Opinion
No. 52618-9-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-2-25877-0. Judgment or order under review. Date filed: 06/26/2003. Judge signing: Hon. Jay V White.
Counsel for Appellant(s), Charles Malcolm II Cruikshank, Attorney at Law, 108 S Washington St. Ste 306, Seattle, WA 98104-3406.
Counsel for Respondent(s), John E Zehnder Jr., Scheer Sotirhos, 720 Olive Way Ste 1605, Seattle, WA 98101-1895.
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 probably be adequate, or whether the discovery violations prejudiced the other party. The trial court dismissed Glen Walker's case against Jordanne Vlcheck as a sanction for Walker's failure to appear at his deposition without considering less severe sanctions or the prejudice to Vlcheck on the record. Therefore, the trial court abused its discretion. We reverse.
FACTS
In September 1998, Walker was driving on Interstate 5 near Seattle when he slammed on his breaks to avoid hitting a hubcap that had fallen off another vehicle. Walker's car was then hit by a truck driven by Vlcheck. Walker told Vlcheck at the scene that he was unhurt, but he later sued her to recover damages for injuries he claimed were caused by the accident.
Trial was set for July 14, 2003. Vlcheck began deposing Walker on May 9, 2003, but was unable to complete the deposition that day. Walker agreed on the record to return on May 20, but on May 19, 2003, he cancelled the deposition because he was ill. Vlcheck rescheduled the deposition for May 27 and sent Walker a copy of an amended notice of deposition and a letter confirming the new deposition date. Walker did not appear on May 27. When contacted, he claimed he had forgotten that the deposition had been rescheduled. Counsel agreed to postpone the deposition to the next day, but Walker called then, too, and said he was ill.
The following day, Vlcheck filed a motion to dismiss under CR 37(d) based on her inability to complete Walker's deposition. The trial court granted the motion after finding that Walker 'acted willfully and deliberately in failing to attend a properly noticed deposition[.]' Clerk's Papers at 335. Walker moved for reconsideration, but his motion was denied. This appeal followed.
Trial Abused Its Discretion When It Dismissed The Case Without Considering Lesser Sanctions Or Prejudice
CR 37(d) provides that a court may order sanctions, including dismissing the action, against a party who fails to appear at his own deposition. A trial court has broad discretion to make any such order as is just for noncompliance with discovery rules. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 684, 41 P.3d 1175 (2002); Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997). A sanction decision should not be disturbed on appeal absent a clear showing of abuse of discretion discretion manifestly unreasonable, exercised on untenable grounds, or for untenable reasons. Burnet, 131 Wn.2d at 494.
But a court should impose the least severe sanction that will adequately serve the purpose for which it is imposed. Rivers, 145 Wn.2d at 695; Burnet, 131 Wn.2d at 495-96. And, the court should clearly state its reasons for imposing a particular sanction so that review on appeal is meaningful. Rivers, 145 Wn.2d at 693-94; Burnet, 131 Wn.2d at 495. Moreover, if the court chooses one of the harsher sanctions, like dismissal, the record must show that the trial court explicitly considered whether a lesser sanction probably would have sufficed, whether the disobedient party's refusal to obey a discovery order was willful or deliberate, and whether the opponent's ability to prepare for trial was substantially prejudiced. Rivers, 145 Wn.2d at 693-94; Burnet, 131 Wn.2d at 494.
The trial court concluded that Walker acted willfully and deliberately when he failed to attend his deposition, but the court did not address whether a lesser sanction would have been adequate or whether Vlcheck's ability to prepare for trial was substantially prejudiced. Vlcheck asserts that it is evident that the court considered lesser sanctions because her motion for dismissal proposed alternative sanctions. But the court must affirmatively consider lesser sanctions and the issue of prejudice on the record so that the reviewing court can determine whether the sanction imposed is warranted. Rivers, 145 Wn.2d at 694-96.
By sanctioning Walker with dismissal, without considering lesser sanctions or the prejudice to Vlcheck on the record, the trial court abused its discretion. See Rivers, 145 Wn.2d at 696. Accordingly, we must reverse the trial court's dismissal of Walker's claims and remand for further proceedings.
Vlcheck argues that this court must deny Walker's appeal because the motion to dismiss was essentially unopposed. Vlcheck claims that the evidence Walker offered in opposition to the motion, showing that he did not willfully miss his deposition, was not admissible. But whether or not Walker adequately opposed the motion, the trial court's failure to consider less harsh sanctions or prejudice on the record constitutes an abuse of discretion. See Rivers, 145 Wn.2d at 696.
Lack Of Notice And Illness Were Not Reasonable Excuses For Walker's Discovery Violations
Walker also assigns error to the trial court's finding that he willfully and deliberately failed to attend his deposition. He claims that the record is 'totally lacking' any evidence that his failure was deliberate or willful. But a party's disregard of a court order is deemed willful if it is without reasonable excuse or justification. Rivers, 145 Wn.2d at 686-87.
Walker's excuses for missing the continuation of his deposition were illness and lack of notice. He claims that he did not receive notice of the continued deposition until the day after the deposition was to recommence. But Walker did not need to receive written notice of the continued deposition because he agreed on the record to continue the deposition to May 20, 2003. Likewise, after canceling the May 20 deposition, he agreed to appear May 27. He claimed he was sick that day, too, but agreed he would appear the next day. Under these circumstances, lack of notice was not a reasonable excuse for failing to appear at the deposition.
Walker claims further, however, that he could not attend the deposition because he was ill. He claims that his pain was so severe that he took medication that interfered with his ability to comprehend and tell the truth. But the only evidence of Walker's condition, apart from his own declarations, was a letter that his sister wrote to the judge. Without more, those statements do not show that Walker had a reasonable excuse for missing the depositions. In contrast, there is substantial evidence to support the court's finding that Walker willfully failed to attend a properly noticed deposition.
CONCLUSION
The trial court abused its discretion by dismissing Walker's case for discovery violations, without considering on the record lesser sanctions or the prejudice to Vlcheck. We, therefore, reverse and remand for further proceedings consistent with this opinion and the Supreme Court's decision in Rivers.
KENNEDY, COLEMAN and APPELWICK, JJ.