Morton v. Continental Baking Co. , 314 Utah Adv. Rep. 33 ( 1997 )

RUSSON, Justice:

I. INTRODUCTION

We granted Continental Baking Company’s (“Continental”) petition for a writ of certiorari to review the Utah Court of Appeals’ reversal of the trial court’s dismissal of plaintiff William W. Morton’s complaint for failure to comply with the trial court’s discovery order. We reverse.

II. BACKGROUND

Morton filed a civil suit against Continental on July 15, 1991, to recover damages for injuries he allegedly sustained as a consequence of an auto accident involving Morton and a vehicle owned by Continental and driven by one of Continental’s employees.

The original trial date was December 7, 1992, but on September 9, 1992, Morton moved for a continuance. In the motion, Morton’s counsel asserted that Morton was scheduled for knee surgery on December 28, 1992, and that Morton could not properly calculate a damage award until after the surgery and rehabilitation. The court granted the motion and rescheduled the trial for June 1, 1993. On April 15, 1993, Morton’s counsel sought another continuance, stating that counsel was too busy and needed more time to schedule depositions of expert witnesses, as well as conduct other discovery. The court again rescheduled the trial, this time for January 11,1994.

On January 10, 1994, one day before trial was to begin, Morton’s counsel initiated a telephone conference with the trial judge and counsel for Continental. In this conference, Morton’s counsel stated that one of his expert witnesses was going to present opinions, evidence, and theories at trial that were entirely new and different from those which Morton had previously stated would be presented. As a result of this announcement, the court again rescheduled the trial to allow Continental time to conduct additional discovery in light of Morton’s new theories. The new trial date was set for August 11, 1994.

A few days following the telephone conference, on January 14, 1994, Continental served on Morton interrogatories and requests for production of documents. Morton faded to provide responses to the discovery requests within the thirty days prescribed by rule 33(a) of the Utah Rules of Civil Procedure. On February 25, 1994, Continental sent a letter to Morton inquiring about the status of the discovery responses. In the letter, Continental stated that if Morton did not provide the discovery responses by March 10, 1994, Continental would file a motion to compel.

Morton did not provide the discovery responses by March 10, and on March 18,1994, Continental filed a motion to compel, a copy of which was served on Morton. In the motion, Continental requested that the trial court order Morton to respond within ten days or face dismissal of his case. Morton failed to respond to this motion.

On March 31, 1994, Continental filed a notice to submit for decision its motion to compel, a copy of which was sent to Morton. Morton did not respond. The court, on April 12, 1994, directed Continental to prepare an order requiring Morton to respond to Continental’s discovery requests within ten days or face- “the dismissal of all of Plaintiffs claims for relief.” In the order, the court made it clear that Morton had “until 5:00 o’clock p.m. on the tenth day” from the signing of the order to comply.¹ This order was mailed to Morton on April 12.

Morton did not respond in any way to either the notice to submit or the court’s order. The discovery responses were not received by the Friday, April 22, deadline. On Monday, April 25, 1996, Continental prepared a proposed order to dismiss pursuant to the April 12 order, a copy of which was hand-delivered' to Morton. On that same day, Morton responded for the first time to the discovery requests by faxing responses to Continental. The court signed the order to dismiss on April 28, 1994. Morton claims that he knew nothing of the court’s activities between the March 18 motion to compel and a notice of signing of judgment that he received on May 9,1994.

Following the dismissal, Morton fiied several motions with the trial court aimed at overturning the dismissal. As part of Morton’s efforts, he filed an affidavit dated May 11, 1994, in which he admitted that he had received both the discovery requests and the motion to compel. The trial court rejected Morton’s motions. Morton then appealed, and we poured the ease to the court of appeals.

On September 14, 1995, the court of appeals issued a memorandum decision wherein it stated that it had “reviewed each of the issues raised by [Morton] regarding excuses for noncompliance with the trial court’s discovery order, or reasons for extension of the court imposed deadline, and [had] found them to be without merit.” However, while the court of appeals agreed “that [Morton’s] conduct merited sanction,” the court indicated that its review of Utah case law suggested that the sanction of dismissal under rule 37, while within the discretion of the trial court, was a sanction which was only applied “in eases involving more egregious neglect and misconduct” than was displayed by Morton. The court of appeals stated, ,cWe are constrained ... to follow prior decisions approving dismissal under Utah Rule of Civil Procedure 37 only under circumstances much more egregious than those in evidence here.” Thus, the court of appeals held that the trial court had abused its discretion and reversed and remanded.

Continental argues on certiorari that the court of appeals erred in its decision to reverse the trial court. Continental argues that the trial court is given broad discretion in imposing sanctions and such decisions are reviewed only for abuse of discretion. Continental argues that rule 37 requires only that Morton’s actions be willful before a trial court can impose sanctions and that there was ample evidence in the record to support the trial court’s finding that Morton’s noncompliance was indeed willful. By requiring Morton’s behavior to be more egregious, Continental argues, the court of appeals ignored the “willful” standard and did not afford the trial court the proper amount of deference. Further, Continental claims that the court of appeals erred in not requiring Morton to sustain the burden of showing that the trial court’s decision was a clear abuse of discretion.

