Opinion
No. 2-491 / 01-1534.
Filed July 31, 2002.
Appeal from the Iowa District Court for Black Hawk County, JAMES BAUCH and THOMAS BOWER, Judges.
Zumreta Kostic appeals from an adverse verdict following a jury trial. AFFIRMED.
Michael Lanigan, Waterloo, for appellant.
David Riley of Yagla, McCoy Riley, P.L.C., Waterloo, for appellee.
Considered by HABHAB, PETERSON, and SNELL, Senior Judges.
Senior Judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
Zumreta Kostic appeals from an adverse verdict following a jury trial. On August 26, 1999, Zumreta was a passenger in the back seat of a vehicle owned and operated by Dursim Music traveling on the way to work at IBP in Waterloo. During the trip Dursim noticed the vehicle beginning to steam and yelled for everyone to jump from the moving vehicle. Dursim jumped out. Zumreta opened her vehicle door, and as Dursim ran along side the vehicle he grabbed Zumreta by the arm, pulling her from the vehicle. As she fell from the vehicle, Zumreta broke her ankle. Zumreta alleges Dursim was negligent and such negligence was a proximate cause of her injury. Dursim denied the material allegations of the petition and asserted comparative fault and conduct of a good samaritan as affirmative defenses.
Scope of Review. The scope of review is for errors at law. Iowa R. App. P. 6.4. Discovery sanctions are reviewed under an abuse of discretion standard. Wagner v. Miller, 555 N.W.2d 246, 249 (Iowa Ct. App. 1996).
Discovery. During the discovery process, Zumreta submitted two sets of interrogatories, two requests for production of documents, and a request for admissions. A substantial number of the interrogatories were unanswered. Those answers provided were signed by one of the attorneys representing Dursim in these proceedings. Likewise, a substantial part of the documents requested were not supplied, asserting instead: "Defendant has moved, and has fallen out of touch with the undersigned counsel. As a consequence, counsel cannot reach Defendant to get the information sought by this request." A member of the firm representing Dursim signed the response to the request for admissions.
Zumreta's counsel filed a motion to compel and request for sanctions, requesting attorney fees and that the comparative fault and the good samaritan defenses be stricken. In the resistance to the motion to compel, Dursim's counsel acknowledged they had no contact with Dursim and recounted the efforts to make contact with him, indicating that information from his former spouse suggested he could not speak or read English. The court awarded an amount of attorney fees to be paid by Dursim and stated: "The court, however, does not determine that the failure to answer the interrogatories is severe enough to warrant exclusion of the defendant's potential defenses of good samaritan and comparative fault."
Zumreta contends in this appeal that the trial court abused its discretion in not striking the affirmative defenses asserted by Dursim.
"The purpose of rule 125 is to avoid surprise to litigants and to allow the parties to formulate their position on as much evidence as is available." Lambert v. Sisters of Mercy Health Corp., 389 N.W.2d 417, 422 (Iowa 1985). Failure to comply with the rule may result in sanctions, which are implicit in the rule. Id. We will not disturb a trial court's decision under the rule unless the court abused its discretion. Preferred Mktg. Assocs. Co. v. Hawkeye Nat'l Life Ins. Co., 452 N.W.2d 389, 393 (Iowa 1990). We find an abuse of discretion only when discretion is exercised on grounds clearly untenable or to an extent clearly unreasonable. Id.
To examine discretion in the decision of the trial court concerning the request for sanctions, this court reviews all of the circumstances reflected by the record relating to the discovery issue. It provides insight for the basis for the trial court's decision.
The petition in this case was filed on July 28, 2000. The timely answer to the petition included the defense of comparative fault and the good samaritan defense. Discovery requests in the form of interrogatories, requests for admissions, and request for production of documents were filed eleven months later and within two months of the trial date.
The motion to compel was filed contemporaneously with the motion for sanctions six days before trial. No order to compel compliance with the discovery rules had previously been sought and Zumreta's motion requested only that sanction of dismissal of Dursim's affirmative defenses be imposed. No request for continuance of the trial was made to determine whether any order to compel compliance would be honored. Zumreta was apparently ready to proceed to trial notwithstanding any ruling on the motion.
Zumreta's request for sanctions would effectively deny Dursim all affirmative defenses. When the drastic sanction of dismissal is at issue, the range given to the trial court narrows. Kendall/Hunt Pub. Co. v. Rowe, 424 N.W.2d 235, 240 (Iowa 1988); Wagner v. Miller, 555 N.W.2d 246, 249 (Iowa Ct.App. 1996). Dismissal of a petition usually follows after failure to comply with a trial court's order. Suchow v. Boone State Bank Trust Co., 314 N.W.2d 421, 426 (Iowa 1982).
At the late date in the pretrial process in this case and in the absence of any prior order to compel or any motion to delay the trial to attempt effectuation of compliance, the trial court determined a lesser penalty than dismissal of the defenses was appropriate and assessed attorneys fees. The remedy for failure to conform to the discovery rules can be affected by the diligence in the manner and timeliness in which a party pursues it as well as the failure of compliance.
We do not condone noncompliance with discovery rules. Noncompliance with discovery rules and discovery orders should not be tolerated. Golden Circle Air, Inc., v. Sperry, 543 N.W.2d 629, 633 (Iowa 1995). Compliance should be assumed as directed by the rules. A party requesting discovery has a right to substantial compliance. It is an integral part of the trial process. It is designed to assist in the truth-seeking process. The mechanisms available are designed to equip a party with all the information permissible under the rules to proceed to trial. We cannot say under the circumstances in this case that the trial court abused its discretion in the type of sanction imposed.
Admissions. Zumreta's counsel raises issue with Dursim's counsel's signature on the response to the request for admissions. Zumreta's counsel contends the trial court erred by precluding the right of defense counsel to require the attorney signing the responses to the request for admissions to disclose her personal knowledge of the facts upon which she responded.
The rule specifically allows the signature of the party's attorney to the responses. "The matter is admitted unless . . . the party to whom the request is directed serves . . . a written answer or objection . . . signed by the party or by the party's attorney." Iowa R. Civ. P. 1.510(2). The responses of counsel for the party binds the party to the answers submitted. The trial court did not err by declining to permit Zumreta's counsel to examine Dursim's counsel concerning her personal knowledge of the facts.
Good Samaritan Defense. Zumreta contends the record did not support the submission of the good samaritan defense. We have reviewed the record and determine that the trial court did not err when it included the requested good samaritan instruction. Sufficient evidence had been presented to create a jury question on the issue.
The trial court is affirmed on all issues presented.
AFFIRMED.