Opinion
NO. 2016-CA-001921-MR
03-02-2018
HEATHER WILLIAMS APPELLANT v. UNIVERSITY OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Edward E. Dove Lexington, KY BRIEF FOR APPELLEE: Joshua Michael Salsburey Lexington, KY Megan K. George Lexington, KY Meredith Reeves Lexington, KY
NOT TO BE PUBLISHED APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE THOMAS L. CLARK, JUDGE
ACTION NO. 14-CI-01735 OPINION
VACATING AND REMANDING
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BEFORE: CLAYTON, DIXON AND MAZE, JUDGES. DIXON, JUDGE: Appellant, Heather Williams, appeals from an order of the Fayette Circuit Court dismissing her complaint filed against Appellee, the University of Kentucky. For the reasons set forth herein, we vacate the trial court's order and remand for further findings of fact.
In May 2014, Williams filed a complaint against the University of Kentucky ("UK") asserting claims for disability discrimination and retaliation, including an alleged failure to accommodate her disability, stemming from her 2013 termination from UK's Integrated Biomedical Sciences ("IBS") graduate program. The record indicates that Williams was admitted as a doctoral candidate in the IBS graduate program in 2010. Enrollment in the program and funding for her studies were conditioned upon good academic standing, full participation in program activities, and adherence to the requirements of the IBS program. In 2013, UK discontinued Williams' funding, citing her failure to make adequate progress toward completion of her doctorate. After leaving the program, Williams relocated several times within the United States and eventually moved to London, England.
Williams was diagnosed with gastroparesis in 2005.
Subsequent to filing its answer, UK attempted to obtain discovery related to Williams' claims as well as schedule her deposition. UK first served interrogatories and requests for production of documents to Williams on August 26, 2014, and first noticed Williams' deposition for October 22, 2014. Over the next three months, Williams' deposition was noticed on four occasions, each having to be cancelled due to her failure to comply with discovery requests. As a result, on February 5, 2015, the trial court entered an order granting UK's motion to compel, and directing Williams to provide the requested discovery no later than March 6, 2015. On March 17, 2015, Williams tendered discovery responses that failed to comply with the trial court's order.
In an effort not to again involve the trial court, UK sent Williams a letter dated April 10, 2105, requesting that she comply with the trial court's order. Over the next several months, Williams' counsel apparently cooperated in gathering and producing Williams' medical records requested by UK. However, Williams herself failed to produce the discovery items set forth in the trial court's order. UK sent another letter in November 2015 again requesting the discovery items. UK sent a final letter requesting that Williams produce the court-ordered social media items on January 4, 2016. Again, Williams did not respond or comply.
The requested discovery concerned social media items that the trial court ruled should be produced and that Williams never contended were unavailable or not subject to discovery.
On February 19, 2016, UK filed a motion to dismiss pursuant to CR 37.02. During a subsequent hearing, the trial court granted Williams an additional twenty days to comply with its prior order, but explicitly stated that if she failed to do so, UK could submit an order of dismissal. On March 16, 2016, the trial court entered an order memorializing its oral directive and gave Williams until March 24, 2016, to effectuate the discovery production. That order specifically stated, "Failure to fully comply will result in dismissal of Plaintiff's case with prejudice pursuant to CR 37.02." On the afternoon of March 24, 2016, Williams' counsel sent an email purporting to attach "supplemental discovery responses." A review of the tendered documents, however, revealed that such were nothing more than a copy of the already disclosed deficient responses. The following afternoon, Williams' counsel sent a second email that did, in fact, contain items relevant to the trial court's order. Nevertheless, because Williams had failed to comply with the March 24, 2016 deadline, UK filed another motion to dismiss. At a subsequent hearing, the trial court passed the motion to the following month and ordered Williams to personally appear and explain her repeated lack of compliance with the trial court's orders.
Kentucky Rules of Civil Procedure.
At the time of the April 22, 2016 hearing, Williams lived in Colorado. She did subsequently appear before the trial court on May 12, 2016. However, the video of such hearing is not included in the record on appeal. --------
Shortly after her May 12th appearance, Williams accepted a job in London, England. Nevertheless, her counsel advised UK that she could be available to return to the United States for a deposition in September 2016. During a July 15, 2016 phone call, Williams' counsel confirmed that she would be present in Kentucky for her deposition on September 2, 2016. However, on August 2, 2016, Williams filed a motion to allow her deposition to be conducted via Skype videoconference. UK objected, arguing that a plaintiff is required to make herself available for examination in the district in which she brings suit, and further that Williams' claim of hardship due to the necessity of overseas travel was unjustified given her obstruction of numerous attempts to take her deposition while she still lived in the United States. The trial court agreed and entered an order denying Williams' motion and ordering her to appear in person for her deposition.
