Darrington v. Wade

• Decision Date: 21 May 1991
• Docket Number: No. 900544-CA,900544-CA
• Citation: Darrington v. Wade, 812 P.2d 452 (Utah App. 1991)
• Parties: Troy DARRINGTON, Plaintiff and Appellant, v. Stanley L. WADE, Janet Wade, and Robert Iverson, Defendants and Appellees.
• Court: Utah Court of Appeals

Page 452

812 P.2d 452

Troy DARRINGTON, Plaintiff and Appellant, v. Stanley L. WADE, Janet Wade, and Robert Iverson, Defendants and Appellees.

No. 900544-CA.

Court of Appeals of Utah.

May 21, 1991.

Denver C. Snuffer, Jr. (argued), Maddox, Nelson & Snuffer, Murray, for plaintiff and appellant.

A. Paul Schwenke, Johnson and Associates, Salt Lake City, for defendants and appellees.

Before BILLINGS, GARFF and ORME, JJ.

OPINION

ORME, Judge:

Plaintiff appeals the lifting of default judgment in his favor and the entry of summary judgment for defendants in a personal injury action. Finding no error in the court's decision to vacate the default judgment but finding unresolved issues of material fact, we reverse and remand.

FACTS

Stanley and Janet Wade, the defendants in this case, are the owners of what was originally a vacant lot. At some point, an enterprising individual approached Wades about the possibility of leasing the lot for the purpose of constructing a skateboard park. The facts giving rise to this action occurred several years later, after construction of the skateboard park had been completed and tenancy had changed several times.

On May 23, 1983, Wades leased the skateboard park to defendant Robert Iverson. Iverson's stated intention was to open the skateboard park to the public and charge admission for its use. Sixteen days later, Troy Darrington was injured while using one of the skateboard runs at the park.

Darrington's injuries apparently resulted from a missing drain cover at the bottom of the run he was using. He crashed abruptly when his skateboard lodged in the drain hole where the cover should have been.

There is some dispute regarding the missing drain cover. According to Darrington, who used the skateboard park with some frequency, one of the other runs had previously been "abandoned" because of a missing drain cover, although there is no evidence that the abandoned run had been fenced off, posted with a warning sign, or otherwise prohibited from public use. However, skateboarders apparently refrained from using it because of the danger involved in using the run without a drain cover. Darrington says he avoided using the abandoned run for that very reason. On the day he was injured, however, Darrington claims that the drain cover had been taken from the regularly used run he was on to cover the drain opening in the abandoned run. Darrington claims he was injured in the run from which the drain cover had been taken because he did not know it was missing until it was too late.

PROCEDURAL BACKGROUND

Darrington filed a complaint against Stanley and Janet Wade on September 16, 1983. Sometime later he amended the complaint to include the tenant, Robert Iverson, against whom default judgment was subsequently entered. That judgment is not in issue here.

From the outset Wades attempted to elude Darrington's claims rather than to face them. Ultimately process had to be served by publication, and Wades finally answered through an attorney. During the next two years Wades refused to cooperate with discovery and changed attorneys twice. Darrington's counsel doggedly pursued the case, however, and finally moved to have Wades' pleadings stricken and default judgment entered against them as a discovery sanction.

In October 1986, the trial court granted Darrington's motion for sanctions and entered default against Wades for failing to answer Darrington's interrogatories. The court limited the forthcoming default judgment to the issue of liability, however, and reserved the issue of damages for an evidentiary hearing. Darrington's attorney nonetheless submitted an affidavit as to damages and prepared an order which included an award of damages. Either at Darrington's urging or by inadvertence, the court signed the order and thereby entered a default judgment for the full amount shown in the affidavit.

Wades then changed counsel yet again and their new lawyer moved the court to set aside the judgment, claiming that Wades were not aware default had been entered against them because their previous attorney neglected the case and failed to communicate with them. He also argued there was no evidentiary support for the money judgment, and that such a judgment was contrary to the court's previous order reserving the issue of damages for a hearing. Apparently persuaded by these arguments, the court set aside the judgment and reopened discovery.

Wades continued to be elusive and uncooperative, however, and in February 1988, Darrington again moved for discovery sanctions and to compel Wades' attendance to have their depositions taken. Wades contemporaneously moved for summary judgment. The court continued the motion for summary judgment and granted the motion to compel.

