No. 01-293 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2002 MT 110N 

DEBRA L. LONG, 

Plaintiff and Respondent, 

v. 

MELINDA A. DELAROSA, a/k/a MELINDA 

DELAROSA FONTAINE, a/k/a MELINDA DELAROSA 

TANNER, a/k/a MELINDA DELAROSA DAMASCUS; 

JESSE FONTAINE; et al., 

Defendants and Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John W. Larson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Quentin M. Rhoades, Sullivan, Tabaracci & Rhoades, P.C., Missoula, 

Montana 

For Respondent: 

P. Mars Scott, Patrick G. Sandefur, Law Offices of P. Mars Scott, Missoula, 

Montana 

 Submitted on Briefs: October 4, 2001 

 Decided: May 23, 2002 

Filed: 

__________________________________________ 

Clerk
2 

Justice Jim Regnier delivered the Opinion of the Court. 

¶1 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. 

¶2 Debra L. Long filed a complaint against Melinda Fontaine and 

Jesse Fontaine claiming constructive trust, resulting trust, quiet 

title, rescission of the promissory note, breach of contract, 

damages and punitive damages. During discovery in this matter, the 

Fourth Judicial District Court, Missoula County, issued an order 

requiring the Fontaines to deposit a lump sum of $12,960 plus 

$1,050 per month from and after December 2000. Appellants Melinda 

Fontaine and Jesse Fontaine filed an interlocutory appeal. We 

affirm. 

¶3 The following issue is presented on appeal: 

¶4 Did the District Court exceed its statutory authority by 

requiring the Fontaines to deposit money with the clerk of court? 

BACKGROUND 

¶5 In 1998, Melinda Fontaine and Jesse Fontaine hoped to buy a 

home on Zaugg Drive in Missoula, Montana, but were unable to secure 

financing. They then asked Debra L. Long to help. She agreed to 

assist them by securing a mortgage in the amount $118,000 so that 

the Fontaines could acquire the property. The Fontaines, in turn, 
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agreed to make the monthly mortgage payments of $1,080. 

Unbeknownst to Long, however, the loan was actually secured by a 

mortgage on her own home instead of the one on Zaugg Drive. 

Because of this, the Fontaines obtained title to the Zaugg Drive 

property free and clear of any encumbrances. 

¶6 According to Long, the Fontaines never made any of the 

promised mortgage payments. On February 25, 2000, Long sued the 

Fontaines alleging constructive trust, resulting trust, quiet 

title, rescission of the promissory note, breach of contract, 

damages and punitive damages. The parties entered an Agreed 

Scheduling Order on August 9, 2000. In that order, the parties 

agreed to finish all discovery by January 2, 2001. Long scheduled 

a deposition of Melinda Fontaine for October 13, 2000. On the 

afternoon before the scheduled deposition, Melinda’s attorney 

advised Long’s attorney that Melinda would not be available for her 

deposition because she had been called out of town on urgent 

business. Long contends that she and several third parties 

notified her attorney that they had seen Melinda Fontaine in 

Missoula while she was purportedly out of town on business. 

¶7 Long requested, and the court granted, a hearing to discuss 

the difficulties in scheduling the deposition. At the hearing on 

October 13, 2000, Melinda’s lawyer acknowledged that they had 

canceled three of Melinda’s depositions in three months. The court 

ordered Melinda to be available for a deposition on October 20, 

2000. On the afternoon before the deposition, Melinda’s attorney 

again called Long’s counsel to advise them that Melinda would not 
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attend. Melinda’s attorney stated that a psychiatrist had written 

a letter suggesting that she may commit suicide if she had to 

undergo a deposition. 

¶8 On October 30, 2000, Long filed a motion for contempt and an 

imposition of sanctions for Melinda’s failure to attend her 

depositions. Long’s attorney also deposed Melinda’s psychiatrist, 

Dr. Noel L. Hoell, M.D., to ascertain the nature of Melinda’s 

illness and why it prevented her from giving a deposition. During 

the deposition, Dr. Hoell continued to express concerns that a 

deposition could exacerbate Melinda’s emotional condition and that 

judging what safeguards might effectively protect her was 

difficult. 

¶9 On November 15, 2000, Long filed a Motion and Brief for Order 

of Deposit or Delivery, pursuant to § 25-8-101, MCA, asking that 

the court order the Fontaines to place a deposit of $12,960 with 

the court and make monthly payments of $1,080 beginning after 

December 1999. On January 23, 2001, the District Court denied this 

motion. In denying her motion, the court held that Long did not 

meet the statutory requirements set forth in § 25-8-101, MCA. 

