Vickers v. Kansas City, 47486

• Decision Date: 25 January 1975
• Docket Number: No. 47486,47486
• Citation: 216 Kan. 84,531 P.2d 113
• Parties: Rex L. VICKERS, Appellant, v. KANSAS CITY, Kansas, and State Highway Commission of Kansas, Appellees.
• Court: Kansas Supreme Court

Page 113

531 P.2d 113

216 Kan. 84

Rex L. VICKERS, Appellant, v. KANSAS CITY, Kansas, and State Highway Commission of Kansas,

Appellees.

No. 47486.

Supreme Court of Kansas.

Jan. 25, 1975.

Syllabus by the Court

1. At the discovery stage in a damage action the deposition testimony of the plaintiff was taken. He testified from memory as to items contained in his records, and a subsequent order was issued by the trial court requiring the plaintiff to produce all receipts, bills, checks paid and invoices for all special damages allegedly suffered, including, but not limited to the items discussed in his deposition testimony. Pursuant thereto the plaintiff produced 39 documents, but failed to produce all the documents he originally thought he had. Thereafter the trial court sustained the defendant's motion to dismiss the action after finding that the plaintiff had willfully refused to comply with the production order. On appeal it is held: The trial court abused the exercise of its power of discretion by imposing the most severe sanction authorized by K.S.A.1973 Supp. 60-237(b)(2), a dismissal of the action, and the judgment is reversed.

2. Throughout the statutory procedure authorized by discovery rules and regulations the trial court is vested with large amounts of discretion in its direction of pretrial discovery. It is vested with considerable discretion in the enforcement of its previously issued discovery orders and in the assessment of sanctions against noncomplying parties.

3. K.S.A.1973 Supp. 60-237 provides to a trial court a series of sanctions, varying in severity, which the court may use against parties unjustifiably resisting discovery.

4. Discretion may be defined as the freedom to act according to one's judgment. Judicial discretion implies the liberty to act as a judge should act, applying the rules and analogies of the law to the facts found after weighing and examining the evidence-to act upon fair judicial consideration and not arbitrarily.

5. Discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court then it cannot be said the trial court abused its discretion.

6. Under K.S.A.1973 Supp. 60-237(b)(2) the sanction of judgment by default for failure to comply with a production order in discovery proceedings is the most severe sanction which the court may apply, and its use must be tempered by the careful exercise of judicial discretion to assure that its imposition is merited.

7. Where a party fails to comply with a production order in the course of discovery proceedings, the trial court is required in the exercise of its power of judicial discretion to determine which of the variety of available sanctions it will impose by its judgment. In making this determination the trial court should consider whether or not the documents to be produced go to a dispositive issue in the case, and whether the party seeking discovery may therefore be protected by the imposition of a sanction short of dismissal; and the court also should consider whether the party ordered to produce has failed to comply due to his inability to comply with the order, and not due to willfulness or bad faith.

John H. Fields, Carson, Fields, Kugler & Boal, Kansas, City, argued the cause, and was on the brief for appellant.

Daniel B. Denk, Asst. City Atty., argued the cause, and Donald E. Martin, City Atty., Frank L. Johnson, and Wilbur P. McCool, Topeka, were with him on the brief for appellees.

SCHROEDER, Justice.

This is an action by Rex L. Vickers (plaintiff-appellant) against the City of Kansas City, Kansas, and the Kansas State Highway Commission (defendants-appellees) for damages based upon the alleged negligence of the defendants, the creation and maintenance of a nuisance by the defendants and inverse condemnation of plaintiff's real property. During the discovery stage of the lawsuit and prior to docketing the case for trial, the motion of the City for an order pursuant to K.S.A1973 Supp. 60-237 dismissing the cause of action was sustained by the trial court for what was held to be the plaintiff's willful refusal to comply with the court's order to produce certain documents and items for the City to inspect and copy. The plaintiff has duly perfected this appeal, contending (1) the trial court abused its discretion in dismissing the action, and (2) there is no competent evidence to support the trial court's conclusion that the plaintiff willfully refused to comply with the order to produce.

