American Express Centurion Bank v. John Lowrey

IN THE COURT OF APPEALS OF TENNESSEE
AT KNOXVILLE
Assigned on Briefs January 30, 2013
AMERICAN EXPRESS CENTURION BANK v. JOHN LOWREY
Direct Appeal from the Circuit Court for Knox County
No. 1-180-10 Dale C. Workman, Judge
No. E2011-01247-COA-R3-CV-FILED-MARCH 11, 2013
The trial court dismissed this case on the ground that the plaintiff credit card company failed
to timely respond to discovery requests. We reverse, concluding that the trial court erred in
dismissing the case without sufficient evidence of contumacious conduct on behalf of the
plaintiff.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Circuit Court Reversed and
Remanded
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S., and D AVID R. F ARMER, J., joined.
Michelle S. Moghadom, Brentwood, Tennessee, for the appellant, American Express
Centurion Bank.
Bryan L. Capps, Knoxville, Tennessee, for the appellee, John Lowrey.
OPINION
I. Background
On April 12, 2010, Plaintiff/Appellant American Express Centurion Bank
(“American Express”) filed a complaint against Defendant/Appellee John Lowrey to recover
$37,146.91, plus interest, to satisfy Mr. Lowrey’s delinquent credit card account. Mr.
Lowrey, acting pro se, filed an Answer to the complaint on May 28, 2010, denying the
material allegations contained therein, and asserting the affirmative defense that the
collection was barred by the Fair Debt Collections Act.
On September 7, 2010, American Express filed a Motion for Summary Judgment.
American Express attached to the motion a Statement of Undisputed Facts, an Affidavit of
Debt from an agent of American Express regarding Mr. Lowrey’s account, Mr. Lowrey’s
Credit Card Account Statement, and the Credit Agreement between Mr. Lowrey and
American Express. The motion was scheduled to be heard on October 8, 2010.
On October 6, 2010, Mr. Lowrey filed a Notice of Dispute of Alleged Debt, including
a sworn affidavit stating that the debt did not belong to him, as well as a Motion to Strike
American Express’s Affidavit of Debt. On the same day, Mr. Lowrey also filed a Motion to
Dismiss American Express’s action, arguing that American Express failed to show that it
was the real party in interest or that the debt had been assigned to it. The crux of Mr.
Lowrey’s argument was that the plaintiff, American Express Centurion Bank, was not the
holder of the debt, which instead was held by American Express Bank FSB. A hand-written
note on the motion states that the motion was “[n]ot noticed by the Court.” Finally, also on
October 6, 2010, Mr. Lowrey filed his First Set of Interrogatories, Request for Admissions,
and Request for Production of Documents. According to a later pleading filed by American
Express, however, the discovery requests were served on American Express on September
6, 2010. The parties agree that American Express appropriately responded to Mr. Lowrey’s
Request for Admissions; instead, the dispute in this case concerns the Request for
Production of Documents and the Interrogatories.
The hearing on American Express’s Motion for Summary Judgment was held on
October 8, 2010. According to both parties, no representative for American Express attended
the hearing. Thus, the motion for summary judgment was not argued at that time. The record
is unclear as to what occurred at the hearing as no transcript is contained in the record. At
some point, American Express became convinced that the trial court granted Mr. Lowrey’s
motion to dismiss, although the motion apparently was not noticed for hearing and was not
filed until two days prior to the hearing.1 Mr. Lowrey, however, denies that such action
occurred. No order was entered as a result of this hearing. On October 20, 2010, however,
American Express filed a Motion to Set Aside the Dismissal, arguing that the trial court
erred in granting Mr. Lowrey’s motion to dismiss. From our review of the record, Mr.
Lowrey’s initial motion to dismiss was never heard by the trial court. American Express’s
motions were again set for hearing.
1
Rule 6.04 of the Tennessee Rules of Civil Procedure provides that a litigant is entitled to five days
written notice prior to a hearing on a written motion. Accordingly, Mr. Lowrey’s motion, filed on October
6, 2010, could not have been heard on October 8, 2010. See generally Carbone v. Blaeser, No. W2012-
00670-COA-R3-CV, 2012 WL 5503862, at *3–5 (Tenn. Ct. App. Nov. 14, 2012) (for an in-depth discussion
of the requirements of Rule 6.04).
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On October 29, 2010, Mr. Lowrey filed a motion for extension of time to respond to
the Motion for Summary Judgment and the motion to set aside the dismissal. As grounds
for his motion for extension of time, Mr. Lowrey alleged health problems. The record does
not contain an order allowing an extension. On December 9, 2010, Mr. Lowrey filed a
pleading entitled Objection to Motion for Summary Judgment, in which he argued that
disputed issues of material fact precluded summary judgment. In addition, Mr. Lowrey
objected to summary judgment on the ground that discovery had not been completed, as
American Express had failed to respond to his Interrogatories and Request for Production
of Documents.
On December 10, 2010, Mr. Lowrey filed a Motion to Compel American Express to
answer his outstanding discovery requests. Mr. Lowrey alleged that he had propounded
discovery requests on September 6, 2010 and that American Express had failed to respond
for a period of over three months. The trial court granted the motion to compel on January
27, 2011. The trial court ordered that American Express “fully respond to the Request for
Documents and Interrogatories no later than February 15, 2011.”
On February 15, 2011, American Express responded to Mr. Lowrey’s Request for
Production of Documents. To most of the requests, American Express responded that the
pertinent documents had been attached to its Motion for Summary Judgment. American
Express also objected to many requests as vague, ambiguous, or protected by privilege. No
additional documents were produced by American Express in response to the requests. Some
of the requests included requests that American Express provide the “original dunning
letter” as well as the agreement between American Express and its counsel, giving counsel
authority to collect the debt. As of the February 15, 2011 deadline, however, American
Express had not yet responded to Mr. Lowrey’s Interrogatories.
On February 18, 2011, Mr. Lowrey filed a Motion to Dismiss, or Alternatively, for
Rule 37 Sanctions. The motion alleged that American Express failed to respond to the
Interrogatories in a timely fashion. A hearing on Mr. Lowrey’s Motion to Dismiss was held
on February 25, 2011. According to American Express, it hand-delivered its responses to
Interrogatories to Mr. Lowrey on the date of the hearing, which delivery was delayed due
to a clerical mistake. No transcript of the hearing is contained in the record. Both parties
agree, however, that the trial court orally ruled to dismiss American Express’s action based
on its failure to comply with discovery requests. However, no order was entered dismissing
the case. Accordingly, on March 25, 2011, American Express filed a Motion to Continue
Litigation for Want of Order, or, in the Alternative, a Motion to Alter or Amend Oral
Judgment. According to the motion, the delay in responding to Mr. Lowrey’s Interrogatories
was caused by American Express’s inadvertent failure to sign the oath on the interrogatory
responses. Accompanying the motion was a sworn oath from American Express’s custodian
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of records supporting American Express’s allegations, as well as a copy of American
Express’s Responses to Mr. Lowrey’s Interrogatories.
On March 31, 2011, the trial court entered an order granting Mr. Lowrey’s Motion
to Dismiss. The order stated that:
This matter is before the court on [Mr. Lowrey’s] motion
to dismiss for failure to comply with discovery orders. The court
heard oral arguments on January 14, 2011 regarding [Mr.
Lowrey’s] request for discovery. The court advised counsel for
[American Express] that avoidance of discovery would not be
tolerated by the court. When asked counsel for [American
Express] when he would complete discovery, counsel for
[American Express] advised thirty days. The discovery was
ordered to be completed in the allotted time.
As of the hearing on February 25, 2011, the counsel for
[American Express] presented no proof that discovery was
completed in the allotted time. In addition[,] the court had not
received any evidence that the order to compel had been
complied with. The [trial court] questioned counsel appearing
for [American Express], and he offered no answer or
objections. Case was dismissed with prejudice.
The Defendant’s request for discovery was over one
hundred and fifty days past due. It is the order of the court that
this case is dismissed with prejudice, with all costs taxed to
[American Express].
The trial also entered an order denying American Express’s Motion to Alter or Amend on
May 17, 2011. American Express filed a timely Notice of Appeal, raising a single issue,
rephrased from American Express’s brief: “Whether the trial court abused its discretion in
dismissing American Express’s case with prejudice pursuant to Rule 37.02(C) of the
Tennessee Rules of Civil Procedure for failing to timely respond to discovery?”
II. Standard of Review
Appellate courts review a trial court's decision to impose sanctions and its
determination of the appropriate sanction under an abuse of discretion standard. Alexander
v. Jackson Radiology Assoc., P.A., 156 S.W.3d 11, 14 (Tenn. Ct. App. 2004) (citing Lyle
v. Exxon Corp., 746 S.W.2d 694, 699 (Tenn. 1988)). An abuse of discretion occurs where
the trial court has applied an incorrect legal standard or where its decision is illogical or
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unreasoned and causes an injustice to the complaining party. Id. (citing Mercer v. Vanderbilt
Univ., Inc., 134 S.W.3d 121, 131 (Tenn. 2004)). Discretionary decisions, however, “are not
left to a court's inclination, but to its judgment; and its judgment is to be guided by sound
legal principles.” State v. Lewis, 235 S.W.3d 136, 141 (Tenn. 2007) (quoting Martha S.
Davis, Standards of Review: Judicial Review of Discretionary Decisionmaking, 2 J.App.
Prac. & Process 47, 58 (2000) (citations and internal quotation marks omitted)). Thus, an
abuse of discretion may be found “‘when the trial court has gone outside the framework of
legal standards or statutory limitations, or when it fails to properly consider the factors on
that issue given by the higher courts to guide the discretionary determination.’” Lewis, 235
S.W.3d at 141 (quoting 2 J.App. Prac. & Process at 59). We will not overturn the trial court’s
decision merely because reasonable minds could reach a different conclusion. Eldridge v.
Eldridge, 42 S.W.3d 82, 85 (Tenn. 2001).
III. Analysis
Before considering the substantive issue raised in this case, we must first discuss the
state of the record on appeal. Although it is unclear from the record, American Express, at
some point after filing its notice of appeal, filed a Statement of the Evidence, to be approved
by the trial court in accord with Rule 24 of the Tennessee Rules of Appellate Procedure.2 On
August 31, 2011, Mr. Lowrey filed several objections and motions to strike portions of the
Statement of the Evidence filed on behalf of American Express.3 In addition, Mr. Lowrey
2
Rule 24(c) of the Tennessee Rules of Civil Procedure provides, in pertinent part:
If no stenographic report, substantially verbatim recital or transcript of the
evidence or proceedings is available, the appellant shall prepare a statement
of the evidence or proceedings from the best available means, including the
appellant's recollection. The statement should convey a fair, accurate and
complete account of what transpired with respect to those issues that are the
bases of appeal. The statement, certified by the appellant or the appellant's
counsel as an accurate account of the proceedings, shall be filed with the
clerk of the trial court within 60 days after filing the notice of appeal. Upon
filing the statement, the appellant shall simultaneously serve notice of the
filing on the appellee, accompanied by a short and plain declaration of the
issues the appellant intends to present on appeal. Proof of service shall be
filed with the clerk of the trial court with the filing of the statement. If the
appellee has objections to the statement as filed, the appellee shall file
objections thereto with the clerk of the trial court within fifteen days after
service of the declaration and notice of the filing of the statement. . . .
3
While Mr. Lowrey represented himself throughout the trial court proceedings, he retained counsel
after the final order was entered in this case. Accordingly, Mr. Lowrey was represented by counsel during
(continued...)
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proffered his own Statement of the Evidence. On April 20, 2012, the trial court entered an
order granting Mr. Lowrey’s objections. The trial court, however, did not expressly approve
Mr. Lowrey’s proffered Statement of the Evidence. Thus, we conclude that the trial court
adopted American Express’s Statement of the Evidence subject to Mr. Lowrey’s objections.
American Express’s Statement of the Evidence, however, is not contained in the record, in
either its original or modified form. Accordingly, the record on appeal contains no transcript
or properly-approved Statement of the Evidence. As American Express is the appellant in
this case, it has the obligation to provide this Court with a fair, accurate, and complete
account of what transpired in the trial court. In re M.L.D., 182 S.W.3d 890, 894 (Tenn. Ct.
App. 2005). “The duty to see to it that the record on appeal contains a fair, accurate, and
complete account of what transpired with respect to the issues being raised on appeal falls
squarely on the shoulders of the parties themselves, not the courts.” Trusty v. Robinson, No.
M200-01590-COA-R3-CV, 2001 WL 96043, at *1 (Tenn. Ct. App. Feb. 6, 2001) (citing
Tenn. R. App. P. 24(b); State v. Ballard, 855 S.W.2d 557, 560–61 (Tenn. 1993); Realty
Shop, Inc. v. RR Westminister Holding, Inc., 7 S.W.3d 581, 607 (Tenn. Ct. App.1999)).
Generally, when the Appellant fails to provide the Court with a transcript or Statement of the
Evidence, this Court must presume that the trial court’s decision is correct. This Court in
Outdoor Management LLC v. Thomas, 249 S.W.3d 368 (Tenn. Ct. App. 2007), explained:
It is well settled that, in the absence of a transcript or statement
of the evidence, there is a conclusive presumption that there was
sufficient evidence before the Trial Court to support its
judgment and this Court must therefore affirm the judgment.
Id. at 377; see also Reinhart v. Geico Ins., No. M2009-01989-COA-R3-CV, 2010 WL
3852048, at *6 (Tenn. Ct. App. Sept. 28, 2010) (noting that abuse of discretion review was
impossible in the absence of a transcript or Statement of the Evidence).
This Court has held, however, that even without a properly perfected record, it is
appropriate to consider those issues where appellate review is not hindered by the absence
of a transcript or statement of the evidence. See Chandler v. Chandler, No. W2010-01503-
COA-R3-CV, 2012 WL 2393698, at *7–*8 (Tenn. Ct. App. June 26, 2012). Thus, issues that
are not “highly fact-specific” and do not require “a careful review of the evidence presented
to the trial court” may properly be considered. Id. at *9. The issues in this case involve the
facts and chronology surrounding a discovery dispute. The appellate record contains five
volumes that outline the chronology and pleadings filed in the trial court. Both American
Express and Mr. Lowrey supplemented the record on appeal to include additional documents
3
(...continued)
the dispute regarding the Statement of the Evidence and throughout this appeal.
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pertaining to the discovery issues disputed in the trial court. From our review of the record,
we conclude that appellate review is not rendered impossible by the lack of transcript or
Statement of the Evidence. Accordingly, we will go forward to consider the substantive issue
raised in this appeal. However, we caution litigants that “while in this case we chose to
proceed with our review despite the fact that the parties chose not to abide by the rules of
this Court, we cannot say we will be so accommodating and choose to do the same in the
future.” Wells v. Wells, No. W2009-01600-COA-R3-CV, 2010 WL 891885, *4 (Tenn. Ct.
App. 2010).
Turning to the issue presented in this case, American Express argues that the trial
court abused its discretion in dismissing its case based on American Express’s delay in
responding to discovery requests from Mr. Lowrey. After thoroughly reviewing the technical
record in this case, we agree. Under Rules 37.04 and 37.02(C) of the Tennessee Rules of
Civil Procedure, the trial court is expressly authorized to dismiss an action for failure to
abide by discovery rules. Holt v. Webster, 638 S.W.2d 391, 394 (Tenn. Ct. App. 1982). Rule
37.04 states that, if a party fails to serve answers or objections to interrogatories, the trial
court may enter such orders as are just, and may take any action authorized in Rule 37.02(C).
See Tenn. R. Civ. P. 37.04. Rule 37.02(C) provides that the trial court may, among other
things, enter an order “dismissing the action or proceeding or any part thereof.” Tenn. R.
Civ. P. 37.02(C). “Dismissal is a harsh sanction.” Holt, 638 S.W.2d at 394. “Although this
sanction is extreme, it is appropriate ‘where there has been a clear record of delay or
contumacious conduct.’” Shahrdar, 983 S.W.2d at 236 (quoting In re Beckman, 78 B.R.
516, 518 (M.D. Tenn.1987)). The purpose of such a rule is to punish those who disobey
discovery orders, and to deter those who might disregard such orders in future cases. Holt,
638 S.W.2d at 394. However, “lesser sanctions are generally favored where the neglect and
defalcations are more attributable to the attorney than to his client.” Mills v. Bank of Roane
County, 1991 WL 126553, at *2 (Tenn. Ct. App. July 15, 1991).
As previously discussed, a trial court’s decision to dismiss an action on the basis of
discovery abuse is reviewed under the abuse of discretion standard. Alexander, 156 S.W.3d
at 14. A trial court acts outside its discretion in dismissing a case for discovery abuse when
there is no record of “willful or dilatory conduct,” Pegues v. Illinois Cent. R. Co., 288
S.W.3d 350, 351 (Tenn. Ct. App. 2008), or when the non-moving party’s failure to respond
to discovery was not sufficiently “contumacious.” Murray v. Christian Methodist Episcopal
Church, 153 S.W.3d 371 (Tenn. Ct. App. 2004). Contumacious is defined as “scornful” or
“recalcitrant.” Bryan Garner, A Dictionary of Modern Legal Usage 220 (2nd ed. 1995); see
also Galde v. Keritsis, No. 03A01-9807-CH-00228, 1999 WL 496630, at *3–*4 (Tenn. Ct.
App. July 15, 1999) (characterizing the conduct as “egregiously scornful of the judicial
process”). Indeed, the word is described as a synonym for “contemptuous.” Modern Legal
Usage, at 220. Black’s Law Dictionary further defines “contumacious conduct” as
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“[w]illfully stubborn and disobedient conduct, commonly punishable as contempt of court.”
Black’s Law Dictionary 298 (5th ed. 1979). “Dilatory,” in contrast, simply means “tending
to cause delay.” Modern Legal Usage, at 277; see also Black’s, at 411 (defining “dilatory”
as “[t]ending or intended to cause delay or to gain time or to put off a decision”).
Accordingly, in order to justify the harsh result of dismissal, the party’s actions in failing to
timely respond to discovery must both tend to cause a delay and be “scornful” or “willfully
stubborn.”
The question of whether conduct was sufficiently contumacious to justify the
dismissal of a case has been previously considered by this Court. See Murray v. Christian
Methodist Episcopal Church, 153 S.W.3d 371 (Tenn. Ct. App. 2004). In Murray, the
plaintiff contractor filed a complaint for damages on May 17, 2000 against the defendant
church to recover amounts owed for construction work on property that was allegedly owned
by the church. Id. at 373. The contractor filed interrogatories concurrent with his complaint.
The Church, however, attempted to resist service of process on the complaint and
interrogatories, claiming that it was not the owner of the property at issue. The church was
eventually served through the Secretary of State after the Secretary of State threatened to
resolve its charter if it did not accept service of process. The contractor filed a motion for
a default judgment on November 7, 2000, alleging that the church had failed to timely file
an answer. Id. at 374. The Church filed an answer on November 15, 2000, alleging that the
contractor failed to join an indispensable party, the true owner of the property. On November
21, 2000, the contractor filed a motion to compel, asserting that the church failed to respond
to any of his discovery requests. The contractor requested that he be granted a default
judgment against the church for its failure to respond to discovery. On December 14, 2000,
the church filed its discovery responses, in which it asserted that no employees or agents had
knowledge of the facts of the case because the church was not the true owner of the property
at issue. The Church objected to other requests on the bases that the requests were broad,
vague, or placed too onerous a burden on the church. Also on December 14, 2000, the
church filed a motion to dismiss the complaint, arguing that it was not a proper party.
On December 19, 2000, the trial court entered an order denying both the contractor’s
motion to compel and the motion for default judgment. The trial court, however, did express
displeasure at the church’s conduct, stating: “the [church] failed to file an Answer in a timely
manner and further failed to answer discovery in a timely manner and this Court finds no
legal justification or factual basis that possibly serve as an excuse for the conduct of the
[church].” The trial court later denied the church’s motion to dismiss. Id. at 374–75. On
August 29, 2001, the contractor again filed a motion to compel discovery and for sanctions.
The motion argued that the church had failed to properly respond to discovery because it had
refused to fully answer questions in the interrogatories, instead stating that it had no
knowledge of the facts alleged in the case. On September 4, 2001, the contractor
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propounded a second set of interrogatories upon the church. On September 14, 2001, the
trial court entered an order requiring the church to fully answer both outstanding discovery
requests by September 28, 2001. The trial court deferred the grant of sanctions pending the
final outcome of the litigation. Prior to the expiration of the deadline provided in its previous
order, however, the trial court held a status conference with the parties. After the conference,
a transcript of which was not contained in the record, the trial court granted the motion to
compel and awarded sanctions against the church, to be set at a later hearing. The trial court
also allowed the church’s attorney to withdraw and granted the church an additional five
days to answer the discovery requests. The church failed to respond to any of the discovery
requests. The church later alleged that any further responses would be futile since the church
was not a proper party to the action. Id. at 375.
On October 10, 2001, the trial court held a hearing on the award of sanctions. Again,
no transcript of the hearing was contained in the record. The trial court first concluded that
the church’s original discovery responses were “inadequate, incomplete, evasive, and
amounted to a complete failure to respond.” Id. at 376. The trial court further concluded that
having failed to respond to the additional discovery propounded by the contractor, the
church “engaged in a clear pattern of discovery abuse, stonewalling, and delay throughout
this litigation.” Id. Consequently, the trial court granted a default judgment in favor of the
contractor and an order was entered memorializing that ruling on October 15, 2001. The trial
court later awarded both compensatory and punitive damages to the contractor. Id.
On appeal, the church argued that the sanction imposed by the trial court was too
harsh considering the particular facts of the case. Id. at 377. This Court agreed, noting that
“[u]nder caselaw, it is clear that the issue of whether the grant of a default judgment was
justified under the ‘clear record of delay or contumacious conduct’ standard is determined
on a case by case basis.” Id. at 378. The Court further noted that, in other cases in which the
trial court’s grant of default was affirmed, the failure to respond to discovery was: repeated,
see Galde, 1999 WL 496630, at *3–*4; without any excusable neglect, see American
Steinwinter Investor Group v. American Steinwinter, Inc., 964 S.W.2d 569, 574 (Tenn.
Ct. App. 1997); involved perjured discovery responses, see Potts v. Mayforth, 59 S.W.3d
167, 172 (Tenn. Ct. App. 2001); or resulted in a delay for over a year. See Shahrdar v.
Global Hous., Inc., 983 S.W.2d 230, 233 (Tenn. Ct. App. 1998). The Court of Appeals held
that, although the case presented a “close question,” the facts did not rise to the level of
contumacious conduct required to justify such a harsh sanction. Murray, 153 S.W.3d at
378. The Court explained that the church consistently maintained that it was not a proper
party to the suit, and that, at the time of the first motion to compel, the church was guilty of
“little discovery misconduct” because it had filed, albeit belatedly, its answer and original
discovery responses. In addition, the Court noted that the inadequacy of the church’s
responses was not raised by the plaintiff contractor until August 2001, nearly eight months
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after the church responded to discovery and the only order granting a motion to compel was
entered when the church was effectively without counsel. The Court further disagreed with
the trial court’s characterization that the church had entered into a calculated scheme to
stonewall the contractor’s litigation. Id. at 380–81.
The circumstances in this case similarly fail to rise to the level of contumacious
conduct found in other cases in which the trial court’s dismissal or default judgment was
affirmed on appeal. For example, unlike in Shahrdar, in which the case was delayed for
over eighteen months by the conduct of the defendant, this case was delayed less than four
months from the time the discovery was due to the time that the case was orally dismissed
by the trial court. Shahrdar, 983 S.W.2d 233. Indeed, the case-at-bar fails to even rise to
the level of delay found in Murray. In Murray, the church was approximately six months
late responding to the first set of discovery requests and never responded to the second
request propounded by the plaintiff contractor. Murray, 153 S.W.3d at 376–8. In this case,
the record shows that American Express did respond to the discovery requests, albeit
approximately four months late. Indeed, the record shows that American Express responded
to Mr. Lowrey’s Request for Production of Documents within the time allotted by the trial
court after the order on the motion to compel. Only the responses to the Interrogatories were
delayed, and only for a short time after the deadline expired. Although Mr. Lowrey asserts
that the responses ultimately submitted by American Express were inadequate, this
contention is unsupported in the record, as the trial court never entered an order stating that
the responses proffered by American Express were insufficient. Further, while the trial court
granted the default judgment in Murray after both the discovery and the entire case
languished for sixteen months, only approximately eleven months passed between the filing
of the complaint and the entry of the order dismissing the case-at-bar, and a mere five
months passed between the time Mr. Lowrey’s discovery requests were served on American
Express and when the case was eventually dismissed.
Additionally, unlike the party in Steinwinter, American Express did offer an
explanation for its failure to timely return the interrogatory responses, through the affidavit
of American Express’s custodian of records. This affidavit tends to show that the delay in
returning the responses was the result of excusable neglect. See Steinwinter, 964 S.W.2d at
574. American Express also offered another explanation for its failure to respond to
discovery; according to American Express, many of the pertinent documents regarding this
case were originally filed along with its Motion for Summary Judgement on September 7,
2010, one day after American Express received Mr. Lowrey’s discovery requests.
Accordingly, as in Murray, American Express asserted that it had no additional documents
to produce. See Murray, 153 S.W.3d at 378. Indeed, from our review of the record, some
of the documents produced by American Express in support of its Motion for Summary
Judgment are responsive to Mr. Lowrey’s discovery requests, including requests regarding
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the original contract and account statements. The Motion for Summary Judgment, and its
accompanying documentation, were filed well within the thirty-day time period for
responding to discovery. Although the documents are relevant to many of Mr. Lowrey’s
discovery requests, the proffered documents fail to fully respond to all of Mr. Lowrey’s
discovery requests, specifically his Interrogatories; however, these documents show that
American Express was not withholding documents from Mr. Lowrey in an attempt to be
“evasive,” “stubbornly willful,” or to “stonewall[]” Mr. Lowrey’s defense. See Id. at 376;
Black’s Law Dictionary, at 298. While we agree that American Express acted
inappropriately in defying the trial court’s order to fully respond to discovery within the
given time frame, the facts of this case simply do not rise to the level of contumacious
conduct required to justify dismissal with prejudice. Accordingly, the trial court’s order is
reversed and this cause is remanded to the trial court for further proceedings as may be
necessary and consistent with this opinion. Costs of this appeal are taxed to Appellee John
Lowrey, for which execution may issue, if necessary.
_________________________________
J. STEVEN STAFFORD, JUDGE
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