Prager v. Meckling, 15883

• Decision Date: 14 December 1983
• Docket Number: No. 15883,15883
• Citation: 310 S.E.2d 852,172 W.Va. 785
• Court: West Virginia Supreme Court
• Parties: Charles L. PRAGER v. Ted G. MECKLING, Jr., d/b/a Ohio Valley Roofing.

Page 852

310 S.E.2d 852

172 W.Va. 785

Charles L. PRAGER v. Ted G. MECKLING, Jr., d/b/a Ohio Valley Roofing.

No. 15883.

Supreme Court of Appeals of West Virginia.

Dec. 14, 1983.

Syllabus by the Court

1. Generally, under Rule 37 of the Rules of Civil Procedure to trigger the imposition of sanctions where a party refuses to comply with a discovery request, the other party must file a motion to have the court order discovery. If the discovery order is issued and not obeyed, then the party may seek sanctions under Rule 37(b) of the Rules of Civil Procedure.

2. The major exception to the requirement for an order compelling discovery before sanctions can be obtained is contained in Rule 37(d) of the Rules of Civil Procedure. This provision authorizes a party to seek sanctions directly from the court where the opposing party has failed: (1) to attend his own deposition; (2) to answer or object to interrogatories; or (3) to serve written response to a request for inspection under Rule 34 of the Rules of Civil Procedure.

3. Rule 26(e)(2) of the Rules of Civil Procedure imposes a continuing obligation to supplement responses previously made when, in light of subsequent information, the original response is incorrect.

4. Despite the lack of any express provision in Rule 26(e) of the Rules of Civil Procedure authorizing the imposition of sanctions for failure to supplement previous discovery responses that are incorrect in light of current information, a trial court has inherent power to impose sanctions as a part of its obligation to conduct a fair and orderly trial.

5. Factors to be considered in determining whether the failure to supplement discovery requests under Rule 26(e)(2) of the Rules of Civil Procedure should require exclusion of evidence related to the supplementary material include: (1) the prejudice or surprise in fact of the party against whom the evidence is to be admitted; (2) the ability of that party to cure the prejudice; (3) the bad faith or willfulness of the party who failed to supplement discovery requests; and (4) the practical importance of the evidence excluded.

6. "Where a motion for a directed verdict is made by a party at the trial of a case, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed and the court must assume as true those facts which the jury may properly find from the evidence." Syllabus Point 5, Young v. Ross, 157 W.Va. 548, 202 S.E.2d 622 (1974).

7. "It is the peculiar and exclusive province of a jury to weigh the evidence and to resolve questions of fact when the testimony of witnesses regarding them is conflicting." Syllabus Point 4, in part, Young v. Ross, 157 W.Va. 548, 202 S.E.2d 622 (1974).

8. "An instruction incorrectly stating the measure of damages to be applied in case recovery is had, cannot successfully be made the basis of an assignment of error, where the plaintiff is not entitled to any recovery at all." Syllabus Point 3, in part, Martino v. Rotondi, 91 W.Va. 482, 113 S.E. 760 (1922).

Ray A. Byrd and Barbara L. Baxter, Schrader, Stamp, Byrd, Byrum, Johnson & Companion, Wheeling, for appellant.

James A. Byrum, Bailey, Byrum & Vieweg, Wheeling, for appellee.

MILLER, Justice:

This is an appeal by the plaintiff, Charles L. Prager, from an order of the Circuit Court of Ohio County denying his motion for a new trial in a contract action. The jury found in favor of the defendant, Ted G. Meckling, Jr., doing business as Ohio Valley Roofing. The plaintiff claims that the trial court erred in allowing the defendant to introduce a document into evidence during trial when the existence of that document had not been revealed during pretrial discovery. Additionally, he argues that the court erred in refusing to permit the jury to consider his claim for punitive damages. Finally, he contends that the court erred in refusing to direct a verdict for him on liability and in refusing to grant him judgment notwithstanding the jury's verdict. After examining the record before us, we conclude that the trial court committed no reversible error.

In 1977 the plaintiff entered into a contract with the defendant for the repair of the roof of a building which housed a residential swimming pool. Under the contract the defendant guaranteed the work for a period of seven years. The defendant commenced working on the roof on August 10, 1977, and completed the work on August 13 or 14, 1977.

