EX PARTE SEAMAN TIMBER CO., INC.

• Decision Date: 13 September 2002
• Citation: 850 So.2d 246
• Parties: Ex parte SEAMAN TIMBER COMPANY, INC., et al. (In re Melford O. Cleveland et al. v. Seaman Timber Company, Inc., et al.)
• Court: Alabama Supreme Court

850 So.2d 246

Ex parte SEAMAN TIMBER COMPANY, INC., et al.

(In re Melford O. Cleveland et al. v. Seaman Timber Company, Inc., et al.)

1001658.

Supreme Court of Alabama.

September 13, 2002.

Opinion on Overruling of Applications for Rehearing November 22, 2002.

Thomas H. Brown, Birmingham (brief in support of application for rehearing filed by Belle H. Stoddard, Birmingham), for petitioners.

Hewitt L. Conwill of Conwill & Justice, Columbiana; and J. Frank Head of Wallace, Ellis, Fowler & Head, Columbiana, for respondents.

STUART, Justice.

Seaman Timber Company, Inc., and others, defendants in an action pending in the Shelby Circuit Court, petition for a writ of mandamus directing the Shelby Circuit Court to dismiss this action with prejudice or to grant whatever other relief this Court deems appropriate, just, and proper as a sanction for the respondents' willful refusal to comply with the trial court's discovery orders.

In 1963, Jim Seaman, Janet Seaman, and Seaman Timber Company, Inc. (hereinafter referred to collectively as "Seaman"), purchased land from members of the family of Melford O. Cleveland. The purchased property was adjacent to land owned by Melford O. Cleveland, his wife, Belle H. Cleveland (Melford and his wife are hereinafter referred to collectively as "the Clevelands"), and his aunt Sarah Head. The property was sold with the specific understanding that Seaman intended to build and to operate a lumber mill and wood-preserving operation on the property.

In April 1999, the Clevelands and Head sued Seaman, alleging that Seaman had contaminated their land, that Seaman had been doing so continuously since 1963, and that Seaman had thereby damaged their land and had caused them to suffer personal injuries. The Clevelands and Head asked for preliminary and injunctive relief, other equitable relief, and compensatory and punitive damages.

Because of the advanced ages of the plaintiffs (Melford O. Cleveland was 75 and Sarah Head was 92 when this action was filed), Seaman attempted to schedule depositions soon after it was served with the complaint. Seaman asserts that Head's deposition was of critical importance because, it argued, her testimony would refute most of Melford Cleveland's claims and would substantiate Seaman's contentions.

Head's deposition was scheduled four or more times (twice on dates selected by the Clevelands, once pursuant to a court order, and other times on dates selected by Seaman). On May 3, 1999, shortly after Seaman was served with the complaint in this case, its counsel telephoned the counsel for the Clevelands and Head (hereinafter referred to as "the Clevelands' counsel") in an effort to schedule the Clevelands' and Head's depositions to begin on May 18, 1999, or for Clevelands' counsel to provide an alternative date. The Clevelands and Head provided no alternative date for depositions, so Seaman scheduled the depositions to begin on May 18, 1999. Late in the afternoon of May 17, 1999, the Clevelands and Head canceled the depositions. Seaman's counsel requested that the Clevelands' counsel get back in touch with him in the near future to schedule the depositions "because of Ms. Head's advanced age." On May 18, Seaman also served the Clevelands and Head with Seaman's first Rule 34, Ala. R. Civ. P., request for production of documents and things. Having not heard back from the Clevelands' counsel regarding deposition dates, Seaman's counsel wrote the Clevelands' counsel on May 26, 1999, suggesting that depositions begin on June 7, 1999, and requesting alternative dates if the June 7 date was inconvenient. Again, no response was received from the Clevelands and Head, so Seaman noticed the plaintiffs' depositions beginning on June 7, 1999.

By letter dated June 2, 1999, the Clevelands' cocounsel, Frank Head,¹ advised Seaman's counsel that he would be unable to attend the depositions because he was involved in a trial and that the depositions "may need to be rescheduled." Mr. Head invited defense counsel to contact him to discuss possible deposition dates. On June 3, 1999, Seaman's counsel telephoned Mr. Head and left a message for Mr. Head to the effect that he interpreted the letter as canceling the scheduled depositions and he requested that Mr. Head contact him at his earliest convenience to reschedule the depositions, stating: "I repeat that it is imperative that we get this discovery in as soon as possible, considering the advanced age of your plaintiff, Mrs. Head...." On June 8, 1999, Seaman's counsel wrote Mr. Head, confirming that the Clevelands and Head would be available the last week of July for the depositions. Seaman proposed commencing with Sarah Head's deposition on July 26 because: "[A]s we have discussed, I feel the greatest pressure to get the deposition of plaintiff Sarah Head in, because of her age." Having not heard from the Clevelands' counsel, Seaman's counsel scheduled Sarah Head's deposition for July 26 and the depositions of the Clevelands in August. On July 19, 1999, Mr. Head canceled Sarah Head's deposition. The depositions of M.O. Cleveland and Belle Cleveland, which were scheduled to begin on August 2, 1999, were also canceled.

