Summary
In Toney v. Berkemer, 6 Ohio St.3d 455, 453 N.E.2d 700 (1983), the Ohio Supreme Court adopted the United States Supreme Court's holding in Societe Internationale v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958), that "the harsh remedies of dismissal and default should only be used when the '* * * failure to comply has been due to * * * willfulness, bad faith, or any fault [of a party].'"
Summary of this case from Charity v. PaluscsakOpinion
No. 82-1518
Decided September 7, 1983.
Civil procedure — Discovery — Default judgment improperly granted for failure to respond to discovery requests — Willfulness or bad faith not shown.
O.Jur 3d Discovery §§ 204, 213.
It is an abuse of discretion for a trial court to grant a default judgment for failing to respond to discovery requests when the record does not show willfulness or bad faith on the part of the responding party.
APPEAL from the Court of Appeals for Franklin County.
On August 28, 1981, plaintiff-appellant, Will W. Toney, filed his complaint and interrogatories in the Court of Common Pleas of Franklin County against the defendants-appellees, Sheriff Harry Berkemer and several of his deputies. Appellant alleged that he was assaulted and beaten by the appellees-deputies, while incarcerated in the Franklin County Jail.
On October 30, 1981, appellees, having previously obtained an extension, timely filed their answer.
On November 18, 1981, appellees served appellant with their answers to appellant's interrogatories and also filed their own interrogatories and request for production of documents.
By letter dated January 7, 1982, the trial court informed the parties that a pretrial hearing was scheduled for February 16, 1982.
On January 22, 1982, appellant, having previously obtained an extension of time until January 19, 1982, served his answers to appellees' interrogatories.
On February 16, 1982, the trial court conducted the pretrial hearing. Prior to this proceeding, appellees had not filed any objections to appellant's answers to their interrogatories. At this pretrial, counsel for appellant provided counsel for appellees with appellant's emergency room report from the hospital and copies of bills from Evan J. Halas, M.D., a psychiatrist, and Lon Cordell, Ph.D., a clinical psychologist. Apparently, counsel for appellant was informed by the trial court that appellant's responses to appellees' interrogatories were inadequate and that all of appellees' discovery requests were to be answered by February 19, 1982, or appellees could move for a default judgment.
On February 17, 1982, the trial court filed its pretrial order dated February 16, 1982. The order reads in part as follows:
"Interrogatories and requests for documents will be answered by February 19, 1982 or defendants may move for sanctions including the sanction of default judgment.
"* * *
"This case is set for jury trial Monday, June 14, 1982 at 9:00 A.M."
The order of the trial court failed to state with particularity the deficiencies in the appellant's answers to the interrogatories and the deficiencies in the response to the request for production of documents. Moreover, the order failed to state any reason why appellant was given such an unreasonably short period of time within which to comply with the trial court's discovery order.
On February 18, 1982, counsel for appellant received a copy of the trial court's pretrial order. On the very same day, counsel for appellant, notwithstanding that his secretary was ill, personally prepared and mailed "Plaintiff's Answer for Document Request" to counsel for appellees.
On February 22, 1982, appellees filed "Defendants' Motion for Sanctions for Plaintiff's Failure to Comply with Discovery Order." Appellees claimed the following deficiencies in appellant's answers to appellees' interrogatories: The answers did not contain appellant's verification; five questions were not answered; five questions contained an objection without giving any reasons; and twelve questions contained answers which were partially or totally unresponsive. Appellees also contended that appellant's answer to their document request was insufficient; that the two documents supplied at the pretrial were an inadequate response; and that other documents requested, and not supplied, were in appellant's possession or control.
On February 23, 1982, the trial court informed counsel for the parties that appellees' motion for sanctions was set for a non-oral hearing on March 9, 1982.