¶10 On February 14, 2001, during a hearing regarding discovery, 

the District Court ordered the Fontaines to provide information on 

the insurance they were carrying on the Zaugg Drive property, the 

name of the property manager caring for the house and the dates 

Melinda Fontaine would be available for deposition. Melinda never 

complied with the court’s order. Therefore, on March 6, 2001, the 

District Court found that Melinda had violated the court’s 
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discovery orders and, pursuant to Rule 37(b), M.R.Civ.P., withdrew 

its January 23, 2001, Order and directed the Fontaines to deposit 

with the Clerk of Court $12,960 plus $1,050 per month from and 

after December 2000. The Fontaines appeal. 

STANDARD OF REVIEW 

¶11 The Fontaines ask us to review the District Court’s 

conclusions of law de novo, citing Carbon County v. Union Reserve 

Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686. We agree 

that we review a trial court’s conclusions of law de novo to see 

whether they are correct. See Mularoni v. Bing, 2001 MT 215, ¶ 22, 

306 Mont. 405, ¶ 22, 34 P.3d 497, ¶ 22. This matter, however, 

implicates the District Court’s imposition of sanctions for 

discovery abuse. When considering whether a district court imposed 

proper sanctions for discovery abuse, we determine whether the 

district court abused its discretion. See Bulen v. Navajo Ref. 

Co., 2000 MT 222, ¶ 18, 301 Mont. 195, ¶ 18, 9 P.3d 607, ¶ 18. In 

these situations, we defer to the trial court because it is in the 

best position to tell whether a party has disregarded another 

party’s rights and to determine which sanction is most appropriate. 

Bulen, ¶ 18. 

DISCUSSION 

¶12 Did the District Court exceed its statutory authority by 

requiring the Fontaines to deposit money with the clerk of court? 

¶13 The Fontaines argue that the District Court exceeded its 

statutory authority by ordering the Fontaines to deposit funds 

pursuant to § 25-8-101, MCA. They argue that the facts presented 
6 

to the court did not meet the requirements of this statutory 

provision. Section 25-8-101, MCA, requires, in part, that, for a 

court to order a deposit or delivery, a party must admit “by the 

pleading or shown upon the examination of a party that he has in 

his possession or under his control any money . . . which belongs 

or is due to another party.” The Fontaines contend that the court 

did not meet this requirement because they raised an affirmative 

defense that Long rejected the Fontaines’ offer of full 

performance. This, they claim, eviscerates Long’s contention that 

they possess money that belongs to Long. On January 23, 2001, the 

District Court agreed with the Fontaines and denied Long’s request 

for a deposit of money. Long counters that the District Court’s 

later order of March 6, 2001, effectively struck the Fontaines’ 

affirmative defense as a sanction under Rule 37(b), M.R.Civ.P. 

¶14 Long initially asked for a deposit pursuant to § 25-8-101, 

MCA, and the District Court denied this request. The court 

subsequently ordered the Fontaines to disclose certain information 

concerning the disputed property and arrange for Melinda’s 

deposition. The Fontaines did not comply with these requests. 

Long then filed a motion for a sanction of $1,000 plus contempt of 

court against the Fontaines’ for their failure to comply with the 

court’s order. 

¶15 The day after Long submitted her motion, the court issued the 

Order that the Fontaines now appeal. In the Court's order, it 

stated that: 
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Pursuant to Rule 37(b), M.R.Civ.P., the Court finds 

Defendant Melinda [S. Fontaine] has violated this Court’s 

discovery orders of February 14, 2001, and accordingly, 

IT IS HEREBY ORDERED that Defendants’ failure to provide 

insurance information as requested and ordered by this 

court is a sufficient basis for the Court to withdraw its 

earlier order of January 23, 2001. Defendants are hereby 

directed and ordered to deposit with the Clerk of the 

above-entitled Court the sum requested by Plaintiff of 

$12,960 plus $1,050 per month from and after December 

2000. 

¶16 Although the District Court did not issue Long’s requested 

sanction, a court may issue sanctions that the opposing party does 

not specifically request. See McKenzie v. Scheeler (1997), 285 

Mont. 500, 512, 949 P.2d 1168, 1175. The court effectively 

reversed its order of January 23, 2001, and implicitly dismissed 

the Fontaines’ affirmative defense. Rule 37(b)(2)(C), M.R.Civ.P., 

allows a court to do this by issuing “[a]n order striking out 

pleadings or parts thereof . . . or rendering a judgment by default 

against the disobedient party.” 

