ROBERT R. SPANN v. JAMES B. BAGBY
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RENDERED: April 23, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-000227-MR
ROBERT R. SPANN
APPELLANT
APPEAL FROM MCCRACKEN CIRCUIT COURT
HONORABLE RON DANIELS, JUDGE
ACTION NO. 93-CI-634
v.
JAMES B. BAGBY
APPELLEE
OPINION
VACATING AND REMANDING
** ** ** ** **
BEFORE:
EMBERTON, KNOPF, AND KNOX, JUDGES.
KNOPF, JUDGE:
This is an appeal from an order dismissing a
personal injury action due to failure to comply with the trial
court’s discovery orders.
Finding that the trial court failed to
make sufficient findings to justify dismissal of the action, we
vacate and remand for further proceedings.
On April 24, 1993, the appellant, Robert R. Spann, was
a passenger in a car operated by Jeanette Wilson when they were
involved in an accident with the appellee, James B. Bagby.
Thereafter, Wilson and Spann brought this action against Bagby
for personal injury and lost wages suffered as a result of the
accident.
Wilson settled her claims with Bagby prior to trial.
On September 8, 1995, the trial court entered an order
setting the matter for trial on May 8 and 9, 1996.
a proof deadline of February 26, 1996.
The court set
After the deadline
passed, Spann’s counsel filed a motion to extend the time to
complete discovery.
Spann’s counsel filed several motions at
that time to take depositions of witnesses.
The trial court
granted the motion over Bagby’s objections.
The proof deadline
was extended to November 27, 1996, and the trial was rescheduled
to January 9, 1997.
On August 27, 1996, Bagby served supplemental
interrogatories and requests for production of documents on
Spann.
Bagby sought production of updated medical and wage loss
information, copies of medical records, income tax returns from
1992 through 1995, and reports from experts expected to testify
at trial.
Spann filed a second motion to extend time to complete
discovery on November 27, 1996.
He eventually filed a response
to Bagby’s interrogatories and request for production of
documents on December 3.
However, the responses were only signed
by Spann’s attorney, and not by Spann himself.
In addition, he
did not provide copies of his 1994 and 1995 tax returns, and he
did not return signed releases for his employment, social
security or medical records.
Shortly thereafter, Bagby moved to dismiss due to
Spann’s failure to supply the requested information in a timely
manner.
In an order dated December 27, 1996, the trial court
granted the motion and dismissed Spann’s complaint against Bagby.
This appeal followed.
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Although Spann was represented by counsel at the outset
of this appeal, his attorney withdrew prior to filing of the
briefs.
Consequently, Spann is now proceeding pro se.
In his
brief, Spann states that his trial counsel mishandled the
proceedings below.
Whatever complaints he has against his former
attorney, they are not properly addressed to this court.
Spann also notes that one (1) of the medical reports
Bagby obtained during discovery belonged to a person other than
Spann.
Spann believes that the trial court dismissed his case
because this report described lesser injuries than he was
alleging.
We find no indication in the record that the trial
court dismissed the action for this reason.
The trial court’s order of December 27, 1996, does not
state any ground for dismissing the action, other than to
reference CR 37.02(2).
That rule provides, in pertinent part as
follows:
If a party . . . fails to obey an order to
provide or permit discovery, including an
order made under Rule 37.01 or Rule 35, the
court in which the action is pending may made
such orders in regard to the failure as are
just, and among others the following:
(a) An order that the matters regarding
which the order was made or any other
designated facts shall be taken to be
established for the purposes of the action in
accordance with the claim of the party
obtaining the order;
(b) An order refusing to allow the
disobedient party to support or oppose
designated claims or defenses, or prohibiting
him from introducing designated matters in
evidence;
(c) An order striking out pleadings or
parts thereof, or staying further proceedings
until the order is obeyed, or dismissing the
action or proceeding or any part thereof, or
rendering a judgment by default against the
disobedient party;
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(d) In lieu of any of the foregoing
orders or in addition thereto, an order
treating as a contempt of court the failure
to obey any orders except an order to submit
to a physical or mental examination; . . .
