Morton v. Continental Baking Co.

STEWART, Associate Chief Justice,

dissenting:

I dissent. I think it utterly indefensible for this Court to hold that a client whose case is ready for trial can be thrown out of court because his attorney was one day late in complying with a discovery deadline. Punishing a hapless, innocent client for his attorney’s “crime” of being a day late in answering interrogatories will, I believe, evoke a sense of utter disillusionment with our sense of judicial fairness and avoidance of capriciousness. If punishment is appropriate at all, the Court should punish the attorney rather than deprive the client of his opportunity to present his ease. The rules of procedure provide a whole array of sanctions that can be appropriately employed against wayward counsel. To argue that the client can have his right to an adjudication of his claim in this ease vindicated by a malpractice action against his attorney is pure sophistry and adds insult to injury. I would affirm the Court of Appeals.

I. FACTS

The majority opinion does not provide a complete factual picture of the record. On April 29, 1989, Morton was involved in a collision with a vehicle that was owned and operated by Continental Baking Company. Continental’s driver was killed, and Morton suffered severe injuries. Morton filed suit against Continental, asserting that its driver had negligently caused the accident. The trial was originally set to begin on December 7, 1992. The trial date was then changed three times. The majority opinion asserts that Morton was responsible for all three of the delays in this ease, but it does not adequately lay out the context in which those delays occurred. Morton was scheduled for knee-replacement surgery on December 28, 1992. Morton’s counsel requested the first continuation to accommodate this surgery. Morton’s counsel noted that because the surgery was a consequence of the accident, fixing the amount of damages would be easier if the trial was continued until after the date of the surgery. Notably, Continental did not object to the motion, and the trial court rescheduled the trial to begin on June 1, 1993.

The parties then entered into a stipulated agreement to a further continuation, and the trial was reset to begin January 11, 1994. Although the stipulation stated that Morton’s attorney had requested a continuation due to a busy schedule, there was a formal motion by both parties for this particular continuance. Discovery was conducted without any substantial controversy or difficulty. In short, as far as the record demonstrates, both continuations were ordinary occurrences in the trial process.

Shortly before the trial was to begin, Morton’s counsel apparently announced that Dr. Philip Hoyt, one of Morton’s expert witnesses, had noticed skid marks in photographs. Apparently, Morton believed those marks in some way had been previously overlooked or misinterpreted. Continental requested an opportunity to prepare for the alleged new theory that Hoyt would present with respect to his interpretation of the skid marks. Thus, the third and final continuation was not granted at the request of Morton but at the request of Continental. Though the majority characterizes this episode as being entirely the fault of Morton, that characterization is once again simply speculation based upon an extremely sparse record which does not even mention the specifics of the “new evidence” that was to be presented or how much additional time Continental genuinely required to prepare for it. All that can be derived directly, or indirectly, from the record is that the accident occurred on a major highway, that there were skid marks on the portion of highway where the accident occurred, and that prior to Hoyt’s examination of some photographs, certain witnesses or parties had apparently believed one set of skid marks was unrelated to the *278accident. Morton, on the other hand, became convinced shortly before trial that those skid marks were caused by a trailer attached to Morton’s truck and that the marks demonstrated Morton had remained within his lane of travel immediately prior to the collision.

The trial was rescheduled to begin August 11, 1994. The trial court did not enter any order respecting the reopening of discovery, and there is no indication that either party attempted to clarify that matter. Nor is there any indication that further discovery was necessary. Because the new theory simply related to a new interpretation to be applied to skid marks (of which both parties were aware or should have been aware), there was no reason for Continental to engage in broad discovery on any questions other than the specifics of testimony related directly to that theory. Nevertheless, on January 14, 1994, Continental propounded upon Morton extensive discovery demands requiring Morton to respond within thirty days.

The discovery requests consisted of interrogatories and document requests. A few of the interrogatories requested information related to the new theory and any additional information that two of Morton’s other expert witnesses intended to offer. But other requests went well beyond the new theory and any testimony that would be affected by that theory, requiring detailed information about virtually every person who had been involved with the investigation of, or who was a witness to, the accident. For example, interrogatory number one stated:

Identify each and every person known to the plaintiff or his representative who was at the accident scene in question on December 29, 1989, from an hour before the accident in question up to and including a week after the accident in question. This is meant to include all persons at the accident when it occurred, shortly thereafter, and all persons known by the plaintiff to have visited the accident scene during the 7 days after the accident.