On March 5, 1982, counsel for appellant filed his "Memorandum Contra Motion for Sanctions" with two attached exhibits. In his memorandum, counsel for appellant informed the trial court of the following: that the reason for the delay in answering appellees' interrogatories and request for documents was that he had been ill and that his wife had been confined in a hospital; that the reason he had not submitted a copy of appellant's emergency room bill was that it had been misplaced, but would be submitted upon his receipt of a duplicate; that the original copy of the six-page medical report dated January 28, 1982, from Dr. Halas had been misplaced and that he had recently obtained a copy thereof and had furnished a copy to the appellees; that through inadvertence appellant's verification had not been set out at the end of his answers to the interrogatories (to remedy this, counsel had attached to this memorandum appellant's affidavit containing his verification to his answers to the interrogatories); that he had not submitted copies ofappellant's previous hospital admission records because he did not have such copies, but had offered to provide appellees with appellant's authorization so that they could obtain the requested documents; and that he had informed counsel for appellees that they were welcome to examine his entire case file and that he would gladly furnish them copies of anything they desired. Lastly, counsel for appellant informed the trial court that in his opinion, appellant had adequately answered the interrogatories and had adequately responded to the request for documents.
On March 10, 1982, the trial court granted appellees' motion for default judgment. The basis of its decision was that appellant had willfully failed to comply with its February 16, 1982 discovery order. The trial court, however, failed to state any factual basis or reasons to support its finding of willful misconduct.
On March 15, 1982, appellant filed his "Motion to Reconsider Decision for Sanctions and Award of Default Judgment."
On March 31, 1982, an oral hearing was conducted on appellant's motion to reconsider. The argument of counsel for appellant was essentially the same one contained in his "Memorandum Contra Motion for Sanctions." He again stressed that appellant had adequately answered the interrogatories and had adequately responded to the request for documents, but was willing to provide additional information, if so requested. The argument of counsel for appellees was essentially the same one contained in their motion for sanctions. However, counsel for appellees never indicated how appellant's delay in responding to the discovery requests had prejudiced the preparation of their case for trial.
On April 1, 1982, the trial court entered its decision overruling appellant's motion for reconsideration. The basis of the decision was "[t]he basic authority of the Court is at stake, the Judge in open Court on February 16, 1982 ordered plaintiff to respond by February 19, 1982 to the interrogatories and requests for production of documents which had been filed by defendants November 18, 1981 and confirmed this in a written pretrial order on February 16, 1982. Answers or objections to some of the interrogatories and requests still have not been filed."
The trial court again failed to state with particularity the deficiencies in the appellant's answers to the interrogatories, and failed to state the particular deficiencies in the response to the request for production of documents. Moreover, the trial court failed to indicate how appellant's delay in responding to the discovery requests had prejudiced appellee's preparation of their case for trial.
Upon appeal, the court of appeals affirmed the trial court's judgment.
The cause is now before this court pursuant to the allowance of a motion to certify the record.
Mr. Robert C. Paxton II, Mr. Walter W. Grelle, Jr., and Mr. Russell P. Herrold III, for appellant.
Messrs. Bricker Eckler and Mr. David K. Conrad, for appellees.
The issue presented here is whether the trial court abused its discretion in granting the default judgment in favor of appellees.
Civ. R. 37(A) and (B) provide broad discretion to the trial court to impose sanctions for failure to comply with the trial court's discovery orders. However, the United States Supreme Court has held that the harsh remedies of dismissal and default should only be used when the "* * * failure to comply has been due to * * * willfulness, bad faith, or any fault of petitioner." Societe Internationale v. Rogers (1958), 357 U.S. 197, 212. A trial court's imposition of the sanction of dismissal cannot be disturbed unless the dismissal was an abuse of the trial court's discretion. See Ward v. Hester (1973), 36 Ohio St.2d 38 [65 O.O.2d 181].
Our examination of appellant's answers to the interrogatories and appellant's response to the document request reveals the following. This is basically an assault and battery action. Hence, the information sought by the interrogatories and document request, pertaining to the alleged injuries, alleged aggravation of prior injuries and alleged loss of wages, which information is relevant for the purpose of satisfying the discovery rules and is also of considerable weight in determining whether a default judgment sanction is appropriate here. However, the information sought by the other interrogatories and document request, although relevant for the purpose of satisfying the discovery rules, is not so sufficiently relevant to the conduct of the instant case that the appellant must respond or face the drastic sanction of default judgment. Dunbar v. United States (C.A. 5, 1974), 502 F.2d 506. Hence, with regard to the aforementioned essential information (alleged injuries, etc.) requested by appellees, we are of the opinion that appellant has complied with the trial court's discovery order to the extent necessary so as not to prejudice appellees' case for trial. Edgar v. Slaughter (C.A. 8, 1977), 548 F.2d 770, 772-773.
In addition, appellant, through his counsel, gave valid health reasons for the brief delay in responding to appellees' interrogatories and document request; gave a valid reason for the brief delay in submitting his verification to the answers to the interrogatories; and gave a valid reason for the brief delay in submitting Dr. Halas' six-page medical report covering the injuries which form the basis of the lawsuit. Appellant offered to provide appellees with his authorization so that they could obtain his medical records. Moreover, appellant demonstrated his willingness to aid the trial court by informing the court that he would provide additional information if requested.
Based upon the foregoing, we find that the trial court abused its discretion in granting the default judgment in favor of appellees. The record reveals mitigating factors for appellant's brief delay in answering the interrogatories and responding to the document request. The record does not show that appellant willfully or in bad faith failed to answer the essential interrogatories (alleged injuries, etc.) or respond to the essential request for the production of documents. If the appellant failed to submit damage documentation (medical bills and lost wages), then the appropriate sanction here is the preclusion of evidence on these subjects rather than the harsh remedy of default judgment.
Accordingly, the judgment of the court of appeals is reversed and the cause is remanded to the trial court for further proceedings.
Judgment reversed and cause remanded.
CELEBREZZE, C.J., SWEENEY and C. BROWN, JJ., concur.
HOLMES, J., concurs in judgment only.
W. BROWN and LOCHER, JJ., dissent.
Because it is incredible to me that the majority could construe appellant's actions as anything other than lacking in good faith and a willful failure to comply with a discovery order and because the majority opinion ignores a central issue in this case, I must respectfully dissent.
In order to clarify my position, a restatement of portions of the factual setting of this case, with significant additions, is necessary. On January 7, 1982, the trial court sent counsel a notice for pretrial to be heard on February 16, 1982. This notice directed counsel to have discovery completed or specific arrangements made by the time of the pretrial. Appellant partially responded to appellees' interrogatories on January 22, 1982, but failed to make any response to the document request prior to the day of pretrial.
At the pretrial on February 16, the trial judge reviewed the incomplete responses to appellees' discovery requests and made the pretrial order quoted in the majority opinion. Appellant's counsel was present at the time of the pretrial but entered no objection to the above-mentioned order.
Since no further response from appellant was forthcoming by the specified date, appellees filed a motion for sanctions on February 22. The deficiencies asserted in appellant's answers to appellees' interrogatories were as follows: the answers provided were not under oath, five questions contained no answer, five questions were objected to without grounds being stated, and twelve questions contained partially or totally non-responsive answers. Additionally, appellees claimed that appellant's answer to the document request was insufficient, the two documents supplied at pretrial were an inadequate response, and various other documents responsive to the document request were either in appellant's possession or accessible to him or his attorney. It should be noted that both the trial court and the court of appeals reviewed appellant's answers to the interrogatories and answer to the document request and agreed that the discovery responses were not good faith efforts to provide complete answers.
In response to the motion for sanctions appellant filed a memorandum on March 5, 1982, asserting sufficient compliance with the court's order. For the first time, appellant also asserted that the order was unreasonable. However, appellant's response to the discovery requests and the court order was still inadequate. The memorandum gave a reason for only one of the five questions which had previously been objected to, it replaced the complete failure to answer five questions by objecting to four of them without reason, and it argued that the twelve non-responsive answers were sufficient or were answered in other documents. The trial court and the court of appeals reviewed these responses and still concluded that appellant failed to make a good faith effort to provide complete responsive answers.
On February 23, 1982, the trial court sent the following notice to the parties: "The parties will take notice that the motion of defendants for sanction will come before the Court for non-oral hearing Tuesday, March 9, 1982." On the scheduled date, the court granted the motion of defendants for the sanction of default judgment. Thereafter, appellant filed a motion to reconsider the default judgment order and the court conducted an oral hearing on the motion on March 31, 1982. At that hearing, appellant's counsel gave explanations and excuses for the failure to provide responses but still failed to comply with the court's order to provide complete responsive answers. The motion for reconsideration was denied.
The court of appeals set forth the applicable law that a trial court has general authority to grant default judgment for failure to comply with the court's orders regarding discovery pursuant to Civ. R. 37 (B)(2)(c) and Civ. R. 41 (B)(1). The trial court's decision in this regard cannot be disturbed unless there was an abuse of the trial court's discretion. Pembaur v. Leis (1982), 1 Ohio St.3d 89.
Appellant argues that there was no evidence of willfulness in the record. Appellant also argues that the order was unreasonable in its time for compliance and in the scope of the notice it afforded so that appellant might take steps to avoid the sanction. Thus, appellant concludes that there was no proper order with which it had to comply.
However, the time limit is misleading since counsel was instructed in open court of the inadequacy of the answers and made no attempt to correct them. Additionally, the discovery requests were originally served on November 18, 1981, appellant did not object to the response date set at the pretrial hearing, and the case was not finally dismissed until March 31, 1982.
Most importantly, I am convinced that the failure to respond was not due to any mere inability, but was rather due to willfulness on the part of appellant. Both the trial judge and the court of appeals found conscious and intentional noncompliance. For example, when appellant was asked for a specific breakdown of medical expenses incurred in the alleged incidents, the response was "E.R. OSU Dr. Evan J. Halas." When asked to explain the method used in claiming $100,000 of compensatory damages and include a breakdown of the damages, plaintiff responded "physical and mental damage." When asked for a specific breakdown of the lost wages plaintiff claimed to have incurred, the reponse was "?". In my opinion, the refusal to correct these deficiencies, particularly in light of a pending motion for sanctions, can be construed as nothing other than willful non-compliance. Finally, if discovery was objectionable to appellant, Civ. R. 26 (C) provides for protective orders.
Since appellant made no motion for a protective order, made no reasonable explanation for numerous purported objections, and failed to make any response to various, reasonable questions, I conclude that the trial judge did not abuse his discretion in granting the sanction. However, I believe that the sanction could only have been based upon Civ. R. 41 (B)(1), not Civ. R. 37.
Civ. R. 37 requires the party seeking discovery to move for an order compelling discovery before sanctions are appropriate. In the present case, there is no indication that appellees moved for such an order. It appears that the trial court issued its order upon its own motion. I do not believe that Civ. R. 37 permits a court to do this. As the Staff Notes to Civ. R. 37 indicate, the party seeking discovery must first make a motion for an order compelling discovery. "Rule 37 is a restatement of one of the basic tenets of the discovery rules. The party who feels aggrieved or who wants discovery must take affirmative action. There is no automatic compulsion upon those who do not comply with discovery requests or who resist discovery." Id.
On the other hand, Civ. R. 41 (B)(1) permits a court to dismiss an action for failure to comply with any court order upon motion of the defendant or upon the court's own motion. The court's action in this case is justified under Civ. R. 41 (B)(1) because the court did issue an order and further determined that appellant failed to comply with that order. The standard under Civ. R. 41 (B)(1) is also that a trial judge's dismissal of a case will not be reversed unless it constitutes an abuse of discretion. Pembaur v. Leis, supra.
The majority's opinion today will do nothing more than encourage conscious and deliberate obstruction to legitimate discovery requests. For the foregoing reasons, I find that the trial judge did not abuse his discretion in granting a default judgment and I would affirm the judgment of the court of appeals.
LOCHER, J., concurs in the foregoing dissenting opinion.