, 1995, scheduling order and the June 26, 1996, order extending the deadline by which McKenzie was to respond fully to the discovery requests. While the June 26, 1996, order is a discovery-related order in that it ordered McKenzie to respond fully to Scheeler’s long-pending discovery requests, it also constitutes a scheduling order in that the District Court made a limited modification of the discovery deadline contained in the original scheduling order. See Rule 16(b), M.R.Civ.P.

Rule 16(b), M.R.Civ.P., provides that a district court shall enter a scheduling order in each case delineating the time frames within which all pretrial matters will be completed by the parties. The District Court duly entered a scheduling order in this action on June 30, 1995, and it is undisputed that McKenzie failed to comply with those portions of the scheduling order which required him to provide Scheeler with an exhibit list, a lay witness list, expert witness disclosure statements, a proposed pretrial order and a suggested settlement master.

McKenzie asserts, however, that, because the court amended the time frames in the scheduling order, it was impossible for him to comply with the original schedule deadlines. We disagree. At the June 26,1996, hearing, the District Court extended the deadline by which McKenzie was required to fully respond to Scheeler’s earlier discovery request until August 15,1996. The court did not extend any of the other deadlines contained in the original scheduling order. Absent such an extension of the other original deadlines, McKenzie’s failure to provide Scheeler with witness and exhibit lists and expert witness disclosure statements constituted a continuing violation of the court’s original scheduling order.

Moreover, at the time the District Court granted McKenzie’s request for an extension of the discovery deadline, the other deadlines set in the original scheduling order had passed. Thus, McKenzie already had failed to comply with those deadlines. The court’s extension of the time in which McKenzie was to respond to the discovery requests had no bearing on the fact that McKenzie had already failed to provide Scheeler with a witness list, an exhibit list and expert witness disclosure statements by the originally set deadlines, and apparently made no effort to comply even after the June 26, 1996, order extending one — and only one — deadline.

Additionally, the District Court’s June 26, 1996, order extending the time in which McKenzie was to respond to Scheeler’s discovery requests and requiring McKenzie to appear on September 4, 1996, was, in essence, a revised scheduling order with which McKenzie also failed to comply. He neither fully responded to the discovery requests by the August 15, 1996, deadline nor appeared at the subsequent hearing. We conclude that the District Court did not abuse its discretion in determining that McKenzie failed to comply with its scheduling orders.

REVIEW OF SANCTION IMPOSED

After determining that McKenzie had committed discovery and scheduling abuses, the District Court dismissed McKenzie’s complaint with prejudice. We review the court’s dismissal sanction to determine whether the court abused its discretion. Smith, 916 P.2d at 95.

McKenzie does not contend that the District Court lacked authority to impose the sanction of dismissal. Indeed, Rules 16 and 37, M.R.Civ.P., provide the District Court with the authority to impose the dismissal sanction. Rule 16(f), M.R.Civ.P., provides that, if a party fails to obey a scheduling order, the court may make such orders as are just, including the dismissal sanction authorized by Rule 37(b)(2)(C), M.R.Civ.P. Additionally, Rule 37(b)(2), M.R.Civ.P., provides that if a party fails to obey an order to provide discovery, the court may make such orders as are just, including “(C) [a]n order ... dismissing the action....”

McKenzie argues, however, that any noncompliance on his part did not warrant the imposition of sanctions at all and that, if sanctions were warranted, the court’s dismissal of his complaint with prejudice was too extreme under these circumstances.

a. Imposition of sanctions

McKenzie asserts that he should not have been sanctioned for not complying with the original scheduling order because the District Court’s June 26, 1996, order directing him to comply with Scheeler’s discovery requests did not also require him to comply with the original scheduling order and the court did not warn him that sanctions would be imposed if he did not comply with the scheduling order. We disagree.

The June 30,1995, scheduling order was an order of the court which, by its terms, required McKenzie to comply with all of the deadlines set forth therein, at all times thereafter, unless modified by the court upon a showing of good cause. Rule 16(b), M.R.Civ.P. McKenzie had a continuing obligation to comply with the scheduling order and that obligation did not evaporate merely because the deadlines set out in the order had passed without being met.

Moreover, even though Rule 16(f), M.R.Civ.P., which provides that a district court may impose sanctions for failure to obey a scheduling order, does not require that a party be given notice of failure to comply or that sanctions could be imposed, it is clear that McKenzie did have such notice. Scheeler’s status report, filed before the hearing in June of 1996, summarized McKenzie’s failure to meet the various deadlines set out in the scheduling order and requested that, in the event the court extended any of the originally scheduled deadlines, any failure by McKenzie to comply with the new deadlines should result in dismissal of the complaint. When the District Court granted McKenzie additional time to respond to the discovery requests, it warned that failure to comply with the extended deadline could result in a Rule 16 sanction for not complying with a scheduling order and that such sanction most likely would consist of dismissal of his complaint. Further, Scheeler’s subsequent notice of insufficiency — to which McKenzie also did not respond — reiterated McKenzie’s noncompliance with the original scheduling order and requested the District Court to enter an order dismissing the complaint. McKenzie had clear notice that he was not in compliance with the original scheduling order and that the court was considering the possibility of sanctions — specifically, dismissal of the action — if the noncompliance continued.

