Miller v. Basbas

• Decision Date: 30 December 1988
• Docket Number: No. 87-100,87-100
• Citation: 553 A.2d 299,131 N.H. 332
• Parties: Ashley A. MILLER, et al. v. Charles P. BASBAS.
• Court: New Hampshire Supreme Court

Page 299

553 A.2d 299

131 N.H. 332

Ashley A. MILLER, et al. v. Charles P. BASBAS.

No. 87-100.

Supreme Court of New Hampshire.

Dec. 30, 1988.

Law Firm of Robert H. Rowe, Amherst (Robert H. Rowe (orally), on the brief), for plaintiffs, Elaine and Ched Miller.

Michael, Jones & Wensley, Rochester (Franklin C. Jones (orally), on the brief), for defendant.

THAYER, Justice.

In September, 1984, the plaintiffs, individually and on behalf of their daughter, commenced a civil suit against the defendant, Charles Basbas, for allegedly sexually abusing their then 3 1/2-year-old daughter. The plaintiffs presently appeal the February 26, 1987 decision of the Superior Court (Dalianis, J.) dismissing the case with prejudice for failing to comply with the court's discovery order. The procedural history spans a three-year period during which the defendant sought to have the minor child deposed, and the parents sought to prevent the deposition.

The plaintiffs raise the following issues on appeal: (1) in a civil suit regarding alleged sexual abuse, is the plaintiff child of tender age an incompetent witness in a deposition and trial, and as such is the child unavailable as a witness, thereby allowing the testimony of the child to fall within one of the hearsay exceptions; and (2) does the trial court's dismissal of the case and its refusal to allow hearsay testimony violate the minor child's right to a remedy at law under the New Hampshire Constitution, part I, article 14. The superior court dismissed the plaintiffs' action, and for the reasons that follow, we affirm. We note, at the outset, that we will not address the first issue raised by the plaintiffs because they failed to preserve it.

In September, 1984, the plaintiffs, individually and on behalf of their child, initiated a civil tort action seeking monetary damages from the defendant for the sexual assault of their infant child. Thereafter, the defendant filed a special appearance denying the allegation of sexual assault and, on October 23, 1984, sought to depose the child in order to prepare for his defense. The plaintiffs filed a motion to quash the deposition, claiming that depositions were scheduled to intimidate the plaintiffs and not in good faith, and objecting generally to having their 3-year-old daughter deposed. On December 17, 1984, a non-evidentiary hearing was held on the plaintiffs' motion to quash. The Trial Court (Goode, J.) ordered that the "[d]eposition of any adult witness may be had as provided for by law. Deposition of the minor child, if any, is deferred pending a showing of need and establishment of appropriate setting." The record does not reveal any motion or pleadings by the plaintiffs in response to this order.

The defendant deposed the parents of the child-plaintiff pursuant to the December order. On August 13, 1985, the defendant filed a motion to take a video-tape deposition of the minor on the ground that, having deposed the parents, he had determined that the deposition of the child was essential to the proper presentation of his defense, and that he had no other way of obtaining the information because neither adult had witnessed the alleged tortious conduct. In his motion, the defendant also requested that the court appoint a commissioner to oversee the deposition, and that the court establish an appropriate setting for the deposition. The plaintiffs objected to the defendant's motion, claiming that all the adult witnesses had not yet been deposed, and that until the depositions of the physician and the psychotherapist had been taken, there was no need to take the deposition of the minor child.

On September 20, 1985, the Superior Court (Murphy, J.), after a non-evidentiary hearing, granted the defendant's motion and in its order stated "that it is necessary to perpetuate the testimony of the minor child, as further delay is likely to impair the child's ability to recall and relate the facts of the alleged tortious acts...." The court granted the defendant's motion on the following conditions: (1) that prior to taking the deposition, the child's therapist shall file a report with recommendations for additional guidelines for taking the video-tape deposition; (2) that the deposition take place in the presence of one or both of the child's parents and of her therapist; (3) that anatomically correct dolls be provided; and (4) that the deposition be taken in a home setting, with a master present. The record does not reveal any objection by the plaintiffs to that order.

