Southern Idaho Production Credit Ass'n v. Astorquia

HUNTLEY, Justice,

concurring specially.

I concur in reversing the order imposing the sanction of dismissal of the affirmative defenses and counter-claim and remanding for want of adequate findings to support its entry. Furthermore, my view is that the present record, absent supplementation by facts of which we have no *533knowledge, will not present a basis upon which dismissal can be ordered.

The client had violated no previous court orders and there remained ample time to complete discovery before trial. The trial had never been continued and, at worst, could have been postponed two to three weeks if necessary for completion of discovery without prejudice to either side. Here it should be emphasized that the Astorquias were entirely without fault. Rather, it was their first two attorneys who failed to comply with the court order. In his affidavit, Frank Astorquia stated:

I was not contacted concerning any hearings or any requests for my presence at depositions. During this entire period between the filing of this matter and today, I have paid large sums of money to each of these attorneys and fully expected them to keep me advised____ Neither [attorney] at any time advised me of hearing dates or deposition dates in this matter.

It should also be noted that appellants had retained new (a third) counsel prior to the hearing on the motion for sanctions who apparently was diligently processing the litigation and assured the trial court he would expeditiously process the discovery.

The case law relating to the sanction of dismissal holds that, while the imposition of sanctions is normally a matter entrusted to the trial courts, it is an extreme sanction to be reserved for flagrant and egregious cases, and generally to be given only when a showing of bad faith on the part of the client has been made and after less severe sanctions have first been imposed; and that rather than punishing through dismissal, courts should first seek to encourage discovery through lesser sanctions. Wright and Miller note that the sanction power is intended “to encourage discovery rather than simply to punish for failure to make discovery.” 8 Federal Practice and Procedure, Wright & Miller § 2284 (1970). In Jackson v. Washington Monthly Co., 569 F.2d 119, 123 (D.C.Cir.1977), that court persuasively noted:

Trial court dismissal of a lawsuit never heard on its merits is a drastic step, normally to be taken only after unfruitful resort to lesser sanctions. And while appellate review is limited by the binding authority of Link [v. Wabash Railroad Company, 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962)] to whether judicial discretion has been abused, a sound discretion hardly comprehends a pointless exaction of retribution. Dismissals for misconduct attributable to lawyers and in no wise to their clients invariably penalize the innocent and may let the guilty off scot free. That curious treatment strikes us as both anomalous and self-defeating. When the client has not personally misbehaved and his opponent in the litigation has not been harmed, the interests of justice are better served by an exercise of discretion in favor of appropriate action against the lawyer as the medium for vindication of the judicial process and protection of the citizenry from future imposition. Public confidence in the legal system is not enhanced when one component punishes blameless litigants for the misdoings of another component of the system; to laymen unfamiliar with the fundamentals of agency law, that can only convey the erroneous impression that lawyers protect other lawyers at the expense of everyone else.

The concerns and rationale expressed in Jackson have been followed by a broad line of cases. See North v. Department of Mental Health, 427 Mich. 659, 397 N.W.2d 793 (1986); Titus v. Mercedes Benz of North America, 695 F.2d 746 (3d Cir.1982); Rogers v. Kroger Co., 669 F.2d 317 (5th Cir.1982); Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339 (3d Cir.1982); Flaska v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.1968), cert. den. 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968).

In the instant case, the Astorquias aver that they were never personally informed by their first attorneys of SIPCA’s request for information concerning the counterclaim (the interrogatories); the scheduling of hearings on the discovery requests; and the scheduling of the depositions. Frank Astorquia stated, in his affidavit, that he paid “large sums of money” to his attor*534neys and assumed his legal matter was being handled. Additionally, prior to the hearing of the motion for sanctions, the Astorquias retained new counsel, who gave every indication of complying with future discovery orders. Importantly, the motion for sanctions was heard nearly sixty days prior to trial. All of the above facts militate in favor of the Astorquias. Their lack of knowledge regarding their first attorneys’ non-prosecution of their claim belies any culpability on their part. Also, the stated goal of the trial court’s right to render sanctions, that being to encourage discovery (rather than to punish those who have heretofore not complied with discovery orders) could have been served, as ample time to complete discovery remained before trial. There was no indication that Astorquias’ new counsel would fail to comply with court orders.

