ABELL v. WANG

• Decision Date: 29 May 1997
• Docket Number: No. 96-CV-412,96-CV-412
• Citation: 697 A.2d 796
• Parties: Vincent L. ABELL, Appellant, v. Laihsing WANG & Helen C. Young, Appellees.
• Court: D.C. Court of Appeals

697 A.2d 796

VINCENT L. ABELL, APPELLANT, v. LAIHSING WANG & HELEN C. YOUNG, APPELLEES.

No. 96-CV-412

DISTRICT OF COLUMBIA COURT OF APPEALS

April 16, 1997, Submitted

May 29, 1997, Decided

Marta Bertola for appellant.

Mary S. Akerly for appellee Wang.

Alan Scott Gregory for appellee Young.

Before FERREN, FARRELL, and KING, Associates Judges.

FERREN

FERREN, Associate Judge: Plaintiff-appellant, Vincent L. Abell, appeals from the trial court's order granting summary judgment to defendants-appellees, Laihsing Wang and Helen Young, whose row house next door to Abell's allegedly had structural defects that caused damage to Abell's house. The court entered the order because there was nothing left of Abell's case. Previous rulings -- sanctions for failure to comply with the court's scheduling order -- had granted Wang's and Young's joint motion to strike Abell's Rule 34 request for his experts to inspect defendants' property, and had denied Abell's motion to file late his list of expert witnesses and his statement, pursuant to Super. Ct. Civ. R. 26 (b)(4), explaining what his expert witnesses would say. Without expert testimony, therefore, Abell had no credible, provable story to tell the jury. Because we cannot tell whether the motions judges' summary decisions, without hearings, on these motions amounted to abuses of discretion, we reverse and remand for reconsideration of these rulings after a hearing.

I.

On October 25, 1994, Abell, then pro se, filed a complaint against Wang and Young alleging the following facts: (1) in 1991, Abell purchased a row house at 3226 19th St., N.W.; (2) the house was physically connected to the neighboring house, then owned by Young; (3) Abell warned Young that certain structural defects in Young's property were capable of damaging Abell's property (specifically, that Young's house "pulled" on Abell's), and that Young needed to repair these defects; (4) Young declined to take any action but instead sold the property to Wang, who also was aware of these defects but, like Young, took no action; (5) as a result, when Abell contracted to sell his property in 1992 for $ 245,000, he was forced before closing to reduce the price to $ 200,000, in order to allow for repairs by the purchaser that Young's and Wang's failure to act made necessary. Wang and Young filed answers denying liability.

On April 12, 1995, counsel for Wang and Young deposed Abell. During the deposition, Abell refused to answer certain questions he thought were irrelevant and invaded his privacy. At the same time, counsel asked Abell to provide documents pertaining to his real estate license, his tax returns, and a sketch of the structural defect by an expert whom Abell had consulted. Abell agreed to provide the sketch but not the tax returns (which, he said, as joint returns would violate his wife's privacy) or the real estate license (which he believed was irrelevant). Abell also refused to provide certain other documents specifically requested in writing (such as material related to renovation and work permits), and he refused to answer particular questions on deposition (such as requests for his social security number and felony convictions) because he found them irrelevant and invasive of his privacy. Finally, the parties agreed to conduct a joint inspection of Wang's property on June 6 (later changed by agreement to June 15) pursuant to Abell's request under Super. Ct. Civ. R. 34.

On April 14, 1995, Judge Dorsey issued a scheduling order, which required all parties to exchange discovery requests and witness lists by June 14, 1995. It also required Abell to provide, at the same time, a statement to Wang and Young pursuant to Super. Ct. Civ. R. 26 (b)(4), explaining what his expert witnesses would establish with their testimony. The order required Wang and Young to respond with their own Rule 26 (b)(4) statements no later than July 14. The order also established a deadline for filing all motions: August 29, 1995.

On May 24, 1995, counsel for Wang informed all the parties that, because Wang would not recover from back surgery by June 6, the later-agreed inspection date, June 15, would be used. As a result, the court's scheduling order was already in jeopardy, since Abell's experts' inspection of the property presumably was needed before Abell could file his Rule 26 (b)(4) statement due June 14.

