Nesses v. Specialty Connectors Co., Inc.

• Decision Date: 20 December 1990
• Docket Number: No. 03A01-9007-CV-301,03A01-9007-CV-301
• Citation: 564 N.E.2d 322
• Court: Indiana Appellate Court
• Parties: Morton NESSES d/b/a Winick & Nesses, Plaintiff-Appellant, v. SPECIALTY CONNECTORS CO., INC., Defendant-Appellee.

Page 322

564 N.E.2d 322

Morton NESSES d/b/a Winick & Nesses, Plaintiff-Appellant, v. SPECIALTY CONNECTORS CO., INC., Defendant-Appellee.

No. 03A01-9007-CV-301.

Court of Appeals of Indiana,

First District.

Dec. 20, 1990.

Paul H. Johnson, Jr., Donaldson, Andreoli & Truitt, Lebanon, for plaintiff-appellant.

Robert G. Weddle, Mary Hamilton Watts, Nana Quay-Smith, Bingham, Summers, Welsh & Spilman, Indianapolis, for defendant-appellee.

BAKER, Judge.

Plaintiff-appellant Morton Nesses d/b/a/ Winick & Nesses (Nesses) appeals the trial court's dismissal with prejudice under Ind. Trial Rule 37(B) of his action for breach of contract against defendant-appellee Specialty Connectors, Inc. (Specialty). Nesses also appeals the trial court's award of attorney fees to Specialty. The issues for our review are whether the trial court properly dismissed the action and properly awarded attorney fees. We affirm.

The facts underlying the litigation are not material. The issues revolve around Nesses's contumacious and dilatory conduct during the litigation.

In October 1988, Nesses filed his suit pro se in Johnson County, and after he requested a change of venue, the case was transferred to Bartholomew Superior Court before Judge Chris Monroe. At a pre-trial conference on March 3, 1989, Judge Monroe After the pre-trial conference, the court set June 1, 1989 as the discovery cut-off date, and June 8, 1989 as the final pre-trial conference date. From the subsequent conduct and discussions of the parties and the court, it appears Judge Monroe spoke the word "tentative" at the March 3 hearing when he set the June 1 and June 8 deadlines, though his written order clearly was not tentative. Record at 59. Nesses leapt upon the use of the word tentative to request an extension of both dates because those "arbitrary and capricious" dates prevented him from earning his living while trying to comply with a discovery order, "which said discovery is being deliberately manipulated by the opposing party with the assistance of the Court." Record at 89 ("Verified Motion for Immediate Hearing for Matter Relating to Discovery and Request to Vacate Discovery Deadline and Final Pre-Trial Conference"). The next page of this fanciful motion accuses the court of placing discovery obstacles in Nesses's path. Record at 90.

informed Nesses that scheduling difficulties should not be resolved with the court clerk, but rather with Judge Monroe himself. Nesses responded by moving for a change of judge, asserting Judge Monroe was biased and guilty of making unfounded criminal accusations against him. After a hearing at which both parties were present, Judge Monroe denied the motion.

Judge Monroe granted Nesses a hearing on the motion. At the hearing, Nesses engaged in several long colloquies with Judge Monroe, but his primary complaints, which had little to do with the reason for the hearing, were twofold: first, he argued the attestation language of some of Specialty's answers to interrogatories was incomplete, even though counsel for Specialty had agreed to change the language. Second, Nesses complained of counsel for Specialty's insertion of the word "sic" into his interrogatories, arguing the word changed the meaning of the interrogatories. Judge Monroe naturally wanted to know what alternative dates Nesses would suggest for the discovery deadline and the final pre-trial conference, but he had to ask Nesses 13 times to get an answer, because Nesses insisted on interrupting and discussing the tangential matters mentioned above. Record at 348-55. After displaying the patience of Job in response to Nesses's rambling and insulting discourse, Judge Monroe told Nesses he was the rudest person ever to appear in his court, including criminal defendants. ¹ Record at 368. Eventually, the court and the parties settled on an August 30, 1989 discovery deadline and a September 7, 1989 final pre-trial conference. Judge Monroe also discovered that Nesses, who is a competitor with Specialty, refused to sign a standard confidentiality agreement before being allowed to view Specialty's business documents. Counsel for Specialty revealed he had made several efforts to get the documents to Nesses, but that Nesses simply refused to sign.