Morton responds that the court of appeals correctly held that the trial court’s dismissal of his claim was an abuse of discretion. Morton argues that any delay in complying with the court’s order should be excused because, for various reasons, he never received the orders and, after all, the discovery responses faxed to Continental on April 25 were, at most, only “one business day late.”

III. ANALYSIS

Rule 37(b)(2)(C) of the Utah Rules of Civil Procedure states, in relevant part:

(2) If a party ... fails to obey an order to provide or permit discovery ... 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:

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

(Emphasis added.) Before a trial court can impose discovery sanctions under rule 37, the court must find on the part of the noneom-plying party willfulness, bad faith, or fault, Utah Dep’t of Transp. v. Osguthorpe, 892 P.2d 4, 6 (Utah 1995); First Fed. Sav. & Loan Ass’n v. Schamanek, 684 P.2d 1257, 1266 (Utah 1984); accord Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 961 (Utah.Ct.App.1989), or “persistent dilatory tactics frustrating the judicial process,” W.W. & W.B. Gardner, Inc. v. Park West Village, Inc., 568 P.2d 734, 738 (Utah 1977); see also Osguthorpe, 892 P.2d at 6, n. 2. Once the trial court determines that sanctions are appropriate, “[t]he choice of an appropriate discovery sanction is primarily the responsibility of the trial judge.” Schamanek, 684 P.2d at 1266.

Even though dismissal of a noncomplying party’s action is one of the “most severe of the potential sanctions that can be imposed,” Osguthorpe, 892 P.2d at 7, it is clear from the language of rule 37 that it is within a trial court’s discretion to impose such a sanction. “ ‘Because trial courts must deal first hand with the parties and the discovery process, they are given broad discretion regarding the imposition of discovery sanctions.’ ” Osguthorpe, 892 P.2d at 6 (quoting Darrington v. Wade, 812 P.2d 452, 457 (Utah.Ct.App.1991)). Thus we have long held that we will not interfere unless “ ‘abuse of that discretion [is] clearly shown.’ ” Id. at 8 (quoting Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986)); see also Tucker Realty, Inc. v. Nunley, 396 P.2d 410, 412, 16 Utah 2d 97, 100 (1964) (“Unless it is shown that [the trial court’s] action is without support in the record, or is a plain abuse of discretion, it should not be disturbed.”). We will find that a trial court has abused its discretion in choosing which sanction to impose only if there is either “an erroneous conclusion of law or ... no evidentiary basis for the trial court’s ruling.” Askew v. Hardman, 918 P.2d 469, 472 (Utah 1996); see also Schamanek, 684 P.2d at 1266. In this case, Morton has not clearly shown that the trial court abused its discretion in dismissing his ease.

There is ample evidence in this case to support the trial court’s ruling. This case had been set for trial four different times. The trial court generously granted continuances, first for Morton’s knee surgery and then to allow Morton more time to depose witnesses. Finally, two and a half years after the commencement of this case, the trial court allowed a continuance as a result of Morton’s surprise announcement that one of his experts would be presenting an entirely new theory at trial the next day. The trial court showed tremendous patience in allowing so many delays to interrupt this case.

Yet, even after this third continuance to accommodate him, Morton did nothing to show the court that he was interested in diligently prosecuting his case. Three months passed, and Morton made no response whatever to Continental’s discovery requests, Continental’s letter of inquiry, or the various motions and orders filed with the court and served on Morton. Morton had plenty of warning that his case was in trouble, considering he admitted to having received the motion to compel which specifically requested a court order requiring compliance and threatening dismissal of Morton’s case.

A trial judge is given a great deal of latitude in determining the most fair and efficient manner to conduct court business. The trial judge is in the best position to evaluate the status of his cases, as well as the attitudes, motives, and credibility of the parties. This case is no different. The trial judge had been involved in this case for three years. Over that time, he met with the attorneys for both sides numerous times. He thoroughly reviewed all documents filed in connection with the case and ruled on numerous motions. He heard and considered all of Morton’s excuses for not complying with the court’s order and concluded that he had “not been offered any satisfactory explanation by Morton’s counsel” for the noncomplianee.

Morton complained that the dismissal would be a hardship, considering all of the time and cost invested in the case. We think the trial court’s response is perceptive:

With all this at stake, why would counsel fail to answer the interrogatories or at least provide partial answers to opposing counsel when they were due? Why would counsel, knowing that a motion to compel was filed, not respond to the Court in any way? Why would he not then provide the answers he had? Why would he not seek an extension of time from the Court if he were having difficulty obtaining the information? Why, if he were ready to present at least part of the information at trial on January 11, 1994, could he not produce it to counsel within the time limits of the rules? ... Any mistakes, inadvertence and neglect which may have occurred at the office of Plaintiffs counsel are not an excuse for the manner in which Plaintiffs counsel has handled this matter.