McKenzie also asserts that Scheeler was required to file a motion requesting the imposition of sanctions for his failure to comply with the discovery requests and the scheduling orders before the District Court could impose any sanction, and that Scheeler failed to file such a motion in this case. McKenzie’s foundational premise is flawed. Rule 16(f), M.R.Civ.P., provides that, if a party fails to comply with a Rule 16(b) scheduling order, the court may impose such sanctions as are just on its own initiative. It contains no requirement that a party move for imposition of such sanctions.

As to McKenzie’s failure to comply with discovery procedures, sanctions for such conduct are governed by Rule 37, M.R.Civ.P. As discussed above, Rule 37(b)(2), M.R.Civ.P., provides that “[i]f a party ... fails to obey an order to provide or permit discovery,... the court in which the action is pending may make such orders in regard to the failure as are just... .” It contains no requirement that an opposing party move for sanctions. Here, the District Court entered a specific order on June 26, 1996, requiring McKenzie to provide discovery responses to Scheeler by August 15, 1996. The June 26, 1996, order was, therefore, “an order to provide ... discovery” under Rule 37(b)(2), M.R.Civ.R McKenzie did not comply with that order. Thus, Rule 37(b)(2), M.R.Civ.P., authorized the court to sanction McKenzie for that noncompliance.

We conclude that the District Court did not abuse its discretion in determining that McKenzie’s noncompliance with the scheduling orders and discovery procedures warranted the imposition of sanctions.

b. Dismissal sanction

First, McKenzie argues that the District Court erred in relying on Dassori as support for dismissal of the complaint in the present case. He contends that Dassori is clearly distinguishable because “[t]here was no pattern in this case of either the type or extent of dilatory ‘tactics’ referred to in Dassori.” We disagree.

In Dassori, the plaintiff requested and received an additional month in which to answer interrogatories served on him the previous month. The plaintiff failed to respond within the extended time. Dassori, 728 P.2d at 431. Seven months later, the defendants filed a motion to dismiss the complaint based on the plaintiff’s failure to respond; a hearing was held on the motion to dismiss approximately five months thereafter. Dassori, 728 P.2d at 431. Although the plaintiff appeared at the hearing and presented the court with the required discovery responses, the district court dismissed the complaint. Dassori, 728 P.2d at 431. We affirmed the dismissal sanction, reiterating our deference to a district court’s decision regarding the imposition of sanctions on parties who fail to comply with discovery procedures. Dassori, 728 P.2d at 431.

In the present case, Scheeler served his discovery requests on McKenzie on April 17, 1995. McKenzie did not object or request an extension of the time in which to respond, and did not respond at all until November 13,1995. Moreover, his tardy responses were incomplete. Two months later, during his deposition, McKenzie stated that he would produce additional financial and medical records for Scheeler, but he produced nothing until June of 1996, and his production of documents at that time also was incomplete. Eventually, the District Court set a hearing to discuss the parties’ discovery and scheduling disagreements, at which the court granted McKenzie additional time to respond to the discovery requests. McKenzie still failed to comply, despite assurances to both Scheeler and the District Court that the requested documents existed and were available. Finally, seventeen months after Scheeler served the initial discovery requests on McKenzie, the court dismissed McKenzie’s complaint for failure to comply with discovery procedures and scheduling orders.

The present case reveals a pattern of conduct by McKenzie throughout the proceedings at least comparable to, if not more egregious than, that before us in Dassori. In Dassori, the dismissal of the plaintiff’s complaint resulted from a twelve-month delay in providing discovery responses. Here, the delay was sixteen months. Furthermore, unlike the plaintiff in Dassori, McKenzie never produced complete responses to Scheeler’s discovery requests. On the basis of McKenzie’s discovery abuses alone, Dassori provides sufficient authority for the District Court’s dismissal of the complaint.

Moreover, in addition to his discovery abuses, McKenzie also failed to comply with the deadlines set out in the court’s original scheduling order and he and his attorney both failed to appear at a hearing the court specifically ordered them to attend. He also failed to comply with the court’s order requiring him to fully respond to the discovery requests and provided no reasonable justification for his failure to comply. McKenzie’s disregard of the District Court’s orders provides significant additional support for the court’s determination that the sanction of dismissal was appropriate.

