Spence v. North Dakota Dist. Court

• Decision Date: 21 April 1980
• Docket Number: No. 9751,9751
• Citation: 292 N.W.2d 53
• Parties: Cecil SPENCE and Shirley Spence, Petitioners, v. NORTH DAKOTA DISTRICT COURT, Burleigh County, South Central Judicial District, and Dennis A. Schneider, Judge of District Court for the South Central JudicialDistrict, acting pursuant to appointment by Order of the Supreme Court, Respondents. Civ.
• Court: North Dakota Supreme Court

Page 53

292 N.W.2d 53

Cecil SPENCE and Shirley Spence, Petitioners, v. NORTH DAKOTA DISTRICT COURT, Burleigh County, South Central Judicial District, and Dennis A. Schneider, Judge of District Court for the South Central JudicialDistrict acting pursuant to appointment by Order of the Supreme Court, Respondents.

Civ. No. 9751.

Supreme Court of North Dakota.

April 21, 1980.

Kapsner & Kapsner, Bismarck, for petitioners; argued by Michael J. williams.

Wheeler, Wolf, Wefald, Peterson & McDonald, Bismarck, for respondents; argued by Robert O. Wefald, Bismarck.

ERICKSTAD, Chief Justice.

The Spences petitioned this court to exercise its original jurisdiction and issue a supervisory writ directing the trial court to (1) issue an order compelling answers to certain of the petitioners' interrogatories, and(2) award the petitioners reasonable attorney's fees. We decline to do so.

On August 20, 1979, an action was commenced by the Spences against Better Homes, Inc., Elma Krueger, and Walter Krueger, individually and as president of Better Homes, Inc. (hereinafter referred to as Better Homes), by service of a summons, complaint, and interrogatories. The Spences sought to recover damages for injuries they suffered as a result of an alleged defectively-built home they had purchased from Better Homes. Better Homes failed to file answers to the interrogatories within the time period set forth in Rule 33(a) of the North Dakota Rules of Civil Procedure, and, thereafter, the Spences filed a motion pursuant to Rule 37(a), N.D.R.Civ.P., for an order compelling Better Homes to answer. The Spences also asked the trial court to award them reasonable expenses, including attorney's fees, incurred in obtaining the order. See Rule 37(a), N.D.R.Civ.P.

A hearing on the motion was originally scheduled for January 7, 1980, but due to court congestion, the date was changed to January 14, 1980. Between the time the hearing was originally scheduled and the time it was eventually held, Better Homes submitted its answers. At the hearing on the motion to compel answers to the interrogatories, the Spences contended that Better Homes failed to answer certain of the interrogatories relating to the disclosure of Walter Krueger's income tax returns for the past five years, and gave incomplete or evasive answers to several other interrogatories. Specifically, Better Homes objected to and failed to answer interrogatories Nos. 4, 5, 6, 7, 8, and 24 on relevancy grounds, and gave incomplete or evasive answers to interrogatories Nos. 10, 11, 12, 16, 17, 21, and 23. As pertinent to this appeal, the interrogatories at issue, and the answers submitted thereto, are as follows:

"INTERROGATORY NO. 4 : Did you file an income tax return in any year during the past five (5) years?

"ANSWER : I object and refuse to answer this interrogatory, as the answer is irrelevant to any matters in issue in this action.

"INTERROGATORY NO. 5 : If so, state:

(a) each year filed; and

(b) whether you have copies of these returns.

"ANSWER : I object and refuse to answer this interrogatory, as the answer is irrelevant to any matters in issue in this action.

"INTERROGATORY NO. 6 : If not, state the name of the person, firm or organization which has copies of said returns.

"ANSWER : I object and refuse to answer this interrogatory, as the answer is irrelevant to any matters in issue in this action.

"INTERROGATORY NO. 7 : What was your gross income for each of the following years: 1974, 1975, 1976, 1977, 1978?

"ANSWER : I object and refuse to answer this interrogatory, as the answer is irrelevant to any matters in issue in this action.

"INTERROGATORY NO. 8 : What was your gross income for each of the calendar months of the year 1979?

"ANSWER : I object and refuse to answer this interrogatory, as the answer is irrelevant to any matters in issue in this action.

"INTERROGATORY NO. 8 : What was your gross income for each of the calendar months of the year 1979?

"ANSWER : I object and refuse to answer this interrogatory, as the answer is irrelevant to any matters in issue in this action.

"INTERROGATORY NO. 10 : If so, list any such claims or lawsuits and the dates and places where filed.

