Robinson v. Higuera

• Decision Date: 16 August 1988
• Docket Number: No. 1,CA-CIV,1
• Citation: 157 Ariz. 622,760 P.2d 622
• Parties: Donald Steve ROBINSON, a single man, Plaintiff-Appellee, v. Henry HIGUERA and Jan Blagrave Higuera, husband and wife, dba Hank's Auto and Truck, Defendants-Appellants. 9882.
• Court: Arizona Court of Appeals

Page 622

760 P.2d 622

157 Ariz. 622

Donald Steve ROBINSON, a single man, Plaintiff-Appellee, v. Henry HIGUERA and Jan Blagrave Higuera, husband and wife, dba Hank's Auto and Truck, Defendants-Appellants.

No. 1 CA-CIV 9882.

Court of Appeals of Arizona Division 1, Department D.

Aug. 16, 1988.

Law Offices of David L. Lange by David L. Lange, Kenneth P. Smith, Prescott, for plaintiff-appellee.

Richard A. Wilson, Phoenix, and Walter Francis Wilson, Sr., Prescott, for defendants-appellants.

OPINION

KLEINSCHMIDT, Judge.

This is an appeal from a default judgment entered as a sanction for failure to comply with a discovery order. The sanction was imposed under the authority of Rule 37(b)(2), Arizona Rules of Civil Procedure. The sole issue is whether there is sufficient evidence in the record to support the court's order. It is our opinion that the entry of default as a sanction for the attorney's dereliction, as opposed to the client's, is unauthorized. The record as it now stands does not clearly show that the client was derelict or obstructive. We remand this case so that the trial court may hold a hearing to determine whether the client was a party to the dereliction or obstructive tactics that marked this case. If he was, default is appropriate. If he was not, and the obstruction or dereliction was solely attributable to counsel, the trial court may impose an appropriate but less severe sanction under Rule 37(b)(2).

Donald Steve Robinson filed a complaint against Henry Higuera and Jan Blagrave Higuera, husband and wife, dba Hank's Auto and Truck, for breach of contract and an accounting; for fraud and misrepresentation; and for unpaid wages. Higuera answered the complaint. On March 12, 1987, Robinson filed a request for production of documents. On April 29, 1987, Robinson filed a notice of service of nonuniform interrogatories and request for admissions of facts and genuineness of documents. When the deadline for compliance passed, Robinson sent two letters to Higuera's attorney extending the time for Higuera to provide the requested discovery until May 27, 1987, at which time Robinson intended to file a motion for an order compelling compliance.

Also on April 29, 1987, Robinson filed a notice of deposition to take the deposition of Higuera on June 5, 1987, at 10:00 a.m. This discovery request, like all others, was served by mail on Higuera's attorney. Higuera responded by letter on May 27, asserting that all existing documents had been produced and that a deposition would not produce relevant material. On June 5, neither Higuera nor his attorney appeared for Higuera's deposition. Higuera did, however, answer the nonuniform interrogatories and request for admissions, which Robinson filed on June 10.

On June 23, Robinson filed a motion to compel discovery seeking an order that Higuera give his deposition and produce previously requested documents. A copy of the motion to compel was mailed to Higuera's attorney. On July 7, Higuera filed a response to Robinson's motion to compel discovery, stating that Higuera's attorney was out of town on the June 5 deposition date and volunteering to submit to deposition at any future date Robinson selected. The response also indicated that each interrogatory and request for admission had been answered. On July 23, 1987, Robinson filed an amended notice of deposition to take Higuera's deposition on August 12, 1987, at 10:00 a.m. He mailed a copy of the notice to Higuera's attorney.

On August 6, 1987, without oral argument, the trial court granted Robinson's motion to compel discovery. The minute entry ordered Higuera to produce the requested documents on or before August 14, 1987, and ordered Higuera to appear for his deposition on or before August 21, 1987. The minute entry permitted Robinson to notice the deposition and set the time, place, and date for it. The minute entry also stated that "in the event the Defendants, Higueras, fail to comply with the order of the Court, default shall be entered against the Defendants."

On August 12, 1987, Higuera's attorney went to Higuera's place of business to pick him up for the deposition scheduled prior to the court's order, but, according to the attorney, Higuera was not there. Higuera's attorney telephoned Robinson's attorney at approximately 9:00 a.m. to inform him that Higuera was unavailable to be deposed at 10:00 that morning. Robinson held the deposition anyway; and, at ten minutes after the time scheduled, the court reporter noted Higuera's failure to appear.

On August 20, 1987, Robinson filed a motion for default judgment based upon the court's August 6 minute entry ordering Higuera to appear for a deposition or have a default judgment entered against him. Four days later, on August 24, 1987, Higuera's attorney filed a response to Robinson's motion for default judgment, asserting that Higuera did not know of the deposition scheduled on August 12, 1987. The response also asserted that Higuera had missed the June 5, 1987, deposition only because his attorney had not come to his garage to pick him up for the deposition and for that reason he thought it had been cancelled. The response contained the following statement: "Defendant HENRY HIGUERA did not know of the notice for deposition in the instance that notice was given for August 12, 1987 regardless of how implausible this may seem, it is nevertheless true." Higuera's counsel, W. Francis Wilson, signed the motion. Under his signature counsel included the following sentence: "W. FRANCIS WILSON [counsel], being first duly sworn deposes and says that the matters stated above of which he has knowledge are true." His notarized signature appears immediately thereafter. The response also asserted that all available documents had been produced. On August 24, 1987, the same day Higuera's response was filed, and without noting whether he had seen the response, the judge entered default judgment against Higuera for $5,500 plus interest, costs and attorneys fees.

Higuera contends that the trial court abused its discretion by entering a default judgment against him without holding a hearing to determine whether his non-compliance with the court's discovery order was due to his personal willfulness or bad faith. Robinson argues that a hearing was not necessary because Higuera's bad faith or willfulness in violating the production order was apparent from the record, and second, because Higuera did not request a hearing.

Due process does not require that a hearing be held in every case prior to imposition of Rule 37(b)(2) sanctions of dismissal or entry of default judgment. Link v. Wabash R.R. Co., 370 U.S. 626, 82 S.Ct. 1386, 8 L.Ed.2d 734 (1962); Edgar v. Slaughter, 548 F.2d 770, 772 (8th Cir.1977). Our public policy prefers sanctions less drastic than dismissal and that preference in turn gives rise to a preference for a hearing to determine whether a failure to produce was willful or in bad faith and whether the circumstances justify drastic action. Zakroff v. May, 8 Ariz.App. 101, 443 P.2d 916 (1968). Where willfulness or bad faith or fault of the party is clear from the record a hearing may not be necessary. Link, 370 U.S. at 632, 82 S.Ct. at 1389, 8...