As discussed above, this Court generally defers to the decision of a district court regarding sanctions for abuses of controlling procedural rules because that court is in the best position to know which sanction is most appropriate under the circumstances of the case. See Smith, 916 P.2d at 93. While dismissal is an extreme sanction, the record before us indicates a pattern of discovery abuses and disregard of court orders by McKenzie throughout the course of this litigation which effectively halted the discovery process and delayed any progress toward resolving the action.

Notwithstanding this abysmal record, McKenzie contends that the District Court abused its discretion in dismissing the complaint. First, he argues that, because he did produce at least some of the requested documents and made a good faith effort to substantially comply with the requested discovery, the court should have imposed a sanction less extreme than dismissal. Scheeler’s requests for production included requests for medical records regarding any injury or medical condition from which McKenzie suffered prior to the December 9, 1992, accident; medical records relating to any injuries McKenzie claimed to have suffered as a result of the accident; records of medical expenses incurred by McKenzie as a result of the accident; copies of prescriptions and receipts for any medications McKenzie purchased or used during the year prior to the accident; and copies of his income tax returns for a ten-year period.

While the record before us is not altogether clear regarding what documents were produced by McKenzie or the extent to which he complied with the discovery requests, it appears that McKenzie’s initial responses to the requests for production consisted of two letters from doctors, a credit card charge slip and incomplete tax records covering a period of four years. The additional documents produced by McKenzie on June 4,1996, apparently consisted of two letters and several forms relating to McKenzie’s employment history with two trucking companies, a letter signed by Mrs. Donna McKenzie stating that McKenzie was disabled and in bed between June and November of some unspecified year, and a computer printout from a physical therapy clinic listing the dates on which McKenzie visited the clinic. Finally, McKenzie apparently produced tax returns for a portion of the time period requested, two medical reports and a computer printout of visits to a physician during June and July of 1993.

Considering the limited documents of record and the absence of any testimony, affidavits or other evidence detailing the efforts McKenzie may have made to procure additional documents or the reasons for any inability to procure such documents, we are reluctant to determine whether McKenzie’s efforts were, indeed, in good faith and substantial. When this Court cannot make a ready, confident and accurate determination of a party’s good faith compliance with the discovery process, we will presume the correctness of a district court’s action in imposing sanctions. Landauer, 732 P.2d at 840 (citations omitted); Dassori, 728 P.2d at 431(citations omitted). On the record before us, we will not disturb the District Court’s determination that dismissal of the complaint was the appropriate sanction for McKenzie’s failure to comply with the discovery requests.

Finally, McKenzie asserts that, contrary to the requirements set forth in Smith, dismissal of his complaint was inappropriate because there was no indication that his failure to comply with discovery procedures or the scheduling order resulted in any prejudice to Scheeler. In this regard, we stated in Smith that “[t]he extent of the ‘consequences’ imposed by a district court ... should relate to the extent and nature of the actual discovery abuse and the extent of the prejudice to the opposing party which results therefrom.” Smith, 916 P.2d at 97.

The accident at issue in this case occurred in December of 1992 and McKenzie filed his complaint against Scheeler in December of 1994. Scheeler subsequently served interrogatories and requests for production on April 17,1995. Over the course of the following seventeen months, McKenzie continuously failed to provide complete responses to the discovery requests and offered no justification for his failure to respond fully; he also failed to comply with a court order requiring him to provide complete discovery responses to Scheeler. Thus, when the District Court dismissed McKenzie’s complaint, nearly four years had passed since the accident and two years had elapsed since he filed his complaint. In that period of time, McKenzie still had not provided Scheeler with the most basic information documenting his various claims for personal injuries, pain and suffering, medical expenses and lost wages. Without such information, Scheeler was prevented from assessing the bases for, and developing a defense against, McKenzie’s claims.

Such a refusal to provide discovery essentially prevents the case from progressing and is the precise reason for the availability of sanctions pursuant to Rule 37, M.R.Civ.P. See In re Marriage of Massey (1987), 225 Mont. 394, 398, 732 P.2d 1341, 1344. When a party’s failure to comply with discovery procedures effectively halts the discovery process, it results in impermissible prejudice to the opposing party. See First Bank, 711 P.2d at 1386 (citation omitted). Thus, McKenzie’s failure to comply with discovery procedures was, in itself, prejudicial to Scheeler.

Moreover, while the District Court made no finding regarding the extent to which Scheeler had been prejudiced by McKenzie’s failure to comply with discovery procedures and scheduling orders, it clearly found McKenzie’s noncompliance, which it characterized as “flagrant, repeated and continuous,” to be so extensive as to warrant a dismissal in its own right. We agree. McKenzie repeatedly ignored the rules governing discovery and disregarded court orders. Although the extent of the discovery abuse and prejudice to an opposing party are both factors to be considered in determining an appropriate sanction, a party’s disregard of the court’s orders and authority is an additional consideration. In this case, McKenzie’s continuous discovery abuses, his unresponsive attitude toward the judicial process and his disregard of the District Court’s authority, combined with the inherent prejudice to Scheeler, clearly warranted the sanction of dismissal. We conclude that the District Court did not abuse its discretion in dismissing McKenzie’s complaint with prejudice as a sanction for his failure to comply with discovery requests and scheduling orders.

Finally, we address the District Court’s denial of McKenzie’s motion to alter or amend its order dismissing his complaint which was based, in part, on McKenzie’s failure to present the court with any reason justifying his continued failure to comply with the court’s orders. Our standard of review of a district court’s denial of a motion to alter or amend is whether the court abused its discretion. Estate of Nielsen v. Pardis (1994), 265 Mont. 470, 478, 878 P.2d 234, 238.

In light of our conclusion that the District Court did not abuse its discretion in dismissing the complaint, we further conclude that the court did not abuse its discretion in denying McKenzie’s motion to alter or amend the order of dismissal. We hold that the District Court did not err in dismissing McKenzie’s complaint with prejudice based on his failure to comply with discovery procedures and scheduling orders.

Affirmed.

JUSTICES NELSON, REGNIER and HUNT concur.

JUSTICE LEAPHART,

dissenting.

I concur with the conclusion that McKenzie’s failure to timely respond to the discovery requests constitutes noncompliance with both the rules of procedure and the court’s scheduling order. I further agree that the court did not abuse its discretion in determining that McKenzie’s conduct was sanctionable. I would hold, however, that the District Court abused its discretion in its choice of sanctions; that is, in dismissing the complaint with prejudice.

The Court notes that a dismissal for failure to comply with a Rule 16, M.R.Civ.P., scheduling order is akin to a dismissal for failure to prosecute under Rule 41(b), M.R.Civ.P. The Court cites our decision in Hobble-Diamond Cattle Co. v. Triangle Irr. Co. (1995), 272 Mont. 37, 40, 899 P.2d 531, 533, for the proposition that we review Rule 41(b) dismissals for an abuse of discretion. As noted in Hobble-Diamond, “we have established four factors to be considered in determining whether a district court abused its discretion in dismissing an action under Rule 41(b), M.R.Civ.P.: 1) plaintiff’s diligence in prosecuting the claim; 2) prejudice to the defense caused by plaintiff’s delay; 3) availability of alternate sanctions; and 4) existence of a warning that the case is in danger of dismissal.” Hobble-Diamond, 899 P.2d at 534.

Here we have a period of 16 months in which the plaintiff failed to adequately respond to discovery requests. While I agree that a 16-month delay is sanctionable, I seriously question whether a dismissal with prejudice is appropriate. Although there is no definitive standard as to how long a delay must be before a dismissal is warranted, I note that we have held that dismissal after a delay of “slightly more than two and one-half years” was held an abuse of discretion in Becky v. Norwest Bank Dillon, N.A. (1990), 245 Mont. 1, 8, 798 P.2d 1011, 1016.

Accordingly, given that the 16-month delay was not as egregious as others we have addressed, combined with the fact that the only prejudice to the defendant was the prejudice which is presumed from the delay itself, I would require that the District Court consider alternate sanctions before invoking the extreme sanction of dismissal. “[D]ismissals should be imposed sparingly and must remain the exception rather than the rule.” Hobble-Diamond, 899 P.2d at 535. In Hobble-Diamond, we reversed a dismissal under Rule 41(b) where there had been a one-year delay. We determined that “the ‘availability of alternate sanctions’factor weighs in Hobble-Diamond’s favor given the plethora of alternate sanctions and remedies available and the period of delay at issue.” Hobble-Diamond, 899 P.2d at 535. The 16-month period in the present case is not significantly longer than the 12-month delay in Hobble-Diamond. As in Hobble-Diamond, the District Court should have looked to the plethora of less severe alternate sanctions, for example refusing to allow McKenzie to support designated claims or prohibiting him from introducing designated matters in evidence. Rule 37(b)(2)(B), M.R.Civ.P. For these reasons, I would reverse the dismissal and remand for appropriate alternate sanctions under Rule 37(b)(2), M.R.Civ.P.


author: JUSTICE GRAY

text:
    THE DUCK INN, INC., Plaintiff and Appellant, v. MONTANA STATE UNIVERSITY-NORTHERN, Defendant and Respondent.
    No. 97-236.
    Submitted on Briefs October 9, 1997.
    Decided December 9, 1997.
    54 St.Rep. 1295. 949 P.2d 1179.
    285 Mont. 519.

      For Appellant: Chris R. Young; Young & Brown, Havre.
    For Respondent: LeRoy H. Schramm, Chief Legal Counsel, Montana University System, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

The Duck Inn, Inc. (Duck Inn) appeals from the judgment entered by the Twelfth Judicial District Court, Hill County, on its order granting summary judgment to Montana State University - Northern (Northern) and dismissing the Duck Inn’s complaint. We affirm.

The issues on appeal are:

1. Did the District Court err in concluding that Northern’s conduct in renting its facilities to private persons and organizations is authorized by § 20-25-302, MCA (1993)?

2. Did the District Court err in concluding that § 20-25-302, MCA (1993), does not violate the Montana Constitution?

BACKGROUND

The Duck Inn is a Montana corporation with its principal place of business in Havre, Montana. As part of its business, the Duck Inn provides facilities, food and beverages to the general public for the purpose of hosting parties, reunions, conventions and receptions.

Northern is a tax-supported unit of the Montana university system; its buildings and property belong to the State of Montana. Northern is funded via taxes and general fund appropriations, student fees and tuition, fees charged to users of campus services and facilities, federal grants, bond proceeds, interest income and private gifts.

Northern regularly rents its facilities to private persons and organizations for parties, reunions, conventions and receptions. Its campus food service provider has the exclusive right, pursuant to contract, to cater food service for all such gatherings on Northern’s campus and, in return, Northern receives 10% of the gross revenues realized from the catering. In addition, Northern receives 100% of the revenues received as payment for the rental of campus facilities. Northern applies these revenues to supplement the operating funds available for maintenance of the rented facilities and to pay off the bond issues to which the revenues have been pledged.

In 1994, the Duck Inn filed a complaint for declaratory judgment and application for preliminary injunction against Northern. The complaint alleged that Northern’s leasing of its facilities to private persons and organizations for various events placed Northern in direct competition with the Duck Inn’s business and violated Montana statutes. It also alleged that, if Northern’s leasing activities did not exceed statutory authority, the applicable statute violated the Montana Constitution. The Duck Inn sought a declaratory judgment prohibiting Northern’s leasing activities and an order to show cause why its application for a preliminary injunction should not be granted.

After a hearing, the District Court denied the Duck Inn’s request for a preliminary injunction. It determined that, while the Duck Inn had shown that Northern did compete with the Duck Inn’s business, it was not clear that such competition was prohibited by statute or the Montana Constitution.

Northern subsequently moved to dismiss the complaint on the basis that it failed to state a claim upon which relief could be granted. After full briefing by the parties, the District Court concluded that Northern’s practice of renting its facilities did not violate either § 20-25-302, MCA (1993), or the Montana Constitution, but observed that the record indicated that Northern might not have followed its own policies regarding the use of facilities. On that basis, the District Court denied Northern’s motion to dismiss and granted the Duck Inn leave to amend the complaint to seek damages and injunctive relief based on alleged violations of Northern’s policies. Thereafter, the Duck Inn filed a notice of appeal of the District Court’s order and, on November 7,1995, this Court dismissed the appeal without prejudice because no final judgment had been entered.

The Duck Inn subsequently filed an amended complaint generally alleging, in addition to the bases asserted in the original complaint, that Northern’s leasing activities violated its own policies. The parties filed cross motions for summary judgment and the District Court ultimately granted Northern’s motion relating to the alleged violation of policies on the basis that no genuine issue of material fact existed as to whether Northern violated its current policies relating to the rental of campus facilities. The court incorporated its earlier decision that Northern’s leasing practices did not violate either Montana statute or the Montana Constitution into its order on summary judgment and ordered the dismissal of the Duck Inn’s complaint. Judgment was entered accordingly and the Duck Inn appeals.

STANDARD OF REVIEW

We observe at the outset that the Duck Inn does not appeal from the District Court’s determination that no genuine issue of material fact existed with regard to whether Northern’s rental practices violated its own policies. The Duck Inn’s appeal is limited to that portion of the District Court’s order on summary judgment which incorporated its earlier legal conclusions that Northern’s leasing activities did not violate § 20-25-302, MCA (1993), or the Montana Constitution. Under such a circumstance, we need only determine whether the district court correctly interpreted the law. See Ash Grove Cement Co. v. Jefferson County (1997), [283 Mont. 486], 943 P.2d 85, 89 (citation omitted).

DISCUSSION

1. Did the District Court err in concluding that Northern’s conduct in renting its facilities to private persons and organizations is authorized by § 20-25-302, MCA (1993)?

Section 20-25-302, MCA (1993), provides, in pertinent part, that the regents of the Montana university system may

(5) rent the facilities to other public or private persons, firms, and corporations for such uses, at such times, for such periods, and at such rates as in the regents’ judgment will be consistent with the full use thereof for academic purposes and will add to the revenues available for capital costs and debt service [.]