¶17 The purpose of imposing sanctions is to stop a party’s 

dilatory tactics regarding discovery. See Maloney v. Home & Inv. 

Center, Inc., 2000 MT 34, ¶ 19, 298 Mont. 213, ¶ 19, 994 P.2d 

1124, ¶ 19. Here, the Fontaines have frustrated Long’s repeated 

attempts to develop the facts surrounding this case. In an effort 

to facilitate discovery, the District Court ordered the Fontaines 

to provide certain information by a certain time. They did not do 
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this. Meanwhile, they possessed the Zaugg Drive property with 

little financial obligation. Long, on the other hand, remained 

responsible for mortgage payments on a mortgage on her own home. 

The Fontaines thus enjoyed a free ride that provided them with no 

incentive to speed along the litigation process. 

¶18 A court should punish, rather than encourage, a party’s abuse 

of discovery. See Mularoni, ¶ 45; Delaware v. K-Decorators, Inc., 

1999 MT 13, ¶ 87, 293 Mont. 97, ¶ 87, 973 P.2d 818, ¶ 87. Ordering 

the Fontaines to begin making monthly payments was a sure way for 

the court to motivate them to quicken the discovery process. The 

Fontaines offer no argument why the court could not strike out 

their affirmative defense from the pleadings in this case. In 

fact, they fail to address the issue of sanctions at all. 

¶19 A court should not deal leniently with a party’s abuse of 

discovery that results in unnecessary delay. See Delaware, ¶ 87. 

The policy behind this judicial intolerance is the concern over 

crowded dockets and the need to maintain fair and efficient 

judicial administration of pending cases. See Delaware, ¶ 87. 

Given our policy on issuing sanctions for discovery abuses; the 

fact that the Fontaines fail to give any reason that sanctions are 

not appropriate in this case; and the Fontaines’ lack of incentive 

to speed along the process, we conclude that the District Court did 

not abuse its discretion by sanctioning the Fontaines through its 

order to make a monetary deposit with the clerk of court. 

¶20 We note, in passing, that the Fontaines also contend that the 

court’s order to pay money to the clerk of court was subject to the 
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statutory requirements of an affirmative injunction. The Fontaines 

cite no authority, however, that suggests how either sanctions or 

an order for deposit or delivery under § 25-8-101, MCA, implicates 

the statutory requirements for an injunction. They simply cite 

Grosfield v. Johnson (1935), 98 Mont. 412, 422, 39 P.2d 660, 664, 

for the proposition that a court may grant a mandatory injunction 

to return the matter to the status quo although a party had already 

completed the act causing the injury before the suit was brought. 

Because the requirements for an injunction are part of a different 

chapter of the Montana Code than the requirements of either 

sanctions or an order for deposit, we conclude that the 

requirements of an injunction are inapplicable to the District 

Court’s order. 

¶21 Therefore, we conclude that the District Court did not exceed 

its statutory authority by requiring the Fontaines to deposit money 

with the clerk of court. 

¶22 Affirmed. 

/S/ JIM REGNIER 

We Concur: 

/S/ JIM RICE 

/S/ PATRICIA COTTER 

/S/ W. WILLIAM LEAPHART 
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Justice Patricia O. Cotter concurs. 

¶23 I agree with the merits of the majority’s legal analysis. I 

write separately to state that I do not believe the District 

Court’s order was an appealable order in the first place. As the 

majority notes, the court’s order was issued as a sanction, 

pursuant to Rule 37(b), M.R.Civ.P. Rule 1, M.R.App.P., does not 

permit an appeal from an interlocutory order of sanctions. 

Therefore, I would have dismissed the appeal for lack of 

jurisdiction. However, because in either instance the ultimate 

result would be the same (the court’s order of sanctions would 

stand), I concur. 

/S/ PATRICIA COTTER 
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Justice Terry N. Trieweiler dissents. 

¶23 I dissent from the majority opinion. 

¶24 I cannot tell from the record exactly what the District Court 

did in this case, but I know it did not do what the majority gives 

it credit for doing. Specifically, there is no indication in the 

District Court order that it struck the Defendants' affirmative 

defenses as a sanction for failure to comply with discovery. In 

fact, the language from the District Court's order suggests just 

the opposite. 

