Ex parte FOLMAR KENNER LLC. ,.

• Decision Date: 22 January 2010
• Docket Number: 1070824.
• Citation: 43 So.3d 1234
• Parties: Ex parte FOLMAR KENNER, LLC. (In re Andra Capaci d/b/a Andra Capaci Real Estate v. Folmar Kenner, LLC).
• Court: Alabama Supreme Court

43 So.3d 1234

Ex parte FOLMAR KENNER, LLC.

(In re Andra Capaci d/b/a Andra Capaci Real Estate v.Folmar Kenner, LLC).

1070824.

Supreme Court of Alabama.

September 18, 2009.^*

Rehearing Denied January 22, 2010.

COPYRIGHT MATERIAL OMITTED.

George M. Walker and Windy C. Bitzer of Hand Arendall LLC, Mobile, for petitioner.

William W. Watts III of Hudson & Watts, LLP, Mobile; and Steve C. Thornton, Jackson, Mississippi, for respondent.

PER CURIAM.

Folmar Kenner, LLC, petitioned this Court for a writ of certiorari to review the Court of Civil Appeals' decision reversing the trial court's sua sponte dismissal, with prejudice, under Rule 41(b), Ala. R. Civ. P., of the counterclaims filed against Folmar Kenner by Andra Capaci, doing business as Andra Capaci Real Estate.SeeAndra Capaci d/b/a Andra Capaci Real Estate v. Folmar Kenner, LLC,[Ms. 2060846, March 7, 2008]43 So.3d 1229(Ala.Civ.App.2008).We granted certiorari review to consider, as a material question of first impression, whether the trial court exceeded its discretion by dismissing Capaci's counterclaims with prejudice under Rule 41(b), Ala. R. Civ. P., for failing to follow its orders during trial.SeeRule 39(a)(1)(C), Ala. R.App. P.For the following reasons, we reverse the Court of Civil Appeals' judgment.

Facts and Procedural History

In its opinion, the Court of Civil Appeals summarized the relevant procedural history and undisputed facts:

"Folmar Kenner, LLC, sued Andra Capaci, doing business as Andra Capaci Real Estate, seeking damages on claims related to Capaci's alleged breach of a lease agreement.Capaci answered and counterclaimed, alleging that the leased premises were unfit for occupancy and seeking damages on several claims, including negligence, wantonness, and breach of the lease agreement.

"The dispute between the parties arose after Capaci discovered that the leased premises were infested with mold and she vacated the premises.Folmar Kenner remedied or attempted to remedy the mold problem, but some of Capaci's personal property that she had left in the premises was damaged in the process.Although Folmar Kenner represented that it was safe for Capaci to return to the leased premises after it had performed its remedial measures, Capaci refused to do so.Folmar Kenner then claimed that Capaci had breached the lease agreement.Capaci claimed that she had suffered physical injury and emotional distress as a result of her exposure to toxic mold.She also sought to recover the value of the personal property that she alleged Folmar Kenner had damaged during its attempts to remedy the mold problem in the leased premises.

"On July 27, 2006, Folmar Kenner filed an offer of judgment pursuant to Rule 68, Ala. R. Civ. P., in the amount of $25,000.Capaci did not accept that offer.On January 8, 2007, the parties filed a joint motion indicating that Folmar Kenner's claims against Capaci had been settled; the parties moved for a dismissal of those claims.The record contains no indication that the trial court ruled on that motion, but the parties represented to the trial court at the start of the trial that those claims had been settled, and those claims were not prosecuted at the trial.

"The case proceeded to a jury trial solely on Capaci's counterclaims against Folmar Kenner.On February 28, 2007, the fourth day of the jury trial, Capaci testified.During her responses on direct examination, Capaci repeatedly volunteered information beyond that sought by the questions.Folmar Kenner objected repeatedly to answers Capaci gave, arguing that Capaci's responses to questions asked of her exceeded the scope of the question that had been asked.During her direct examination, the trial court warned Capaci that if she continued to volunteer information, it would `terminate [her] testimony.'

"The cross-examination of Capaci by Folmar Kenner was contentious at times.Folmar Kenner repeatedly objected to Capaci's elaborating or expanding her answers to provide information beyond that which was necessary to properly respond to the questions.The trial court continued to warn Capaci to limit her responses to the questions actually asked.The trial court also explained to Capaci that her attorney could ask her additional questions on redirect examination so that she could fully explain the answers she gave on cross-examination.However, despite the repeated warnings, Capaci continued to volunteer information and expound on her answers.

"The trial court then warned Capaci again, telling her that that warning was the last one it would give and that `[t]his trial will end the next time you volunteer an answer that is not requested by the question.'In response, Capaci, as she had done several times before, told the trial court that she was nervous testifying in court.

