Opinion
No. 54532-9-I
Filed: March 14, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 02-2-28177-0. Judgment or order under review. Date filed: 05/14/2004. Judge signing: Hon. Linda Lau.
Counsel for Appellant/Cross-Respondent, David Carl Burkett, Burkett Burdette Fogarty PLLC, 600 Stewart St Ste 1500, Seattle, WA 98101.
Counsel for Respondent/Cross-Appellant, Joanne S. Beeson, Johnson Christie Andrews Skinner PS, 200 W Thomas St Ste 500, Seattle, WA 98119-4296.
Thomas Lether, Cole Lether Wathen Leid PC, 1000 2nd Ave Ste 1300, Seattle, WA 98104-1082.
Counsel for Other Parties, Tyler K. Firkins, Vansiclen Stocks Firkins, 721 45th St NE, Auburn, WA 98002.
A trial court abuses its discretion if it dismisses a case as a sanction for discovery violations without first considering on the record whether the violations were willful, whether a less severe sanction would be adequate, or whether the discovery violations prejudiced the other party. Because there was no abuse of discretion in the trial court's dismissal of Sandra Rasmussen's complaint against SAFECO Insurance Co., we affirm the summary judgment to that extent. However, because the record contains no basis for dismissing Rasmussen's complaint against AllPro Construction, Inc., we reverse the order with respect to that defendant.
Rivers v. Washington State Conference of Mason Contractors, 145 Wn.2d 674, 686, 41 P.3d 1175 (2002).
Rasmussen submitted a Motion to Strike portions of Cross-Appellant SAFECO's Reply Brief. We deny that motion.
Rasmussen made a claim under her policy with SAFECO Insurance Company of America for water damage to her home. Rasmussen chose AllPro Construction to make the needed repairs. Disputes arose among the parties regarding the quality of AllPro's repairs, and AllPro eventually withdrew its bid without completing the work. Disputes also arose between Rasmussen and SAFECO over Rasmussen's cooperation with the claims process and with SAFECO's handling of Rasmussen's claim. Eventually, Rasmussen sued SAFECO for various claims, including breach of contract, bad faith denial of the insurance claim, Consumer Protection Act violations, and negligent infliction of emotional distress.
SAFECO propounded discovery to Rasmussen, including interrogatories and requests for production. Rasmussen failed to fully and timely respond to both SAFECO's first and second set of interrogatories and requests for production. She responded to the first request only after SAFECO moved to compel. In addition, during her deposition, she refused to answer many of the questions SAFECO asked regarding the factual bases of her claims. Amidst these discovery motions, SAFECO moved for summary judgment on the grounds that Rasmussen had failed to demonstrate that, under her policy, she was entitled to any further recovery than she had already received. SAFECO requested the court to dismiss all of Rasmussen's claims or, in the alternative, to dismiss the extra-contractual claims and order the contractual claims to proceed to appraisal pursuant to the terms and conditions of the insurance policy.
The trial court stayed the lawsuit pending the appraisal, but declined to rule on the dismissal request. Following SAFECO's motion for reconsideration or clarification, the trial court entered an order naming SAFECO's appraiser, ordering Rasmussen to make her property available for inspection, and reserving ruling on the dismissal motion pending the appraisal's outcome. It also ordered Rasmussen to provide full and complete discovery responses and ordered her to pay $500 in sanctions to SAFECO.
A month later, SAFECO filed its first Motion to Dismiss for Rasmussen's refusal to comply with the court's order. The trial court subsequently entered a second order, directing Rasmussen to comply with its previous compliance order. It also reserved ruling on SAFECO's motion for additional sanctions, up to and including dismissal.
More than seven months after the court issued its second compliance order, SAFECO again moved to have Rasmussen's complaint dismissed for her failure to comply with the court's orders.
Following the appraisal hearing, the trial court dismissed all of Rasmussen's claims with prejudice as a sanction for violating the discovery rules and disregarding the court's orders.
Rasmussen appeals.
CONSIDERATION OF ADEQUACY OF LESSER SANCTIONS
Rasmussen contends that the trial court abused its discretion by resorting to the harsh sanction of dismissal without considering the imposition of lesser sanctions on the record. We disagree.