The only portion of the statute which is at issue here is the meaning of the phrase “consistent with.” “In interpreting a statute, we look first to the plain meaning of the words it contains.” Werre v. David (1996), 275 Mont. 376, 385, 913 P.2d 625, 631 (citation omitted). Moreover, in the search for plain meaning, we give words their usual and ordinary meaning. Werre, 913 P.2d at 631 (citations omitted).

MERRIAM WEBSTER’S COLLEGIATE DICTIONARY 247 (10th ed. 1993) defines consistent as “free from variation or contradiction;” “compatible.” THE AMERICAN HERITAGE DICTIONARY 402 (3rd ed. 1992), also defines consistent as “compatible.” Applying this definition to § 20-25-302(5), MCA (1993), we conclude that the statute expressly authorizes Northern to rent its facilities to any person or entity for any use, at any time, which is compatible with — and does not contradict — the full use of the facilities for academic purposes and which also adds to the revenues available for capital costs and debt service. There is no showing on the record before us that Northern’s rentals are incompatible with, or contradict, the full use of the facilities for academic purposes. Furthermore, it is agreed that Northern receives revenues from the rentals which add to revenues available for capital costs or debt service.

The Duck Inn contends that the phrase “consistent with” means “directly related to” Northern’s academic purposes. It provides no authority for such a definition, however. An appellant bears the burden of establishing error by the trial court and Rule 23, M.R.App.P., requires an appellant to cite to authority for the position being advanced on appeal. The Duck Inn having failed to do so, it cannot establish error with regard to the District Court’s definition of “consistent” as, among other things, “compatible, not contradictory” and the court’s corresponding conclusion that § 20-25-302, MCA (1993), authorizes Northern’s leasing activities.

The Duck Inn also asserts, although obliquely, that it is unwise and unfair for tax-supported institutions such as Northern to rent their facilities in direct competition with private sector businesses. Many people would agree with the Duck Inn’s assertion. As a general rule, however, the public policy of the State of Montana is set by the Montana Legislature through its enactment of statutes, and this Court may not concern itself with the wisdom of such statutes. See, e.g., Gryczan v. State (1997), [283 Mont. 433], 942 P.2d 112, 125; Estate of Strever v. Cline (1996), 278 Mont. 165, 180, 924 P.2d 666, 675; Young v. Board of Trustees, Etc. (1931), 90 Mont. 576, 584, 4 P.2d 725, 728.

We also observe that the Duck Inn effectively concedes that § 20-25-302, MCA (1993), authorizes Northern’s rentals by arguing that the statute authorizes such rentals “only if its administrative rules allowing such conduct are strictly confined within the applicable legislative guidelines, and only if its conduct strictly adheres to both the letter and spirit of the policies and procedures adopted by the Board of Regents and Northern.” While it cannot be gainsaid that administrative regulations or, as here, campus policies cannot authorize conduct not within the purview of the statute (see, e.g., Bick v. State, Dept. of Justice (1986), 224 Mont. 455, 457, 730 P.2d 418, 420), the Duck Inn did not challenge the policies under which Northern rents its facilities on the basis that they are too expansive or, indeed, at all. It merely contended in the District Court that Northern was violating its own policies. The District Court determined otherwise and, as noted above, the Duck Inn has not appealed that determination.

Finally, the Duck Inn argues that several of the cases relied on by Northern in the District Court are factually distinguishable from the present case and do not support Northern’s position here. We agree that the cases are, to a large extent, factually distinguishable in that they address the leasing out of different public facilities by different governmental units under different statutes than that at issue here. See, e.g., Colwell v. City of Great Falls (1945), 117 Mont. 126, 157 P.2d 1013, overruled by Prezeau v. City of Whitefish (1982), 198 Mont. 416, 646 P.2d 1186; Young, 4 P.2d 725. In this regard, we need observe only that the cases noted by the Duck Inn were neither necessary to, nor the basis for, the District Court’s decision that Northern’s leasing activities are authorized by § 20-25-302, MCA (1993). Likewise, those cases have no relevance to, or bearing on, the conclusion we reached above under “plain meaning” principles of statutory construction.

We hold that the District Court did not err in concluding that § 20-25-302, MCA (1993), authorizes Northern to rent its facilities to private persons and organizations so long as the rentals are compatible with the full use of the facilities for academic purposes and add to the revenues available for capital costs or debt service.