Other interrogatories requested detailed statements as to the reasons each of these persons was at the scene, the testimony plaintiff planned to elicit from them, and the means by which plaintiff became aware of the person’s presence at the scene of the accident. There was no reason for Continental to propound these particular requests at this late date. To the extent the information was relevant and discoverable, it could have been and should have been obtained much earlier. Aside from the questions related directly to Morton’s new theory or any other new evidence, it appears from the record that the intent of most of the interrogatories was to burden or harass Morton, perhaps in retaliation for presenting his new theory at such a late date.1

Continental’s counsel asserts that on February 25, he sent a letter to Morton’s counsel demanding an immediate response to the discovery requests and threatening to file a motion to compel if those responses were not forthcoming.2 On March 16, Continental moved to compel.3 On April 12, 1994, the trial court signed an order to compel, requiring Morton to respond to Continental’s discovery requests within ten days. Neither the trial court nor Continental made any attempt to directly contact Morton’s counsel, and no hearing was ever scheduled or noticed. The order to compel was issued without notice or a hearing. The court stated inexplicably that Morton’s failure to comply would result in the sanction of “dismissal of all of Plaintiffs claims for relief.” Continental’s motion to dismiss and a supporting memorandum and affidavit were filed on April 28,1994,4 and the trial court, apparent *279ly pursuant to Rule 37, Utah Rules of Civil Procedure, entered an order dated the same day granting the motion and dismissing Morton’s claims with prejudice. The ex parte nature of the court’s and Continental’s conduct continued with the preparation and entry of the order without any communication to Morton’s counsel. The trial eourt simply received the motion for dismissal and immediately directed Continental’s attorney to prepare the order in accordance with its instructions. A copy of the order was mailed to Morton’s counsel on the same day. Morton’s counsel has steadfastly maintained that he never received the notice of the order and was unaware of its entry or the deadline for responding to it.

Morton’s counsel failed to respond to the discovery requests by Friday, April 22,1994, the deadline set by the eourt, but on Monday, April 25, Morton’s counsel sent, and Continental acknowledges that it received, partial responses to the discovery requests, one business day late. Apparently, the trial eourt was never notified of Morton’s April 25 responses prior to the order of dismissal. Morton’s counsel did fail to respond to the few questions that dealt directly with new evidence or new theories. Concededly, Morton’s counsel was at fault for being one day late with the interrogatory answers and for their not being complete. He should have attempted to contact the court and opposing counsel with respect to any difficulties and delays he was experiencing in responding to the discovery requests. Nevertheless, the question is not whether Morton’s counsel ought to be sanctioned but whether the sanction imposed was so extreme in relation to the infraction as to constitute an abuse of discretion, and whether plaintiff himself should be sanctioned. After extensive attempts by Morton’s counsel to set aside or otherwise obtain relief from the effects of that judgment — all of which were ultimately denied by the trial eourt — Morton appealed.

By unpublished disposition, the Court of Appeals reversed. Morton v. Continental Baking Co., 913 P.2d 749, No. 940747-CA, slip op. at 2-3 (Utah Ct.App. Sept. 14, 1995) [“Morton I”]. The Court stated that “appellant’s conduct merited sanction,” id. at 2, but it also stated that “dismissal ‘is an unusually harsh sanction that should be meted out with caution,”’ id. at 1 (quoting Dairington v. Wade, 812 P.2d 452, 456 (Utah.Ct.App.1991)), and concluded that the trial court’s imposition of the penalty of dismissal was an abuse of discretion. Id. at 2.

