Doulamis v. Alpine Lake Property Owners Ass'n, Inc.

• Decision Date: 13 November 1990
• Docket Number: No. 19547,19547
• Parties: Doris J. DOULAMIS v. ALPINE LAKE PROPERTY OWNERS ASSOCIATION, INC. and Ski Chalet, Inc.
• Court: West Virginia Supreme Court

Page 689

399 S.E.2d 689

184 W.Va. 107

Doris J. DOULAMIS v. ALPINE LAKE PROPERTY OWNERS ASSOCIATION, INC. and Ski Chalet, Inc.

No. 19547.

Supreme Court of Appeals of

West Virginia.

Nov. 13, 1990.

Syllabus by the Court

1. "Rule 37 of the West Virginia Rules of Civil Procedure is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules, i.e., Rules 26 through 36." Syllabus Point 1, Shreve v. Warren Assoc., Inc., --- W.Va. ----, 355 S.E.2d 389 (1987).

2. "Generally, under Rule 37 of the Rules of Civil Procedure to trigger the imposition of sanctions where a party refuses to comply with a discovery request, the other party must file a motion to have the court order discovery. If the discovery order is issued and not obeyed, then the party may seek sanctions under Rule 37(b) of the Rules of Civil Procedure." Syllabus Point 1, Prager v. Meckling, --- W.Va. ----, 310 S.E.2d 852 (1983).

3. "The imposition of sanctions by a circuit court under W.Va.R.Civ.P. 37(b) for the failure of a party to obey the court's order to provide or permit discovery is within the sound discretion of the court and will not be disturbed upon appeal unless there has been an abuse of that discretion." Syllabus Point 1, Bell v. Inland Mutual Insurance Co., --- W.Va. ----, 332 S.E.2d 127 (1985)cert. denied 474 U.S. 936, 106 S.Ct. 299, 88 L.Ed.2d 277 (1985).

4. "The striking of pleadings and the rendering of judgment by default against a party as sanctions under W.Va.R.Civ.P. 37(b) for that party's failure to obey an order of a circuit court to provide or permit discovery may be imposed by the court where it has been established through an evidentiary hearing and in light of the full record before the court that the failure to comply has been due to willfulness, bad faith or fault of the disobedient party and not the inability to comply and, further, that such sanctions are otherwise just." Syllabus Point 2, Bell v. Inland Mutual Insurance Co., --- W.Va. ----, 332 S.E.2d 127 (1985) cert. denied 474 U.S. 936, 106 S.Ct. 299, 88 L.Ed.2d 277 (1985).

5. "Although the party seeking sanctions under W.Va.R.Civ.P. 37(b) has the burden of establishing noncompliance with the circuit court's order to provide or permit discovery, once established, the burden is upon the disobedient party to avoid the sanctions sought under W.Va.R.Civ.P. 37(b) by showing that the inability to comply or special circumstances render the particular sanctions unjust." Syllabus Point 3, Bell v. Inland Mutual Insurance Co., --- W.Va. ----, 332 S.E.2d 127 (1985) cert. denied 474 U.S. 936, 106 S.Ct. 299, 88 L.Ed.2d 277 (1985).

Monty L. Preiser, Preiser Law Offices, Charleston, David S. Skeen, South Charleston, for Doris J. Doulamis.

Robert M. Steptoe, Jr., David M. Hammer, Steptoe & Johnson, Clarksburg, for Alpine Lake Property Owners Ass'n.

G. Patrick Stanton, Stanton & Stanton, Fairmont, for Ski Chalet, Inc.

PER CURIAM:

Doris J. Doulamis appeals from an order of the Circuit Court of Preston County dismissing her suit against Alpine Lake Property Owners Association, Inc. (Alpine) and Ski Chalet, Inc. (Ski Chalet) under Rule 37(b) of the West Virginia Rules of Civil Procedure [1988] for failing to comply with an order requiring discovery. On appeal, Ms. Doulamis alleges that her failure to comply with the order was due to inability and not to a lack of diligent effort. While we agree with the circuit court that some sanction under Rule 37 is appropriate, we find that the sanction imposed by the circuit court was too harsh in these circumstances.

