Pollock v. Brown, 11607.

• Decision Date: 16 November 1978
• Docket Number: No. 11776.,No. 11607.,11607.,11776.
• Citation: 395 A.2d 50
• Parties: William POLLOCK et ux., Appellants, v. Sidney J. BROWN et al., Appellees. Sidney J. BROWN et al., Appellants, v. William POLLOCK et ux., Appellees.
• Court: D.C. Court of Appeals

Page 50

395 A.2d 50

William POLLOCK et ux., Appellants, v. Sidney J. BROWN et al., Appellees.

Sidney J. BROWN et al., Appellants, v. William POLLOCK et ux., Appellees.

No. 11607.

No. 11776.

District of Columbia Court of Appeals.

Argued September 13, 1977.

Decided November 16, 1978.

Rehearing Denied February 15, 1979.

David M. Dorsen, Washington, D. C., for appellants in No. 11607 and appellees in No. 11776.

Mark P. Friedlander, Washington, D. C., for appellees in No. 11607 and appellants in No. 11776.

Before KERN, NEBEKER and HARRIS, Associate Judges.

NEBEKER, Associate Judge:

This case arises from a dispute between the landlords (the Browns) and the tenants (the Pollocks) over a commercial lease. The Browns appeal from a judgment entered against them in the net amount of $31,152.48. That judgment was entered following a hearing which was limited to the question of damages only, after the trial court had dismissed with prejudice the Browns' complaint for rent due and struck their answer to the Pollocks' claim for damages. The Browns assert that the second motions judge erred in dismissing their complaint and their answer to the Pollocks' complaint, leading to the entry of a default judgment against them. Both the Browns and the Pollocks assert that the damages hearing judge erred in various aspects of his determinations as to damages. We conclude that the order striking the Browns' pleadings and entering defaults against them was improperly entered and remand the case for further proceedings.

The Procedural Facts and Issues

In September 1974, "Sidney J. Brown, t/a Brentwood Associates," sued the Pollocks in the Landlord and Tenant Branch of Superior or Court for possession of certain leased premises (which were used for the operation of a pharmacy and a liquor store) and for past due rent. In response to the Pollocks' motion to dismiss for the plaintiffs' failure to join all of the partners of the landlord partnership, the names of the remaining members of the Brown group were added to the complaint. The suit was continued until February 1975, when the Browns sold the property and were no longer entitled to possession. Because the Landlord and Tenant Branch no longer had jurisdiction¹ and because the Browns did not dismiss their claim for rent, the suit was transferred to the regular civil docket. Upon motion of the Pollocks, the case was consolidated with an action which had been filed by the Pollocks in which they claimed damages for breach of certain warranties and covenants² but in which no service had been obtained on the Browns. The Pollocks were then permitted to file their claims for damages as counterclaims in the consolidated case.

The Pollocks sought discovery of the Browns through the production of documents by notice dated October 15, 1975. When, by November 17, the Browns had not complied, the Pollocks obtained an order from the first motions judge requiring production by December 19. The Pollocks also sought discovery through depositions. When the Browns failed to set a date for their depositions, the same judge issued, on December 2, 1975, a second order, reiterating the terms of the first order and further ordering that the Browns appear for depositions on January 15 and 16, 1976. This second order specified that, should the Browns fail to comply in either respect, "the Complaint [for back rent] and answer [to the Pollocks' counterclaims] of said parties [the Browns] shall be dismissed with prejudice."

