Lang v. Bank of North Dakota, 940164

• Citation: 530 N.W.2d 352
• Decision Date: 17 April 1995
• Docket Number: No. 940164,940164
• Parties: Ernest LANG, Plaintiff and Appellant, v. BANK OF NORTH DAKOTA, Defendant and Appellee. Civ.
• Court: United States State Supreme Court of North Dakota

Page 352

530 N.W.2d 352

Ernest LANG, Plaintiff and Appellant, v. BANK OF NORTH DAKOTA, Defendant and Appellee.

Civ. No. 940164.

Supreme Court of North Dakota.

April 17, 1995.

Ernest Lang, McKenzie, pro se.

Parrell D. Grossman (argued), Asst. Atty. Gen., Atty. Gen. Office, Bismarck, for defendant and appellee Bank of North Dakota.

Lawrence R. Klemin (argued), Bucklin & Klemin, P.C., Bismarck, for Rodney J. Binstock.

LEVINE, Justice.

Ernest Lang appeals from a district court judgment dismissing this action as a sanction for repeated discovery violations. We affirm.

We are faced with yet another chapter in the long and tortuous litigation between Lang and the Bank of North Dakota. In 1984, the Bank foreclosed its mortgage on Lang's farm. Lang did not redeem, and the foreclosure sale became final. See Lang v. Bank of North Dakota, 377 N.W.2d 575 (N.D.1985). Lang then brought this action against the Bank for damages, alleging that the Bank had wrongfully deprived him of his statutory opportunity to repurchase the land. On two occasions, we have reversed summary dispositions of Lang's claims against the Bank, each time remanding for trial. See Lang v. Bank of North Dakota, 453 N.W.2d 118 (N.D.1990); Lang v. Bank of North Dakota, 423 N.W.2d 501 (N.D.1988).

After the second remand, the Bank served a set of interrogatories and requests for production of documents upon Lang. In his response, Lang refused to answer most of the questions, writing "Is irrelevant." His other answers were generally evasive, incomplete and nonresponsive. The Bank filed a motion to compel discovery, requesting that the court order Lang to properly respond to the Bank's interrogatories. Lang did not respond to the motion, and the court ordered Lang to supplement his answers within 30 days or be subject to sanctions, including dismissal, under Rule 37(b)(2), N.D.R.Civ.P.

Lang filed his second set of answers within the 30-day limit, but his answers were again conclusory, incomplete and nonresponsive. The Bank then moved for dismissal based upon Lang's violation of the court's prior order. At a hearing on the motion, Lang was warned by the court that further violations would result in dismissal. The court entered a written order directing Lang to supplement his responses to several specific interrogatories within 14 days or the action would be dismissed. Lang's responses, although timely, again were generally evasive and nonresponsive. The court found that Lang's answers were nonresponsive and "failed to adequately respond to the major issues in this lawsuit," that Lang had failed entirely to respond to two of the interrogatories specifically noted in the court's second order compelling Lang to respond, and that Lang's third set of answers was inadequate, nonresponsive, evasive and incomplete. The court concluded that Lang's repeated violations of discovery orders warranted dismissal of the action under Rule 37(b)(2)(C), N.D.R.Civ.P. Judgment was entered dismissing the action, and Lang appealed.

Rule 37(a)(2), N.D.R.Civ.P., provides that, upon failure of a party to answer interrogatories, the discovering party may seek an order compelling answers. An "evasive or incomplete answer" is treated as a failure to answer. Rule 37(a)(3), N.D.R.Civ.P. Violation of the court's order compelling answers subjects the noncomplying party to sanctions under Rule 37(b)(2).

Rule 37(b)(2) provides the trial court with a broad spectrum of available sanctions for discovery violations, and any sanctions imposed will not be set aside on appeal unless the trial court abused its discretion. Timmerman Leasing, Inc. v. Christianson, 525 N.W.2d 659, 663 (N.D.1994); Dewitz v. Emery, 508 N.W.2d 334, 339-340 (N.D.1993). A court abuses its discretion when it acts in an arbitrary, unreasonable or unconscionable manner. Dewitz, supra, 508 N.W.2d at 339. On appeal, the sanctioned party has the burden of showing that, in light of the information available at the time of the motion, the trial court acted arbitrarily, unreasonably or unconscionably. Timmerman Leasing, supra, 525 N.W.2d at 663; Friedt v. Moseanko, 459 N.W.2d 240, 241 (N.D.1990).

Lang asserts on appeal that the "greater portion" of the interrogatories "were overly burdensome and not germane to Lang's position." However, Lang did not properly raise this objection in the trial court. Lang did not seek a protective order under Rule 26(c), N.D.R.Civ.P., to preclude the discovery. Furthermore, when the Bank moved to compel answers to the interrogatories, Lang wholly failed to respond to the motion. His failure to respond to the motion is an admission that the motion was meritorious. See Rule 3.2(b), N.D.R.O.C.; Vorachek v. Citizens State Bank of Lankin, 421 N.W.2d 45, 53 (N.D.1988). By failing to move for a protective order or respond to the Bank's motion to compel, Lang waived all objections to the interrogatories. Timmerman Leasing, supra, 525 N.W.2d at 664; Friedt, supra, 459 N.W.2d at 242; Vorachek, supra, 421 N.W.2d at 52-53.

Lang also asserts that he sufficiently answered several of the interrogatories, those he felt were "pertinent to Lang's position." We rejected a similar argument in Vorachek, supra, 421 N.W.2d at 51 (citations omitted):

"We are unaware of, and counsel for the defendants have not cited, any authority which suggests that 'substantial compliance' is all that is required by the discovery rules. A party is not at liberty to 'pick and choose' what information will be provided and what information...