II. DISCUSSION

Although trial courts possess discretion in imposing appropriate penalties for violation of discovery orders, Utah Dep’t of Transp. v. Osguthorpe, 892 P.2d 4, 6 (Utah 1995), that discretion is not without limits. Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 40 (4th Cir.1995) (citing Wilson v. Volkswagen of America, Inc., 561 F.2d 494, 503 (4th Cir.1977)); see also Carman v. Slavens, 546 P.2d 601, 603 (Utah 1976); Westinghouse Elec. Supply Co. v. Paul Larsen Contractor, Inc., 544 P.2d 876 (Utah 1975); Velazquez-Rivera v. Sear-Land Serv., Inc., 920 F.2d 1072, 1075-76 (1st Cir.1990); Marshall v. Segona, 621 F.2d 763, 766-67 (5th Cir.1980); Griffin v. Aluminum Co. of Am., 564 F.2d 1171, 1172 (5th Cir.1977). As we noted in Westinghouse, a case where the trial eourt dismissed the plaintiffs causes of action for failure to prosecute, and primarily for failures to respond to discovery requests:

It is not to be doubted that ... the trial court should have a reasonable latitude of discretion in dismissing for failure to prosecute if a party fails to move forward according to the rules and the directions of the court, without justifiable excuse. But that prerogative falls short of unreasonable and arbitrary action which will result in injustice.

544 P.2d at 878-79 (footnotes omitted); see also Carman, 546 P.2d at 603; 8A Charles Alan Wright Arthur R. Miller, Richard L. Marcus, Federal Practice § 2284, at 612.

With respect to this discretion, Wright & Miller note:

Rule 37 is flexible. The court is directed to make such orders “as are just,” and is not limited ... to a stereotyped response. The sanctions enumerated in the rule are not exclusive and arbitrary but flexible, selective, and plural. The district court may, within reason, use as many and as *280varied sanctions as are necessary to hold the scales of justice even.

Wright & Miller, Federal Practice § 2284, at 612-13 (emphasis added) (footnotes omitted).

One explicit limitation on a trial court’s discretion is that a sanction of dismissal may not be imposed in the absence of “ ‘willfulness, bad faith, or fault.’ ” Osguthorpe, 892 P.2d at 6 (quoting First Fed. Sav. & Loan Ass’n v. Schamanek, 684 P.2d, 1257, 1266 (Utah 1984)). “Willfulness” requires a showing that the failure to comply was intentional, as distinguished from negligent or careless noncompliance. Id. at 8.

The degree of discretion accorded trial courts varies in proportion to the severity of the sanction imposed. It follows that a trial court’s range of discretion is more narrow when it imposes the ultimate sanction of dismissal than when it imposes less severe sanctions. Id. Appellate courts must therefore examine a dismissal or entry of a default judgment with much greater care and scrutiny than a lesser sanction. The majority opinion ignores this established principle. Although trial courts are afforded due deference in their choice of sanctions, an appellate court cannot simply “rubber-stamp the decisions of the [lower] court.” Velazquez-Rivera, 920 F.2d at 1075; see also Wilson, 561 F.2d at 506.

Indeed, constitutional due process rights may be violated if a court refuses to hear the merits of the case where there has been a relatively trivial infraction of procedural rules.5 See Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542-43 (11th Cir.1993). Thus, “[dismissal is generally imposed only for egregious misconduct, such as repeated failure to appear for deposition.” Regional Refuse Sys., Inc. v. Inland Reclamation Co., 842 F.2d 150, 155 (6th Cir.1988) (first emphasis added); see also Velazquez-Rivera, 920 F.2d at 1077; Silas v. Sears, Roebuck & Co., 586 F.2d 382, 385 (5th Cir.1978). Dismissal is “the most extreme sanction provided for in the rule, and the Supreme Court has emphasized the necessity for cautious use of the rule.... [I]t should be exercised only in exceptional circumstances.” In re Liquid Carbonic Truck Drivers, 580 F.2d 819, 822 (5th Cir.1978); see also Mutual Fed. Sav. & Loan Ass’n v. Richards & Assocs., 872 F.2d 88, 92 (4th Cir.1989); Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 342 (3d Cir.1982); Wilson, 561 F.2d at 504; Wright & Miller, Federal Practice § 2284, at 623.