In compliance with the court's order compelling his appearance, Stanley Wade appeared to have his deposition taken. At the deposition, however, Wade failed to produce certain documents that Darrington had requested. Darrington then noticed a subsequent deposition for the production and explanation of the requested documents. When Wade failed to appear for that deposition, the court awarded costs and attorney fees as a discovery sanction. Darrington scheduled another deposition, but again Wade failed to appear. Once more, Darrington moved to have Wades' pleadings stricken and default judgment entered. Following a hearing on the motion, the court, in its order from the bench, granted the motion for sanctions, struck the pleadings, ordered payment of costs and attorney fees, and granted default judgment against Wades on the issue of liability.

When Darrington's counsel prepared the default judgment, however, he included a judgment for the full amount prayed. Although Wades filed a timely objection to the proposed judgment, for one reason or another the court signed the judgment, apparently without seeing the objection.

Although Wades did not ultimately file a notice of appeal at that juncture, the court granted their motion for an extension of time to appeal because their attorney claimed he never received notice that the default judgment had been entered. He claimed that he thought the court was still considering his objection. In supplemental memoranda filed with the court, Wades' attorney argued that the damages portion of the judgment prepared by Darrington's counsel went beyond the limited scope of the court's oral order granting a default judgment as to liability only. He also asserted that Stanley Wade had technically complied with the court's order compelling discovery by appearing to have his deposition taken at the time and place specified in the court's order, which did not mandate attendance at subsequent depositions.

Consequently, Wades' attorney argued that upon Stanley Wade's failure to attend the subsequent deposition, Darrington should have made another motion to compel rather than immediately moving for sanctions. Moreover, because Wade's subsequent failure to appear violated no court order, he argued that the discovery sanctions available under Rule 37(b)(2), including entry of default judgment, were inappropriately harsh. See Utah R.Civ.P. 37(b)(2). But see Utah R.Civ.P. 37(d); Schoney v. Memorial Estates, Inc., 790 P.2d 584, 585 (Utah Ct.App.1990). Despite Darrington's strenuous objections, the court was apparently persuaded by these arguments, and at Wades' urging again set aside the default judgment, entered another order compelling Stanley Wade to appear to have his deposition taken, and ordered payment of additional costs and attorney fees as a discovery sanction for Wade's latest failure to appear. The court subsequently denied Darrington's motion to have the default judgment reinstated.

After Stanley Wade's second deposition was taken in April 1988, Wades made a second motion for summary judgment. The court found that because the lease granted complete and exclusive control of the leased premises to Wades' tenant, defendant Iverson, Wades could not be held liable for Darrington's injuries at the skateboard park. Consequently, the court granted the motion and entered summary judgment against Darrington.

Darrington's appeal raises the following issues: (1) Did the trial court abuse its discretion in vacating the second default judgment and refusing to reinstate it? (2) Did the court err in granting the motion for summary judgment?

DEFAULT JUDGMENT

Darrington argues that the trial court abused its discretion in vacating the default judgment against Wades and refusing to reinstate it. ¹ He contends that because Wades refused to cooperate in discovery, and failed to make a proper Rule 60(b) motion to have the default judgment set aside, the court erred in vacating the judgment.

It is clear from the record that Wades were elusive and uncooperative defendants. ² Consequently, imposing some sort of Rule 37 discovery sanction on them was certainly justified and, under all the circumstances, we probably would not have found entry of default judgment to be so harsh as to constitute an abuse of discretion had the court chosen to leave that judgment in place. See Schoney v. Memorial Estates, Inc., 790 P.2d 584, 585-86 (Utah Ct.App.1990). See also Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 961-62 (Utah Ct.App.1989). Moreover, if the court had failed to impose any kind of discovery sanction we probably would have found an abuse of discretion. But default judgment is an unusually harsh sanction that should be meted out with caution, see Schettler, 768 P.2d at 961, and because the court imposed other appropriate discovery sanctions by awarding costs and attorney fees on several occasions, this is not a case where inappropriate discovery conduct went wholly unpunished.

Darrington claims, however, that regardless of the appropriateness of default judgment as a discovery sanction in this case, once the judgment was entered it could be vacated only in accordance with Rule 60(b), upon a proper motion to set aside...