In the saga's next chapter, Nesses moved for production of Specialty's documents without the prerequisite of signing a confidentiality agreement. Nesses also moved for a protective order regarding Specialty's interrogatories because Specialty had not let him see their documents without signing the confidentiality agreement. In response, Specialty moved to compel production of Nesses's documents and to obtain a protective order over its own documents. Judge Monroe thereupon reset the discovery deadline for October 30, 1989, and ordered a hearing on all motions for September 19, 1989. At this point, Specialty moved to dismiss, leading Nesses to hire counsel.

At the September 19, 1989 hearing, counsel for both parties agreed to make the protective order mutual, which left only the motion to dismiss to be resolved. Discussing the motion to dismiss, Judge Monroe stated:

I have read and reread and quite frankly the reason we have had so many hearings Record at 385-91 (emphasis added).

is because I could not understand Mr. Nesses' motions. And then we had hearings, quite frankly, I wasn't able to understand anything more than what I had before. I remember one hearing in particular Mr. Nesses had a pad of paper written out and he began a recitation from that and I asked some questions and he was unable to understand what it was he was asking the Court to do.... Uh hopefully, now that Mr. Nesses has counsel it will not be a problem and hopefully we won't have the need for hearings on those types of things. But uh Mr. Nesses, just let me set out a few things. We are not going to delay. I don't know what you intend to do from this point. Whether you intend to keep your attorney throughout or if he may offend you at some point and you may discharge him.... We are going to set some deadlines when we get these deadlines set, we are going to follow them. And if you decide to change counsel in the middle of the ballgame, particularly since you are the plaintiff and you brought the action, uh we're not going to change any deadliens [sic] and if you are not prepared to go to trial when it is set for trial, and if you are not completing discovery, and if you're not complying with discovery, then uh you are looking at a real good shot at getting it dismissed.... We were spending all of our time talking about stuff I couldn't understand what you were asking. And so far, it appears that we are getting some of that resolved. But if we get back into that again, uh I think that the motion is well taken and that there is a good shot that it could be dismissed if we get into that type of behavior again.... You've got an idea what I'm looking for. Uh if some problems arise from the defendant's point of view, we will reconsider it and uh take a look at it at that time.

By mid-December, Nesses's counsel had resigned "because of philosophical differences in the conduct of [the] case." Record at 231. The resignation was confirmed at the next hearing on January 19, 1990, at which time Nesses asked for another extension of the date for the final pre-trial conference. This last request led Specialty to move the court to reconsider its earlier motion to dismiss. When Judge Monroe asked Specialty's counsel for less harsh alternatives, she answered she would like to obtain previously requested documents and receive a response to her settlement offer. In responding to the judge's question about the nature of the documents requested, Specialty's counsel referred to Nesses's unpublished deposition. Nesses did not object, but also discussed the unpublished deposition. In the end, because Nesses was claiming damages from lost income, the court ordered Nesses to produce his 1987 financial records, including income tax returns, for Specialty, and warned Nesses of the likelihood of dismissal for failure to comply. Record at 439-40. He also informed Nesses that he would tolerate no further delay. Record at 440. At this point, counsel for Specialty informed the court she had also requested tax returns for 1984, 1985, and 1986, and Judge Monroe asked Nesses if he knew of any reason why those records should not be produced. Nesses began to protest that these records were protected, and then advised the court to ask his recently discharged lawyer, who was still in the courtroom, to answer the question. Judge Monroe tried to ask another question, but Nesses interrupted him, leading the judge to threaten Nesses with contempt and the possible penalty of incarceration. Record at 442. Eventually, Judge Monroe ordered Nesses to provide Specialty with his business financial records and his income tax returns for 1984-1987 by 12:00 noon, February 20, 1990. Record at 444-45. Judge Monroe admonished Nesses that "[f]ailure to comply with this order, Mr. Nesses, will very likely run the risk of this law suit being dismissed for your failure to make reasonable with the lawsuit that you yourself filed." Record at 445-46. The judge also ordered Nesses to respond to Specialty's formal settlement offer by February 22, 1990. Record at 450. Finally, Judge Monroe set July 31, 1990 for the trial date and told counsel for Specialty to set the date for the final pre-trial conference. To On March 22, 1990, another hearing was held on Specialty's motion to dismiss. Counsel for Specialty informed the court that Nesses had provided Specialty with his tax records two days late, on February 22, 1990, but has not submitted his business financial records. Nesses's new counsel had informed Specialty that Nesses had no business financial records beyond his income tax returns, despite the fact that Nesses had said in his unpublished deposition and at the January 19, 1990 hearing that he indeed had such records....