No. 86-409 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1987 

PAUL R. LANDAUER, 

Plaintiff and Appellant, 

-vsMELFORD KEHRWALD , 

Defendant and Respondent. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable James B. Wheelis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Terry A. Wallace, Missoula, Montana 

For Respondent : 

Ellingson & Moe; Jon E. Ellingson, Missoula, Montana 

Submitted on Briefs: Dec. 4, 1986 

Decided: February 13, 1987 

Filed: FEB 1 3 1387 
Mr. Justice L. C. Gulbrandson delivered the Opinion of the 

Court. 

Paul R. Landauer appeals a Missoula County District 

Court order dismissing his complaint against Melford 

Kehrwald. The issue on appeal is whether the District Court 

abused its discretion by dismissing the complaint. We 

affirm. 

In 1981, Kehrwald purchased real property at a 

sheriff's sale in Missoula County, Montana, subject to 

certain statutory rights of redemption. Landauer claimed he 

redeemed the property from Kehrwald in 1982 but Kehrwald 

refused to relinquish possession to Landauer. Kehrwald then 

filed for declaratory relief asking the court to determine 

that Kehrwald owned the property and that Landauer had not 

timely redeemed. Kehrwald continued to collect rents 

generated by the property and refused to pay the property 

taxes, ultimately paid by Landauer. In April 1985, the court 

found that Landauer redeemed the property from Kehrwald in 

1982 and was entitled to immediate possession. Landauer then 

filed suit to recover the lost rental income from Kehrwald. 

Kehrwald counterclaimed for malicious prosecution and 

included a prayer for punitive damages. Discovery then 

commenced. Kehrwald filed his first set of interrogatories 

and requests for production on July 22, 1985. Request No. 3 

asked for "Plaintiff's personal state and federal income tax 

returns for the years 1980 through 1984." On September 5, 

1985, the court ordered that discovery be completed by 

October 31, 1985 "unless a party . . . requests otherwise, 

and good cause is shown . . . " Landauer filed his answers 

to the interrogatories on October 1, 1985, but failed to 

respond to the requests for production. Landauer filed his 

first set of interrogatories on October 11, 1985 but by doing 
so failed to give Kehrwald the allowed thirty days time to 

answer before the October 31, 1985 deadline for completion of 

discovery. On November 5, 1986, Landauer moved the court to 

amend the complaint and add claims for fraud and conspiracy. 

Landauer also requested an extension of the discovery 

deadline. Kehrwald filed a motion to compel production of 

the documents requested (Landauer's federal and state tax 

returns) and on November 22, 1985, a hearing was held. 

Landauer produced cover sheets to the federal returns, but 

not copies of the actual federal or state returns as 

requested by Kehrwald. The court ordered Landauer to file 

the returns within twenty days, but he failed to do so. 

Kehrwald filed another motion to compel and hearing was held 

on February 21, 1986. The court again ordered Landauer to 

file complete copies of his federal and state returns within 

ten days, and warned that failure to comply would result in 

dismissal of the complaint with prejudice. Landauer's 

attorney apparently misread the order and only filed the 

federal tax returns within the ten day deadline. On March 

28, 1986, Kehrwald moved to dismiss Landauer's complaint, and 

noticed the motion for April 11, 1986. Upon receiving the 

motion, Landauer's attorney asked Landauer, residing in 

Colorado, to provide his Colorado returns. The state tax 

returns were hand-delivered to the court at the April 11, 

1986 hearing. The court dismissed Landauer's complaint with 

prejudice on April 24, 1986 as a sanction under Rule 37 (b) , 

M.R.Civ.P. Landauer obtained new counsel and filed a motion 

for reconsideration but the court refused to grant the 

motion. 

Rule 37(b), M.R.Civ.P. reads in relevant part: -.. 

(2) Sanctions by court in which action 

is pending. If 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 and 

among others the following: 

(C) An order striking out pleadings or 

parts thereof, or staying further 

proceedings until the order is obeyed, 

or dismissing the action or proceedinq 

or any - part - thereof, or renderins a 

judgment by default against -the 

disobedient party; (Emphasis added. ) 

Rule 37 sanctions exist for the purpose of deterring 

dilatory parties. 

They provide the trial judge with a way 

to prevent an excessive back-log of 

cases. The trial judge is in the best 

position to know the extent of the 

back-log and to know which parties 

callously disregard the rights of their 

opponents and other litigants seeking 

their day in court. The trial judge is 

also in the best position to determine 

which sanction is the most appropriate. 

Dassori v. Roy Stanley Chevrolet (Mont. 1986), 728 ~.2d 430, 

[Wlhen it is not possible for this Court 

to make a ready, confident, and accurate 

determination of a party's good faith in 

the discovery process, we presume the 

correctness of the District Court' s 

action under Rule 37. 

Owen v. F. A. Buttrey Co. (Mont. 19811, 627 P.2d 1233, 1237, 

38 St.Rep. 714, 719, citing National Hockey League v. 

~etropolitan Hockey Club, Inc. (1976), 427 U.S. 639, 96 S-Ct. 

In Dassori, we affirmed the lower court's dismissal of 

an action in which the plaintiff, an attorney, presented 

answers to interrogatories and the requested documents at the 
hearing on the motion to dismiss the complaint some fourteen 

months after the interrogatories and requests had been 

received by the plaintiff. As we stated in Owen, 627 P.2d at 

1235, this Court follows the recent trend of cases intent 

upon punishing transgressors rather than patiently trying to 

encourage their cooperation. 

Counsel in the case before us was delinquent in filing 

his client's discovery, and twice failed to obey the clear 

mandates of a court order that he produce his client's 

federal - and state tax returns for the years requested. The 

second order gave warning that failure to comply would result 

in dismissal of the complaint with prejudice. By ignoring 

the court orders, counsel should have realized he was placing 

his client's case in jeopardy. Landauer, according to his 

affidavit, was informed in 1985 that Kehrwald had requested 

the production of his "tax returns" and that cover or face 

sheets of the federal returns would be sufficient. The court 4 

found otherwise and ordered Landauer to produce copies of the 

federal and state returns within twenty days. Again, 

Landauer failed to comply. Landauer claims he heard nothing 

about the matter until February 21, 1986, five days before 

the second hearing on the motion to compel discovery, when he 

received a letter from counsel advising him to produce his 

federal returns. He claims counsel told him nothing about 

any court order to produce the returns. Landauer sent the 

federal returns to counsel and was advised a month later that 

Kehrwald had moved to dismiss his claim because he had not 

produced his state (Colorado) tax returns. 

Counsel should not have been surprised that his client's case 

was ultimately dismissed. More importantly, counsel should 

have realized his duty to the court. A party displaying an 

attitude of unresponsiveness to the judicial process warrants 

the imposition of sanctions, including dismissal. As we 
stated in Dassori, 728 P.2d at 431, the trial judge is in the 

best position to determine the most appropriate sanctions. 

Finally, in answer to Landauer's claim that he complied 

with the court's order by producing the state tax returns at 

the April 1986 hearing, we again quote Dassori, 728 P.2d at 

432: 

[A] party cannot cure his dilatory 

actions by presenting the requested 

answers and documents at the hearing on 

the motion to dismiss. . . The District Court did not abuse its discretion. 

Affirmed . 

,,/ 

We concur: