Opinion
No. 34599-4-II.
March 20, 2007.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-2-01099-1, Wm. Thomas McPhee, J., entered March 31, 2006.
Counsel for Appellant(s), Steven Ray Meeks, Attorney at Law, Olympia, WA.
Counsel for Respondent(s), Peggy Clare Hughes, Montgomery Purdue Blankinship Austin, Seattle, WA.
Benjamin I Vandenberghe, Attorney at Law, Seattle, WA.
Reversed by unpublished opinion per Houghton, C.J., concurred in by Van Deren and Penoyar, JJ.
Sharyn and Richard McPherson appeal a trial court's dismissal with prejudice of their case against Charles and Lupita Sandoval. Ostensibly, the trial court dismissed the case as a discovery sanction and/or for failure to comply with a case schedule order. We reverse.
FACTS
On December 4, 2002, Sharyn McPherson, a radiology technician, allegedly received a shock from machinery she was operating, causing her and her husband injuries. The McPhersons sought to recover damages from General Electric Company (GEC), a New York Corporation, or one of its responsible subsidiaries.
As a result of the alleged shock, the McPhersons filed a lawsuit in Thurston County Superior Court against GEC. After GEC moved the case to federal court, the McPhersons filed a voluntary dismissal motion.
On June 2, 2004, the McPhersons filed a second lawsuit in Thurston County Superior Court, naming GE Medical Systems Information Technologies, Inc. (GEMS-IT), Tumwater Family Practice Clinic, PLLC (TFPC), various Doe parties, and the Sandovals as defendants. The McPhersons later voluntarily dismissed TFPC without prejudice.
The McPhersons alleged that GEMS-IT was the manufacturer and seller of the machinery that purportedly shocked Sharyn McPherson.
The McPhersons alleged that Charles Sandoval was an "agent, employee and/or independent contractor of defendant GE Medical with responsibility for the monitoring, servicing, repair and maintenance" of the machinery that purportedly shocked Sharyn McPherson. 1 Clerk's Papers at 12.
On December 17, 2004, the trial court filed a case schedule order, establishing, among other things, the trial date and witness disclosure and discovery cutoff dates. The McPhersons had not served pleadings on the Sandovals at this point.
GEMS-IT served the McPhersons with its first set of interrogatories dated July 2, 2005. When the McPhersons did not respond to GEMS-IT's discovery requests by the date established in the case schedule order, GEMS-IT moved for an order compelling responses and for sanctions. The Sandovals were not a party to the original interrogatory requests, motion to compel, or motion for sanctions.
At a November 4, 2005 hearing on the motion, the McPhersons stipulated to the motion to compel and for sanctions. The trial court ordered the McPhersons to file their responses to GEMS-IT's interrogatory requests within 10 days and imposed monetary sanctions.
The McPhersons' counsel requested that the trial court order the sanctions against him personally, not the McPhersons.
On December 2, GEMS-IT moved to dismiss and for sanctions, claiming that the McPhersons' responses to the November 4 order were late and incomplete. The Sandovals were not a party to this motion.
At a hearing on the motion, the McPhersons stated they were not ready to proceed to trial and requested a continuance. The parties mentioned that the Sandovals had not been served, and the trial court directed GEMS-IT's counsel to order Charles Sandoval to its corporate office for service, even though he did not work for GEMS-IT. The trial court continued the trial date, reserved ruling on whether to dismiss the case, and ordered the McPhersons to provide full and complete discovery responses by December 19.
After the December 9 hearing, GEMS-IT and the McPhersons entered into an amended case schedule order. Nothing in the record shows that the Sandovals took part in amending the case schedule order.
On December 29, GEMS-IT filed another motion to dismiss and for sanctions, claiming the McPhersons' responses to interrogatories as mandated by the December 9 order were incomplete. The Sandovals did not join in this motion.
At a hearing on the motion, the trial court asked about the Sandovals' involvement in the suit, including the following discussion:
The Court: What's the status of the individual defendant at this point?
[McPhersons' Counsel]: He's been served in the new lawsuit.
The McPhersons filed an additional lawsuit against GE Medical Systems (a different corporate entity than GEMS-IT) and the Sandovals.
. . . .
The Court: I see. Now, has he been named and served in this lawsuit?
[McPhersons' Counsel]: He was named, not served.
The Court: Okay. So at this point the defendant that we are referring to as "GEMS-IT", GE Medical Systems Technologies, is the only defendant who has been served and remains in the lawsuit; is that correct?
[McPhersons' Counsel]: Essentially. That's essentially correct.
Report of Proceedings (RP) (Jan. 6, 2006) at 36-37. GEMS-IT's attorney, who also later represented the Sandovals, did not object to these statements. The trial court denied GEMS-IT's motion to dismiss but reserved the right to impose later sanctions.
On March 10, 2006, GEMS-IT and the Sandovals filed a joint motion seeking dismissal of the McPhersons' case with prejudice as a discovery sanction under CR 37 and/or for a motion in limine preventing witnesses from testifying at trial due to nondisclosure of witnesses in violation of the amended case schedule order.
On March 15, the McPhersons stipulated to an order dismissing GEMS-IT with prejudice because it had no relation to the x-ray machine that allegedly shocked Sharyn McPherson. The order dismissing GEMS-IT did not mention the Sandovals. The McPhersons proposed an order to dismiss the Sandovals without prejudice, but the Sandovals declined to stipulate to this order.
On March 31, the trial court held a hearing on the Sandovals' motion, with the only issue being whether to dismiss the Sandovals with or without prejudice. The Sandovals argued for dismissal "both as a discovery sanction and [for noncompliance] with the court's order." RP (March 31, 2006) at 8. After the McPhersons' argument, the trial court asked why they were not taking a voluntary nonsuit, and they explained the possible procedural repercussions a nonsuit might have on another pending case. The trial court dismissed the case against the Sandovals with prejudice. The McPhersons appeal.
ANALYSIS Case Schedule Order
The McPhersons argue that the trial court abused its discretion in dismissing their case against the Sandovals with prejudice. They claim the case schedule order did not apply to the Sandovals because the McPhersons never served them and/or because the Sandovals were not active parties when the trial court issued either the original or amended case schedule order. Therefore, they assert, the trial court had "no basis in fact or law" to dismiss the case against the Sandovals for discovery or case schedule order violations. Appellant's Br. at 28.
We review orders imposing sanctions for noncompliance with discovery rules for an abuse of discretion. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 684, 41 P.3d 1175 (2002). A trial court has broad discretion to make any such order, and we will not disturb its determination absent an abuse of discretion. Rivers, 145 Wn.2d at 684. A trial court abuses its discretion when its decision is manifestly unreasonable, based on untenable grounds, or when untenable reasons support the decision. Mayer v. STO Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
The Thurston County Superior Court Local Court Rules (LCR) establish the procedure for entering a case schedule order. The department assigned to the case shall, on agreement of the parties or by decision at the status conference, execute a case schedule as an order of the court. LCR 16(d)(5). Any party who joins an additional party shall be responsible for serving the additional party with a current case schedule order, together with all other pleadings required by law. LCR 16(d)(6).
"'Under CR 41(b), a trial court has the authority to dismiss an action for noncompliance with a court order or court rules.'" Rivers, 145 Wn.2d at 686 (quoting Woodhead v. Disc. Waterbeds, Inc., 78 Wn. App. 125, 129, 896 P.2d 66 (1995)). A trial court may impose such sanctions as it deems appropriate for unexcused violations of its scheduling orders. Woodhead, 78 Wn. App. at 129. CR 37 (b)(2)(C) authorizes a trial court to impose sanctions for failure to comply with a court order, including dismissal for violation of the discovery rules.
The Sandovals moved to dismiss with prejudice based, at least in part, on a request for a discovery sanction under CR 37(b). But although the McPhersons failed to adequately respond to GEMS-IT's discovery requests, the Sandovals never submitted any discovery requests. When the trial court dismissed the Sandovals' case, the McPhersons had already agreed to dismiss GEMS-IT with prejudice. Because the Sandovals did not seek any discovery and all of GEMS-IT's claimed discovery violations were resolved by its dismissal, the trial court had no grounds to dismiss the Sandoval case with prejudice based on a discovery sanction.
The only other possible reason for the sanction through dismissal with prejudice was for failure to disclose witnesses by the date established in the case schedule order under CR 41(b). But nothing in the record shows the Sandovals had been served, and they had no part in creating the case schedule order and had done nothing to comply with the order, appearing for the first time by way of their motion to dismiss. Because they had no part in forming the case schedule order and the McPhersons did not join them in the order, the Sandovals were not parties to the case schedule order. See LCR 16(d)(5). Without a case schedule order that applied to the Sandovals, the trial court did not have a basis to dismiss the claim with prejudice under CR 41(b).
Because the Sandovals never requested any discovery from the McPhersons and were not a party to the case schedule order, the trial court did not have grounds to grant the sanction of dismissal with prejudice as either a discovery sanction or sanction for failing to comply with a court order. Accordingly, the trial court improperly dismissed the case against the Sandovals with prejudice on either of these grounds.,
Because we hold that the trial court abused its discretion in dismissing the McPhersons' case for failure to comply with the second amended case schedule order or as a discovery sanction, we do not address the McPhersons' claim that the trial court abused its discretion by failing to make an appropriate record for appellate review. But we note that the trial court did not sufficiently state on the record its reasons for imposing the strong and final sanction of dismissal. Rivers, 145 Wn.2d at 686 (before ordering the drastic sanction of dismissal, a trial court must consider and clearly state on the record whether: (1) the refusal to obey an order was willful or deliberate; (2) a party's actions substantially prejudiced the opponent's ability to prepare for trial; and (3) a lesser sanction than dismissal of the action in its entirety would have sufficed).
We recognize that the trial court had reasons to be extraordinarily frustrated with the progress of this case and that it presents a convoluted procedural history.
Attorney Fees
The Sandovals request attorney fees under RAP 18.9(a), claiming that the McPhersons' appeal is frivolous. Because we find that the trial court abused its discretion as the McPhersons claim, we deny the Sandovals' request for fees.
We reverse the trial court's dismissal with prejudice of the McPhersons' case against the Sandovals.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Van Deren, J.and Penoyar, J., concur: