IN THE SUPREME COURT OF THE STATE OF MONTANA 

2001 MT 40N 

ROBERTA ARNOUX, 

JTL GROUP, INC., EWa 

PIONEER READY MIX, INC., 

MAR 0 6 2001 

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: 

Philip E. Roy, Law Office of Philip E. Roy, Great Falls, Montana 

For Respondent: 

Gregory R. Todd, Roybal, Lee & Todd, Billings, Montana 

Submitted on Briefs: February 1,2001 

Decided: March 6,2001 

Filed: 

Clerk 
Justice Patricia 0. Cotter delivered the Opinion of the Court. 

71 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal 

Operating Rules, the following decision shall not be cited as precedent but shall be filed as 

a public document with the Clerk of the Supreme Court and shall be reported by case title, 

Supreme Court cause number and result to the State Reporter Publishing Company and to 

West Group in the quarterly table of noncitable cases issued by this Court. 

72 The Eighteenth Judicial District Court, Gallatin County, granted JTL Group's (JTL) 

motion to dismiss Roberta Arnoux's (Arnoux) two cases for failure to comply with discovery 

rules, for failure to comply with the District Court's scheduling orders, and for failure to 

prosecute her cases. Arnoux now appeals. We affirm. 

73 The issues on appeal are properly stated as follows: 

1. Should most of Arnoux's statement of facts, exhibits and arguments be stricken 

and not considered on this appeal? 

2. Was the District Court correct in dismissing both of Arnoux's claims with 

prejudice? 

FACTUAL BACKGROUND 

74 On July 20, 1995, Arnoux filed a personal injury action against JTL, her employer, 

under cause No. DV 95-2 1 1, alleging she was injured when a co-employee struck her with 

his truck. Arnoux was represented at the time by Peter Michael Meloy. Both parties asked 

and answered written discovery between August 1995 and March 1996. JTL took the 
depositions of Arnoux's seven doctors and one fact witness. Arnoux took no depositions. 

A pretrial conference was held and a pretrial order was signed on April 16, 1997. 

75 Arnoux then attempted to amend her personal injury case to add allegations of 

discrimination. The District Court denied Arnoux's motion to amend. On June 13, 1997, 

Arnoux filed her second complaint against JTL, under cause No. DV 97-207, alleging sexual 

and racial discrimination. On November 26, 1997, Mr. Meloy moved to withdraw as 

attorney for Arnoux in both cases. The District Court held two hearings on Meloy's 

withdrawal, and ultimately granted his motion. 

76 Philip Roy appeared as Arnoux's attorney in both cases in June 1998. The District 

Court held a pretrial conference and issued a second scheduling order on July 16, 1998, 

combining the two cases for the purposes of discovery, exchange of information, mediation, 

and a pretrial conference. On August 17,1998, JTL deposed Arnoux in the discrimination 

case. JTL then served written discovery on Arnoux on September 15, 1998, along with a 

request for statement of damages. 

77 On September 15, 1998, JTL also filed and served its lay witness and exhibit lists, as 

both parties were required to do under the scheduling order. On October 15,1998, JTL filed 

and served its Rule 26(b)(4) expert disclosures in both cases, again in compliance with the 

scheduling order. Arnoux failed to meet either deadline. Arnoux took no depositions in 

1998, nor did she submit any further written discovery, or supplement her previous discovery 
responses with updated medical records. In addition, she failed to respond to JTL's request 

for statement of damages, and did not timely answer JTL's written discovery. 

78 On January 7, 1999, attorneys for both sides agreed to mediation, to be held in 

Bozeman on January 15,1999. The Mediator sent an order verifLing the time and place of 

the settlement conference to both sides. However, Arnoux canceled on January 13, 1999, 

because her attorney was moving offices. The settlement conference was not rescheduled. 

79 On January 26, 1999, JTL filed a motion to dismiss both complaints with prejudice. 

A hearing was set for February 16, 1999. Just minutes before the start of this hearing, 

Arnoux's attorney hand-delivered a response to JTL's motion. Arnoux also presented what 

purported to be answers to JTL's written discovery. The District Court ordered the parties 

to discuss the discovery issues and return later that afternoon. Upon return, the attorneys and 

the District Court discussed the inadequacy of Arnoux's discovery responses. No updated 

medical records were provided, nor were there any records from newly identified doctors. 

The District Court granted Arnoux 45 days to correct these deficiencies and satisfactorily 

answer the discovery. 

110 After the 45 days had passed, JTL's attorney filed an affidavit setting forth the 

numerous deficiencies in the plaintiffs discovery responses. Arnoux subsequently updated 

her responses. On April 8, the court held a telephone status conference. The District Court 

and counsel discussed Arnoux's newest discovery responses, which did for the first time 

provide the names of Arnoux's proposed expert witnesses, but which did not contain Rule 
26(b)(4) disclosures. (According to the court's scheduling order, the names of the experts 

and the disclosures were to be filed on or before October 15,1998.) At the conclusion of the 

telephone conference, the District Court issued an order setting a pretrial conference for May 

6,1999. The District Court told JTL it could refine its motion to dismiss in light of what had 

and had not been supplied in the latest discovery responses. 

71 1 Subsequently, JTL received a purported supplemental discovery response in both 

cases consisting of six pages of difficult to read handwritten notes fiom Dr. Julia Purvis. 

However, Arnoux made no attempt to reconvene mediation, nor did she ever submit an 

exhibit list as required by the scheduling order or answer JTL's request for statement of 

damages. 

