Tuck v. Godfrey

• Decision Date: 22 April 1999
• Docket Number: No. 981118-CA,981118-CA
• Citation: 981 P.2d 407
• Parties: 367 Utah Adv. Rep. 42, 1999 UT App 127 Mary M. TUCK, Plaintiff and Appellee, v. S. Chad GODFREY, an individual; and The Beehive House, a Utah limited partnership, Defendants and Appellant.
• Court: Utah Court of Appeals

Page 407

981 P.2d 407

367 Utah Adv. Rep. 42, 1999 UT App 127

Mary M. TUCK, Plaintiff and Appellee, v. S. Chad GODFREY, an individual; and The Beehive House, a

Utah limited partnership, Defendants and Appellant.

No. 981118-CA.

Court of Appeals of Utah.

April 22, 1999.

Kim R. Wilson, David L. Pinkston, and Paxton R. Guymon, Salt Lake City, for appellant.

Ronny L. Cutshall and Vincent C. Rampton, Salt Lake City, for appellee.

Before: WILKINS, P.J., and BENCH and BILLINGS, JJ.

OPINION

BILLINGS, J.

¶1 Appellant S. Chad Godfrey appeals the trial court's entry of a default judgment against him for failure to comply with discovery requirements. We affirm.

FACTS

¶2 This case originated as a dispute over whether defendants S. Chad Godfrey (Godfrey) and Beehive House (Beehive) were required to repay funds given them by plaintiff Mary Tuck (Tuck). ¹ Beehive is owned by B. Ralph Godfrey (Ralph Godfrey), and operated by his family. At times relevant to this action, Godfrey was employed by Beehive or Beehive Health, an affiliated company.

¶3 For about two years, until late in 1995, Tuck was a resident of Beehive House, a retirement living center. During this time, she wrote several checks to Godfrey and Beehive, totaling approximately $380,000. While most of the checks were marked "loan" or "investment," no money has been repaid by either Beehive or Godfrey. Tuck filed a complaint against the defendants ² alleging breach of contract and unjust enrichment. Defendants have taken the position that the funds paid to Godfrey and Beehive were either gifts or were forgiven at a later time.

¶4 Tuck's attorney scheduled Godfrey's deposition for August 19, 1996, and sent notice of the deposition on August 7, 1996, to the attorney for both Godfrey and Beehive. The notice of deposition included a request for production of documents, requiring Godfrey to bring the documents to his deposition. Godfrey's attorney notified Tuck's attorney that Godfrey was unavailable to be deposed on the date noticed, stating that Godfrey was out of Utah and would not return until the middle of September. He did not explain Godfrey's absence nor reveal Godfrey's whereabouts. ³ Tuck's attorney refused to postpone the deposition.

¶5 The parties attempted to resolve the difficulty through negotiations, including proposed stipulations to sanctions. Though the parties tentatively agreed on a new deposition date, Beehive rejected the proposed stipulation to default sanctions in the event of Godfrey's failure to appear. Absent any agreement, Tuck's attorney filed a motion for sanctions with the trial court, requesting the entry of default against both defendants for Godfrey's failure to appear at the scheduled deposition.

¶6 Godfrey's attorney filed a memorandum opposing the motion for sanctions, and additionally filed a motion for a protective order. The motion for a protective order sought to protect Godfrey from the "undue burden, expense and oppression [of] having to appear at his deposition as Noticed by plaintiff." The motion did not provide any factual background explaining why Godfrey would experience any undue burden, nor did the motion state any concerns with, or objections to, the request for documents included in the deposition notice.

¶7 The motion for sanctions and the motion for a protective order came before the trial court for hearing on March 28, 1997. By that time, Tuck had died, and Godfrey had returned to Utah and was available to be deposed. The court denied the motion for a protective order. Though the court did not enter default against either Godfrey or Beehive the court did impose sanctions against Godfrey for his failure to appear at his deposition, ordering him to pay attorney fees to Tuck for the cost of the motion for sanctions. The court stated, "I am very concerned about Mr. Godfrey's conduct in this case based on the information I have at this juncture.... I want him to get the message. His conduct is woefully inadequate and completely unacceptable."

¶8 The court ordered Godfrey to pay the attorney fees, or face default if he failed to do so. Only after such payment could Godfrey's deposition be rescheduled. Further, the court stated, "[Godfrey] will otherwise need to comply with the discovery request in the future." The order reflecting the court's bench rulings instructed the parties to reschedule Godfrey's deposition. No sanctions were imposed on Beehive.