Abell did not attend the June 15 inspection. In a letter dated June 12, but actually sent by Federal Express on June 13, Abell notified Young and Wang that he wanted to reschedule the inspection for July 19. Abell made no attempt to telephone Wang and Young about the date change, relying exclusively on the mailed notice. Abell included in the Federal Express package his interrogatories and other discovery requests in accordance with the scheduling order, but he failed to include his witness list and Rule 26 (b)(4) statement due on June 14.

Counsel for Wang received Abell's mailed notice on June 14. 1 She attempted to reach Abell by phone but succeeded only in reaching his answering machine. She left a message for Abell on the 14th explaining that she and counsel for Young could not reschedule on such short notice and that the inspection would happen the next day, as agreed, or not at all. On June 15, Young, Wang, and their counsel and experts went to the Wang property for the inspection. Abell did not appear and could not be reached by phone.

Nothing happened until July 3, when counsel for Wang notified Abell by letter that the defendants would file a motion to compel discovery of the documents Abell had refused to provide, as well as a motion to strike Abell's Rule 34 notice of intent to inspect the property. Counsel cited two reasons for the latter motion: Abell's failure to attend the June 15 inspection without adequate notice, and his failure to name an expert witness to conduct the inspection, which Abell himself admittedly was unqualified to do.

Wang and Young, whose experts presumably had inspected the property, filed their Rule 26 (b)(4) statements, respectively, on July 12 and July 14, both on time under the scheduling order. Defendants, however, filed their joint witness list one month late, on July 14, without explanation and without seeking leave of court to file out of time.

Five weeks late, on July 20, Abell -- without having inspected the property -- provided defendants with a witness list and a Rule 26 (b)(4) statement (as defendants acknowledge in their brief on appeal). 2 In his cover letter Abell apologized for neglecting to send these earlier, claiming that the failure had resulted from a simple oversight attributable to his focusing on the discovery request deadline and on his efforts to coordinate with his experts to try to make the June 15 inspection. He further suggested that, in any event, no harm had been done because defendants themselves had missed the deadline for their own witness list, filing it a month late. Finally, Abell said that he had thought the June 15 date was tentative, and he suggested that defendants -- by waiting until the "end of May" to confirm the date -- had failed to give him sufficient time to line up his experts. He also protested the threat of a motion to compel, stressing that defendants had failed to provide him with documents he had requested and had not yet answered his interrogatories.

On the same day, July 20, Young and Wang filed a "Joint Motion to Strike Plaintiffs Rule 34 Request and to Compel Discovery." In it, they asked the court to deny Abell's Rule 34 request for inspection of the property (since he had failed to name his experts essential to the inspection) and to award them attorney fees and costs for their own experts' time. They also asked the court to compel the production of Abell's expert's sketch, Abell's documents pertaining to repairs, and the answers to deposition questions that Abell had refused to provide. Separately, Young and Wang responded to Abell's interrogatories and discovery requests.

On August 2, Abell filed "Plaintiff's Opposition to Defendants' Joint Motion to Strike Plaintiffs Rule 34 Request and to Compel Discovery and Cross-Motion For Leave to File Out of Time." In this dual pleading, reflecting his July 20 letter to defendants, Abell argued that his failure to comply with the scheduling order was the result of excusable neglect because of the pressing discovery due date and his need to coordinate with his experts. He said that he had been unable to reach his three experts and "get them to concur on the date." He called his inability to do so by June 15 the defendants' fault, because they had not confirmed the date of the inspection until May 24. He therefore asked the court for permission to file his expert witness list and Rule 26 (b)(4) statement out of time. Abell pointed out that defendants themselves had filed their joint witness list a month late, without leave of the court, and would suffer little prejudice if the court granted the cross-motion. Abell, however, would suffer great prejudice, he said, if the court granted defendants' motion, because without an inspection of the property by his experts he would be unable to prove his case. As to defendants' motion to compel discovery, Abell made the same objections he had made to Young and Wang earlier regarding relevance and privacy, and he added that the requested documents relating to repairs did not exist because the repairs had been carried out under oral agreements.

On the same day, Abell sent several of the requested documents to defendants and noted in his cover letter that defendants' responses to his interrogatories and request for production of documents were incomplete. The next day Abell sent a separate letter to counsel for Young complaining about Young's failure to provide certain other discovery material, apparently concerning insurance.

There followed a series of dismissals and refilings on purely technical grounds. On August 17, Judge Dorsey dismissed...