712 At the May 6, 1999 pretrial conference, the District Court was advised for the first 

time that Arnoux's attorney was experiencing medical problems. The District Court reached 

Arnoux's attorney by telephone in his hospital bed, where he was recovering from a toe 

amputation brought on by complications fiom diabetes. Arnoux's attorney moved to reset 

the pretrial conference, and a new pretrial conference was set for July 2, 1999. On June 2 1, 

1999, Arnoux filed a motion to vacate the pretrial conference for at least sixty days more 

because her attorney would be hospitalized for a period of six weeks. The District Court 

reset the pretrial conference for September 24, 1999. 

713 The pretrial conference was continued once more because the case had not been 

mediated. No mention of Arnoux's attorney's health was made in the District Court's order 
of September 22, 1999, which reset the pretrial conference for October 22, 1999. Mediation 

i took place without success on October 13, 1999, and the pretrial conference and hearing on 

I JTL's motion to dismiss was finally held on October 22, 1999. Arnoux did not file a brief 

in opposition to the motion to dismiss. On June 19,2000, the District Court issued its order 

dismissing both of Arnoux's complaints with prejudice. 

ISSUE 1 

114 Should most of Arnoux's statement of facts, exhibits and arguments be stricken 

and not considered on this appeal? 

11 5 JTL asks us to strike virtually all of Arnoux's Statement of Facts, claiming they are 

conclusory allegations that are completely unsupported by the record. JTL also argues that 

I Exhibit B from Arnoux's brief must be stricken as totally irrelevant and inappropriate. JTL 

maintains that much of Arnoux's argument misses the point of the issues on appeal, injects 

unsupported conclusions into the case, and blatantly attempts to play on sympathy. JTL 

contends that the inclusion of this information is symptomatic of Arnoux's approach 

throughout the long and painful history of these two cases, and her unwillingness to focus 

on compliance with District Court orders and the Rules of Civil Procedure. Arnoux responds 

that this is another example of JTL's misinformation to the Court, and declares that all of her 

assertions are provable and will be supported by testimony at trial. Apparently, Arnoux 

misunderstands the requirements of the Rules of Appellate Procedure. 

71 6 It is a well-established rule that parties are bound to the record on appeal and may not 

supplement it with unsubstantiated matters in briefs or appendices. Bahm v. Southworth, 

6 
2000 MT 244,y 11, 10 P.3d 99, 7 11. We will not consider off-the-record allegations in 

determining whether a district court erred in its findings. Bahrn, 7 11. Arnoux has not 

submitted any affidavits under Rule 22, M.R.App.P., nor has she filed a statement of 

evidence, agreed statement, or correction or modification of the record pursuant to Rule 9, 

M.R.App.P. Arnoux ordered, and the Court received, a transcript of proceedings from the 

recorded hearings before the District Court. However, the transcript for the most part covers 

the procedural matters before the court, and does not document or even reference the bulk 

of Arnoux's alleged facts. Accordingly, the Court finds JTL's motion to be well taken, and 

strikes those statements, arguments, and exhibits contained in Arnoux's brief that are 

unsupported in the record and do not comply with the Montana Rules of Appellate 

Procedure. 

ISSUE 2 

717 Was the District Court correct in dismissing both of Arnoux's claims with 

prejudice? 

718 We review a district court's grant of a motion to dismiss to determine whether the 

court abused its discretion. In re McGurran, 1999 MT 192,y 7,295 Mont. 357,77,983 P.2d 

968,y 7. It has long been the law in Montana that a party's abuse of discovery procedures 

should not be dealt with leniently. McKenzie v. Scheeler (1997), 285 Mont. 500,949 P.2d 

1 168, 1 172 (upholding dismissal as a sanction for discovery violations). The imposition of 

sanctions for failure to comply with discovery procedures is regarded with favor. Hufine 
v. Boylan (1 989), 239 Mont. 5 15,5 17,782 P.2d 77,78 (upholding the dismissal of a pro se 

litigant's case as a sanction for discovery violations). 

719 After striking the off-the-record allegations contained in Arnoux's brief, we are left 

with very little. What the record does demonstrate, though, is that Arnoux consistently failed 

to meet her obligations under the Montana Rules of Civil Procedure. Among other 

omissions, she did not timely or completely answer discovery requests, she failed to comply 

with the District Court's scheduling orders, and she did not respond to JTL's request for 

statement of damages or its motion to dismiss. While we sympathize with Arnoux's attorney 

over his health problems, we note they were not brought to the court's attention until nearly 

a year after he appeared for the plaintiff in these two cases, and well after the documented 

deficiencies in the prosecution of Arnoux's case were underway. 

720 Arnoux has not advanced any cogent legal arguments to support her contention that 

the District Court erred in dismissing her actions with prejudice for her failure to prosecute 

or comply with the court's orders. Rule 23 (4), M.R.App.P., requires an appellant to cite 

authority in support of the positions advanced on appeal. Failure to comply with this rule is 

fatal to an appeal. State v. Blackcrow, 1999 MT 44,7 33, 293 Mont. 374,7 33, 975 P.2d 

1253,133. Arnoux does not attempt to distinguish or even address McKenzie v. Scheeler 

(1997), 285 Mont. 500,949 P.2d 1168; Hufine v. Boylan (1989), 239 Mont. 515,782 P.2d 

77, or other similar cases in which we have upheld the District Court's imposition of the 

sanction of dismissal for the failure of a party to comply with a district court's discovery 
orders and the rules of civil procedure. It is not this Court's obligation to develop arguments 

or locate authorities in support of a party's assertions. Blackcrow, fi 33. Arnoux alone 

shoulders the burden of establishing an abuse of discretion by the District Court. Rieman v. 

Anderson (1997), 282 Mont. 139, 147,935 P.2d 1122, 1127. We conclude that Arnoux has 

failed to carry her burden. 

72 1 The ~is'trict Court is therefore affirmed. /I 

- 

Justice 

We Concur: