Rush v. Fieldcrest Cannon, Inc.

Sandra RUSH v. FIELDCREST CANNON, INC., a
North Carolina corporation; Allied-Signal,
Inc., a Virginia corporation; Brandon
Furniture Company, Inc., and Arkansas
corporation, d/b/a Brandon House Furniture;
Congoleum Corporation, a New Jersey
corporation; Brinkman, L.D. & Co., a Texas
corporation, d/b/a L.D. Brinkman Co.; Crest-
Foam Corporation, a subsidiary of Leggett &
Platt Incorporated, a Missouri corporation;
Jamison, Jim, Inc., d/b/a Jim Jamison Pest
Control, a Tennessee corporation; Central
Termite & Pest Control, Inc., an Arkansas
corporation; Stanley Steamer International,
Inc., d/b/a Stanley Steamer Carpet Cleaner;
Bill Jones, a citizen and resident of
Arkansas; Dowelanco, d/b/a d/b/a Elanco
Products Co., a division of Eli Lilly Co., an
Indiana corporation; Velsicol Chemical
Corporation, a Delaware corporation; and the
Dow Chemical Company, a Delaware corporation

96-127                                             ___ S.W.2d ___

                    Supreme Court of Arkansas
               Opinion delivered December 16, 1996


1.   Attorney & client -- withdrawal of counsel -- requirements. --
     Under ARCP Rule 64(b), permission to withdraw may be granted
     for good cause if counsel demonstrates that he (1) has taken
     reasonable steps to avoid foreseeable prejudice to his client,
     including giving due notice to his client and allowing time
     for employment of other counsel; (2) has delivered or stands
     ready to tender to the client all papers and property to which
     the client is entitled; and (3) has refunded or stands ready
     to refund any unearned fees; the rule's purpose is to protect
     the client's interests; the trial court, in considering an
     attorney's motion to withdraw, should examine the proposed
     withdrawal from the point of view of the client, not the
     attorney.  

2.   Attorney & client -- appellant's attorney demonstrated good
     cause for being relieved as counsel. -- The supreme court
     concluded that ARCP Rule 64 was complied with in this case
     where appellant's attorney requested permission to withdraw
     because he stated that he could not, in good faith, carry out
     appellant's instructions with respect to identifying expert
     witnesses; that appellant had given him settlement authority
     with respect to several of the appellees but, after
     substantial settlement negotiations had taken place, suddenly
     withdrew authority to settle with any appellee; and that
     appellant had become irate and belligerent on the telephone
     with him and his staff; and where appellant, who did not
     dispute these facts at the hearing or in her lengthy response
     to counsel's motion, suggested in her response an apparent
     hostility toward counsel and his representation of her in her
     case; under these circumstances, the supreme court held that
     appellant's attorney demonstrated good cause for being
     relieved as counsel. 

3.   Attorney & client -- appellant not prejudiced by attorney's
     withdrawal. -- Where, in compliance with ARCP Rule 64, the
     trial court gave appellant sixty days to obtain new counsel,
     and she did so; where counsel indicated his willingness to
     hand over all papers and literature to appellant's new
     attorney, and, at a hearing, appellant's new attorney
     indicated that counsel had in fact sent her twenty boxes of
     files relating to appellant's case; and where it was
     undisputed that appellant had not paid counsel any fees for
     his services, the supreme court could not see how appellant
     was prejudiced by counsel's withdrawal; the supreme court
     further concluded that the trial court properly followed ARCP
     Rule 64.     

4.   Discovery -- imposition of sanctions rests in trial court's
     discretion. -- The imposition of sanctions for the failure to
     make discovery rests in the trial court's discretion.

5.   Discovery -- compliance with rules especially important in
     cases involving complex issues and multiple parties. --
     Compliance with the rules of discovery is necessary in all
     cases and is especially important in cases involving complex
     issues and multiple parties.

6.   Civil procedure -- scheduling order -- purpose. -- The
     scheduling order, when entered, is to control the subsequent
     course of the litigation; its primary purpose is to keep
     litigation moving forward and to advise parties about the
     deadlines that they are expected to meet; failure to meet
     these deadlines undermines the goals of the scheduling order
     and prejudices the other side, which is also subject to
     discovery deadlines.

7.   Courts -- dismissal of action -- not abuse of discretion. --
     Where the trial court found that appellant's pattern of
     conduct in ignoring its orders was for the improper purpose of
     harassing appellees and delaying the litigation, and because
     the trial court was in a better position to judge the
     appellant's actions, the supreme court could not say that its
     dismissal constituted an abuse of discretion.