¶25 What the District Court did do is reverse its prior decision 

to deny Plaintiff's motion for an order requiring deposit or 

delivery pursuant to § 25-8-101, MCA. However, since the prior 

decision was correct, I conclude the District Court was without 

authority to do so. 

¶26 On October 30, 2000, the Plaintiff moved the Court, pursuant 

to § 25-8-101, MCA, for an order requiring the Defendants to 

deposit in court $1,080 per month which Plaintiff contended was 

admittedly owed based on Defendants' answer to the complaint. On 

November 15, 2000, the Plaintiff enlarged her motion to request a 

lump sum deposit of $12,960 plus interest in addition to the 

previously requested monthly payment. However, after the issue was 

briefed by the parties, the District Court correctly concluded that 

it had no authority to order a deposit or delivery pursuant to § 

25-8-101, MCA. In an order dated January 23, 2001, the Court noted 

that that statute authorizes the district court to order deposit or 
12 

delivery when a party admits that he or she owes another party 

money but that: 

Turning to the pleadings filed in this case, 

Fontaines have not admitted, and indeed have disputed 

Long's allegation that Fontaines owe Long funds 

. . . . In support of their argument Fontaines cite to their 

First Amended Answer and Counterclaims, specifically 

paragraphs 111 and 115, which dispute the validity of the 

contract upon which Long bases her claim. Essentially 

Fontaines claim that they owe Long nothing because Fontaines 

offered to fully perform under the contract and Long refused 

that offer of performance . . . . Under MCA § 25-8-101 a 

party must either admit that he or she is holding funds 

belonging to another, or examination of the party must show 

that the party is holding funds belonging to another. While 

it is true that Fontaines have admitted they have made no 

payments to Long since December of 1999, Fontaines have not 

admitted that they owed any payments to Long after December of 

1999 . . . . Therefore the requirements of MCA § 25-8-101 

have not been satisfied. It would therefore be inappropriate 

for this Court to order delivery or deposit of funds. 

¶27 Nothing changed regarding the respective claims of the parties 

from January 23, 2001, when the District Court initially denied the 

motion for deposit or delivery, and March 6, 2001, when the 

District Court reversed itself. Nor, in reversing itself, did the 

District Court strike those affirmative defenses which were the 

bases for its previous denial of the Plaintiff's motion. In fact, 

doing so would have been the equivalent of default judgment and 

default judgment is something that Defendant Delarosa was 

threatened with by the District Court order if she did not comply 

with discovery efforts in the future. 

¶28 In the order appealed from, the District Court stated: 

IT IS HEREBY ORDERED that Defendants' failure to 

provide insurance information as requested and ordered by 

this Court is a sufficient basis for the Court to 

withdraw its earlier order of January 23, 2001. 

Defendants are hereby directed and ordered to deposit 

with the Clerk of the above-entitled Court the sum 
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requested by Plaintiff of $12,960 plus $1,050 per month 

from and after December 2000. 

IT IS FURTHER ORDERED that Defendant Melinda A. 

Delarosa shall advise this Court and opposing counsel of 

her next visit to Missoula, Montana. If none is 

currently scheduled, she is directed to pick a business 

day after March 30, 2001, and before May 31, 2001, when 

she will be in Montana for her deposition and the 

deposition of Plaintiff. Such disclosure shall be made 

before FRIDAY, MARCH 16, 2001, AT 5:00 P.M. If defense 

counsel does not provide the above information to 

Plaintiff's counsel on or before the above date, the 

Court will enter sanctions which may include surrender of 

the property to Plaintiff, her default in this action

together with dismissal of her counterclaim. Rule 37(b), 

M.R.Civ.P. [Italics added.] 

¶29 There is no mention made of affirmative defenses in the 

District Court's order. However, it seems to me the District Court 

had no intention of striking affirmative defenses. If it had 

intended to do so, it would have had no basis for threatening entry 

of default against the Defendant in the future. As pointed out in 

the District Court's previous order, Defendants' affirmative 

defenses were their only bases for concluding that the amount 

claimed was disputed in the first place. 

¶30 For these reasons, I dissent from the majority opinion which, 

in order to affirm an arguably equitable result, gives the District 

Court credit for doing something it did not do and ignores the 

legally incorrect and statutorily unauthorized decision that it 

actually made. 

/S/ TERRY N. 

TRIEWEILER