The overriding purpose of modem rules of procedure is to assure that disputes are decided on the merits whenever possible. Appellate courts have repeatedly stressed that trial courts should seek to impose penalties less severe than the dismissal that Rule 37 makes available. Hathcock v. Navistar Int’l Transp. Corp., 53 F.3d 36, 41 (4th Cir.1995); Brooks v. Hilton Casinos, Inc., 959 F.2d 757, 768 (9th Cir.1992); Poulos v. Naas Foods, Inc., 959 F.2d 69, 75 (7th Cir.1992); Velazquez-Rivera v. Sea-Land Serv., Inc., 920 F.2d 1072, 1076 (1st Cir.1990); Meade v. Grubbs, 841 F.2d 1512, 1520 & n. 7 (10th Cir.1988); Patterson v. Township of Grand Blanc, 760 F.2d 686, 689 (6th Cir.1985); Marshall v. Segona, 621 F.2d 763, 766-68 (5th Cir.1980).

Indeed, the general rule is that extreme sanctions “should be employed only if the district court has determined that it could not fashion an ‘equally effective but less drastic remedy.’ ” Velazquez-Rivera, 920 F.2d at 1076 (quoting United States v. Pole No. 3172, Hopkinton, 852 F.2d 636, 642 (1st Cir.1988)). Thus, “[t]he district court abuses its discretion if it imposes- a sanction of dismissal without first considering the impact of the sanction and the adequacy of less drastic sanctions.” United States v. National Med. Enters., Inc., 792 F.2d 906, 912 (9th Cir.1986); see also Malautea, 987 F.2d at 1542; Navarro v. Cohan, 856 F.2d 141, 142 (11th Cir.1988); Donnelly, 677 F.2d at 342; Marshall, 621 F.2d at 767-68.

It is, of course, essential to distinguish between the blameworthiness of the client and that of the attorney for a failure to comply with court orders. Flaksa v. Little River Marine Constr. Co., 389 F.2d 885, 888-89 (5th Cir.1968). This is especially critical *281when the sanction is dismissal, the effect of which falls disproportionately, if not exclusively, on the client. If the client did not contribute to the violation and if opposing parties do not suffer genuine and severe prejudice as a result of the attorney’s violation, dismissing a client’s ease makes rank mockery of the requirement that sanctions be “just.” In short, the rule is that “ ‘[d]is-missal is generally inappropriate and lesser sanctions are favored where neglect is plainly attributable to an attorney rather than to his blameless client.’” Marshall, 621 F.2d at 768 (quoting Silas, 586 F.2d at 385); see also Navarro, 856 F.2d at 141-42; Lolatchy v. Arthur Murray, Inc., 816 F.2d 951, 953 (4th Cir.1987); Carter v. Albert Einstein Med. Ctr., 804 F.2d 805, 807-08 (3d Cir.1986); Patterson, 760 F.2d at 688-89; Titus v. Mercedes Benz of N. Am., 695 F.2d 746, 749 n. 6 (3d Cir.1982); Carter v. City of Memphis, Tenn., 636 F.2d 159, 161 (6th Cir.1980).

When a case is dismissed or a default judgment entered for an attorney’s misconduct, the only remedy left to a client is an action for malpractice. But that is a totally inadequate alternative when other reasonable sanctions against an attorney are available. See Carter v. Albert Einstein Med. Ctr., 804 F.2d 805 (3d Cir.1986). Making a malpractice action the only option for a party whose attorney has erred punishes the client for a crime he did not commit, burdens the courts with unnecessary lawsuits, and leaves a wrongdoer free of all sanctions if the disillusioned and disgusted client can tolerate no more such “justice” in our court system. If a sledgehammer is to be used to kill an ant, at least the right ant ought to be smashed.

The result the majority reaches in this ease is inconsistent with Langeland v. Monarch Motors, Inc., 307 Utah Adv. Rep. 3, — P.2d —, 1996 WL 74559 (Utah 1996), one of our recent cases. The defendant in Langeland failed to respond properly to requests for admission, and the requests were deemed admitted by operation of Utah Rule of Civil Procedure 36. 307 Utah Adv. Rep. at 3, — P.2d at —. After some ten months had passed, the defendant’s counsel was notified of the failure and belated answers were submitted, but no motion to withdraw or amend was made until nearly fourteen months after the requests had been made — and over a year after the matters had been automatically deemed admitted by operation of Rule 36. The trial court granted the defendant’s motion, allowing the case to go forward on the merits. Despite the limited discretion standard we adopted in that case, a majority of the members of this court upheld the trial court’s decision. Id. at 6-9, at-(Durham, J., joined by Stewart, A.C.J.); id. at 9, at-(Zimmerman, C.J., concurring in the result).

