IN THE SUPREME COURT OF THE STATE OF MONTANA 2001 MT 40N
ROBERTA ARNOUX,

JTL GROUP, INC., EWa PIONEER READY MIX, INC., 

### MAR 

## 06 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 ofPhilip 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:

ClerkJustice Patricia 0.Cotter delivered the Opinion of the Court.
71 Pursuant to Section 

### I, Paragraph 3(c), Montana Supreme Court 1996 Internal OperatingRules, the following decision shall not be cited as precedent but shall be filed as a public documentwith the Clerk ofthe 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 issuedby this Court. 

### 72 The EighteenthJudicial District Court, Gallatin County, granted JTL Group's (JTL) motiontodismissRobertaArnoux's (Arnoux)two casesfor failureto complywith 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 11,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 thedepositions of Arnoux's seven doctors and one fact witness. Arnoux took no depositions. A pretrial conferencewas 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 againstJTL,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, combiningthe two cases for thepurposes ofdiscovery, exchangeof 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 bothparties wererequiredto 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 shesubmit any further written discovery, or supplement herprevious discoveryresponseswith updatedmedical 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 orderverifLingthe 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 attorneyhand-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 discussthe discovery issues andreturn later that afternoon. Upon return, the attorneys and the District Court discussed the inadequacy ofArnoux'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 deficienciesin the plaintiffs discovery responses. Arnoux subsequentlyupdated 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 Rule26(b)(4) disclosures. (According to the court's scheduling order, the names of the experts andthe disclosureswere to be filedon orbefore October 15,1998.) Atthe conclusion of the telephone conference,the District Court issued an order setting apretrial conference forMay 6,1999. TheDistrict Court told JTL it could refine itsmotion to dismissin light ofwhat 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, 1999pretrial conference, the District Court was advised for the first time that Arnoux's attorney was experiencingmedical 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 conferencewas 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 September24, 1999. 713 The pretrial conference was continued once more because the case had not been mediated. No mention ofArnoux's attorney's health was made in the District Court's orderof 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 oppositionto 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 ofArnoux's statement offacts, exhibits and arguments be stricken and not considered on this appeal? 11 5 JTL asks us to strikevirtually all of Arnoux's Statement of Facts, claiming they are conclusory allegationsthat are completely unsupported by the record. JTL also argues that 

# I Exhibit 

### B from Arnoux's briefmust be stricken as totally irrelevant and inappropriate. JTL maintains that much ofArnoux'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 compliancewith District Court orders and the Rules of Civil Procedure. Arnoux responds that this is another example ofJTL's misinformationto 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 ofAppellate Procedure. 716 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, 62000 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 ofproceedings from the recorded hearingsbefore the District Court. However,the transcript forthe most part covers the procedural matters before the court, and does not document or even reference the bulk ofArnoux'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 abusedits discretion. In reMcGurran, 1999MT 192,y7,295 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 

### 1168, 1172 (upholdingdismissal as a sanction for discovery violations). The imposition of sanctions for failure to comply with discovery procedures is regarded with favor. Hufine

### v. Boylan (1989), 239 Mont. 515,517,782P.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. Whatthe 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 ofdamagesor itsmotion to dismiss. While we sympathizewith 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 dismissingher 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 ofthe 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 ofcivil 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 shouldersthe burden of establishingan abuse of discretion by the District Court. Rieman v. 

### Anderson (1997), 282 Mont. 139, 147,935P.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: