Filed: June 15, 1995
Richard E. Hardison
Harry G. Camper, Jr.
Beckley, West Virginia
Attorneys for the Appellant
W. H. File, Jr.
File, Payne, Scherer & File
Beckley, West Virginia
Attorney for the Appellee
The Opinion of the Court was delivered PER CURIAM.
JUSTICE BROTHERTON and JUSTICE RECHT did not participate.
RETIRED JUSTICE MILLER and JUDGE FOX sitting by temporary assignment.
1. "The imposition of sanctions by a circuit court under
W.Va.R.Civ.P. 37(b) for the failure of a party to obey the court's
order to provide or permit discovery is within the sound discretion
of the court and will not be disturbed upon appeal unless there has
been an abuse of that discretion." Syllabus point 1, Bell v.
Inland Mutual Insurance Company, 175 W.Va. 165, 332 S.E.2d 127
2. "Where a party's counsel intentionally or with gross
negligence fails to obey an order of a circuit court to provide or
permit discovery, the full range of sanctions under W.Va.R.Civ.P.
37(b) is available to the court and the party represented by that
counsel must bear the consequences of counsel's actions." Syllabus
point 4, Bell v. Inland Mutual Insurance Company, 175 W.Va. 165,
332 S.E.2d 127 (1985).
The appellants, Wilma J. Smallwood and Cecil Smallwood,
instituted this personal injury action in November, 1992, against
Raleigh General Hospital for personal injuries which Wilma
Smallwood sustained while she was a patient in that hospital. A
year and a half later, in May, 1994, the Circuit Court of Raleigh
County dismissed the action because of the failure of the
Smallwoods' attorney to respond appropriately to interrogatories.See footnote 1
In the present appeal, the Smallwoods claim that the circuit court
erred in dismissing the action. After reviewing the facts
presented and the record, we disagree. Accordingly, the judgment
of the circuit court is affirmed.
As previously indicated, this action was instituted by
the filing of a complaint in November, 1992. On or about
December 29, 1992, the appellee, Raleigh General Hospital, which
was the defendant below, timely filed an answer and served the
Smallwoods with its first set of interrogatories, which included
questions regarding the Smallwoods' proposed expert testimony.
The Smallwoods did not promptly respond to the
interrogatories, and Raleigh General Hospital filed a notice and motion to compel answers to the interrogatories on or about
February 16, 1993. A hearing was conducted on the motion to compel
on February 19, 1993, and at that time the trial court directed the
Smallwoods to respond to the interrogatories on or before March 5,
The Smallwoods responded to all the interrogatories by
March 5, 1993, except an interrogatory regarding their proposed
expert testimony. In the present proceeding, they assert as their
reason for failing to respond the fact that they had had
insufficient time to marshall their expert evidence by the time the
responses were due.
Counsel for the parties engaged in additional discovery
by taking discovery depositions, and a status conference was
conducted on August 25, 1993. As a result of that conference, a
scheduling order was entered which required the Smallwoods to
disclose their expert witnesses by October 1, 1993. Further, the
parties were directed to complete all discovery by January 1, 1994,
and trial was scheduled for April 5, 1994.
The Smallwoods did not disclose the identity of their
expert witness or witnesses by October 1, 1993, the deadline set in
the scheduling order, and counsel for the parties agreed and
entered into a stipulation whereby the Smallwoods were given until
November 1, 1993, to make the disclosure.
On or about November 1, 1993, counsel for the Smallwoods
filed a disclosure response which, while identifying an expert
witness, did not fully answer Raleigh General Hospital's
interrogatory. Therefore, on or about December 14, 1993, counsel
for Raleigh General Hospital filed a second motion to compel the
Smallwoods to comply with Rule 26(b) and to produce the discovery
information sought. The Smallwoods filed a response to the motion
to compel, in which they advised the court that their expert
witness required additional information prior to setting forth an
opinion. A hearing was conducted on the motion to compel on
December 16, 1993, and at that time the trial court cancelled the
previous scheduling order and ordered the Smallwoods to respond to
Raleigh General Hospital's discovery request on or before January
15, 1994. The court further ordered an additional conference on
June 1, 1994.
According to the Smallwoods, their counsel was unable to
contact and obtain information from their expert witness.
Consequently, no discovery response was made by January 15, 1994,
as had previously been ordered by the court.
As a result of this failure of the Smallwoods to produce
an appropriate response, Raleigh General Hospital filed a motion to
dismiss the action. A hearing was scheduled on the motion to
dismiss for March 21, 1994.
The Smallwoods' counsel failed to appear at the March 21,
1994, hearing because, according to the Smallwoods, their counsel's
secretary had been hospitalized and her replacement had
inadvertently failed to log the hearing on the office calendar. It
also appears that another reason that the Smallwoods' attorney
failed to appear at the hearing was that he was out of the country
at the time.
When the Smallwoods' counsel failed to appear at the
hearing on the motion to dismiss, the trial court wrote him and
advised him to apologize to Raleigh General Hospital's counsel for
his "discourtesy and nonprofessionalism" and to demonstrate why
Raleigh General Hospital's motion to dismiss should not be granted.
The Smallwoods' attorney refused to comply with the court's advice
and refused to apologize on the ground that Raleigh General
Hospital's counsel had been contacted on another matter and was
well aware that he would be out of the country on the date set for
On May 4, 1994, the circuit court ordered the counsel in
the case to appear before him, and at that time the court granted
Raleigh General Hospital's motion to dismiss for failure to
appropriately respond to discovery.
In the present appeal, the Smallwoods claim that the
trial court erred in dismissing their action.
The interrogatories in this case were served by Raleigh
General Hospital upon the Smallwoods in accordance with the
provisions of Rule 33 of the West Virginia Rules of Civil
Rule 37 outlines the procedures which a trial court may
follow when one party, upon whom an interrogatory has been served,
fails to respond to the interrogatory. Rule 37(d) provides, in
relevant part, that:
If a party or an officer, director, or managing agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on behalf of a party fails . . . (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories . . . the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule.
Rule 37(b)(2)(C), which establishes sanctions which a
trial court may take under the quoted language for the failure of
an appropriate person to respond to an interrogatory, provides that
the trial court may enter:
An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party; . . . .
In Bell v. Inland Mutual Insurance Company, 175 W.Va.
165, 332 S.E.2d 127 (1985), this Court examined the circumstances
under which a trial court could appropriately dismiss a party's
action or grant the opposing party default judgment upon the
party's failure to comply with an appropriate discovery motion. In
syllabus point 1, the Court stated:
The imposition of sanctions by a circuit court under W.Va.R.Civ.P. 37(b) for the failure of a party to obey the court's order to provide or permit discovery is within the sound discretion of the court and will not be disturbed upon appeal unless there has been an abuse of that discretion.
The Court also stated, in syllabus point 4, that:
Where a party's counsel intentionally or with gross negligence fails to obey an order of a circuit court to provide or permit discovery, the full range of sanctions under W.Va.R.Civ.P. 37(b) is available to the court and the party represented by that counsel must bear the consequences of counsel's actions.
Elsewhere, this Court has indicated that dismissal, which
is the harshest sanction under Rule 37, should be used sparingly,
and only after other sanctions have failed to bring about
compliance. See Doulamis v. Alpine Lake Property Owners
Association, Inc., 184 W.Va. 107, 399 S.E.2d 689 (1990); and
Chandos, Inc. v. Samson, 150 W.Va. 728, 146 S.E.2d 837 (1966).
In the present case, the trial court delayed the
proceedings on a number of occasions to afford the Smallwoods an
opportunity to respond to Raleigh General Hospital's interrogatories. The first delay occurred in February, 1993, when
the trial court gave the Smallwoods until March 5, 1993, to
respond. The second delay occurred in August, 1993, when the court
gave the Smallwoods until October 1, 1993, to respond. The third
delay occurred in December, 1993, when the court gave the
Smallwoods an extension until January 15, 1994. Finally, when the
Smallwoods' attorney failed to appear at the March 21, 1994,
hearing, the court afforded him an opportunity to apologize and act
in such a way as to prevent dismissal of the action.
In Bell v. Inland Mutual Insurance Company, supra, Inland
Mutual Insurance Company, by counsel, answered a complaint filed
against one of its insureds. Approximately one month later, the
plaintiff served interrogatories upon Inland Mutual Insurance
Company. Those interrogatories were not answered. In February,
1983, the plaintiff moved the circuit court to compel Inland Mutual
Insurance Company to answer the interrogatories, and, in an order
entered on February 4, 1983, the circuit court ordered Inland
Mutual Insurance Company to answer the interrogatories by
February 14, 1983. The interrogatories remained unanswered in
contravention of the court's order, and in April, 1983, the
plaintiff moved the circuit court to strike the proceedings and to
enter default judgment for it. After a hearing, the court struck
the pleadings and granted the motion for default judgment.
In the Bell case, the court concluded:
Based upon the record before us, the circuit court did not abuse its discretion when it rendered the default judgment as a result of Inland Mutual's failure to comply with the court's order compelling discovery; nor was there an abuse of discretion on the refusal to set the default judgment aside.
175 W.Va. at 175, 332 S.E.2d at 137.
It appears to this Court that in the present proceeding
the Smallwoods were afforded broader opportunities to respond than
was Inland Mutual Insurance Company in the Bell case. It also
appears that in the present case the trial court attempted to be
even more accommodating than was the trial court in the Bell case
to avoid dismissing the action.
In the present case, where the trial court repeatedly
afforded the Smallwoods' counsel an opportunity to avoid dismissal,
and where he repeatedly failed to avail himself of those
opportunities, this Court cannot say that the trial judge abused
his discretion in dismissing the Smallwoods' action or that the
dismissal of the action constituted reversible error.
The judgment of the Circuit Court of Raleigh County is, therefore, affirmed.
Footnote: 1 The precise dates of the filing of the complaint and the entry of the dismissal order, as well as certain other dates, are undiscernible in the record. The Court does not believe that these precise dates are necessary to the matters discussed herein.