2. Did the District Court err in concluding that § 20-25-302, MCA (1993), does not violate the Montana Constitution?

The Duck Inn advances two challenges to the District Court’s conclusion that § 20-25-302, MCA (1993), does not violate the Montana Constitution. First, it contends that the statute constitutes an unconstitutional delegation of legislative authority to an administrative agency. Second, it argues that the leasing of facilities on Northern’s campus constitutes a use of tax-supported facilities for a private purpose — competition with private enterprise — which infringes on the constitutional requirement that taxes may be levied only for public purposes. We address these arguments in turn.

Article V, Section 1 of the Montana Constitution provides that “[t]he legislative power is vested in a legislature consisting of a senate and a house of representatives.” The Duck Inn relies on White v. State (1988), 233 Mont. 81, 759 P.2d 971, and Douglas v. Judge (1977), 174 Mont. 32, 568 P.2d 530, in arguing that § 20-25-302, MCA (1993), constitutes an unconstitutional delegation of legislative power because it fails to prescribe a policy, standard or rule for implementing the powers delegated to an administrative agency.

It is true that White and Douglas set forth the general standard against which legislative delegations of power are measured in Montana. In Douglas, where a delegation of power to the Board of Natural Resources and Conservation was at issue, we stated that, in delegating powers to an administrative body,

“the legislature must ordinarily prescribe a policy, standard, or rule for their guidance and must not vest them with an arbitrary and uncontrolled discretion with regard thereto. ...”

Douglas, 568 P.2d at 533-34 (citations omitted). We reiterated that standard in White in the context of a challenge to the delegation of legislative power to the Science and Technology Development Board. White, 759 P.2d at 975.

Applying the principles set forth in Douglas and White to the present case, it is clear that § 20-25-302, MCA (1993), is not an unconstitutional delegation of legislative authority to the board of regents. The policy underlying the statute is set forth in the statute; that policy is to increase revenues available for the capital costs of, and debt service on, campus facilities. The implicit, but clear, rationale behind the statute is to minimize the tax support necessary to fund units of the Montana university system by leasing campus facilities. Likewise, § 20-25-302, MCA (1993), expressly constrains the leasing of such facilities by mandating that the leasing must be consistent with full use of the facilities for the academic purposes for which they were established. Here, this constraint on the board of regents is the “standard” or “guide” required by Douglas for a proper legislative delegation of power.

The Duck Inn contends, in this regard, that the “regents’ discretion” language contained in § 20-25-302, MCA (1993), provides insufficient limits on the legislative delegation of power. It provides no legal authority for its position, however, and we conclude that the regents’ discretion is sufficiently limited by the statutory requirements that the leasing be consistent with the full use of the facilities for academic purposes and produce revenues for capital costs or debt service.

Moreover, the regents have authority over the Montana university system which is independent of that delegated by the legislature. Article X, Section 9 of the Montana Constitution expressly creates the board of regents as a constitutional entity and vests the government and control of the Montana university system therein. Indeed, the regents are given “full power, responsibility, and authority to supervise, coordinate, manage and control the Montana university system ....” Art. X, Sec. 9, Mont. Const. Under a similar circumstance involving independent authority, the United States Supreme Court has held that limitations on legislative delegation are “less stringent in cases where the entity exercising the delegated authority itself possesses independent authority over the subject matter.” United States v. Mazurie (1975), 419 U.S. 544, 556-57, 95 S.Ct. 710, 717, 42 L.Ed.2d 706, 716 (citation omitted). We adopt the Supreme Court’s reasoning with regard to legislative delegations of power to the board of regents in Montana.

The Duck Inn’s second constitutional argument is that § 20-25-302, MCA (1993), permits the use of tax revenues of the State of Montana for private purposes in violation of Article VIII, Section 1 of the Montana Constitution, which provides that “[t]axes shall be levied ... for public purposes.” It relies on Hollow v. State (1986), 222 Mont. 478, 723 P.2d 227, and cases from other jurisdictions in support of its argument, and expressly urges this Court to adopt the rationale and holding set forth in White Eagle Oil & Refining Co. v. Gunderson (S.D. 1925), 205 N.W. 614.

We begin with the constitutional provision itself, which necessitates a determination of whether the present case directly implicates the use of taxes levied for a public purpose for a private use. We conclude that it does not.

The Duck Inn does not challenge the levy of any tax — or a statute authorizing such a levy — in this proceeding. Moreover, nothing in the record before us suggests that this case involves tax monies levied for the proper public purpose of higher education being expended directly for Northern’s leasing activities or the private gatherings held pursuant thereto. To the contrary, as discussed above, the purpose of § 20-25-302, MCA(1993), is to relieve or contain, to at least a minimal extent, the tax burden associated with university-level funding requirements. Thus, to the extent Article VIII, Section 1 applies here at all, § 20-25-302, MCA (1993), and Northern’s leasing activities thereunder appear to have “public purposes” as that term is used in Article VIII, Section 1 of the Montana Constitution.