Morton argues for relief due to his investment of time and money in this case. But there are two parties to this action, and both are entitled to fair treatment. Continental did not seek this litigation. Its investment of time and resources toward the resolution of this ease was not voluntary. And it was Morton, not Continental, who was responsible for all three of the delays in this case— delays which increased the length of this matter from six months to three years. There comes a time when a trial judge is justified in saying that enough is enough. We eannot say under these facts that the trial judge abused his discretion in dismissing the complaint.

Morton’s claims that he did not receive the court’s order to respond to Continental’s discovery requests are not compelling. Morton admitted that he received the discovery requests as well as the motion to compel. It is disingenuous for Morton to now argue that he was not aware of his obligation to respond. Morton’s counsel must have understood the significance of a motion to compel. He should have been diligent enough to seek another extension from the court or, at the very least, to try to contact Continental in some way. However, neither Morton nor his counsel did anything until it was too late. All of the motions and orders filed in relation to Continental’s discovery requests were properly served on Morton. Although “he denies receiving some of them, he was given ample notice of the proceedings against him and his obligations under the law.” Osguthorpe, 892 P.2d at 8.

The court of appeals, in reversing the trial court, cited several cases which it felt compelled the conclusion that more egregious behavior was required on the part of Morton to sustain the trial court’s discretionary ruling under rule 37. However, in so holding, the court of appeals, without even requiring Morton to clearly show an abuse of discretion, see Osguthorpe, 892 P.2d at 8; Katz, 732 P.2d at 93, undertook to rewrite rule 37 and ignored prior decisions of this court.

We have never expressed any rule which delineates a specific level of behavior which must be met before rule 37 sanctions are warranted. As stated previously, a party’s conduct merits sanctions under rule 37 if any of the following circumstances are found: (1) the party’s behavior was willful; (2) the party has acted in bad faith; (3) the court can attribute some fault to the party; or (4) the party has engaged in persistent dilatory tactics tending to frustrate the judicial process. See Osguthorpe, 892 P.2d at 6; Schamanek, 684 P.2d at 1266.

To find that a party’s behavior has been willful, there need only be “ ‘any intentional failure as distinguished from involuntary noncompliance.’ ” Amica Mut. Ins. Co., 768 P.2d at 961 (quoting M.E.N. Co. v. Control Fluidics, Inc., 834 F.2d 869, 872-73 (10th Cir.1987)); see also Osguthorpe, 892 P.2d at 8. Morton presented to the trial court numerous excuses for failing to comply with the court’s order in numerous motions following the dismissal of his case. The trial court was not persuaded. Morton then presented the same arguments to the court of appeals, which found them to be “without merit.” Morton presents the same excuses to this court. However, Morton has not attacked the court of appeals’ determination that such excuses were “without merit.” On the other hand, because Morton knew that a motion to compel had been filed, which threatened dismissal of his case, and because all of the motions and orders were properly served on Morton, we think that there is ample evidence to support the view that Morton’s failure to supply the discovery requests in a timely manner was at least willful.

The court of appeals incorrectly interpreted the case law relating to this issue. While it can be argued that the behavior sanctioned in the cases cited by the court of appeals was more egregious than Morton’s behavior, see Osguthorpe, 892 P.2d at 8-9; Larsen v. Collina, 684 P.2d 52, 54-55 (Utah 1984); Amica Mut. Ins. Co., 768 P.2d at 962; accord Charlie Brown Constr. Co. v. Leisure Sports, Inc., 740 P.2d 1368, 1370-71 (Utah.Ct.App.1987), we have affirmed a trial court’s dismissal as a sanction for behavior clearly less egregious than that apparently required by the court of appeals. See, e.g., W.W. & W.B. Gardner, 568 P.2d at 736-38 (affirming default judgment entered against defendant because defendant’s answers to plaintiffs interrogatories and requests for production of documents were late, even though they were filed before hearing on summary judgment motion); Tucker Realty, 396 P.2d at 412, 16 Utah 2d at 99-101 (affirming default judgment where plaintiff responded to court order to compel production of documents by only producing one of many required documents); accord Schoney v. Memorial Estates, Inc., 790 P.2d 584, 586-87 (Utah.Ct.App.1990) (affirming default judgment where plaintiffs failed to timely respond to interrogatories after court granted several continuances on plaintiffs’ behalf, and plaintiffs had been “somewhat uneven in discharging their burden of prosecuting the case in a timely fashion”). In any event, all of these cases clearly stand for the proposition that trial courts are granted a great deal of deference in dismissing a case as a discovery sanction.

IV. CONCLUSION

On the basis of the foregoing, we reverse the court of appeals and affirm the trial court’s dismissal of Morton’s claims under rule 37(b)(2)(C) of the Utah Rules of Civil Procedure.

ZIMMERMAN, C.J., and HOWE, J., concur.

1 . The order stated:

Plaintiff shall have 10 days from the signing of this Order, until 5:00 o'clock p.m. on the tenth day [April 22], to deliver to [Continental] full and complete responses to the interrogatories and requests for production of documents in question ... and upon failure to do so, will suffer sanctions in accordance with Rule 37 of the Utah Rules of Civil Procedure, which will be the dismissal of all of Plaintiff's claims for relief.