No. 90-337 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

SAMUEL GARRETT, 

Plaintiff and Appellant, 

PACCAR FINANCIAL CORPORATION, a Washington 

Corporation, and OH, MONTANA, INC., d/b/a 

PERSONAL COLLECTIONS, and DONALD M. LEACH 

d/b/a Personal Collections, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, 

The Honorable Thomas A. Olson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Gary L. Spaeth, Red Lodge, Montana 

For Respondent: 

Filed: 

Stephen C. Mackey; Towe, Ball, Enright & Mackey; 

Billings, Montana (PACCAR Financial Corp.) 

Stephen C. Pohl, Bozeman, Montana (Oh, Montana, 

Inc.) 

Calvin L. Braaksma; Landoe, Brown, Planalp & 

Kommers; Bozeman, Montana (Donald M. Leach) 

Submitted on Briefs: October 19, 1990 

Decided: November 29, 1990 
Justice Fred J. Weber delivered the Opinion of the Court. 

The plaintiff, Samuel Garrett (Garrett), initiated this suit 

to recover damages sustained during the alleged wrongful possession 

of Garrett's semi-truck. The District Court for the Eighteenth 

Judicial District, Gallatin County, granted summary judgment under 

Rules 36 (a) and 56 of the Montana Rules of Civil Procedure. 

Plaintiff appeals. We affirm. 

The issue is did the District Court err when it granted the 

defendants' motion for summary judgment under Rules 36(a) and 56, 

M.R.Civ.P.? 

The relevant facts to the issue before this Court are 

procedural. On January 11, 1989, defendant PACCAR Financial 

Corporation (PFC), served its first written interrogatories on 

Garrett. When Garrett failed to respond after ten months, PFC 

served Garrett with a set of Requests for Admissions on October 11, 

1989. The Requests for Admissions were based on the prior 

unanswered interrogatories and were aimed at all of the material 

allegations of Garrett's complaint. Garrett failed to respond to 

the Request for Admissions and three months later, on January 4, 

1990, PFC moved the court for summary judgment on the theory that 

unanswered admissions are deemed admitted after 30 days under Rule 

36(a), M.R.Civ.P. 

Defendants, Donald M. Leach (Leach) and Oh, Montana, Inc. (Oh, 

Montana) joined PFC1s motion based on the theory that Garrett's 

deemed admissions address the ultimate issues of fact in the case 

and are totally dispositive of Garrett's claims as to all 

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defendants. 

The record shows that Garrett also failed to comply with 

discovery as to defendant Leach. On July 26, 1989, Leach served 

Garrett with interrogatories and Requests for Production of 

Documents. When Garrett failed to respond by October 6, 1989, 

Leach filed a Motion to Compel Discovery pursuant to Rule 37(a), 

M.R.Civ.P. On November 8, 1989, the court ordered Garrett to file 

the requested documents by November 17, 1989, and to produce income 

tax returns by December 15, 1989. To date Garrett has failed to 

produce the income tax returns as ordered by the court. 

At the hearing on the motion for summary judgment, Garrett's 

counsel's stated reasons for failure to respond included the 

following: Garrett is a truck driver and fails to maintain contact 

with his attorney, Garrett experienced personal problems and 

illness and death in the family, counsel assumed this case from his 

associate who had left the firm, counsel is busy with other 

matters, and counsel believed he had a conversation with PFC1s 

counsel which led him to believe he had an extension. At the time 

of the hearing on January 26, 1990, Garrett had not filed any brief 

in opposition to summary judgment and still had not filed any 

answers to interrogatories or requests for admission. 

The District Court deemed the request for admissions as 

admitted under Rule 36 (a) , M. R. Civ. P. , and granted summary judgment 

as to all defendants under Rule 56, M.R.Civ.P. 

Did the District Court err when it granted the defendants1 

motion for summary judgment under Rules 36(a) and 56, M.R.Civ.P.? 
Rule 36(a) states in relevant part: 

The matter is admitted unless, within 30 days after 

service of the request, or within such shorter or loncrer 

time as the court may allow, the party to whom the 

request is directed serves upon the party requesting the 

admission a written answer or objection . . . 

PFCgs Interrogatories had gone unanswered for approximately 

a year and the Requests for Admissions had gone unanswered for 

three months. At no time had Garrett attempted to file answers or 

to file a request for permission from the court for a longer time 

as required under Rule 36(a). Garrett's deemed admission leaves 

no genuine issues of material fact as to liability on the part of 

any defendant. Delay or failure to respond to the requests for 

admissions justifies summary judgment under Rule 56, M.R.Civ.P. 

Morast v. Auble (1974), 164 Mont. 100, 105, 519 P.2d 157, 160. 

The standard of review is set forth in Morast as follows: 

[A] litigant's right to file a late response [to requests 

for admissions] is Ignot a matter of rightfvg but is rather 

"a matter resting within the discretion of the district 

court and will not be disturbed on appeal unless there 

is a showing of manifest abuse of dis~retion.~' 

Id. at 105, 519 P.2d at 159. 

A review of the record reveals no evidence showing a manifest 

abuse of discretion. We hold the District Court did not err when 

it granted the defendantsg motion for summary judgment under Rules 

36(a) and 56 of the Montana Rules of Civil Procedure. 

Affirmed. 

We Concur: / A. /- 

/ Chief Justice 

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C 5??k&j&44 Justices