On August 24, 2016, Williams' counsel notified UK that she would not attend the deposition. As a result, UK filed its third motion to dismiss on October 25, 2016, arguing that pursuant to both CR 37.02 and CR 37.04, the trial court had the discretion to dismiss Williams' suit for her failure to appear at her deposition as well as for her dilatory conduct over the course of the proceedings. Following a hearing on November 4, 2016, the trial court entered an order dismissing Williams' case with prejudice. This appeal ensued.
In this Court, Williams argues that the trial court abused its discretion in dismissing her case because any failure to comply with discovery orders was not the result of bad faith but rather because she moved out of the jurisdiction. Williams contends that a review of the factors set forth in Ward v. Housman, 809 S.W.2d 717 (Ky. App. 1991) establishes that her case did not warrant the extreme sanction of dismissal.
The trial court has "broad discretion when applying the 'civil death penalty,' i.e., dismissal with prejudice." Stapleton v. Shower, 251 S.W.3d 341, 343 (Ky. App. 2008) (citing W.D. Benjamin v. Near East Rug Co., Inc., 535 S.W.2d 848 (Ky. 1976)). However, because it is a final termination of the litigation, it should be resorted to only in the "most extreme cases" and, when resorted to by the trial court, should be carefully scrutinized by an appellate court. Polk v. Wimsatt, 689 S.W.2d 363, 364-65 (Ky. App. 1985). This Court reviews the trial court's determination of the appropriate sanction for abuse of discretion. Morton v. Bank of the Bluegrass and Trust Co., 18 S.W.3d 353, 360 (Ky. App. 1999). "The test for abuse of discretion is whether the trial [court's ruling] was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Goodyear Tire and Rubber Co. v. Thompson, 11 S.W.3d 575, 581 (Ky. 2000).
The trial court's authority to impose sanctions for failure of a party to comply with discovery is found in CR 37.02(2) and CR 37.04. CR 37.02(2) permits the trial court to impose sanctions on any party that fails to obey an order to provide or permit discovery, including the following:
(a) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;CR 37 .04 likewise permits the trial court to take any action allowed under CR 37.02(2) when a party fails to appear for a deposition, to serve answers or objections to interrogatories, and to serve a written response to a request for a request for inspection of records. In Stapleton, 251 S.W.3d at 343, a panel of this Court observed that sanctions imposed under CR 37.02, including dismissal, are functionally the same as a dismissal under CR 41.02. Consequently, we held that the factors set forth in Ward are relevant when a "dismissal [or a default judgment] is imposed as a sanction for failure to comply with discovery requests." Id.
(b) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(c) An order striking out pleadings . . . or rendering a judgment by default against the disobedient party;
(d) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination;
(e) Where a party has failed to comply with an order under Rule 35.01 requiring him to produce another for examination, such orders as are listed in subparagraphs (a), (b) and (c) of this paragraph (2), unless the party failing to comply shows that he is unable to produce such person for examination.
In Ward, a panel of this Court outlined six factors that a trial court must consider when dismissing a case pursuant to CR 41.02: "(1) the extent of the party's personal responsibility; (2) the history of dilatoriness; (3) whether the attorney's conduct was willful and in bad faith; (4) the meritoriousness of the claim; (5) prejudice to the other party, and (6) alternative sanctions." 809 S.W.2d at 719 (citing Scarborough v. Eubanks, 747 F.2d 871, 875-78 (3d Cir.1984). Subsequently, in R.T. Vanderbilt Co., Inc. v. Franklin, 290 S.W.3d 654 (Ky. App. 2009), we reviewed a trial court's imposition of sanctions under CR 37.02(2) under the elements set out in Greathouse v. American National Bank and Trust Co., 796 S.W.2d 868 (Ky. App. 1990):
Considering the severity of the sanction imposed and guided by the court in Greathouse and our case law addressing CR 37.02, we conclude the following factors must be considered: (1) whether [the offending party's] non-compliance was willful or in bad faith; (2) whether [the adversary] was prejudiced by [the offending party's] failure to comply with the discovery orders; (3) whether [the offending party] was warned that failure to cooperate could lead to dismissal; (4) whether less drastic sanctions were imposed or considered before the trial court precluded [the offending party] from presenting its
defenses; and (5) whether the sanction imposed bears some reasonable relationship to the seriousness of the non-compliance.R.T. Vanderbilt, 290 S.W.3d at 662 (citing Greathouse, 796 S.W.2d at 870). Although the tests in Ward and Greathouse are not identical, they contain substantially similar factors which a trial court must consider before imposing sanctions on a party for his or her failure to cooperate with discovery. Both tests also recognize that a dismissal or a default judgment under CR 37.02 is a severe sanction which should only be utilized in exceptional cases. R.T. Vanderbilt, 290 S.W.3d at 661 (citing Polk, 689 S.W.2d 363). Finally, both tests require the trial court to make findings of fact which are sufficient to allow meaningful appellate review of the imposition of such sanctions. Greathouse, 796 S.W.2d 870. "The reasons for desiring some articulation of the bases for decision have special importance in this context. When such a severe sanction is imposed, values of consistency and predictability, reviewability, and deterrence, outweigh the values of economy and efficiency that may be promoted by allowing inarticulate decisions." Id. (quoting Quality Prefabrication, Inc. v. Daniel J. Keating Company, 675 F.2d 77, 81 (3d Cir.1982)).
In the case sub judice, the trial court's November 21, 2016 order provided,
This matter is before the Court upon the University of Kentucky's October 25, 2106 motion to dismiss pursuant to CR 37.02 and 37.04. Having considered the University's motion and memorandum, the objections of Plaintiff's counsel, and the parties having been
sufficiently heard on the matter during the Court's November 4, 2016 motion hour, IT IS ORDERED that Plaintiff's claims are DISMISSED in their entirety, with prejudice, each party to bear its own costs, and that this case shall be stricken from the Court's active docket.We are cognizant of the deference to be afforded the trial court's findings. CR 52.01. Nevertheless, the above order is devoid of any written findings of fact or conclusions of law, and we are unable to discern the precise reason for imposition of the ultimate sanction upon Williams. There is clearly no reference to any of the Ward factors, and none were discussed during the brief three-minute hearing. Consequently, it is virtually impossible for this Court to determine whether the dismissal was based solely upon Williams' failure to appear for the deposition or her delay in producing the requested court-ordered documents, or a combination thereof.
We are mindful of the fact that in Jaroszewski v. Flege, 297 S.W.3d 24 (Ky. 2009), our Supreme Court questioned the Ward decision, noting,
While Ward has been useful by particularly encouraging the trial court to make specific findings on the record, and while this precedent undoubtedly gives trial courts some guidance about what to consider, we hesitate to embrace a formulaic approach where certain listed factors must always be discussed, and other relevant factors may not be discussed. Since the issue of whether a case must be dismissed for lack of prosecution is inherently fact-specific, demanding that a rigid list of factors must be addressed by the trial court in each case is inconsistent with the traditional "totality of the circumstances" approach.Id. at 33. The Supreme Court concluded that in ruling a motion to dismiss under CR 41.02, the trial court is not bound to consider all six Ward factors, but rather must assess all factors relevant to that particular case, which might include some or all factors listed in Ward, but may include other factors. Id. at 36. Significantly, however, although the Court in Jaroszewski eased the strict compliance with Ward, it nonetheless reiterated that "[t]rial courts must make explicit findings on the record so that the parties and appellate courts will be properly apprised of the basis for the trial court's rulings; and the appellate courts can assess whether the trial court properly considered the totality of the circumstances in dismissing the case." Id.
A trial court "has broad discretion in addressing a violation of its order[s]" regarding discovery, and this Court reviews the trial court's determination of the appropriate sanction for abuse of that discretion. Wilson v. Commonwealth, 381 S.W.3d 180, 191 (Ky. 2012). "Without findings of fact, a meaningful appellate review of the propriety of discovery sanctions is seriously constrained, if not impossible." Turner v. Andrew, 413 S.W.3d 272, 279 (Ky. 2013); see also Nowicke v. Central Bank & Trust Co., 551 S.W.2d 809 (Ky. App. 1977) (discussing the trial court's fact-intensive inquiry supporting the imposition of CR 37 sanctions against a litigant who willfully disregarded discovery procedures). We must therefore remand this matter to the trial court for entry of findings of fact to support the imposition of sanctions upon Williams. On remand, the trial court may appropriately reach the same result or a different result after consideration of all relevant factors.
The order of the Fayette Circuit Court is vacated and this matter is remanded for further findings consistent with this opinion.
ALL CONCUR. BRIEF FOR APPELLANT:
Edward E. Dove
Lexington, KY BRIEF FOR APPELLEE:
Joshua Michael Salsburey
Lexington, KY Megan K. George
Lexington, KY Meredith Reeves
Lexington, KY