"ANSWER : The only other such lawsuit that I can recall was a claim by Monte Preabt and Shirley Preabt involving property situated at 1515 Imperial Drive, otherwise known as Lot 23, Block 3, Imperial Valley Subdivision, Bismarck, North Dakota. This lawsuit was commenced by the present attorney for the plaintiffs in this action in a summons dated September 22, 1978, and was recorded in the Burleigh County District Court as Civil No. 27745.

"INTERROGATORY NO. 11 : Identify any and all written contracts, agreements, warranties or other documents between or among Mr. Walter Krueger, Better Homes, Inc., their agents or employees, and the plaintiffs to this action.

"ANSWER : The only written document that I can recall is the earnest money contract executed on the 8th day of December, 1978, when the plaintiffs purchased the property in question.

"INTERROGATORY NO. 12 : Describe in detail any and all oral contracts, warranties, agreements, or other understandings between or among Mr. Walter Krueger, Better Homes, Inc., their agents or employees and the plaintiffs in this action.

"ANSWER : It is my recollection that at the time of the sale of the property to the plaintiffs, there was an understanding that the patio would be completed, the sidewalk to the front porch would be completed, and siding would be put on the fireplace chimney. I can recall nothing else at that time. Subsequently, other conversations were held with the plaintiffs regarding complaints that they had and those complaints have ripened into this lawsuit. These conversations, however, have not resulted in any specific agreement with the plaintiffs.

"INTERROGATORY NO. 16 : Identify contracts, agreements, or other documents involving Mr. Walter Krueger, Better Homes, Inc., and/or their agents or employees and any contractor or subcontractor identified in response to interrogatory 15 above.

"ANSWER : I cannot recall any specific written documents between myself or Better Homes, Inc., and any contractor or subcontractor referred to above.

"INTERROGATORY NO. 17 : Identify any and all bonds executed and filed with the Secretary of State pursuant to Chapter 43-07 of the North Dakota Century Code and all other bonds required by any governmental authority on behalf of Better Homes, Inc., and/or Walter Krueger. As to each bond, identify the company issuing said bond and the amount of said bond.

"ANSWER : To the best of my knowledge, neither I nor Better Homes, Inc., had a contractor's bond at the time the house was constructed.

"INTERROGATORY NO. 21 : Identify all statements made by you to any person relating to any defects and/or incompletions in or on the house identified in paragraph 13.

"ANSWER : I can recall making statements to no one except my attorney, the city building inspectors, and the plaintiffs and their attorneys during the course of the negotiations concerning this matter. I cannot remember the particular details of any statements I may have made, however, I do acknowledge that they do relate to the subject of this lawsuit and the complaints of the plaintiffs.

"INTERROGATORY NO. 23 : Identify the internal procedures and/or standards of Better Homes, Inc., of construction and/or installation, of the following, and state whether those procedures were complied with in the construction of the house identified in paragraph 13.

(a) Installation of exterior doors;

(b) Installation of windows;

(c) Installation and/or construction of the siding;

(d) Installation and/or construction of the plumbing system;

(e) Installation and/or construction of the soffit vents;

(f) Installation and/or construction of shingles on the roof; and

(g) Installation and/or construction of fresh air return ducts.

"ANSWER : To the best of my knowledge, there are no written internal procedures or standards of Better Homes, Inc. The goal of that corporation and myself has always been to use good workmanship and good materials. The materials used in this particular house were good materials in accordance with the standards of Better Homes, Inc. The failure, if any, with respect to this home is in the lack of consistent good workmanship which I attribute to Ken Haff who was hired by Better Homes, Inc., to supervise the construction of this home. So as to each of the items in subparagraphs (a) through (g), the answer is that the materials were good materials, and that any failures to any degree were related to the lack of consistent good workmanship.

"INTERROGATORY NO. 24 : Identify all transactions involving the sale, renovation, construction, or other improvement to real property in which defendants and/or any other person, natural or corporate in which defendants or any of them have had a management or greater than a five per cent ownership interest, during the last five (5) years.

"ANSWER : I object and refuse to answer this interrogatory, as the answer is irrelevant to any matters in issue in this action."

The Spences argued that answers to interrogatories No. 4 through 8, inclusive, and No. 24 were relevant as to one of the elements of damages sought to be recovered, namely punitive damages. Further, they contended that Better Homes could not merely rely upon its memory in answering interrogatories No. 10, 11, 12, 16, 17, 21, and 23, but, instead, they had an affirmative obligation to search their records, as well as other information at their disposal, in order to give more complete answers to the questions.

The Burleigh County District Court, South Central Judicial District, granted the Spences' motion to compel an answer to interrogatory No. 24, but denied the motion to compel answers to the other questions. The trial court determined that the information relating to the disclosure of Krueger's income tax returns, which...