This court recently reaffirmed the general rule that sanctions should not merely be used to punish in Sierra Life Ins. v. Magic Valley Newspapers, 101 Idaho 795, 623 P.2d 103 (1981). The record contains a statement from Frank Astorquia wherein he acknowledged that he knew that “some things were not being filed on time, etc.” However, to punish a client whose only fault is an errant choice in initial counsel and to hold that client essentially to an attorney’s standard in ascertaining “warning signals” regarding the non-prosecution of a claim does not serve the legitimate goal of enhancing the efficient management of the judicial system. Rather, such misguided and draconian punishment serves only to besmirch the reputation of the legal system as a whole, and the legal profession in particular. The Astorquias contracted with a reputable attorney to defend and prosecute their claims. Part of the bargain entered into in any legal contract should be the right to rely somewhat upon the judgment of the attorney hired. Sadly, the Astorquias did not receive the benefit of their bargain, but they should not be penalized twice by also being denied the right to have their affirmative defenses and counterclaims heard on their merits. The majority opinion urges that, at the very least, the Astorquias should have been alerted to the negligence of their first attorney when a default judgment was entered against them in favor of the Osas. Without a record establishing the particulars of the Osas' claim and the nature of any defenses the Astorquias might have had thereto, we are in no position to ascribe any import to the fact entry of default was permitted. However, it was the failure to comply with discovery orders concerning the matter involving SIPCA, and not the claims of the Osas, which led to the sanction of dismissal in the instant case. The Astorquias might reasonably have assumed that all was well regarding the handling of the matter against SIPCA.

It has long been held that fifth amendment due process protections apply to protect claimants from the unjust imposition of sanctions given for failure to comply with pretrial orders, where such claimants have made a good faith effort to comply. Societe Internationale, Etc. v. Rogers, 357 U.S. 197, 209, 78 S.Ct. 1087, 1094, 2 L.Ed.2d 1255 (1958). (See also, Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530 (1909); Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841, 42 L.Ed. 215 (1897).)

As explained in Societe Internationale and a host of other due process cases, the guarantee of substantive due process requires that state action (here, the dismissal of the affirmative defenses and counterclaims by the court) have a rational relationship to a legitimate end of the government. The need for efficiency and respect for the judicial system, as guaranteed through its sanction powers, is such a legitimate end. However, here there is no rational relationship between the dismissal of the Astorquias’ affirmative defenses and counterclaims and the efficient operation of the judicial system. The Astorquias had their right to prosecute a legal claim denied without consideration of lesser sanctions despite their retention of new counsel, averment of lack of culpability in the failure to make discovery, and the existence of two months time prior to the scheduled trial in which discovery could have been made. The imposition of the ultimate sanction of dismissal was, in this instance, of no *535value as either a deterrent or a means of encouraging future discovery, in this case or in future cases involving claimants similarly situated, as it would be unreasonable to expect the Astorquias, or anyone else, to have done more to prosecute their own claims under the given circumstances.

Ultimately, this case presents a question of fundamental fairness. We have here two defendants who have averred in affidavits that they had no knowledge of their first attorney’s negligence in attending to their legal matters; we have a long line of precedent mandating that the ultimate sanction of dismissal be used only in egregious cases and only after lesser sanctions are first used. Lesser sanctions were not considered, even though two months remained before trial which could have been used to complete discovery. I believe the trial court grossly abused its discretion in granting the sanction of dismissal of the Astorquias’ counterclaims, in effect directing a verdict for SIPCA, without first resorting to lesser sanctions. Had such lesser sanctions ultimately proved ineffectual, the sanction of dismissal would have remained open to the trial court.

BISTLINE, J., concurs.