Opinion
No. 71-237
Decided April 18, 1972.
At trial of action for conversion, trial court refused to permit plaintiff to call any witnesses on grounds that plaintiff had failed to supply list of witnesses to defendant as required by local rule. From judgment of dismissal with prejudice, plaintiff appealed.
Reversed
1. PRACTICE AND PROCEDURE — Failure — Furnish — List of Witnesses — Result — Dismissal of Action — Abuse of Discretion. Since there was no showing that plaintiff's failure to furnish list of prospective witnesses to defendant was a willful violation of local court rule, and since, under the circumstances, trial court's refusal to permit plaintiff to call any witnesses because of this violation deprived plaintiff of a trial and resulted in dismissal of action with prejudice, this final disposition of the case was an abuse of discretion.
Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.
Sobol and Sobol, P.C., Harry Sobol, for plaintiff-appellant.
Russell E. Yates, Norton Frickey, Earl S. Wylder, for defendant-appellee.
Plaintiff filed a complaint alleging defendant's conversion of personal property. Defendant answered by general denial and asserted a discharge in bankruptcy. On the morning the action was set for trial, neither plaintiff's nor defendant's attorney appeared. Later that day, after being contacted by the clerk of the court, both attorneys appeared, claiming they were unaware of the scheduled date and time of trial. Following argument on preliminary matters, however, the parties stated they were ready for trial. Defendant then objected to plaintiff's presentation of any witnesses on the ground that plaintiff had failed to comply with Local Rule 27(1) of the Second Judicial District, which is operative in lieu of pretrial conference, and which states in part:
"At least 30 days prior to trial, counsel for each party shall supply all other counsel with a list of names of witnesses intended to be called at the trial, together with their names and addresses, and a brief statement of the nature of the testimony of each. Not less than ten days before trial, such information as to any additional witnesses not known at the time of such previous listing must be furnished opposing counsel. Any witness listed may be called by any party."
After determining that no list of prospective witnesses had been furnished by plaintiff, but without any investigation into the circumstances of the failure, the court sustained defendant's objection and refused plaintiff the opportunity to call any witnesses. Plaintiff's motion for continuance was denied. Plaintiff had no further evidence to offer and the court dismissed the action with prejudice. Plaintiff appeals, alleging that the trial court erred in its judgment of dismissal with prejudice. We agree.
In reaching our determination, we are mindful of the words of our Supreme Court in Glisan v. Kurth, 153 Colo. 102, 384 P.2d 946:
"We recognize that to make pre-trial procedure effective, appellate interference with the trial court in this area must be kept at a minimum. Effective use of the pre-trial can and does contribute much in meeting the problems of mounting congestion in the trial courts, but in the application of the pre-trial rule, we must be careful that devotion to the task does not lead us to deprive a litigant of his right to a trial."
[1] A trial court has a wide range of discretionary devices available to it in enforcing proper pretrial procedure and discovery. See generally, Comment, Dismissal for Failure to Attend Pretrial Conference and Use of Sanctions at Preparatory Stages of Litigation, 72 Yale L.J. 819. Under some circumstances, it would be a proper exercise of discretion for a trial court to refuse a party the opportunity to examine a witness not disclosed to the other party. See Comment, Exclusion of Witness Testimony Where Witness is Not Disclosed on an Interrogatory, 1964 U. Ill. L. Forum 456. But since, under the circumstances before us, the ruling in question deprived plaintiff of a trial and resulted in a dismissal with prejudice, and since there was no indication that noncompliance with the rule was willful, the final disposition of the case was an abuse of discretion. The consequences of failure by counsel in this action visits too harsh a result upon his client.
Judgment reversed and remanded for further proceedings not inconsistent with this opinion.
JUDGE COYTE and JUDGE ENOCH concur.