Coulson Oil Co., Inc. v. Tully

• Court: Arkansas Court of Appeals
• Writing for the Court: John Mauzy Pittman
• Citation: Coulson Oil Co., Inc. v. Tully, 84 Ark. App. 241, 139 S.W.3d 158 (Ark. App. 2003)
• Decision Date: 17 December 2003
• Docket Number: No. CA 03-555.,CA 03-555.
• Parties: COULSON OIL CO., INC., and Coulson Properties, LLC v. Christopher TULLY and Michelle Tully.

139 S.W.3d 158

84 Ark.App. 241

COULSON OIL CO., INC., and Coulson Properties, LLC v. Christopher TULLY and Michelle Tully.

No. CA 03-555.

Court of Appeals of Arkansas, Division II.

December 17, 2003.

Appeal from the Saline Circuit Court, Gary M. Arnold, J Barber, McCaskill, Jones & Hale, P.A., by: R. Kenny McCulloch and Perry L. Wilson, Little Rock, for appellants.

Lovell & Nalley, by: John Doyle Nalley, Benton, for appellees.

JOHN MAUZY PITTMAN, Judge.

Coulson Oil Co., Inc., and Coulson Properties, LLC ("Coulson"), have taken an interlocutory appeal from the Saline County Circuit Court's imposition of sanctions, including the striking of their answer, for lying in their responses to discovery propounded by appellees Christopher Tully and Michelle Tully. On appeal, the primary issue is whether, under the facts presented, the trial court abused its discretion in imposing these sanctions. We hold that the trial court did not abuse its discretion, and we affirm.

Procedural History

In August 2001, Mr. Tully was injured in an accident at a Sherwood convenience store leased by Coulson to Robert Baynes when his pickup truck dropped into a hole in the pavement caused by a broken metal cover for an underground gasoline tank. He and his wife filed this negligence action in April 2002, alleging that Coulson was negligent in maintaining its property. The Tullys propounded interrogatories to Coulson requesting information about maintenance and repairs of the tank cover that had caused the accident. In their responses filed August 20, 2002, and September 4, 2002, Coulson denied having any responsibility for the maintenance or repairs of the tank covers and stated that they were the responsibility of Robert Baynes. The August 20, 2002, responses stated in part:

INTERROGATORY NO. 6: Attached as Exhibit "A" is a photograph showing the metal cover, which caused Plaintiff's damages and injuries, in regards, please state:

a. The date the cover was broken, and how it was broken;

b. The name, address and telephone number of all persons with knowledge concerning how the cover was broken and/or repaired;

c. The name, address, phone number of the person or persons who discovered that the metal cover described in the Complaint was missing or broken;

d. The date and time the metal cover was replaced or repaired, and the name, address and home number of the person or persons making such repair; and

e. If there was an incident or accident report made.

RESPONSE: Coulson Oil Co. was not aware the metal cover was broken until this lawsuit was filed.

The September 4, 2002, responses included the following statements:

INTERROGATORY NO. 2: Please state the name, address and telephone number of the person(s) and/or entity which was responsible for maintaining the fuel tank covers at the location where this accident took place as of the date of the accident.

RESPONSE: Robert Baynes.

REQUEST FOR PRODUCTION NO. 1: Please produce and attach all documentation concerning maintenance and/or repair of the fuel tanks and fuel tank covers where this accident took place from two (2) years preceding the date of the accident to-date.

RESPONSE: Defendant does not have this information.

INTERROGATORY NO. 3: Please state the name, address and telephone number of the person(s) responsible for inspecting the fuel tank covers where this accident took place as of the date of this accident.

RESPONSE: Robert Baynes and/or his employees.

INTERROGATORY NO. 4: Please state whether any repairs were made to the fuel tanks, fuel tank covers and/or surrounding areas after the day of Plaintiff's accident.

RESPONSE: Defendant was not responsible for upkeep of the fuel tanks, fuel tank covers, or surrounding areas, therefore, this information is unknown to Defendant.

INTERROGATORY NO. 5: If your answer to the preceding Interrogatory was affirmative, please state the name, address and telephone number of each person(s) and/or entity which made any such repairs.

RESPONSE: See response to Interrogatory No. 4.

REQUEST FOR PRODUCTION NO. 2: Please produce and attach all documentation evidencing the repairs referenced in Interrogatory Number 5 & 6 above.

RESPONSE: Defendant is not in possession of this information, please see response to Interrogatory No. 4.

INTERROGATORY NO. 6: Does the Defendant contend that any person(s) or entity was responsible for maintaining the fuel tanks and/or fuel tank covers on the date of the accident, other than Defendant and its employees? If so, please provide the name, address, telephone number, and place of employment of any such person or entity.