In reviewing the imposition of sanctions for an abuse
of discretion, the appellate court should consider:
(1) whether
the adversary was prejudiced by the dismissed party's failure to
cooperate in discovery, (2) whether the dismissed party was
warned that failure to cooperate could lead to dismissal, and
(3) whether less drastic sanctions were imposed or considered
before dismissal was ordered.
Greathouse v. American National
Bank and Trust Co., Ky. App., 796 S.W.2d 868, 870 (1990);
citing, Taylor v. Medtronics, Inc., 861 F.2d 980, 986 (6th
Cir.1988).
The lack of express findings in the record makes any
meaningful appellate review impossible.
A dismissal of an
action under these circumstances should be accompanied by some
articulation on the record of the trial court's resolution of
the factual, legal, and discretionary issues presented.
When
such a severe sanction is imposed, values of consistency and
predictability, reviewability, and deterrence, outweigh the
values of economy and efficiency that may be promoted by
allowing inarticulate decisions.
Greathouse, 796 S.W.2d at 870.
Consequently we must remand this action either for additional
factual findings supporting the dismissal or for the imposition
of lesser sanctions.
Since we are remanding this matter for reconsideration
after further factual findings, we will briefly set out the
standards which should guide that reconsideration.
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The severe
sanction of dismissal of a complaint should be imposed only in
the most "rare circumstances" and only as a "last resort."
Bridewell v. City of Dayton, ex rel. Urban Renewal and Community
Development Agency of City of Dayton, Ky. App., 763 S.W.2d 151,
152 (1988).
Bridewell involved the issue of appropriate
sanctions in the context of discovery violations, and this Court
reiterated the mandate of our Supreme Court in Ready v. Jamison,
Ky., 705 S.W.2d 479, 482 (1986), that a "sanction imposed should
bear some reasonable relationship to the seriousness of the
defect."
Ready, and its progeny, e.g. Crossley v.
Anheuser-Busch, Inc., Ky., 747 S.W.2d 600 (1988); Foxworthy v.
Norstam Veneers, Inc., Ky., 816 S.W.2d 907 (1991); and Johnson
v. Smith, Ky., 885 S.W.2d 944 (1994), emphatically establish
both our Supreme Court's policy that a sanction bear some
resonable relationship to the prejudice created, and the Court's
goal that, whenever possible, cases be decided on their merits.
Ward v. Housman, Ky. App., 809 S.W.2d 717 (1991) has
given us standards which we can apply to the circumstances of
each case to determine if a less severe sanction would be
warranted.
Ward, supra, adopted the following test from
Scarborough v. Eubanks, 747 F.2d 871 (3rd Cir. 1984):
1)
2)
3)
4)
5)
6)
the extent of the party's personal responsibility;
the history of dilatoriness;
whether the attorney's conduct was willful and in bad faith;
meritoriousness of the claim;
prejudice to the other party; and
alternative sanctions.
Id. at 875-878.
A review of the pleadings reveals a pattern of putting
off discovery as well as a failure to prepare the case for
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trial.
However, it also shows that Spann provided most of the
requested medical records and did so prior to the discovery
deadline.
Bagby’s primary complaints concern Spann’s failure to
provide signed releases for medical, employment and social
security records; his failure to provide copies of his 1994 and
1995 income tax forms; and his attempt to subpoena Dr. James
Hawkins after the discovery deadline.
Although these failures to comply with the trial
court’s orders are inexcusable, we do not agree that they
necessarily merit dismissal of Spann’s entire cause of action.1
The trial court could have prohibited Spann from presenting his
claim for lost wages, or from introducing the testimony of Dr.
Hawkins.
As to Spann’s claim for medical expenses, Bagby failed
to show how he has been prejudiced by the missing evidence.
At
the very least, we must conclude that the trial court abused its
discretion in dismissing the action without stating why lesser
sanctions were not appropriate.
Accordingly, the judgment of the McCracken Circuit
Court is vacated, and this action is remanded for further
findings and proceedings consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Robert R. Spann, Pro Se
Ledbetter, Kentucky
Michael D. Moore
Paducah, Kentucky
1
Upon remand, the trial court should also consider the
requests for medical records and the releases in light of Geary
v. Schroering, Ky. App., 979 S.W.2d 134 (1998).
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