Devault v. Steven L. Herndon, A Professional Ass'n

• Decision Date: 31 May 1984
• Docket Number: No. 14288,14288
• Citation: 684 P.2d 978,107 Idaho 1
• Parties: Jack Dempsey DEVAULT, Plaintiff-appellant, v. STEVEN L. HERNDON, A PROFESSIONAL ASSOCIATION, and Steven L. Herndon, individually, Defendant-respondent, and Glenn Bandelin and Lucinda Weiss, Defendants.
• Court: Idaho Supreme Court

Page 978

684 P.2d 978

107 Idaho 1

Jack Dempsey DEVAULT, Plaintiff-appellant, v. STEVEN L. HERNDON, A PROFESSIONAL ASSOCIATION, and Steven L. Herndon, individually, Defendant-respondent, and Glenn Bandelin and Lucinda Weiss, Defendants.

No. 14288.

Supreme Court of Idaho.

May 31, 1984.

David A. Manko, Coeur d'Alene, for plaintiff-appellant.

William A. McCurdy, of Quane, Smith, Howard & Hull, Boise, Idaho, for defendant-respondent.

BAKES, Justice.

Appellant appeals from the trial court's dismissal of his legal malpractice action, with prejudice, for the failure of appellant to comply with previously issued discovery orders. We affirm.

Appellant brought this action to recover for the alleged malpractice of Stephen Herndon in his prosecution of another case against a third party. ¹ The complaint in this action was filed January 10, 1978. The case was finally set for trial beginning April 13, 1981.

On January 5, 1981, Herndon filed a request for production of the documents used as exhibits in the prior trial against the third party. When the documents were not produced, Herndon, on February 26, 1981, filed a motion to compel production of documents and a motion in limine, seeking an order of the court to force appellant to produce the documents previously requested, and provide information about proposed expert testimony, or be penalized by exclusion of such documents and expert testimony at trial. See I.R.C.P. 37(a). After a court hearing on March 6, 1981, an order was filed by the trial court compelling production of the documents and disclosure of plaintiff's expert testimony. The order set a deadline for compliance of March 13, 1981.

Devault failed to comply with the above order, and on March 20, 1981, Herndon filed a renewed motion in limine to exclude the evidence covered by these motions. At a hearing April 2, the trial court again ordered Devault to provide the requested documents and information on or before April 30, 1981. In that same order the trial court also commanded that Devault respond in writing to Herndon's settlement offer before April 8, 1981. The trial setting of April 13, 1981, had to be vacated. Devault again never complied with the order.

On June 10, 1981, Herndon moved to dismiss the action as a sanction for Devault's failure to comply with any of the previously outlined orders. After a hearing, the trial court granted that dismissal. Appellant Devault appeals from the dismissal.

I.R.C.P. 37(b) outlines the sanctions available to the trial court when a party fails to comply with discovery orders.

"Rule 37(b). Failure to comply with discovery order--Sanctions.--...

"(2) Sanctions by court in which action is pending. If a party ... fails to obey an order to provide or permit discovery, including an order made under subdivision (a) of this rule or Rule 35, 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:

....

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

...." (Emphasis added.)

This rule gives the trial court discretion to impose any of several different sanctions, including dismissal of the action. Such a dismissal by the trial court will not be overturned absent a showing of abuse of the trial court's discretion. See Von Poppenheim v. Portland Boxing & Wrestling Comm'n, 442 F.2d 1047 (9th Cir.1971), cert. den. 404 U.S. 1039, 92 S.Ct. 715, 30 L.Ed.2d 731 (1972); Pinakatt v. Mercy Hospital, Inc., 394 So.2d 441 (Fla.App.1981); Spencer v. McLaughlin, 256 So.2d 385 (Fla.App.1972); Lerman v. Portland, 406 A.2d 903 (Me.1979), cert. den. 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790. See also Annot., Dismissal of Action for Failure or Refusal of Plaintiff to Obey Court Order, 4 A.L.R.2d 348 (1949), and later case service. For federal cases dealing with this same issue under Federal Rule of Civil Procedure 37(b), see 4A Moore's Federal Practice, § 37.03.

The United States Supreme Court, in interpreting the identical federal rule, has held that the sanctions under the rule were intended to punish misconduct and deter others involved in litigation to prevent abuse in connection with discovery, and that a determination of whether a party's actions were of sufficient bad faith to justify dismissal is within the discretion of the trial court. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976).