The question here for review is whether the trial court abused the exercise of its power of discretion in the dismissal of the plaintiff's cause of action.

The appellees contend the dismissal was based upon the plaintiff's failure to comply with an order of the court for production of documents.

This action was commenced by the filing of a petition on May 28, 1971. The first count of the petition alleged that in the process of constructing and maintaining the connecting line in the highway system known as I-635 the natural surface of all the nearby real property was altered, existing waterways were changed and overloaded beyond their capacity, the runoff of surface waters was accelerated and drainpipes and channels were clogged, stopped up and changed which caused waters to accumulate and collect on said highway and the surrounding properties as well, and caused the waters to precipitate in great volume and with great force into, upon and through the plaintiff's real property, damaging the dwelling house situated thereon and every other thing standing in their way. Count One further alleged actual damages in the sum of $5,500, which included the loss of three hot water heaters, two furnaces, sump pumps, tools, supplies, more than 500 yards of sod, rentals from the subject property, the expense of digging out mud, hauling trash, grading and ditching on plaintiff's property, and mental anguish, emotional strain and upset sustained by the plaintiff.

The second count alleged the City of Kansas City has maintained a nuisance in and near the plaintiff's real property since April 24, 1956, by maintaining inadequate and improper drainage facilities in the vicinity of the plaintiff's real property. In the alternative, the plaintiff alleged that both defendants created a nuisance in the process of constructing the city connecting line as described in Count One, to the plaintiff's actual damage in the sum of $5,500.

The third count of the petition alleged the defendants, without plaintiff's consent, and without condemnation, as in the law of Eminent Domain provided, and without any authority whatsoever, unlawfully appropriated the plaintiff's real property to their use for drainage of the highway right-of-way.

After answers and cross claims were filed by the appellees, the appellant, on November 18, 1971, propounded interrogatories to the City, which were answered in due course. Thereafter, on January 20, 1972, the trial court sustained the appellant's motion for production and permission to copy certain documents in the possession of the City.

The City began discovery procedures by deposing the appellant on December 9, 1971. We are informed the notice for deposition called only for the appellant's personal appearance and did not request him to bring documents evidencing the special damages claimed in the petition. In substance, the excerpts from the deposition which are contained in the record on appeal disclose that during the deposition the appellant testified that he had made various expenditures as a result of the flooding on his property; such as, having a trench dug, new water heaters, new furnace units and duct work, a new sump pump, tools, etc. However, he did not have cancelled checks or receipts with him at the time of the deposition to document each expenditure, but stated he would produce the documents referred to therein through his counsel. On occasion there was some equivocation by the appellant as to whether or not he actually did possess documentation for particular expenditures, but generally he did state that he would produce the information.

Nothing further occurred in the lawsuit until June 22, 1972, when the appellant filed a praecipe to set the matter for trial, by stating the case was at issue and discovery had been completed. Apparently, no action was taken with regard to the praecipe.

Subsequently on July 5, 1972, the City moved for an order requiring the appellant to permit the City to inspect and photograph 'All receipts, bills, checks paid and invoices for all special damages allegedly suffered by the plaintiff' including, but not limited to 'the items discussed in plaintiff's deposition taken on December 9, 1971.' An affidavit by the City's counsel attached to the motion declares that during the appellant's deposition, appellant stated he would produce each of the documents referred to in the motion for production; that repeated demands have been made for production of these documents; and that it is believed all of the documents requested for production are relevant to ascertaining the measure of the appellant's damages and further to eliminate surprise and to narrow the issues. The trial court sustained the City's motion on October 2, 1972. No record was made of this proceeding.

The appellant once again filed a praecipe for a docket setting on April 13, 1973. Nothing occurred with respect to this praecipe.

On July 24, 1973, the City moved the court for an order pursuant to K.S.A.1973 Supp. 60-237, to compel production of documents and items for copying and inspecting, or in the alternative to grant a default judgment in favor of the City and against the appellant for failure to comply with the court's order entered on October 2, 1972.

On August 7, 1973, the appellant filed his third praecipe for trial, but no action was taken concerning it.

On August 9,...