CR 37(d) provides that a court may order sanctions, including dismissing the action, against a party who fails to 'serve answers or objections to interrogatories, or to serve a written response to a request for production of documents or inspection.' A trial court has broad discretion to make any such order as is just for noncompliance with discovery rules. Likewise, CR 41(b) provides a trial court with the authority to dismiss an action for non-compliance with a court order or court rules. A sanction decision should not be disturbed on appeal absent a clear showing of abuse of discretion — if the decision was manifestly unreasonable, exercised on untenable grounds, or for untenable reasons.
River, 145 Wn.2d at 684; Burnet v. Spokane Ambulance, 131 Wn.2d 484, 493-94, 933 P.2d 1036 (1997).
Burnet, 131 Wn.2d at 494.
Despite the fact that courts have the authority to dismiss a case for discovery violations, it is general policy of Washington courts not to resort to dismissal lightly. Before ordering the drastic sanction of dismissal, a trial court must consider whether: (1) the refusal to obey the discovery order was willful or deliberate; (2) the 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. The trial court's reasoning with respect to each factor must be clearly stated on the record, so that meaningful review can be had on appeal.
Rivers, 145 Wn.2d at 686; see also Burnet, 131 Wn.2d at 498.
Rivers, 145 Wn.2d at 686.
Rivers, 145 Wn.2d at 685.
Rasmussen concedes that her discovery violations were willful and that the violations prejudiced SAFECO. On appeal she argues only that the trial court failed to make a sufficient record of its consideration of lesser sanctions. She contends that the only evidence in the record that lesser sanctions were considered consisted of 'three conclusory sentences' in the dismissal order:
'This Court has considered lesser sanctions, however, lesser sanctions are inadequate. Further additional monetary sanctions will not cure [Rasmussen's] conduct.'
Rasmussen contends that Rivers v. Washington State Conference of Mason Contractors requires reversal here because the trial court's conclusory statement in its dismissal order that it considered lesser sanctions is insufficient.
In Rivers, the supreme court reversed the dismissal of Rivers' gender discrimination claim imposed as a sanction for non-compliance with a court order regarding discovery and case event schedule deadlines. The dismissal with prejudice followed less than three weeks after the trial court's single compliance order. It was the first and only sanction the court imposed on Rivers. The supreme court noted that '[w]hether [Rivers] should be subject to the drastic sanction of dismissal cannot be determined under the limited language used by the trial court in its order of dismissal. Before resorting to . . . dismissal, the trial court must clearly indicate on the record that it has considered less harsh sanctions[.]'
Rivers, 145 Wn.2d at 677.
Rivers, 145 Wn.2d at 687-88.
Rivers, 145 Wn.2d at 696.
Here, unlike the facts in Rivers, the court had not only considered less severe sanctions, but had previously imposed them. In issuing its first compliance order, the court sanctioned Rasmussen $500 for her failure to provide complete and timely discovery responses. Monetary sanctions, as the court noted in its dismissal order, did not cure Rasmussen's conduct, and the court therefore concluded that lesser sanctions were inadequate. The record created by the trial court sufficiently supports the court's consideration of lesser sanctions. There was no abuse of discretion.
Because we conclude that dismissing Rasmussen's case with prejudice was not an abuse of the trial court's discretion, we need not reach SAFECO's cross-appeal of the trial court's decision not to grant its original motion for summary judgment.
DISMISSAL OF ALLPRO CONSTRUCTION
Rasmussen argues that the trial court erred in dismissing her claims against AllPro Construction. We agree.
The dismissal order was a sanction for Rasmussen's discovery violations. Nothing in the record suggests that AllPro ever served any discovery against Rasmussen that had not been answered. The trial court did not find any prejudice to AllPro resulting from Rasmussen's actions. Moreover, AllPro neither moved for dismissal of Rasmussen's claims, nor participated in any way in this appeal.
In its brief SAFECO noted that it 'does not take any position with regard to the trial court's dismissal of AllPro SAFECO did not request that the trial court dismiss Rasmussen's claims against AllPro as part of its Motion to Dismiss.'
We affirm the order with respect to SAFECO, and reverse the order with respect to AllPro Construction, Inc.