RESPONSE: Yes, Robert Baynes.

The Tullys filed an amended complaint in September 2002 naming Mr. Baynes as a defendant. During a deposition taken of Mr. Baynes on January 15, 2003, the Tullys learned that Coulson had made repairs to the tank cover involved in this accident. The Tullys' attorney immediately sent a letter to Coulson's attorney requesting information about Coulson's repairs to the property. A few days later, Coulson's attorney sent a letter supplementing its earlier responses to discovery by listing additional witnesses with knowledge of Coulson's repairs to the tank cover and copies of repair bills paid by Coulson. He stated:

I am writing to your recent inquiry as to the identity to [sic] certain individuals who may have knowledge of repairs made to the parking lot area after the August 8, 2001 accident. Please consider this letter as supplementation to Interrogatory Nos. 6 and 8 of the Interrogatories propounded to Coulson Oil Company, Inc.

INTERROGATORY NO. 6(b) — should be supplemented to show that there are individuals that have information concerning the repair of the "manway" area. To Defendant's knowledge, the cover was not broken but a repair was made to the area. The individuals with the information concerning the repair include Mark Simpson, Larry McArthur, Francis Bright, and Dick Kohler of Coulson Oil Company and Cruzen Equipment Company, Inc., 9100 Interstate 30, Little Rock, Arkansas, (501) 374-1515.

INTERROGATORY NO. 6(d) — should be amended to reflect that Cruzen Equipment Company, Inc. performed the above stated repair some time after October 5, 2001.

INTERROGATORY NO. 8 — should be supplemented to show that Mark Simpson, Larry McArthur, Francis Bright, Dick Kohler, representatives of Cruzen Equipment Company, Inc., John K. Jones of John K. Jones & Associates Tax Service, 154222 Interstate 30, Benton, Arkansas, may be called to testify at the trial of this matter. These individuals will testify concerning the condition of the manway/monitoring well prior to Plaintiff's accident and repairs made to the manway/monitoring well following the accident. Cruzen Equipment Company, Inc. employees may testify as to the repairs made to the manway/monitoring well which were discovered following the Plaintiff's accident.

....

INTERROGATORY NO. 10 — Defendant may introduce various photographs taken of the subject area at various times. In addition, Defendant may introduce copies of work orders from Pollution Management, Inc. referencing installation of a verter route tank monitoring system in May of 2001. (See attached work orders and invoice from Pollution Management, Inc.) Also see attached invoices from Cruzen Equipment Company, Inc. concerning repair work on the manway/monitoring well. In addition, Defendant reserves the right to introduce copies of Plaintiff's income tax returns filed prior to and following the accident, as well as copies of Plaintiff's medical records.

The Tullys filed a motion for sanctions against Coulson for having lied in their responses to discovery. In response, Coulson denied that it had lied and asserted that it had made diligent inquiry of the matters requested in discovery. At a hearing on the motion, the trial court found that Coulson had lied:

THE COURT: Well, the problem I have with that position ... is you put the parties submitting interrogatories in a position of having to assume that the responses are probably not truthful, and, therefore, you need to go find people who will reveal that they're not truthful and take their deposition or ask them questions so that you can force the person to tell the truth, and while I understand what you're saying, and I agree, I'm sure Mr. Nalley's accurate, it's no wrongdoing on your part, I think it's a flagrant disregard for our whole system to allow a litigant to attempt to get away with that. If he hadn't taken that deposition, they would have. They would have absolutely gotten away with telling a lie. As far as I'm concerned, they lied to the Court. They just flat out lied. There's an unequivocal answer in there that says, it's not our responsibility, absolutely unequivocal. There's nothing to supplement that with. There's nothing incomplete about that. That is a flat out, no, it's not our responsibility, and now you tell me, whoops you caught us, it's okay, we can fix it, it is our responsibility, no, that is absolutely wrong, fundamentally wrong to our whole system. If I can find a way, I will definitely sanction Coulson Oil for flat out lying in this lawsuit, just absolutely flagrantly telling a lie and trying to get away with it. Apparently, they have up to a point but if there's a sanction available, they are going to be subject to it, I can assure you.

....

Two questions in particular really bother me beforehand and still do, "Please produce and attach all documentation concerning maintenance and/or repair to the fuel tanks and fuel tank covers where this accident took place from two years preceding this date to the date of the accident." Response: "Defendant does not have this information." The next one — I skipped one, Number four, "Please state whether any repairs were made to fuel tanks, fuel tank covers and/or surrounding areas after the day of the Plaintiff accident." "Defendant was not responsible for the upkeep of the fuel tanks, fuel tank covers or...