Capaci v. Folmar Kenner, LLC. , 2008 Ala. Civ. App. LEXIS 123 ( 2008 )

BRYAN, Judge,

dissenting.

As the main opinion acknowledges, “[t]he determination of whether a party’s conduct was willful or contumacious is within the trial court’s discretion” because “ ‘[t]he trial judge is in the best position to assess the conduct of the plaintiff and the degree of noncompliance ....’” 43 So.3d at 1233 (quoting Jones v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d 332, 341 (Ala.1991)). This rule is particularly apt in the resolution of the appeal now before us because the trial judge had the opportunity to observe Andra Capaci’s demeanor while she disobeyed his orders. Yet, in concluding that Capaci’s conduct was not sufficiently willful or contumacious to justify the dismissal of her claims with prejudice, the majority has disregarded this rule and substituted its judgment regarding the degree of Capaci’s culpability for that of the trial judge.

Moreover, none of the less drastic sanctions suggested by the main opinion would have effectively redressed the prejudicial effect of Capaci’s self-serving, nonrespon-sive answers. Neither terminating her testimony, nor terminating her presentation of evidence altogether, nor striking the testimony she had already given, nor citing her for contempt would have eliminated the effect her improper testimony had already had on the jury. Moreover, declaring a mistrial after four days of trial would have punished Folmar Kenner, LLC, as much as it would have punished Capaci.

The record supports the trial judge’s implicit finding that Capaci’s misconduct was willful or contumacious; our caselaw authorizes the trial judge to dismiss a plaintiffs claims with prejudice when the plaintiffs disregard of the trial judge’s orders is willful or contumacious, see Jones v. Merrill, Lynch, Pierce, Fenner & Smith, Inc., 604 So.2d at 341, and, contrary to the main opinion’s suggestion, no lesser effective sanction was available. Therefore, I do not find the trial judge’s dismissal of Capaci’s claims with prejudice to be an abuse of his discretion. Consequently, I must respectfully dissent from the main opinion.