A few months after the work was completed, the roof began to leak, and this problem continued to occur on several occasions. Each time the defendant after notification went to the property and made repairs to the roof.

In the summer of 1980, the defendant was notified that the roof was leaking excessively. After examining the roof the defendant reported that the problem was caused by vandalism and that he was not responsible. The plaintiff called upon the defendant to honor his guarantee, but the defendant refused.

When the defendant refused to repair the roof, the plaintiff filed an action for both compensatory and punitive damages. The plaintiff sought to recover for the cost of a new roof, and for damages to the interior of the building, as a result of the roof leakage. In addition, the plaintiff sought punitive damages on the theory that the defendant willfully refused to honor his roof warranty.

In his answer, the defendant alleged that the damage to the roof was due to vandalism and the failure of the appellant to remove rotting leaves and other debris from the roof. He asserted that it was these conditions that relieved him of responsibility for making further roof repairs. He also alleged that he was not guilty of intentional or willful misconduct.

I. PRODUCTION ISSUE

Prior to trial the plaintiff made a request for production of documents under Rule 34 of the Rules of Civil Procedure (R.C.P.). The defendant was asked to produce eleven specific categories of documents. The twelfth category was a general one for "[all] other documents in the defendant's possession ... relative to this litigation and not covered by the foregoing requests." In answer to this request, the defendant responded that such "documents requested do not exist."

At trial, the defendant took the position that the interior of the building was substantially damaged when he first examined it in connection with the proposed roof work. To corroborate his point, he testified that on August 10, 1977, at the time he replaced the roof, he had submitted an estimate to the plaintiff for repairs to the interior of the building. The defendant also offered into evidence a written copy of the estimate. The plaintiff objected since the existence of the document had not been revealed on discovery.

Although both parties cite cases construing Rule 37, R.C.P., we find that those cases fail to resolve the questions presented on appeal. Ordinarily, Rule 37 is designed to permit the use of sanctions against a party who refuses to comply with the discovery rules, i.e., Rules 26 through 36. See 8 C. Wright & A. Miller, Federal Practice & Procedure § 2281 (1970). Generally, under Rule 37, in order to trigger the imposition of sanctions where a party refuses to comply with a discovery request, the other party must file a motion to have the court order discovery. See Rule 37(a). ¹ If the discovery order is issued and not obeyed, then the party may seek sanctions under Rule 37(b).

The exceptions to the requirement for an order compelling discovery before sanctions can be obtained are contained in Rule 37(d). ² This provision enables a party to seek sanctions directly from the court where the opposing party has failed: (1) to attend his own deposition; (2) to answer or object to interrogatories; or (3) to serve written response to a request for inspection under Rule 34.

We discussed this matter briefly in State ex rel. McGraw v. West Virginia Judicial Review Board, 165 W.Va. 704, 271 S.E.2d 344 (1980), where sanctions were sought because a witness had failed to answer certain questions at the taking of a deposition. We held that sanctions could not be imposed because there had been no motion under Rule 37(a) and no subsequent order directing the answers which if disobeyed would have formed the basis for sanctions under Rule 37(b). We did not discuss the Rule 37(d) exceptions because they were not applicable to the facts. ³

In the present case, the claimed discovery violation involved an incorrect response to one of a series of requests for production of documents under Rule 34. Initially, a written response was filed by the defendant to the plaintiff's request for admissions. Consequently, the direct sanctions under Rule 37(d) were not available as the imposition of sanctions under this provision is triggered when there is no response to a request for production of documents. Ordinarily, where an inadequate response has been made, to trigger sanctions under Rule 37(b), an order compelling discovery would have to be obtained. If the recalcitrant party does not obey the order then a request for sanctions can be made. 4A J. Moore, J. Lucas & D. Epstein, Moore's Federal Practice p 37.05 (1983).

The reason that this case does not fit into a Rule 37 context is that the plaintiff had no way of knowing that the defendant's initial answer was untrue when the defendant responded that no documents existed. As a result, the plaintiff had no reason to seek sanctions under Rule 37. If at the time the defendant made the answer he had not found the document, then his answer was true. However, Rule 26(e)(2), R.C.P., imposes a continuing obligation to supplement responses previously made when, in light of subsequent information, the original response is incorrect. ⁴ Under this rule, the defendant did have an obligation once the document was located to make its existence known to the plaintiff.

Despite the lack of any express provision in Rule 26(e) authorizing the...