Morton v. Continental Baking Co.

• Decision Date: 08 April 1997
• Docket Number: No. 950485,950485
• Citation: 938 P.2d 271
• Parties: 314 Utah Adv. Rep. 33 William W. MORTON, Plaintiff and Respondent, v. CONTINENTAL BAKING COMPANY, a Delaware corporation, Defendant and Petitioner.
• Court: Utah Supreme Court

Page 271

938 P.2d 271

314 Utah Adv. Rep. 33

William W. MORTON, Plaintiff and Respondent, v. CONTINENTAL BAKING COMPANY, a Delaware corporation,

Defendant and Petitioner.

No. 950485.

Supreme Court of Utah.

April 8, 1997.

Rehearing Denied June 10, 1997.

Denver C. Snuffer, Jr., Sandy, for plaintiff.

Terry M. Plant, Bradley R. Helsten, Salt Lake City, for defendant.

On Certiorari to the Utah Court of Appeals

RUSSON, Justice:

I. INTRODUCTION

We granted Continental Baking Company's ("Continental") petition for a writ of certiorari to review the Utah Court of Appeals' reversal of the trial court's dismissal of plaintiff William W. Morton's complaint for failure to comply with the trial court's discovery order. We reverse.

II. BACKGROUND

Morton filed a civil suit against Continental on July 15, 1991, to recover damages for injuries he allegedly sustained as a consequence of an auto accident involving Morton and a vehicle owned by Continental and driven by one of Continental's employees.

The original trial date was December 7, 1992, but on September 9, 1992, Morton moved for a continuance. In the motion, Morton's counsel asserted that Morton was scheduled for knee surgery on December 28, 1992, and that Morton could not properly calculate a damage award until after the surgery and rehabilitation. The court granted the motion and rescheduled the trial for June 1, 1993. On April 15, 1993, Morton's counsel sought another continuance, stating that counsel was too busy and needed more time to schedule depositions of expert witnesses, as well as conduct other discovery. The court again rescheduled the trial, this time for January 11, 1994.

On January 10, 1994, one day before trial was to begin, Morton's counsel initiated a telephone conference with the trial judge and counsel for Continental. In this conference, Morton's counsel stated that one of his expert witnesses was going to present opinions, evidence, and theories at trial that were entirely new and different from those which Morton had previously stated would be presented. As a result of this announcement, the court again rescheduled the trial to allow Continental time to conduct additional discovery in light of Morton's new theories. The new trial date was set for August 11, 1994.

A few days following the telephone conference, on January 14, 1994, Continental served on Morton interrogatories and requests for production of documents. Morton failed to provide responses to the discovery requests within the thirty days prescribed by rule 33(a) of the Utah Rules of Civil Procedure. On February 25, 1994, Continental sent a letter to Morton inquiring about the status of the discovery responses. In the letter, Continental stated that if Morton did not provide the discovery responses by March 10, 1994, Continental would file a motion to compel.

Morton did not provide the discovery responses by March 10, and on March 18, 1994, Continental filed a motion to compel, a copy of which was served on Morton. In the motion, Continental requested that the trial court order Morton to respond within ten days or face dismissal of his case. Morton failed to respond to this motion.

On March 31, 1994, Continental filed a notice to submit for decision its motion to compel, a copy of which was sent to Morton. Morton did not respond. The court, on April 12, 1994, directed Continental to prepare an order requiring Morton to respond to Continental's discovery requests within ten days or face "the dismissal of all of Plaintiff's claims for relief." In the order, the court made it clear that Morton had "until 5:00 o'clock p.m. on the tenth day" from the signing of the order to comply. ¹ This order was mailed to Morton on April 12.

Morton did not respond in any way to either the notice to submit or the court's order. The discovery responses were not received by the Friday, April 22, deadline. On Monday, April 25, 1996, Continental prepared a proposed order to dismiss pursuant to the April 12 order, a copy of which was hand-delivered to Morton. On that same day, Morton responded for the first time to the discovery requests by faxing responses to Continental. The court signed the order to dismiss on April 28, 1994. Morton claims that he knew nothing of the court's activities between the March 18 motion to compel and a notice of signing of judgment that he received on May 9, 1994.

Following the dismissal, Morton filed several motions with the trial court aimed at overturning the dismissal. As part of Morton's efforts, he filed an affidavit dated May 11, 1994, in which he admitted that he had received both the discovery requests and the motion to compel. The trial court rejected Morton's motions. Morton then appealed, and we poured the case to the court of appeals.

On September 14, 1995, the court of appeals issued a memorandum decision wherein it stated that it had "reviewed each of the issues raised by [Morton] regarding excuses for noncompliance with the trial court's discovery order, or reasons for extension of the court imposed deadline, and [had] found them to be without merit." However, while the court of appeals agreed "that [Morton's] conduct merited sanction," the court indicated that its review of Utah case law suggested that the sanction of dismissal under rule 37, while within the discretion of the trial court, was a sanction which was only applied "in cases involving more egregious neglect and misconduct" than was displayed by Morton. The court of appeals stated, "We are constrained ... to follow prior decisions approving dismissal under Utah Rule of Civil Procedure 37 only under circumstances much more egregious than those in evidence here." Thus, the court of appeals held that the trial court had abused its discretion and reversed and remanded.

Continental argues on certiorari that the court of appeals erred in its decision to reverse the trial court. Continental argues that the trial court is given broad discretion in imposing sanctions and such decisions are reviewed only for abuse of discretion. Continental argues that rule 37 requires only that Morton's actions be willful before a trial court can impose sanctions and that there was ample evidence in the record to support the trial court's finding that Morton's noncompliance was indeed willful. By requiring Morton's behavior to be more egregious, Continental argues, the court of appeals ignored the "willful" standard and did not afford the trial court the proper amount of deference. Further, Continental claims that the court of appeals erred in not requiring Morton to sustain the burden of showing that the trial court's decision was a clear abuse of discretion.

Morton responds that the court of appeals correctly held that the trial court's dismissal of his claim was an abuse of discretion. Morton argues that any delay in complying with the court's order should be excused because, for various reasons, he never received the orders and, after all, the discovery responses faxed to Continental on April 25 were, at most, only "one business day late."

III. ANALYSIS

Rule 37(b)(2)(C) of the Utah Rules of Civil Procedure states, in relevant part:

(2) If a party ... fails to obey an order to provide or permit discovery ... 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, staying further proceedings until the order is obeyed, dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]

(Emphasis added.) Before a trial court can impose discovery sanctions under rule 37, the court must find on the part of the noncomplying party willfulness, bad faith, or fault, Utah Dep't of Transp. v. Osguthorpe, 892 P.2d 4, 6 (Utah 1995); First Fed. Sav. & Loan Ass'n v. Schamanek, 684 P.2d 1257, 1266 (Utah 1984); accord Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 961 (Utah.Ct.App.1989), or "persistent dilatory tactics frustrating the judicial process," W.W. & W.B. Gardner, Inc. v. Park West Village, Inc., 568 P.2d 734, 738 (Utah 1977); see also Osguthorpe, 892 P.2d at 6, n. 2. Once the trial court determines that sanctions are appropriate, "[t]he choice of an appropriate discovery sanction is primarily the responsibility of the trial judge." Schamanek, 684 P.2d at 1266.

Even though dismissal of a noncomplying party's action is one of the "most severe of the potential sanctions that can be imposed," Osguthorpe, 892 P.2d at 7, it is clear from the language of rule 37 that it is within a trial court's discretion to impose such a sanction. " 'Because trial courts must deal first hand with the parties and the discovery process, they are given broad discretion regarding the imposition of discovery sanctions.' " Osguthorpe, 892 P.2d at 6 (quoting Darrington v. Wade, 812 P.2d 452, 457 (Utah.Ct.App.1991)). Thus we have long held that we will not interfere unless " 'abuse of that discretion [is] clearly shown.' " Id. at 8 (quoting Katz v. Pierce, 732 P.2d 92, 93 (Utah 1986)); see also Tucker Realty, Inc. v. Nunley, 396 P.2d 410, 412, 16 Utah 2d 97, 100 (1964) ("Unless it is shown that [the trial court's] action is without support in the record, or is a plain abuse of discretion, it should not be disturbed."). We will find that a trial court has abused its discretion in choosing which sanction to impose only if there is either "an erroneous conclusion of law or ... no evidentiary basis for the trial court's ruling." Askew v. Hardman, 918 P.2d 469, 472 (Utah 1996); see also Schamanek, 684 P.2d at 1266. In this case, Morton has not clearly shown that the trial court abused its discretion in dismissing his case.

There is ample evidence in this case to support the trial court's ruling. This case had been set for trial four different times. The trial court generously granted continuances, first for Morton's knee surgery and then to allow...