No. 89-416 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

ELDON HUFFINE, HD COMPANY, 

Plaintiff and Appellant, 

-vsMIKE BOYLAN, MIKE BOYLAN 

EXCAVATING, INC., GARTH SIME, 

SIME CONSTRUCTION, INC., VALLEY 

BANK OF BELGRADE, and DOES I through XI 

Defendants and Respondents. 

APPEAL FROM: ~istrict Court of the ~ighteenth ~udicial ~istrict, 

In and for the County of alla at in, 

The Honorable Joseph Gary, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Eldon Huffine, pro se, Bozeman, Montana 

For Respondent: 

~ichard J. Andriolo; Berg Law ~irm, Bozeman, Montana 

Submitted on briefs: Oct. 20, 1989 

Decided: November 6, 1989 

Filed: 
Justice William E. Hunt, Sr., delivered the Opinion of the 

Court. 

Eldon Huffine, pro se plaintiff and appellant, appeals 

from an order of the District Court of the Eighteenth 

Judicial District, alla at in County, dismissing his cause of 

action pursuant to Rule 37 (b) (2) (C) , M.R.Civ.P. We affirm. 

The sole issue raised on appeal is whether the District 

Court properly granted respondents' motion to dismiss 

pursuant to Rule 37(b)(2)(C), M.R.civ.P., based on 

appellant's failure to comply with the court's order imposing 

discovery sanctions under Rule 37(d), M.R.Civ.P. 

On March 22, 1989, a ~otice of Deposition was mailed to 

Huffine, which set his deposition for March 29, 1989, at 1:30 

p.m. Also, on that date, defendant personally served Huffine 

a subpoena duces tecum, which also notified him of the time 

and place. Huffine did not attend the deposition. The 

District Court entered an order pursuant to Rule 37(d), 

M.R.Civ.P., on April 17, 1989, imposing discovery sanctions 

in the amount of $828.50 against Huffine for failure to 

attend his deposition. 

Huffine appealed the order to this Court and on June 1, 

1989, we dismissed on the grounds that such orders are not 

appealable. Huffine has never complied with the District 

Court order to pay discovery sanctions. 

On June 19, 1989, a hearing was held in which defendants 

moved for the dismissal of Huffine's cause of action based on 

Huffine's failure to comply with the District Court's order. 

The motion was granted by order of the court on June 19, 

1989. From the order, Huffine appeals. 

Huffine contends that he was not given proper notice of 

the time and place for the taking of his deposition so he did 
not attend. Consequently, he claims that he need not pay 

sanctions imposed and that dismissal based upon nonpayment 

was improper. We disagree. 

~uffine's contention is unsupported by the evidence as 

he did not submit the transcript of the June 19, 1989, 

hearing for review on appeal. In Yetter v. Kennedy (1977), 

175 Mont. 1, 7, 571 P.2d 1152, 1156, we stated: 

[Tlhe burden of showing error by reference to 

matters of record is upon the appellant. 

Unless the record that he brings before the court 

of appeals affirmatively shows the occurrence of 

the matters upon which he relies for relief, he may 

not urge those matters on appeal. (Citation 

omitted. ) 

Hence, ~uffine's failure to transmit the transcript of 

the June 19, 1989, hearing violates Rules 9 and 10, 

M.R.App.P. The record, then, is the only evidence of which 

this Court can rely in making a determination on the issue at 

bar. The record reflects that ~uffine was indeed served 

notice of his deposition both personally and by mail and, 

hence, the sanctions imposed were proper. 

~mposition of sanctions for failure to comply with the 

rules of discovery are regarded with favor. Owen v. F.A. 

Buttrey Co. (Mont. 1981), 627 P.2d 1233, 1236, 38 St.Rep. 

714, 716. See also Hanzel v. Marler (Mont. 19891, 774 P.2d 

426, 427, 46 St.Rep. 1020, 1022. Rule 37, M.R.civ.P., 

sanctions are imposed in order to deter unresponsive parties. 

See Dassori v. Roy Stanley Chevrolet Co. (19861, 224 Mont. 

178, 179-180, 728 P.2d 430, 431. In Landauer v. Kehrwald 

(1987), 225 Mont. 322, 325, 732 P.2d 839, 841, we stated: 

A party displaying an attitude of unresponsiveness 

to the judicial process warrants the imposition of 

sanctions including dismissal. 
While this Court accommodates pro se litigants when 

possible, Huffine is no stranger to litigation. He has been 

involved in thirteen ~istrict Court cases and has attempted 

several appeals. 

Because Huffine was properly served with notice of his 

deposition in accordance with the Rules of Civil Procedure, 

and because he deliberately and intentionally failed to 

appear at the time and place set for the taking of his 

deposition, the District Court properly sanctioned him by 

dismissing his cause of action under Rule 37(b) (2) (C) , 

M.R.civ.P. Further, we conclude that this appeal is taken 

without substantial or reasonable grounds and, consequently, 

we impose additional damages in the amount of $300 pursuant 

to Rule 32, M.R.App.P., to be paid to the respondent. See 

Searight v. Cimino (Mont. 1989), 777 P.2d 335, 46 St.Rep. 

1217. 

Affirmed.