Tucker Realty Inc. v. Nunley, 10066

• Decision Date: 09 November 1964
• Docket Number: No. 10066,10066
• Citation: Tucker Realty Inc. v. Nunley, 396 P.2d 410, 16 Utah 2d 97 (Utah 1964)
• Parties: d 97 TUCKER REALTY, INC., Plaintiff and Respondent, v. Doyle L. NUNLEY, Defendant and Appellant.
• Court: Utah Supreme Court

Page 410

396 P.2d 410

16 Utah 2d 97

TUCKER REALTY, INC., Plaintiff and Respondent, v. Doyle L. NUNLEY, Defendant and Appellant.

No. 10066.

Supreme Court of Utah.

Nov. 9, 1964.

Horace J. Knowlton, Salt Lake City, for appellant.

Barker & Ryberg, Salt Lake City, for respondent.

CROCKETT, Justice.

This action is grounded upon a promisory note for $1,020, signed by the defendant, Doyle, L. Nunley. It was commenced by service of summons on March 31, 1962. There having been no appearance or answer, judgment by default was entered August 24, 1962. Upon defendant's motion, served and filed in October, the trial court, on November 14, 1962, set aside the default judgment and permitted the defendant to file his answer.

Defendant does not deny the execution of the note, but claims discharge of the debt by a painting job on a duplex for which the plaintiff credited him with $300. He also set forth allegations in the nature of counterclaim that the suit was groundless and malicious; and asked compensatory damages in the sum of $5,000 and punitive damages in the sum of $10,000.

Shortly after the default was set aside, on November 27, 1962, plaintiff took defendant's deposition. In an obvious effort to test the truthfulness of defendant's claims as to this paint job, plaintiff's counsel questioned him as to who had done the work, the number of hours spent, the rate of pay, and the amount and source of materials used. Defendant made answers: That he himself had worked on the job. As to the time worked: '* * * I possibly put in--from checking the job and all, 25 or 30 hours'; that he had employed thereon his brother, James D. Nunley, and his son, James Arthur Nunley; that each had worked '* * * roughly, about 60 hours--between 55 and 60 hours.' As to the paint used, that it, 'would amount to around $185'; and as to where it came from, that he had purchased materials from Peck-Ash-Parry, Salt Lake Glass & Paint Co., DeHaan Paint Co., and Skyline Paint Co.

In response to questions about keeping records of these matters, defendant stated that he had such records and that they were available. Thereafter, on January 9, 1963, plaintiff made a motion that the defendant be required to produce and allow plaintiff to inspect, copy or photograph these records relating to this job: his job book in which he said he had kept notations of the labor and material used; the record of the hours worked by himself and his employees; the employer's copies of (a) federal W2 income tax forms and (b) withholding tax returns; and the invoices showing paint purchases from the above named companies during that period. ¹

After a hearing on this motion, the court granted, it, and on March 5, 1963, made an order that the defendant produce such records. It was not complied with except that on March 12, 1963, the defendant brought to the office of plaintiff's attorney a copy of the order but produced no such records or documents.

At the time of the pretrial, on October 19, 1963, in its pretrial order the court again directed that the defendant produce whatever records he had pertaining to this transaction within 10 days, or default judgment would be taken against him. In response to this order, the defendant brought in one invoice for paint purchased from the Salt Lake Glass & Paint Co. in the amount of $35, but failed to produce any other records or documents. Plaintiff then filed a motion for a default judgment based upon such failure. The matter came on for hearing on December 19, 1963. Defendant represents to this court that he was sworn and testified, while plaintiff asserts to the contrary. Howsoever that may be, from the contentions of both parties, it is apparent that there was a proceeding participated in by the court, counsel for both sides and the defendant. After this hearing, the trial court on December 27, 1963, granted the plaintiff judgment. Defendant appeals, arguing that at the December 19 hearing he advised the court that he had no such records, and that he therefore had not wilfully failed to produce them.

The action of the trial court is grounded upon Rule 37, U.R.C.P.. entitled 'Refusal To Make Discovery: Consequences.' Under (b)(2)(iii) it provides that if a party refuses to obey an order made under the discovery proceeding, the court may make '[a]n order striking out pleadings * * * or rendering a judgment by default against the disobedient party.'

We recognize that the granting of a judgment against a party solely for disobeying an order to cooperate in discovery procedure is a stringent measure which should be employed with caution and restraint and only where the failure has been wilful and the interests of justice so demand. Except in very aggravated cases, less serious sanctions undoubtedly could be applied to accomplish the desired result, particularly where there is any likelihood of injustice by depriving a party of a meritorious cause of action or defense. Whether the failure to comply with the court's order has been wilful and whether the circumstances are so aggravated as to justify the action taken is primarily for the trial court to determine. ² Unless it is shown that his action is without support in the record, or is a plain abuse of discretion, it should not be disturbed. There is nothing to suggest that such was the situation here. But on the contrary, there are several considerations which support the trial court's action.

We first note the basic premise on appeal: That the judgment is presumed to be correct, and that the burden of establishing its invalidity is upon the party attacking it. ³ Inasmuch as no transcript of what transpired before the trial court on December 19, 1963, has been brought to us, it is to be presumed that the proceeding supports the judgment. ⁴

It is perhaps unnecessary to burden this opinion with other of the numerous details and proceedings in this strangely mixed-up lawsuit. It is...