"In spite of its statement that it would no longer warn Capaci, the trial court continued to do so several more times during her cross-examination.Then, when Capaci continued to explain her answers and volunteer information, the trial court dismissed the jury and ended the trial.After the jury had been dismissed, the trial court stated:

"`I think I gave Ms. Capaci every leeway I could possibly give, perhaps maybe too much.She continually disregarded my instructions to respond to the questions.I hereby dismiss the case with prejudice, costs attached to the plaintiff on this matter.'"

Capaci,43 So.3d at 1231.

The Court of Civil Appeals then set forth the standard of review of a trial court's decision to dismiss an action with prejudice under Rule 41(b), Ala. R. Civ. P.:

"This court, in discussing dismissals pursuant to Rule 41(b), has stated:

"`Rule 41(b), Ala. R. Civ. P., permits a trial court to dismiss an action when a plaintiff fails to prosecute that action or fails to comply with the Rules of Civil Procedure or orders of the court. . . .Typically, an appellate court will review a dismissal pursuant to Rule 41(b) to determine only whether the trial court abused its discretion.Riddlesprigger [v. Ervin],519 So.2d [486,] 487[(Ala.1987)].

"`"However, since dismissal with prejudice is a drastic sanction, it is to be applied only in extreme situations," and "appellate courts will carefully scrutinize such orders and occasionally will find it necessary to set them aside."Smith v. Wilcox County Bd. of Educ.,365 So.2d 659, 661(Ala.1978)(citing, among other things, 9 Wright & Miller, Federal Practice & Procedure§ 2370, p. 203, n. 1).Our supreme court has explained that "the plaintiff's conduct must mandate the dismissal," and it has further reiterated the rule espoused by the United States Court of Appeals for the Fifth Circuit that a trial court"may dismiss with prejudice an action `only in the face of a clear record of delay or contumacious conduct by the plaintiff.'"Smith,365 So.2d at 661(quotingDurham v. Florida East Coast Ry. Co.,385 F.2d 366, 368(5th Cir.1967)).'

"Kendrick v. Earl's, Inc.,987 So.2d 589, 592-93(Ala.Civ.App.2007)."

Capaci,43 So.3d at 1232.

Before the Court of Civil Appeals, Capaci argued that the evidence did not support a finding that her conduct during her testimony was willful or contumacious, and she argued that the trial court could have imposed a lesser sanction than the dismissal of her counterclaims with prejudice.The Court of Civil Appeals agreed with Capaci.It reversed the trial court's dismissal of Capaci's counterclaims, holding as follows:

"We must conclude that under the facts of this casethe trial court erred in dismissing Capaci's claims with prejudice.Although Capaci repeatedly elaborated or gave irrelevant testimony, she also repeatedly communicated her anxiety about testifying.We recognize the difficult job of the trial court in dealing with noncompliant witnesses or parties.A trial court certainly may take measures necessary to maintain order in its courtroom.In fact, with regard to the specific facts of this case, we agree with the trial court that Capaci's failure to heed the trial court's warnings warranted some form of sanction.However, the trial court had available to it other, less drastic alternatives in enforcing its orders.Those less drastic sanctions included, but were not limited to, ending Capaci's testimony, striking her testimony in its entirety, ending her presentation of evidence and submitting the matter immediately to the jury, or finding her in contempt.

"We recognize and sympathize with the trial court's frustration over Capaci's behavior.Conduct such as that exhibited by Capaci is not to be condoned.The trial court was well within its power to take action to sanction Capaci for disobeying its orders in its courtroom.However, given the totality of the evidence, we conclude that Capaci's conduct did not rise to the level that would warrant the extreme sanction of a dismissal with prejudice of her claims; in other words, her conduct did not `"mandate dismissal."'Hosey v. Lowery,911 So.2d [15,] 17[(Ala.Civ.App.2005)]."

Capaci,43 So.3d at 1233.Folmar Kenner then petitioned this Court for certiorari review of the Court of Civil Appeals' decision.We reverse and remand.

Standard of Review

The trial court's action in dismissing Capaci's counterclaims was apparently based on its finding of contempt for Capaci's failure to adhere to the court's repeated orders instructing Capaci to confine her answers to the questions posed by counsel during her testimony.The trial court's conclusion as to the credibility of the excuse proffered by Capaci for disregarding those instructions is therefore presumed correct.SeeGilbert v. Nicholson,845 So.2d 785, 791(Ala.2002)("When evidence in a contempt case is presented ore tenus to the trial court, the trial court's finding regarding contempt is presumed correct.").A finding of contempt is "`"a determination committed to the sound discretion of the trial court, and, absent an abuse of that discretion or...