Roberts v. Milton Muir Construction Company, Inc et al

Roberts  v. Milton Muir Construction Company, Inc et al

IN THE UTAH COURT OF APPEALS
 

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Scot and Brenda Roberts,

Plaintiffs and Appellees,

v.

Milton Muir Construction Company, Inc.; A.J. Dean Cement Company; Milton Muir; Gale Muir; and John R. Moyle aka Moyle Landscaping Company,

Defendants and Appellants.

MEMORANDUM DECISION

(Not For Official Publication)
 

Case No. 971146-CA
 

F I L E D

(November 19, 1998)
 

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Third District, Salt Lake Department

The Honorable Anne M. Stirba

Attorneys: Raymond Scott Berry, Salt Lake City, for Appellants

Reid W. Lambert and Michelle A. Ontiveros, Salt Lake City, and Randy B. Birch, Heber City, for Appellees

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Before Judges Billings, Greenwood, and Jackson.

GREENWOOD, Judge:

A.J. Dean Cement Co. (A.J. Dean) argues the trial court abused its discretion by imposing the sanction of judgment by default against A.J. Dean for its failure to comply with discovery orders. A.J. Dean also claims the trial court erred in the manner in which it conducted the damages hearing. We affirm.

 Discovery Sanctions

Rule 37(b)(2)(C) of the Utah Rules of Civil Procedure provides:

(2) If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just, and among others the following:

. . . .

(C) an order striking out pleadings or parts thereof, staying further proceedings until the order is obeyed, dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party[.]

Utah R. Civ. P. 37(b)(2)(C) (emphasis added).

A default judgment is among the most harsh and extreme sanctions that a trial court may impose. See Utah Dep't of Transp. v. Osguthorpe, 892 P.2d 4, 7 (Utah 1995). Therefore, "[b]efore a trial court can impose discovery sanctions under rule 37, the court must find on the part of the noncomplying party willfulness, bad faith, or fault, or 'persistent dilatory tactics frustrating the judicial process.'" Morton v. Continental Baking Co., 938 P.2d 271, 274 (Utah 1997) (citations omitted). The Utah Supreme Court in Morton noted there is no rule which "'delineates a specific level of behavior which must be met before rule 37 sanctions are warranted.'" Id. at 276 (quoting Osguthorpe, 892 P.2d at 6) (additional citation omitted). In order for a trial court to find wilfulness by a party "there need only be '"any intentional failure as distinguished from involuntary noncompliance."'" Id. (citations omitted).

"Once the trial court determines that sanctions are appropriate, '[t]he choice of an appropriate discovery sanction is primarily the responsibility of the trial judge.'" Id. at 274 (citation omitted). Thus, appellate courts will not interfere with the trial court's imposition or choice of discovery sanctions unless an appellant clearly shows the trial court abused its discretion. See id., 938 P.2d at 275 ("A trial judge is given a great deal of latitude in determining the most fair and efficient manner to conduct court business [because the] trial judge is in the best position to evaluate the status of his cases, as well as the attitudes, motives, and credibility of the parties.") (emphasis added).

 

A.J. Dean has not demonstrated that the trial court abused its discretion. The record in this somewhat convoluted case history reveals that on March 21, 1994, the trial court held a hearing on the Robertses' Motion to Compel. At that hearing, the trial court ordered A.J. Dean to comply with the Robertses' discovery requests by April 5, 1994. At that time, other motions had been filed with the court and were still pending. Therefore, the Robertses properly objected to A.J. Dean's substitution of counsel and sent their objections to both Mr. Marshall and Green & Berry. See Utah Code Jud. Admin. R4-506.(1)

On April 6, 1994, the trial court informed Mr. Marshall he could not withdraw as counsel, due in part to the motions pending before the court. Green & Berry accordingly filed an appearance as co-counsel on April 11, 1994. On April 13, 1994, Green & Berry received a copy of the Order compelling discovery, and it was not until April 18, 1994, that the Robertses filed a Motion to Strike A.J. Dean's answers. Finally, on May 4, 1994, the Robertses filed a Motion to Submit for default judgment.

The record therefore contains an evidentiary basis for the trial court's finding that A.J. Dean's failure to file appropriate discovery responses during that time period was not justifiably excusable. The record shows that, at least by April 13, 1994, Green & Berry clearly knew the state of affairs concerning the discovery order.

The original discovery request was served on A.J. Dean several months prior to the March 21 hearing. Additionally, because any confusion regarding the original interrogatories was cured at the March 21 hearing, A.J. Dean's protestations to the contrary are without merit. Finally, A.J. Dean's reasons for not having answered the interrogatories are not supported by the record, as A.J. Dean was at all times represented by counsel, and both Mr. Marshall and A.J. Dean's representative were present in court when the trial court set the April 5 discovery deadline.

 Damages Hearing

Rule 55(b)(2) of the Utah Rules of Civil Procedure describes the procedure for assessing damages after entry of a default judgment:

[i]f, in order to enable the court to enter [default] judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper.

Utah R. Civ. P. 55(b)(2) (emphasis added). Generally, the term "may" is construed to be permissive rather than mandatory. See Crockett v. Crockett, 836 P.2d 818, 820 (Utah Ct. App. 1992). Because Rule 55(b)(2) is permissive, the trial court is granted discretion regarding what evidence on damages it need take after default is entered against a party.

After entering a default judgment, a trial court may determine damages based "'"upon the filing of appropriate affidavits concerning punitive and actual damages."'" Amica Mut. Ins. Co. v. Schettler, 768 P.2d 950, 963 (Utah Ct. App. 1989). A defaulting party is generally "entitled to cross-examine witnesses" unless "no legitimate conflicting testimony" regarding unliquidated damages is before the court. Id., 768 P.2d 964 n.12. Thus, A.J. Dean was properly permitted to cross-examine witnesses at the hearing, but not permitted to present its own witnesses.

Additionally, because "'[a]s a general rule, a "default judgment establish[es], as a matter of law, that defendants [are] liable to plaintiff as to each cause of action alleged in the complaint,"'" see id. at 965 (quoting Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983)), A.J. Dean was properly prohibited from cross-examining witnesses on the issue of liability.

The order of the trial court is affirmed.(2)

 

Pamela T. Greenwood, Judge

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WE CONCUR:

 

Judith M. Billings, Judge

 

Norman H. Jackson, Judge

1. At the time the trial court denied A.J. Dean's motion to substitute Green & Berry as counsel, the following version of Rule 4-506 was in effect:

(1) Consistent with the Rules of Professional Conduct, an attorney may withdraw as counsel of record without the approval of the court except when (a) a motion has been filed and is pending before the court or (b) a certificate of readiness for trial has been filed. Under these circumstances, an attorney may not withdraw except upon motion and order of the court.

Utah Code Jud. Admin. R4-506 (amended effective April 15, 1991).

2. Because we find no merit in the other issues which A.J. Dean raises on appeal, we do not address them. See State v. Carter, 776 P.2d 886, 888 (Utah 1989).