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E. Cox v. Magers

Supreme Court of Montana

February 13, 2018

E. COX and C. COX, Plaintiffs and Appellants,
v.
GLEN MAGERS, Defendant and Appellee.

          Submitted on Briefs: December 13, 2017

         APPEAL FROM: District Court of the Eleventh Judicial District, In and For the County of Flathead, Cause No. DV-16-247(D) Honorable David M. Ortley, Presiding Judge

          For Appellants: C. Cox, E. Cox, Self-Represented, Plains, Montana

          For Appellee: Sean Goicoechea, Chris Di Lorenzo, Moore, Cockrell, Goicoechea & Johnson, P.C., Kalispell, Montana

          BETH BAKER JUDEG

         Justice Beth Baker delivered the Opinion of the Court.

         ¶1 E. Cox and C. Cox filed an action against Glen Magers seeking damages for personal injuries allegedly sustained in an automobile collision. They now appeal the District Court's order dismissing the action with prejudice under M. R. Civ. P. 37(d) due to each plaintiff's failure to fully answer interrogatories or to produce relevant documents during discovery. We affirm.

         PROCEDURAL AND FACTUAL BACKGROUND

         ¶2 In February 2010, Magers was driving his pickup truck in downtown Kalispell when he struck the rear of a 1990 Ford Escort driven by C. Cox. E. Cox sat in the front passenger seat. Magers admitted that, at the time of the collision, he was watching a parking enforcement officer approach the road near his vehicle rather than the traffic in front of him.

         ¶3 Almost three years later, in February 2013, C. Cox and E. Cox filed a complaint against Magers in Sanders County District Court alleging "physical and mental damages, " property damage, loss of income, and increases in expenses as a result of the collision. They served the complaint on Magers on February 1, 2016. Ten days later, Magers mailed interrogatories and requests for production for both E. Cox and C. Cox in one envelope to their address of record in Plains, Montana. The next day, Magers filed his answer and a motion to change venue to the Flathead County District Court. He served copies to E. Cox and C. Cox via mail to the same P.O. Box. The Sanders County District Court granted the motion for change of venue and transferred the case to Flathead County in early March.

         ¶4 At some point, C. Cox changed his address to a different P.O. Box in Plains. E. Cox continued to use the original address throughout the litigation. C. Cox alleges that he filed a change of address with the Sanders County District Court, but no change of address notice from that court is included in the record. In his briefing to this Court, Magers states that he received a change of address notice from C. Cox on March 16. The record shows that C. Cox filed a change of address with the Flathead County District Court on April 4.

         ¶5 In early April, Magers sent another letter addressed to both E. Cox and C. Cox, which explained that their responses to his discovery requests were overdue and included another copy of the discovery requests for each party. It is unclear from the record to which P.O. Box Magers sent this letter. About a week later, E. Cox sent Magers her handwritten responses to his interrogatories, along with a letter informing Magers that any mail sent to her P.O. Box was not being forwarded to C. Cox. She did not produce any of the requested documents but wrote, "Any appropriate documents mentioned in your requests for production 1 through 16 which are in my possession will be produced at the specified location within 30 days from the date of this letter."

         ¶6 Magers responded to E. Cox, explaining that her responses were incomplete and only partially legible. He included another copy of the discovery requests with more space provided. On the same day, Magers sent a separate letter to C. Cox requesting his belated responses. E. Cox later claimed that she did not receive Magers's letter because it was sent to C. Cox's address. Magers produced envelopes showing that both letters were sent to the address used by E. Cox. In her briefing before this Court, E. Cox changes her position and states that she responded to this request with a second set of answers to the interrogatories. Magers states that he did not receive this response.

         ¶7 Following these letters, C. Cox filed a Request to Strike All Filings by Defendant, arguing that Magers had "failed and neglected to serve copies of his various filings on each of the plaintiffs." His motion stated that a brief would be filed within the allowable time. When C. Cox did not file a brief, the District Court summarily ...


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