In this regard, the Duck Inn’s reliance on Hollow is misplaced. There, legislation permitted the Montana Economic Development Board to use coal severance tax revenues from the in-state investment fund to satisfy guaranties of private debts or obligations. Hollow, 723 P.2d at 232. We held that the use of tax monies to satisfy private debts or obligations violated the requirement of Article VIII, Section 1 of the Montana Constitution that tax monies be used for public purposes. Hollow, 723 P.2d at 232. In the present case, no tax monies are being spent to satisfy private debts or for any other private purpose. Tax monies being used as a partial funding source for Northern continue to be used for that purpose, and Northern’s leasing activities only enhance revenues available for capital costs and debt service which might otherwise require supplementation by the taxpayers. Thus, Hollow is inapplicable here.

We turn next to White Eagle Oil, the 1925 South Dakota case on which the Duck Inn urges us to rely in holding Northern’s leasing activities unconstitutional under Article VIII, Section 1 of the Montana Constitution. There, a statute authorized the state to use highway funds obtained from gasoline taxes for the purpose of buying gasoline, oil and lubricants and selling them at retail. As the state began such activities, the plaintiffs — retail gas distributors — brought an action challenging the constitutionality of the statute authorizing use of gas tax funds for the stated purpose. White Eagle Oil, 205 N.W. at 615-16. The plaintiffs contended that the statute violated the South Dakota Constitution’s provision that taxes could be levied for public purposes only; the state contended that the statute was within its police power and, therefore, that the use of gas taxes permitted therein was a public purpose. White Eagle Oil, 205 N.W. at 618, 620. The South Dakota Supreme Court assumed arguendo that the statute was an exercise of the police power and, therefore, that the statutorily authorized use of gas taxes was a public purpose, effectively rejecting the plaintiffs’ constitutional argument. It observed, however, that the law authorizing the levy of the gas tax specified that those taxes were appropriated for the construction and repair of highways; on that basis, the court invalidated the statute under a constitutional provision which prohibited the diversion of funds levied for a specific purpose to another purpose. White Eagle Oil, 205 N.W. at 620.

White Eagle Oil is of no assistance to the Duck Inn. The South Dakota Supreme Court rejected the plaintiffs’ constitutional argument — which was similar to that advanced by the Duck Inn here under the Montana Constitution — and held the statute unconstitutional for reasons not at issue in the present case. White Eagle Oil has no application here.

Finally, we briefly address the other authorities from sister jurisdictions on which the Duck Inn relies, none of which supports its position in this case. In Wheelon v. South Dakota Land Settlement Board (S.D. 1921), 181 N.W 359, 360-62, a statute authorizing the levy of taxes for the purpose of state loans to settlers was held constitutional as a “public purpose.” Similarly, in Albritton v. City of Winona (Miss. 1938), 178 So. 799, 803-810, a depression-era tax to be levied for the purchase of land, construction of certain manufacturing enterprises and lease of the enterprises to a private firm or individual fit to operate the enterprises was upheld against a variety of constitutional challenges as promoting the public welfare.

The final case on which the Duck Inn relies, is City of Cleveland v. Ruple (Ohio 1936), 200 N.E. 507. There, the city used public funds for the construction and operation of an underground facility to be used for public exhibitions and vehicle parking in conjunction with public events at its nearby civic center. City of Cleveland, 200 N.E. at 508-509. In its first IV2 years of operation, the facility was used for public purposes for a total of three months; it was operated as a parking garage in competition with private business the remainder of the time. The receiver for a nearby private parking garage sued to enjoin the city from using the facility in the above-described manner and the Ohio Supreme Court held that it could be operated as a garage “so far as in doing so there is involved a public function.” City of Cleveland, 200 N.E. at 509, 511. It is this holding on which the Duck Inn relies.

The facts in City of Cleveland are clearly distinguishable from those presently before us. There, the “public” function of the facility was essentially incidental to the private use being made of it, in that the facility was operated for public purposes only 17% of the time. Indeed, the Ohio court distinguished City of Cleveland from the many cases holding “that public buildings may be temporarily let for a consideration, but in our judgment the present case does not present a situation of that character.” City of Cleveland, 200 N.E. at 511. The case before this Court does present a situation where Northern temporarily leases its facilities and the leasing is incidental to use of the facilities for the public purposes for which they were funded. The record reflects, in fact, that less than 5% of the activities in the Northern facilities at issue are of a private social nature under leases with Northern. Thus, City of Cleveland is readily distinguishable on the facts and, therefore, on the law.

We hold that the District Court did not err in concluding that § 20-25-302, MCA (1993), and Northern’s leasing activities thereunder, do not violate the Montana Constitution.

Affirmed.

JUSTICES NELSON, HUNT, TRIEWEILER and LEAPHART concur.