¶9 On June 3, 1997, Tuck's attorney sent a Notice of Deposition to defendants, scheduling depositions for both Godfrey and Ralph Godfrey in July 1997. As in the August 7, 1996 notice of deposition, this deposition notice again included the request for documents. ⁴ The depositions were scheduled for July 10 and 11, thereby giving defendants more than thirty days notice to produce the documents requested in the new notice, in compliance with Rule 34 of the Utah Rules of Civil Procedure. The document request applied to both deponents, and they were required to bring the documents with them to the depositions.

¶10 As the date of the depositions approached, the parties agreed to a slight change in scheduling--the documents were to be produced to Tuck's attorney on July 10 for review, while both Godfrey and Ralph Godfrey were to be deposed on July 11. No documents were delivered on July 10. Both Godfrey and Ralph Godfrey appeared for their depositions as scheduled on July 11. They brought an envelope containing some documents responsive to the discovery requests. However, they did not bring the requested bank records, checks, or ledgers, nor did they object to any of the document requests. Because of noncompliance with the document request, Tuck's attorney chose not to depose Godfrey, concluding that deposing Godfrey without the bank records would be unproductive. Ralph Godfrey was deposed, and explained in part the absence of the records.

¶11 According to Ralph Godfrey, the records could not be found, but Beehive was still looking for them. He acknowledged that the records existed, were regularly kept, and they had not been destroyed. He testified that, although earlier sporadic attempts had been made to find the records, it was only on July 10 that "we really went for it, more or less, and had everybody try to go help us find these [documents]." Though the documents requested were the property of Beehive, Godfrey did not object to the request for documents as it applied to him personally. In fact, Godfrey was involved in the attempts to find the documents.

¶12 Based on the failure to produce the documents, Tuck's attorney filed a second motion for sanctions under Rule 37(d) of the Utah Rules of Civil Procedure, again requesting that default be entered against both defendants. He contended the failure to produce the records fundamentally impeded his ability to prove or disprove the merit of Tuck's allegations.

¶13 The second motion for sanctions came before the trial court for hearing. At the outset, the trial court made it clear that, based on the history of the case, sanctions were appropriate. The only issue was what the sanctions would be. Regarding Godfrey, the court expressed concern that Godfrey did not fully comply with the first order, stating "I understand [the first order granting sanctions] related to the deposition but it also had to do with the ... production of documents as well." The court noted that Godfrey had done nothing to produce the documents between the time of the original sanction hearing and the June notice of deposition, even though the discovery request was first served in August 1996, and a court order was in place emphasizing the importance of discovery.

¶14 The court ordered that Godfrey's pleadings be stricken, and entered default against him. The court found that Godfrey had done "virtually nothing in over a year." Further, the court found that Godfrey "obstructed discovery" by initially concealing his whereabouts, then failing to respond to discovery requests in a timely manner. The court noted that, even if the prior order had not been specific, the document production was clearly due in compliance with the thirty day deadline of Rule 34 of the Utah Rules of Civil Procedure. The court also noted that the prior sanctions had been ineffective in eliciting from Godfrey an appropriate or timely response to discovery.

ANALYSIS

I. Standard of Review

¶15 Trial courts have "broad discretion in selecting and imposing sanctions for discovery violations, including dismissing the noncomplying party's [pleadings]." Preston & Chambers, P.C. v.. Koller, 943 P.2d 260, 262 (Utah Ct.App.1997) (citing Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997)). Appellate courts may not interfere with such discretion unless abuse of discretion is clearly shown. See Morton, 938 P.2d at 274. A trial court's abuse of discretion in selecting which sanction to impose may be shown "only if there is either an erroneous conclusion of law or no evidentiary basis for the trial court's ruling." Id. (internal quotations and citations omitted).

¶16 Further, a trial court may impose sanctions under Rule 37 only after the court finds "willfulness, bad faith, or fault, or persistent dilatory tactics frustrating the judicial process" on the part of the noncomplying party. Id. (internal quotations and citations omitted). To support a finding of willfulness, there need only be "any intentional failure as distinguished from involuntary noncompliance. No wrongful intent need be shown." Utah Dep't of Transp. v. Osguthorpe, 892 P.2d 4, 8 (Utah 1995) (internal quotations and citations omitted). Once this threshold is met, " 'the choice of an appropriate discovery sanction is primarily the responsibility of the trial judge.' " Morton, 938 P.2d at 274 (quoting First Fed. Sav. & Loan Ass'n v. Schamanek, 684 P.2d 1257, 1266 (Utah 1984)).

II. Appropriateness of Default Judgment

¶17 Godfrey contends the trial court erred in sanctioning him for failing to...