The child's therapist filed a report with the court, which advised the court against deposing the child because of the trauma that would result. The report stated, in part, that "[i]t would not be advisable to subject a now-functioning school-age child to recall and relive this trauma. Under these circumstances, the court must rely upon information provided without any further involvement of the victim." The Superior Court (Murphy, J.) responded to the letter on January 31, 1986, supplementing its prior order by noting that the report "goes beyond the scope of the order of September 20, 1985 requesting her recommendations relative to guidelines for the taking of deposition of the child; failing receipt of such recommendations, the remaining provisions of the order of September 20, 1985 are in effect and the deposition conducted in accordance therewith." The defendant asserts that he continued to try to depose the child, and the plaintiffs continued to refuse.

On March 10, 1986, the plaintiffs again filed a motion to quash the video-tape deposition, claiming that the defendant had not yet deposed the child's doctor and therapist and that, based on the therapist's advice, the plaintiff parents would not involve the plaintiff child in the litigation as a trial witness, and would seek to present their evidence through the testimony of others. In turn, on March 18, 1986, the defendant filed a motion to compel discovery and for sanctions, to which the plaintiffs objected on March 25, 1986.

A hearing regarding the motion to quash depositions was held before Justice Dalianis on April 14, 1986. The plaintiffs contended that the testimony of the child should be introduced at trial through hearsay statements because of the substantial harm that would result to the child if she were to testify or be deposed. They also argued that such a young child could not offer valid testimony. At the hearing, the plaintiffs had the child's therapist and a doctor available to testify about the inability of the child to recall the event and the possible trauma that would result in allowing the child to do so. Although the plaintiffs had expert witnesses available to support their motion to quash, the court did not hear testimony. In a May 29, 1986 order, Justice Dalianis ruled:

"The Court has determined that the prior Orders of December 17, 1984 (Goode, J.), and September 20, 1985 (Murphy, J.), are the law of the case and are dispositive of the issues in dispute. Therefore, in accordance with the Court's previous Orders, defendant must take the depositions of Dr. Straughn and Ms. Davidson, and subsequently, if he believes [the child's] deposition is essential, may take a videotape deposition in accordance with the guidelines stated in the Court's Order of September 20, 1985."

Accordingly, the court denied the motion to quash the deposition and present the testimony of the minor child through hearsay evidence.

On June 18, 1986, the plaintiffs filed a motion for rehearing and to set aside. The defendant objected and on July 9, 1986, the Court (Dalianis, J.) denied the plaintiffs' motion. Thereafter, the defendant complied with the May 29, 1986 court order by deposing the child's doctor and therapist. The defendant attempted to schedule a deposition of the child, and the plaintiffs continued to refuse to permit it. On November 11, 1986, the defendant filed another motion to compel deposition of the child and for sanctions. The plaintiffs objected on the grounds that the defendant intentionally delayed deposing the adult witnesses, that the child was not competent, that the child could be psychologically harmed, and that the burden rested on the defendant to show that the deposition was essential.

On December 19, 1986, the Superior Court (Dalianis, J.) held a hearing on the defendant's motion. During the hearing, the plaintiffs' counsel represented to the court that if the defendant's motion was granted, the plaintiffs would drop the case rather than expose their child to a review of the alleged incident. In a January 16, 1987 order, Justice Dalianis noted that courts have discretionary authority regarding discovery. The court went on to rule that:

"In the instant case, it is evident that the court exercised its discretion in its September 20, 1985 order which granted the defendant's request to take [the child's] video deposition under certain circumstances. The issue of the defendant having to show the need for [the child's] deposition is moot, having already been decided by the September 20, 1985 order. The effect of that order was essentially reiterated by the court's order of May 29, 1986. Consistent with the court's order of May 29, 1986, the defendant has now deposed all of the adult witnesses and is entitled to depose [the child] if he feels it is essential to do so."

The court dismissed the plaintiffs' entire action with...