On January 24, 1981, Ms. Doulamis injured her knee at Alpine's ski resort. In her complaint, filed in December 1982, Ms. Doulamis alleges that her injury was the result of Alpine's negligence and that the improperly fitted ski bindings leased to her by Ski Chalet exacerbated her injuries. Although Alpine sought some discovery in 1983, the problems that resulted in dismissal did not occur until 1988. ¹

After a substantial delay in January 1988, Alpine sought to have the case dismissed for failure to prosecute under Rule 41(b) of W.Va.R.Civ.P. [1988] and Mrs. Doulamis's lawyer withdrew. ² The circuit court had previously considered the case for a dismissal under Rule 41(b), but Mrs. Doulamis had personally requested the circuit court to continue the case. In January 1988, Mrs. Doulamis again requested the case be continued and in February 1988 she employed new counsel. After the circuit court denied the motion to dismiss, the discovery process began again. For the sake of comprehension an outline distills the record better than a narrative. ³

On March 8, 1989, the circuit court conducted another hearing on discovery. During the hearing Alpine contended that Mrs. Doulamis failed to provide certain agreed to medical releases and failed to provide any different documents since the last hearing on October 24, 1988. ⁴ Mrs. Doulamis's lawyer gave Alpine a medical release for one provider and said that a release had been mailed to Mrs. Doulamis for her signature for another provider. Mrs. Doulamis's lawyer indicated that he had no additional documents to give to Alpine and that he objected to Alpine receiving certain of Mrs. Doulamis's medical records. At the conclusion of the hearing the circuit court dismissed the case holding that, despite the court's previous orders and warnings of dismissal, Mrs. Doulamis had not made a good faith effort to obtain the requested medical information. In dismissing the case, the circuit court noted that at least twice at Mrs. Doulamis's request he abstained from dismissing the case for failure to prosecute at least twice, that Mrs. Doulamis failed to meet the various discovery deadlines, including the last deadline, that the delay in discovery caused the trial date to be delayed at least twice, and that sanctions had already been imposed against Mrs. Doulamis. The case was dismissed by order dated March 13, 1989.

On appeal Mrs. Doulamis argues that she has made a good faith effort to obtain the requested medical information and the delay in supplying Alpine with the medical releases was due to her lawyer's misunderstanding. Mrs. Doulamis notes that she produced extensive medical records and that she has no additional records in her possession. Alpine alleges that Mrs. Doulamis's lack of good faith is shown by the repeated pattern of delay, objection, court order and finally only partial compliance. Alpine also argues that the requested medical records are highly relevant on the issue of damages and that without these records Mrs. Doulamis's extensive, pre-existing medical problems might be incorrectly attributed to the ski injury. At the time of the dismissal hearing on March 8, 1989, Alpine alleges that Mrs. Doulamis produced no additional documents since October 24, 1988, failed to provide the medical releases, and gave incomplete responses to the latest interrogatories.

We have consistently acknowledged that Rule 37 of the W.Va.R.Civ.P. is designed to ensure that persons who are subject to discovery requests respond promptly and adequately. In Syllabus Point 1, Shreve v. Warren Assoc., Inc., --- W.Va. ----, 355 S.E.2d 389 (1987), we stated:

Rule 37 of the West Virginia Rules of Civil Procedure is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules, i.e., Rules 26 through 36.

Michael v. Henry, --- W.Va. ----, 354 S.E.2d 590 (1987). In Syllabus Point 1, Prager v. Meckling, --- W.Va. ----, 310 S.E.2d 852 (1983), we held:

Generally, under Rule 37 of the Rules of Civil Procedure to trigger the imposition of sanctions where a party refuses to comply with a discovery request, the other party must file a motion to have the court order discovery. If the discovery order is issued and not obeyed, then the party may seek sanctions under Rule 37(b) of the Rules of Civil Procedure.

Rule 37(b) of the W.Va.R.Civ.P. [1988], permits a circuit court to impose the following sanctions for the failure to comply with an order compelling discovery:

(2) Sanctions by Court in Which Action is Pending. If a party or an officer, director, or managing agent of a party or a person designated under Rules 30(b)(6) or 31(a) to testify on behalf of 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, or if a party fails to supplement as provided for under Rule 26(e), or if a party fails to obey an order entered under Rule 26(f), the court in which the action is pending may make such orders in regard to the failure as are just, and among others are 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....

W.Va.R.Civ.P., Rule 37 is virtually identical to Rule 37 of the Federal Rules of Civil Procedure. See Bell v. Inland Mutual Ins. Co. --- W.Va. ----, ----, 332 S.E.2d 127, 132 (1985); N.C. v. W.R.C., --- W.Va. ----, 317 S.E.2d 793 n. 5 (1984); Chandos, Inc. v. Samson, 150 W.Va. 428, 432, 146 S.E.2d 837 (1966).

The decision by the circuit court to impose sanctions under Rule 37(b) for a party's failure to obey the court's order to provide or permit discovery is within the sound discretion of the circuit court. In Syllabus Point 1, Bell supra, we stated:

The imposition of sanctions by a circuit court under W.Va.R.Civ.P. 37(b) for the failure of a party to obey the court's order to provide or permit discovery is within the sound discretion of the court and will not be disturbed upon appeal unless there has been an abuse of that discretion.

In Bell we recognized that the striking of pleadings and the rendering of a judgment by default under Rule 37(b)(2)(C) were "the harshest sanctions for failure to comply with an order compelling discovery. (...