Appellant argues that any failure to comply with orders of the court was the fault of his attorney; thus, he should not be penalized by dismissal of his action. However, litigants freely choose their attorneys and cannot avoid the consequences of the attorney's actions. See Link v. Wabash RR Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962). As recently stated by the 9th Circuit in Chism v. National Heritage Life Ins. Co., 637 F.2d 1328 (9th Cir.1981):

"In upholding the district court's dismissal of this action, we recognize that the result may well penalize Appellant more directly than his counsel. However, that is the consequence of the rule allowing dismissals. In recognizing the relative hardship upon Appellant as distinguished from counsel, it must be kept in mind that district courts cannot function efficiently unless they can effectively require compliance with reasonable rules. Absence of meaningful power to require that compliance would make for disorder and preclude effective judicial administration at the trial court level." Id. at 1332.

In this case, the trial court was faced with a repeated refusal to comply with specific, direct orders of the court instructing plaintiff to produce certain documents and information, which repeated refusal resulted in the trial having to be delayed at least once, and which would have required a second delay had the motion not been granted. There was no showing of the inability of the plaintiff to comply with these orders. ² The granting of the motion to dismiss did not constitute an abuse of discretion.

Judgment of the lower court affirmed. Costs to respondent.

DONALDSON, C.J., and McFADDEN, J., pro tem., concur.

HUNTLEY, Justice, dissenting.

If I were to decide this case solely on the facts set forth in the majority opinion, I would no doubt concur with the majority but when the applicable standard of review is superimposed on the complete factual background, the extreme sanction of dismissal was not only unwarranted but is a gross miscarriage of justice.

There are many cases holding that dismissal is an extreme sanction which should not be employed without:

(1) some showing of bad faith on the client's part as distinct from the attorney's conduct; and

(2) other less severe sanctions having first been imposed.

The best statement of the underlying rationale of this line of cases is found in Jackson v. Washington Monthly Co., 569 F.2d 119, 123 (D.C.Cir.1977):

We are constrained to conclude this appeal on a note of caution. Trial court dismissal of a lawsuit never heard on its merits is a drastic step, normally to be taken only after unfruitful resort to lesser sanctions. And while appellate review is limited by the binding authority of Link to whether judicial discretion has been abused, a sound discretion hardly comprehends a pointless exaction of retribution. Dismissals for misconduct attributable to lawyers and in no wise to their clients invariably penalize the innocent and may let the guilty off scot-free. That curious treatment strikes us as both anamalous and self-defeating. When the client has not personally misbehaved and his opponent in the litigation has not been harmed, the interests of justice are better served by an exercise of discretion in favor of appropriate action against the lawyer as the medium for vindication of the judicial process and protection of the citizenry from future imposition. Public confidence in the legal system is not enhanced when one component punishes blameless litigants for the misdoings of another component of the system; to laymen unfamiliar with the fundamentals of agency law, that can only convey the erroneous impression that lawyers protect other lawyers at the expense of everyone else. (Emphasis added).

Generally speaking, under the principles which appellant urges on this Court, the reviewing Court first reviews the case with an eye toward finding other lesser sanctions which could be imposed on the errant party. Flaska v. Little River Marine Construction Co., 389 F.2d 885 (5th Cir.) cert den. 392 U.S. 928, 88 S.Ct. 2287, 20 L.Ed.2d 1387 (1968); Asociacion de Empleados del Instituto de Cultura Puertorriquena v. Rodriguez Morales, 538 F.2d 915 (1st Cir.1976); Industrial Building Materials, Inc. v. Interchemical Corp., 437 F.2d 1336 (9th Cir.1970); Himalayan Industries v. Gibson Manufacturing Co., 434 F.2d 403 (9th Cir.1970).

Should the result of the review show that lesser sanctions were available, and the court is left with the impression that these lesser sanctions would have sufficiently punished the errant party, then the court should overturn the imposition of the harsher sanctions.

Now, we consider the additional, and perhaps controlling, facts.

Mr. Devault was first represented at the time the action was filed by attorney Thomas Smith of Spokane, with Everett Hofmeister being resident counsel. During the time in question, Mr. Smith developed a conflict of interest and filed a motion to withdraw as attorney, which motion was actually heard and granted on the day of the hearing on motion for imposition of sanctions. Defense counsel did not object to of Smith's withdrawal because he understood Hofmeister would assume the position as lead counsel.

However, Mr. Hofmeister was not in a position to become lead counsel and directed Devault to seek another...