On July 19, 1999, the trial court ordered the Clevelands and Head to comply with the Seaman's first request for production in 21 days, that is, by August 9, 1999. Seaman's counsel again corresponded with the Clevelands' counsel on July 20, 1999, requesting cooperation in scheduling Sarah Head's deposition in the very near future because of Sarah Head's advanced age. The Clevelands' counsel did not respond. On July 22, 1999, Seaman filed a motion for an order scheduling the deposition of Sarah Head.

On August 13, 1999, Seaman filed its "second" Rule 37, Ala. R. Civ. P.,² motion to dismiss for failure to comply with a court order and for failure to allow discovery. This motion was based on the Clevelands and Head's failure to comply with the trial court's July 19, 1999, discovery order for document production and their failure to produce any documents in the case despite repeated requests; their failure to submit to depositions despite repeated schedulings of, and attempts to schedule, depositions; their failure to respond to Seaman's requests for admission; their failure to prosecute the case; and prejudice to Seaman by the Clevelands and Head's failure to allow discovery— "[B]ecause of plaintiffs' advanced ages, Seaman Timber is prejudiced every day that discovery is delayed." (Brief in Support of Seaman's Petition for Writ of Mandamus at 13.) The Clevelands and Head filed nothing in opposition to the motion. Also, on August 13, 1999, the trial court set all pending motions for hearing on September 2, 1999. On September 1, 1999, Seaman served by hand delivery and filed a memorandum in support of its discovery motions and a "Notice of Filing of Additional Supporting Materials." On the first page of the memorandum, in bold type, Seaman reminded the trial court:

"It is extremely significant that one of the Plaintiffs, Sarah Head, is in her eighties or even nineties, and the lead plaintiff, Melford O. Cleveland, is in his mid-seventies. It is of the essence of defendants' ability to defend this case that timely discovery from Plaintiffs take place, before one or more of the Plaintiffs is deceased or too ill to permit discovery."

Seaman also pointed out to the trial court that, although they had retained counsel, M.O. Cleveland and Belle Cleveland were both experienced attorneys.

On September 2, 1999, the trial court conducted a hearing on Seaman's discovery motions. At that hearing, Seaman's counsel argued that if the action was not dismissed then, it certainly should be dismissed if one or more of the plaintiffs died or otherwise became incapacitated before his or her deposition could be taken. The trial court responded that it would not render an opinion on a hypothetical situation. On September 9, 1999, the trial court entered a discovery order. That order stated, in part:

"1. Plaintiffs are ordered to submit to depositions in the near future. Counsel for the parties are directed to schedule the depositions as soon as possible, and Plaintiffs are ordered to attend in accordance with that scheduling, barring an emergency."

The trial court also ordered the Clevelands and Head to produce "forthwith" the documents and things as to which it had already ordered production. The trial court further deemed conclusively established paragraphs 4 through 12 of Seaman's first requests for admissions and paragraphs 1 through 24 of Seaman's second requests for admissions.

Pursuant to that discovery order, the Clevelands and Head scheduled Sarah Head's deposition for September 27, and scheduled M.O. Cleveland's deposition beginning on October 19. On the morning of September 27, 1999, Sarah Head did not appear for deposition, and the Clevelands' counsel advised Seaman's counsel that Ms. Head would not be able to be deposed on that date because she had a fever and a possible kidney infection. The Clevelands' counsel agreed to provide Seaman's counsel with a written medical excuse for Sarah Head's absence and agreed that he would contact Seaman's counsel as soon as possible so that Sarah Head's deposition could be taken later that same week, i.e., September 28-30, 1999.

Seaman filed its third Rule 37 motion to dismiss for failure to allow discovery on September 29, 1999. The events surrounding the scheduling of Ms. Head's deposition were not included. Instead, the motion was based primarily on the Clevelands and Head's refusal to answer interrogatories that were served in July and their general refusal to submit to discovery. Again, Seaman reminded the trial court: "[B]ecause of plaintiffs' advanced ages, [Seaman] is prejudiced every day that discovery is delayed." The Clevelands and Head filed nothing in opposition to this motion, but M.O. Cleveland filed answers to the interrogatories on October 15, 1999. On October 1,...