The Court of Appeals in this case correctly noted thát Utah cases upholding a sanction of dismissal involved far more flagrant violations than occurred here. Cf Osguthorpe, 892 P.2d at 7-8; Schamanek, 684 P.2d at 1261; Larsen v. Collina, 684 P.2d 52, 54 (Utah 1984); W.W. & W.B. Gardner, Inc. v. Park W. Village Inc., 568 P.2d 734, 736 (Utah 1977); Tucker Realty, Inc. v. Nunley, 16 Utah 2d 97, 98-101, 396 P.2d 410, 411-13 (1964); see also National Hockey League v. Metropolitan Hockey Club, 427 U.S. 639, 640-41, 96 S.Ct. 2778, 2779-80, 49 L.Ed.2d 747 (1976) (per curiam).

The majority cites W.W. & W.B. Gardner and Tucker Realty and asserts that those cases somehow support its argument. Both of those eases, however, clearly involved circumstances which merited severe sanctions. In Tucker Realty, the defendant defaulted, the default was set aside, and the defendant then persistently, repeatedly, and intentionally failed to respond to discovery. 396 P.2d at 411-12. The defendant’s evasiveness made it obvious that he was not merely negligent but was attempting to conceal information that would be harmful to his defense and his defendant’s counterclaim. Id. at 412-13. This Court ruled that defendant’s counterclaim was patently frivolous and that he had changed his story on multiple occasions, offering inconsistent excuses for his failure to respond appropriately. Id.

In W.W. & W.B. Gardner, the defendant was served with at least four separate discovery requests, three of which were served at least twice. 568 P.2d at 786. The defendant responded to none of them, and the plaintiff filed a motion for default judgment. Id. at *282738. This Court characterized the defendant’s conduct as “persistent dilatory tactics.” Id. at 736. Although the defendant responded to some of the discovery requests subsequent to the filing of that motion (ten months after the due date for the original discovery requests), requests for production of documents remained unsatisfied. Id. The defendant then failed to appear at the hearing on the motion for default judgment. The trial court made an affirmative finding that the defendant’s delay had prejudiced the plaintiff’s prosecution of the case and ruled, on the merits, that the plaintiff was entitled to summary judgment. Id.

The Court of Appeals ruled that the sanction of dismissal of Morton’s case for the violation committed by Morton’s counsel was wholly out of proportion to his conduct, to say nothing at all of Morton’s own innocence. Morton I, No. 940747-CA, slip op. at 3. I agree. The trial court, and now this Court, in my view, ignored the requirement that the sanction be “just” and not arbitrary or capricious, especially in view of the fact that the lawsuit had been at issue for many months and was on the verge of going to trial when the dismissal was entered, and there is no showing whatsoever that Continental was prejudiced by the minor delay that Morton caused. Indeed, Continental itself, by its sweeping demands for discovery on issues unrelated to Morton’s “new theory” bore substantial responsibility for the delay. It is indeed hard to find a discovery order in our published cases as harsh, unreasonable, and unjust as the one in this case. A one-day-late drop-dead rule will certainly enhance a trial judge’s authority, but the cost to justice and fairness is exorbitant.

I would affirm the Court of Appeals.

DURHAM, J., concurs.

. This point is made not in an attempt to absolve Morton's counsel of any responsibility, but rather to counterbalance the majority’s characterization of Morton as the only party who had done anything of a questionable nature.

. A copy of this letter was submitted as an appendage to Continental’s motion to compel but apparently was not filed or lodged at the time it was written.

. Morton's counsel concedes that he was aware of the motion but asserts that he was never made aware of the outcome of that motion.

. Continental’s counsel signed and dated these documents on April 25.

. "[T]here are constitutional limitations, as yet somewhat indistinct, on the sanctions that can be imposed.” Wright & Miller, Federal Practice § 2284, at 613; see also Osguthorpe, 892 P.2d at 7-8 (treating constitutional implications of dismissal).