8.   Courts -- dismissal of action -- inherent power of trial
     courts. -- The supreme court has recognized the inherent power
     of trial courts to dismiss a case for failure to pursue it
     with diligence.

9.   Courts -- appellant's willful disregard of court's orders flew
     in face of respect due judicial system. -- Where, after having
     been ordered repeatedly to narrow her list of experts for
     trial, appellant instead broadened it, her conduct resulted in
     unreasonable expense to appellees, who were compelled to
     conduct discovery for nearly four years without substantial
     progress toward trial, and her willful disregard of the trial
     court's orders flew in the face of the respect due the
     judicial system.

10.  Courts -- dismissal of action -- proper exercise of
     discretion. -- Noting that it is crucial to the American
     judicial system that trial courts retain the discretion to
     control their dockets, the supreme court held the trial
     court's order dismissing appellant's case with prejudice was
     a proper exercise of its discretion.

     Appeal from Pulaski Circuit Court, Second Division; Chris
Piazza, Judge; affirmed.
     Dover & Dixon, P.A., by: David A. Couch, for appellant.
     Friday, Eldredge & Clark, by: James M. Simpson; and
Snellgrove, Laser, Langley, Lovett & Culpepper, by: David N. Laser,
for appellees.
     Bradley D. Jesson, Chief Justice.
     This appeal arises from the dismissal of appellant Sandra
Rush's products-liability complaint.  The trial court dismissed her
case with prejudice for her "pattern of intentional, willful and
deliberate delay" and for her "failure to narrow her case and ready
it for trial."  On appeal, appellant asserts that the trial court
erred in allowing her second attorney to withdraw in violation of
ARCP Rule 64(b), and in failing to give her third attorney adequate
time to prepare her case for trial.  We disagree that the trial
court abused its discretion and affirm.
     Appellant initiated this lawsuit on October 18, 1991, alleging
that she developed multiple-chemical-sensitivity syndrome as a
result of her alleged exposure to certain carpeting products
installed at her Little Rock residence.  Represented by Little Rock
attorney James F. Swindoll, appellant filed her complaint against
Fieldcrest Cannon, Inc., a carpet manufacturer, Allied Fibers, a
carpet-component manufacturer, and Brandon Furniture Company, Inc.,
a carpet installer.  On September 8, 1992, appellant amended her
complaint to add ten additional defendants, among which included
carpet cleaners, vinyl-flooring manufacturers and wholesalers, and
pesticide manufacturers and applicators.  She claimed that she
became chemically sensitive sometime between the time her house was
built in 1978 and when pesticides were applied to her home in 1989. 
Her case was assigned to the Seventh Division of Pulaski County
Circuit Court.  Appellant was ordered to provide medical
authorization so that appellees could obtain her medical records. 
Appellant nonsuited her case on December 31, 1992, and, thereafter,
attorney Swindoll discontinued his representation of appellant.
     After obtaining a new attorney, Robert A. Krause of the
Wyoming firm of Spence, Moriarity and Schuster, appellant refiled
her case on December 28, 1993, against the present thirteen
appellees.  The case was assigned to the Second Division of Pulaski
County Circuit Court.  On May 25, 1994, the trial court entered a 
scheduling order providing that appellant was to identify her
expert witnesses by February 21, 1995, and setting a trial date of
September 5, 1995, over one year away.   Appellant did not
designate her expert witnesses by the due date.  Instead, on
February 25, 1995, she filed a motion under seal for an extension
to identify experts.  Accompanying this motion was a motion by
attorney Krause to withdraw as counsel.  
     At a March 15, 1995, ex parte hearing on the motion to
withdraw, Krause informed the trial court that he was prepared to
identify eight expert witnesses who would testify at trial.  Krause
showed the trial court a list of these witnesses, which included
descriptions of their expected testimony.  According to Krause,
appellant would not permit him to disclose this list to the
appellees.  Rather, appellant insisted on a two-page list
containing twenty-two additional experts with whom she could not
claim she had spoken.  At the conclusion of the hearing, the trial
court announced that he was granting Krause's request to withdraw
and gave appellant sixty days to hire a third attorney.  The trial
court entered a written order to this effect on March 28, 1995. 
     On May 26, 1995, Elizabeth Burkhardt of Houston entered her
appearance as counsel for appellant.  The trial court held a status
conference on May 31, 1995.  At this hearing, the trial court
announced a new scheduling order calling for appellant to name her
experts by July 5, 1995, and setting a November 8, 1995, trial
date.  The trial court cautioned appellant that she needed to
"narrow the issues down and narrow the witness list down," and that
"we are going to stick to those dates."
     On July 5, 1995, appellant designated forty-two expert
witnesses, not all of whom she planned to call at trial.  The list
included most, if not all of the witnesses on her previous list,
the eight witnesses attorney Krause had wished to identify, plus
additional expert witnesses.  Thereafter, the appellees filed a
joint motion to dismiss appellant's case with prejudice.  Following
a hearing on the motion, the trial court entered a detailed order
on August 31, 1995, dismissing appellant's case with prejudice.  
     In its order, the trial court found that appellant had
"insisted on identifying an excessive and unreasonable number of
expert witnesses . . . for the improper purpose of harassing the
defendants and delaying the litigation."  The trial court further
determined that appellant's "pattern of intentional delay, her
abuse of the legal system, her failure to narrow her case and ready
it for trial, and her willful disregard of the rules of court and
this court's orders" had resulted in "unfair prejudice and
tremendous and unreasonable expense" to appellees.  It is from this
ruling that appellant appeals.

                      Withdrawal of counsel
     Appellant first argues that the trial court erred in
permitting Krause, her second attorney, to withdraw as counsel. 
This issue is governed by ARCP Rule 64(b), which provides that
permission to withdraw may be granted for good cause if counsel
demonstrates that he (1) has taken reasonable steps to avoid
foreseeable prejudice to his client, including giving due notice to
his client and allowing time for employment of other counsel; (2)
has delivered or stands ready to tender to the client all papers
and property to which the client is entitled; and (3) has refunded
or stands ready to refund any unearned fees.  In Jones-Blair Co. v.
Hammett, 326 Ark. 74, 930 S.W.2d 335 (1996), we explained that the
rule's purpose was to protect the client's interests, and that the
trial court, in considering an attorney's motion to withdraw,
should examine the proposed withdrawal from the point of view of
the client, not the attorney.  
     We have no reservation in concluding that Rule 64 was complied
with in this case.  Krause requested permission to withdraw for
three reasons.  First, he stated that he could not, in good faith,
carry out appellant's instructions with respect to identifying
expert witnesses.  Second, he averred that appellant had given him
settlement authority with respect to several of the appellees, but,
after substantial settlement negotiations had taken place, suddenly
withdrew authority to settle with any appellee.  Finally, Krause
reasoned that appellant had become irate and belligerent on the
telephone with him and his staff.  Appellant did not dispute these
facts at the hearing or in her lengthy response to Krause's motion. 
To the contrary, appellant's response suggested an apparent
hostility toward Krause and his representation of her in her case. 
Under these circumstances, we agree that Krause demonstrated good
cause for being relieved as counsel. 
     Turning to the specific requirements of Rule 64, we observe
that the trial court gave appellant sixty days to obtain new
counsel, and she did so.  Krause indicated his willingness to hand
over all papers and literature to appellant's new attorney, and, at
the May 31, 1995, hearing, attorney Burkhardt indicated that Krause
had in fact sent her the twenty boxes of files relating to
appellant's case.  When the trial court announced its intention to
conduct a pretrial conference in September or October of 1995,
attorney Burkhardt offered, "If I can't do it in that time, Judge,
I can't do it."  Moreover, it was undisputed that appellant had not
paid Krause any fees for his services.  Considering these facts, we
cannot see how appellant was prejudiced by Krause's withdrawal, and
we must further conclude that the trial court properly followed
Rule 64 in this case.     

                    Dismissal with prejudice
     We turn now to the question of whether the trial court abused
its discretion in dismissing appellant's case with prejudice.  In
concluding that dismissal was the appropriate sanction, the trial
court relied in part on ARCP Rule 37, which allows for sanctions,
including dismissal of a cause of action, for failure to make
discovery.  The imposition of sanctions for the failure to make
discovery rests in the trial court's discretion.  Viking Ins. Co.
v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992).  We have often
upheld the trial court's exercise of discretion in granting severe
Rule 37 sanctions for flagrant discovery violations.  Id., Rodgers
v. McRaven's Cherry Pickers, Inc., 302 Ark. 140, 788 S.W.2d 227
(1990).  For example, we have affirmed dismissals with prejudice
for failing to answer interrogatories, Dunkin v. Citizens Bank of
Jonesboro, 291 Ark. 588, 727 S.W.2d 138 (1987), and for failing to
attend one's own deposition. Cagle v. Fennel, 297 Ark. 353, 761 S.W.2d 926 (1988).  Other jurisdictions have affirmed dismissals 
for failure to name expert witnesses. See e.g. Cruz v. Columbus-
Cuneo-Cabrini Med. Ctr., 636 N.E.2d 908 (Ill. App. 1 Dist. 1994);
Wahle v. Medical Center of Delaware, 559 A.2d 1228 (Del. 1989).
     Compliance with the rules of discovery is necessary in all
cases, and is especially important in cases involving complex
issues and multiple parties.   We have a mechanism in place by way
of ARCP Rule 16 that allows a trial court to call a conference of
the attorneys in a case to consider certain issues.  Following this
conference, the trial court is to enter an order reciting the
action taken at the conference.  That order, when entered, is to
control the subsequent course of the litigation.  The primary
purpose of the scheduling order is to keep litigation moving
forward and to advise parties about the deadlines that they are
expected to meet. See Perry v. Sera, 623 A.2d 1210, 1220 (D.C.App.
1993).  Failure to meet these deadlines undermines the goals of the
scheduling order and prejudices the other side, which is also
subject to discovery deadlines. Id.
     Indeed, one of the matters that may be considered under our
Rule 16 is precisely the one addressed by the trial court in this
case -- the limitation of the number of expert witnesses.  See ARCP
Rule 16(4).  The trial court entered two scheduling orders in which
he set deadlines for naming and narrowing the list of experts. 
Appellant flatly ignored both of these orders, and offers us no
rational justification for doing so.  Instead, she complains that,
because appellees failed to provide her with certain chemical
formulas and research studies, she was unable to narrow her expert-
witness list.  We are not persuaded by her argument.  We find no
motion for order compelling discovery in the abstract.  We agree
with the trial court that appellant "should have come to the court
for help" rather than expand her expert-witness list to forty-two
persons in direct violation of repeated orders to narrow her list. 
     The trial court found that appellant's pattern of conduct in
ignoring its orders was for the improper purpose of harassing the
appellees and delaying the litigation.  Because the trial court was
in a better position to judge the appellant's actions, we cannot
say that its dismissal constituted an abuse of discretion.  While
we recognize that dismissal is the most severe of sanctions, we are
persuaded by the rationale of the District of Columbia Court of
Appeals on this point:  
          [I]t is the plaintiff that is being sanctioned here. 
     Appellant, as plaintiff, chose to utilize the court
     system to try to redress wrongs that had allegedly been
     done to her.  When invoking such aid, a plaintiff should
     be prepared and willing to follow the rules that keep
     that system running in an orderly and efficient manner. 
     Noncompliance with court orders and rules may cause the
     system to bog down and may adversely affect other
     litigants.  When a plaintiff is personally responsible
     for this type of delay, he or she prejudices not only the
     defendant but also the ability of other persons --
     persons that are doing what is necessary to follow the
     rules -- to utilize the system.

Perry, 623 A.2d  at 1219 (footnotes omitted).
     We have further recognized the inherent power of trial courts
to dismiss a case for failure to pursue it with diligence. Florence
v. Taylor, 325 Ark. 445, 928 S.W.2d 330 (1996).  "[T]he trial
judges in this state have an obligation to assure that their courts
are conducted in an orderly and correct manner and that their
courts are treated with respect and dignity." Id. at 450.  In
Florence, we affirmed the trial court's dismissal of a case with
prejudice after appellants and their counsel had two unexcused
failures to appear for trial.  
     In this case, after having been ordered repeatedly to narrow
her list of experts for trial, appellant instead broadened it.  Not
only did appellant's conduct result in unreasonable expense to the
appellees, who were compelled to conduct discovery for nearly four
years without substantial progress toward trial, her willful
disregard of the trial court's orders, like the appellants' conduct
in Florence, "flies in the face of the respect due our judicial
system." Id.
     It is crucial to the American judicial system that trial
courts retain the discretion to control their dockets.  Thompson v.
Erwin, 310 Ark. 533, 838 S.W.2d 353 (1992); Eason v. Erwin, 300
Ark. 384, 781 S.W.2d 1 (1989).  For the foregoing reasons, we hold
that the trial court's detailed and well-reasoned order dismissing
appellant's case with prejudice was a proper exercise of its
discretion.   
     The decision of the trial court is affirmed.
     Newbern and Glaze, JJ., not participating.
     Special Justices Carol Cannedy Dalby and Rex M. Terry join in
this opinion.