The Browns produced the documents as ordered. By agreement of the respective counsel, however, the deposition dates were rescheduled for January 28-29. Whether these dates were firm or merely tentative was disputed by counsel and remains unresolved. No effort was made to obtain a modification of the discovery order. When, on January 27, counsel for the Pollocks was notified that the Browns would not be able to attend on the following days, he sought from another judge an order of default in accordance with the rigid condition of the first judge's order. During the hearing on that motion on February 2, 1976, counsel for the Browns asserted that the deposition dates had been only tentatively agreed upon,³ that two members of the partnership (including Sidney Brown, the principal partner, whose deposition the Pollocks' counsel had stressed he wished to take last) were abroad, and that he had been advised in the interim by the remaining four partners that they had never authorized their participation in either of the now-consolidated cases.⁴ He further argued that the sanction of default was too severe under the circumstances. Counsel for the Pollocks argued that the only issue before the court was the integrity of the first judge's order. The trial court then entered an order of default, and directed the holding of a hearing on damages.

There is no merit to the Browns' claim of error in the consolidation of the two cases. Although the Pollocks had not obtained service on the defendants in the Pollocks' original action, the claims presented in that action were also filed as counterclaims in the Browns' action for past due rent (originally asserted to be $6,600). It was within the sound discretion of the trial court to permit the late filing of these counterclaims, especially where, as here, the counterclaims had not been filed in the possessory action only because they were not permitted in the Landlord and Tenant Branch. Super.Ct.Civ.R. 6(b)(2) (enlargement of time).

The contentions that the order striking the Browns' complaint and answer to counterclaims was erroneously entered, however, have merit. First, with respect to striking the complaint for rent, we conclude that the court abused its discretion. Under Super.Ct.Civ.R. 37(b), the court is invested with broad discretion in imposing sanctions upon parties who fail to comply with a court order of discovery. Coleman v. Lee Washington Hauling Co., D.C.App., 392 A.2d 1067 (1978). To state that a trial court has "broad discretion" in a given set of circumstances, however, is to state only one portion of the rule of review. The other portion of the rule is that the exercise of discretion must be informed by a standard, for otherwise there would be no situation in which an appellate court could declare an abuse of discretion. Such standards usually develop only over time, with the aid of experience. In many areas of the law, the standards have not been fully delineated, and appellate courts must decide, in each case, whether the trial court action was "arbitrary, fanciful, or clearly unreasonable." United States v. McWilliams, 82 U.S.App.D.C. 259, 261, 163 F.2d 695, 697 (1947) (dismissal for lack of prosecution under F.R.Crim.P. Rule 48(b)). See also Napolitano v. Compania Sud Americana de Vapores, 421 F.2d 382, 384 (2d Cir. 1970) (denial of request for recess). But in other areas of the law, the standards for informed discretion are more specific. Thus, for example, while a trial court has "broad discretion" in awarding support or alimony in an original order, Smith v. Smith, D.C. App., 344 A.2d 221, 223 (1975), when the trial court considers modification of such an order the court's discretion must be reasonably informed by and related to changes of circumstances since the entry of the original order. Hamilton v. Hamilton, D.C.App., 247 A.2d 421 (1968). And in Pouncey v. United States, 121 U.S.App.D.C. 264, 266, 349 F.2d 699, 701 (1965), the court noted that "[a]though a judge has wide discretion in matters respecting competence, . . . he should recognize factors pertinent to its exercise." Such standards or "factors" are not a limitation on the discretion of the trial court but a means by which the appellate courts articulate the difference between a proper exercise of discretion and an abuse of discretion.

In the instant situation, our review of the trial court's discretion is governed by two standards. First, the remedy of dismissal should be granted only in the most severe circumstances. Koppal v. Travelers Indemnity Co., D.C.App., 297 A.2d 337, 339 (1972). Second, the sanction should, where possible, fit the offense. Oaks v. Rojcewicz, 409 P.2d 839, 844 (Alaska 1966); Wright & Miller, Federal Practice and Procedure § 2284 (1973). Although the Pollocks may have been hindered in their ability to prosecute their counterclaim because of the Browns' discovery delays, there is no indication that they were in any way prejudiced in their defense of the Browns' claim for rent. Dismissal of the Browns' complaint was, in our view, an excessive sanction. We accordingly reverse that ruling.⁵

Turning to the striking of the Browns' answer to the counterclaim, we do...