SUNSET MANAGEMENT, INC. and J. R. MULLINS v. LOIS TACKETT JACKSON
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RENDERED: April 17, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 96-CA-2053-MR
SUNSET MANAGEMENT, INC. and
J. R. MULLINS
APPELLANTS
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JOHN R. ADAMS, JUDGE
ACTION NO. 94-CI-001933
v.
LOIS TACKETT JACKSON
APPELLEE
OPINION
AFFIRMING
* * *
BEFORE:
KNOX, MILLER, AND SCHRODER, JUDGES.
KNOX, JUDGE:
This is an appeal from an action on a lease
agreement involving commercial real property.
The appellee, plaintiff below, filed this action in
June of 1994, alleging rents due under a commercial lease
agreement entered into by the parties.
The appellants proposed
to use the leased property as a commercial lot for the sale and
display of antique automobiles.
The lease, which was for a term
of five years, provided for monthly rent installments of
$3,025.00 beginning April 1, 1993.
The appellants thereupon filed their counterclaim,
claiming loss of use of the property because the appellee had
failed to disclose to them that construction taking place on an
adjoining property would impede entry for a period of time upon
the property leased by the appellants.
In February 1995, the trial court sustained the
appellee's motion for summary judgment on her claim of breach of
the lease agreement, and reserved the issues raised by the
appellants' counterclaim.
Over one year later, in April 1996,
the trial court, citing the appellants' failure to appear at a
court-ordered deposition, dismissed the appellants' counterclaim.
In June 1996, the trial court entered summary judgment for the
appellee, awarding her the sum of $40,258.68 for rent up to May
3, 1995, the date a new tenant began to occupy the property.
The appellants argue that the trial court erred in
dismissing their counterclaim, and improperly awarded judgment to
the appellee for rents which had not accrued and which were not
claimed by the appellee in her pleadings.
The trial court's order dismissing the appellants'
counterclaim was based upon that court's observation that the
appellants had not offered sufficient justification for failing
to appear at a court-ordered deposition.
The history of this
case reflects that the parties had vied over several discovery
disputes.
On September 2, 1994, the appellee served upon the
appellants Interrogatories, Requests for Production of Documents,
and Requests for Admissions.
Appellants failed to provide any
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responses to those requests.
On December 12, 1994, the appellee,
taking the position that all matters in the requests for
admissions should be deemed admitted, moved for summary judgment
on her complaint.
The trial court entered summary judgment on
the appellee's complaint in February 1995, and reserved the
issues raised by the appellants in their counterclaim.
In May 1995, the appellee moved the trial court for an
order compelling the appellants to respond to her first set of
discovery requests, which appellee had served over eight months
earlier.
The trial court entered an order directing that, if the
appellants had not responded to those discovery requests by June
9, 1995, the court would impose sanctions.
The appellants did
not respond to the discovery requests by the court's deadline.
On May 23, 1995, the appellee served a second set of
discovery requests upon the appellants, which again went
unanswered.
In July 1995, the appellee moved the trial court for
an order sanctioning the appellants by dismissing their
counterclaim.
On August 7, 1995, the trial court entered an
order directing the appellants to respond to all discovery
requests by August 29, 1995, directing that the appellants pay
the appellee an attorney's fee in the amount of $500.00, and
further providing that failure to comply with that order could
constitute grounds for dismissal of the appellants' counterclaim.
The appellants made no response to those discovery
requests, and again failed to meet the court's deadline.
In
January 1996, the appellee moved to dismiss the appellants'
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counterclaim for failure to prosecute.
Meanwhile, the appellee
noticed Mr. Mullins's deposition for March 8, 1996.
After Mr.
Mullins moved for a protective order seeking to delay his
deposition to any date between March 25th and March 29th, the
trial court entered an order directing Mr. Mullins's deposition
to be taken on March 25, 1996, at the hour of 10:00 a.m.
Although we note statements in the record by appellants' counsel
that he attempted to contact appellee's counsel to rearrange the
deposition date, Mr. Mullins neither appeared at that deposition
nor moved for a protective order.
On March 27, 1996, appellee again moved to dismiss the
appellants' counterclaim for refusal to permit discovery.
In
response, Mr. Mullins filed an affidavit stating that, on the
date of the scheduled deposition, he made a business decision to
travel to Florida for the purpose of negotiating the sale of a
$300,000.00 boat to a prospective buyer who wanted to conduct a
"sea trial" on the boat.
Mr. Mullins emphasized the financial
importance of the sale to him.
He further emphasized his effort
to contact his counsel to rearrange the deposition and his
willingness to submit to a deposition at a later date.
Nonetheless, on April 18, 1996, the trial court entered its order
dismissing the appellants' counterclaim.
The appellants argue that, in view of the critical
choice forced upon them on the date the March 25th deposition was
scheduled, and in view of Mr. Mullins's expressed willingness to
submit to a deposition at a later date, the trial court abused
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its discretion by dismissing their counterclaim.
However, we do
not agree that the trial court so abused its discretion.
CR 37.02(2)(c) provides for dismissal of a claim as a
sanction for violation of an order to compel.
The same sanction
is provided in CR 37.04(1) for failure to attend one's own
deposition.
The standard of review in determining whether the trial
judge erred in dismissing the appellants' counterclaim is whether
the trial judge abused his discretion by doing so.
Nowicke v.
Central Bank And Trust Co., Ky. App., 551 S.W.2d 809 (1977).
As
noted in Greathouse v. American Nat'l Bank And Trust Co., Ky.
App., 796 S.W.2d 868, 870 (1990) (citing Nowicke, 551 S.W.2d at
810), that discretion ". . . is not unbridled, but must rest upon
a finding of willfulness or bad faith on behalf of the party to
be sanctioned."
In Greathouse, 796 S.W.2d at 870, the court, citing
Taylor v. Medtronics, Inc., 861 F.2d 980 (6th Cir. 1988), noted
the following factors to be considered in determining whether the
trial court's imposition of sanctions constituted an abuse of
discretion:
(l) 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.
Here, the appellants were warned, in the trial court's
August 1995 order, that dismissal as a sanction might be
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considered in the event the appellants did not comply with the
appellee's discovery requests.
Further, the trial court had
previously imposed lesser sanctions upon the appellants for their
failure to comply with discovery.
We believe that the difficulty
experienced by the appellee in obtaining discovery hampered her
efforts to proceed with her claim and defend against the
appellants' counterclaim.
For those reasons, we do not believe
that the trial court abused its discretion in dismissing the
appellants' counterclaim.
Next, appellants argue that the trial court erred in
awarding the appellee rents which had not accrued and which were
not pled.
The record reflects that the appellee's complaint
alleged that the parties executed the lease agreement on April 7,
1993, with the lease term to commence on April 1, 1993.
The
appellee alleged lost rent payments for the months of April, May,
and June of 1994, for a total of $9,276.66.
On December 12, 1994, the appellee moved for summary
judgment on her claim.
In that motion, she also requested
judgment for rent due and not paid for the months of October,
November, and December of 1994.
On January 3, 1995, the trial
court entered an order granting the appellants additional time
within which to respond to the appellee's motion for summary
judgment, and further providing, at paragraph 3:
The Plaintiff's Complaint herein is hereby
amended in conformity with her Motion for
Summary Judgment to include any and all
claims for rent and damages arising under the
terms of the Lease which is the subject of
this action.
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The appellants take the position that the appellee
cannot recover for rents which accrued from February 1995 to May
1995, since the appellee had not amended her pleadings to include
rent for those months.
However, we believe that the language of
the trial court's order dated January 3, 1995, provides
sufficient notice that the appellee's claim included all rents
accruing up to the date of the trial court's judgment.
Further,
to the extent that the appellants argue that the trial court's
June 21, 1995 judgment included rents that had not accrued, we
note that the judgment only awarded recovery of rent up to May,
1995, rather than any period of time after the date of the
judgment.
For the foregoing reasons, we affirm the judgment of
the Fayette Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANTS:
BRIEF FOR APPELLEE:
Steven F. Vicroy
Lexington, Kentucky
Judge B. Wilson, II
Bruce R. Smith
Lexington, Kentucky
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