Devault v. Steven L. Herndon , 107 Idaho 1 ( 1984 )

BAKES, Justice.

Appellant appeals from the trial court’s dismissal of his legal malpractice action, with prejudice, for the failure of appellant to comply with previously issued discovery orders. We affirm.

Appellant brought this action to recover for the alleged malpractice of Stephen Herndon in his prosecution of another case against a third party.¹ The complaint in this action was filed January 10,1978. The case was finally set for trial beginning April 13, 1981.

On January 5, 1981, Herndon filed a request for production of the documents used as exhibits in the prior trial against the third party. When the documents were not produced, Herndon, on February 26, 1981, filed a motion to compel production of documents and a motion in limine, seeking an order of the court to force appellant to produce the documents previously requested, and provide information about proposed expert testimony, or be penalized by exclusion of such documents and expert testimony at trial. See I.R.C.P. 37(a). After a court hearing on March 6, 1981, an order was filed by the trial court compelling production of the documents and disclosure of plaintiffs expert testimony. The order set a deadline for compliance of March 13, 1981.

Devault failed to comply with the above order, and on March 20, 1981, Herndon filed a renewed motion in limine to exclude the evidence covered by these motions. At a hearing April 2, the trial court again ordered Devault to provide the requested documents and information on or before April 30, 1981. In that same order the trial court also commanded that Devault respond in writing to Herndon’s settlement offer before April 8, 1981. The trial setting of April 13, 1981, had to be vacated. Devault again never complied with the order.

On June 10, 1981, Herndon moved to dismiss the action as a sanction for Devault’s failure to comply with any of the previously outlined orders. After a hearing, the trial court granted that dismissal. Appellant Devault appeals from the dismissal.

I.R.C.P. 37(b) outlines the sanctions available to the trial court when a party fails to comply with discovery orders.

“Rule 37(b). Failure to comply with discovery order — Sanctions.—...

“(2) Sanctions by court in which action is pending. If a party ... fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;

____” (Emphasis added.)

This rule gives the trial court discretion to impose any of several different sanctions, including dismissal of the action. Such a dismissal by the trial court will not be overturned absent a showing of abuse of the trial court’s discretion. See Von Poppenheim v. Portland Boxing & Wrestling Comm’n, 442 F.2d 1047 (9th Cir.1971), cert. den. 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972); Pinakatt v. Mercy Hospital, Inc., 394 So.2d 441 (Fla.App.1981); Spencer v. McLaughlin, 256 So.2d 385 (Fla.App. 1972); Lerman v. Portland, 406 A.2d 903 (Me.1979), cert. den. 446 U.S. 937,100 S.Ct. 2156, 64 L.Ed.2d 790. See also Annot., Dismissal of Action for Failure or Refusal of Plaintiff to Obey Court Order, 4 A.L. R.2d 348 (1949), and later case service. For federal cases dealing with this same issue under Federal Rule of Civil Procedure 37(b), see 4A Moore’s Federal Practice, § 37.03[2].

The United States Supreme Court, in interpreting the identical federal rule, has held that the sanctions under the rule were intended to punish misconduct and deter others involved in litigation to prevent abuse in connection with discovery, and that a determination of whether a party’s actions were of sufficient bad faith to justify dismissal is within the discretion of the trial court. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).

Appellant argues that any failure to comply with orders of the court was the fault of his attorney; thus, he should not be penalized by dismissal of his action. However, litigants freely choose their attorneys and cannot avoid the consequences of the attorney’s actions. See Link v. Wabash RR Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). As recently stated by the 9th Circuit in Chism v. National Heritage Life Ins. Co., 637 F.2d 1328 (9th Cir.1981):

“In upholding the district court’s dismissal of this action, we recognize that the result may well penalize Appellant more directly than his counsel. However, that is the consequence of the rule allowing dismissals. In recognizing the relative hardship upon Appellant as distinguished from counsel, it must be kept in mind that district courts cannot function efficiently unless they can effectively require compliance with reasonable rules. Absence of meaningful power to require that compliance would make for disorder and preclude effective judicial administration at the trial court level.” Id. at 1332.

In this case, the trial court was faced with a repeated refusal to comply with specific, direct orders of the court instructing plaintiff to produce certain documents and information, which repeated refusal resulted in the trial having to be delayed at least once, and which would have required a second delay had the motion not been granted. There was no showing of the inability of the plaintiff to comply with these orders.² The granting of the motion to dismiss did not constitute an abuse of discretion.

Judgment of the lower court affirmed. Costs to respondent.

DONALDSON, C.J., and MeFADDEN, J., pro tern., concur.

1 . Counsel on appeal in this case was not counsel for appellant in the trial court.

2 . In fact, at the hearing where dismissal was finally granted, the plaintiffs counsel finally offered to allow the defendant's counsel to come to his office to view the documents, but still offered no explanation as to why this offer had not been made before, or why the documents had not been previously produced.