Owens v. Dawson

THE STATE OF SOUTH CAROLINA

In The Court of Appeals

Ottis Owens and Shirley Owens,       
Respondents,

v.

Demetris A. Dawson,       
Appellant.

Appeal From Berkeley County

Gerald C. Smoak, Sr., Circuit Court
Judge

Unpublished Opinion No. 2003-UP-466

Submitted May 12, 2003 – Filed July
18, 2003  

REVERSED

Francis M. Ervin, II, of Charleston, Robert D. Moseley, Jr.,
of Greenville; for Appellant.

E. Paul Gibson, of N. Charleston; for Respondents.

PER CURIAM:  Demetris Dawson appeals a circuit
court order entering default judgment against him as a sanction pursuant to
Rule 37, SCRCP, in connection with his failure to attend a scheduled deposition. 
We reverse. [1]

FACTS/PROCEDURAL HISTORY

Ottis and Shirley Owens filed this
automobile negligence action against Demetris Dawson.  The Owens attempted to
serve Dawson through the Richland County Sheriff’s Department at the address
Dawson provided the investigating officers at the accident scene.  This service
was unsuccessful because the address Dawson had given did not exist.  The Owens
then hired a private process server, Ellen Richardson, who determined Dawson
was residing with his mother on Orr Street in Columbia.  Richardson served Denice
Dawson, a person believed to be Dawson’s mother, at this residence. 

The South Carolina Department of Insurance accepted
service on behalf of Allstate, the underinsured motorist carrier.  Allstate
filed a notice of appearance pursuant to S.C. Code Ann. § 38-77-160 (2002). 
In this notice, counsel stated he did not represent Dawson and was not undertaking
representation of him through the notice. 

Dawson’s deposition was first scheduled
for December 5, 2000, then rescheduled for January 2, 2001.  By letter dated
November 28, 2000, Dawson’s counsel explained to the Owens’ counsel as
follows:

Please be advised that we cannot produce Demetris Dawson for
his deposition.  We have never made contact with the defendant and do not know
of his whereabouts.  We have never been able to confirm that Mr. Dawson resided
at the place where the suit papers were served.

Anyway, I just wanted to give you advance notice that we
cannot locate the defendant and, therefore, cannot guarantee his appearing for
a deposition.  I welcome any suggestions you might have. 

Dawson did not appear for the deposition.  The Owens
moved for sanctions against him pursuant to Rule 37(d), SCRCP. 

Counsel for Dawson and the Owens
appeared at a circuit court hearing on the sanctions motion, but counsel for
Allstate was in trial in another court and did not attend.  The trial court
found Dawson failed to comply with discovery and entered judgment by default
against him with regard to liability.  The court also ordered a damages hearing
be scheduled.  Dawson appeals.

LAW/ANALYSIS

Dawson argues the circuit court abused
its discretion in sanctioning him.  We agree.

 “[T]his court will not reverse our lower court’s
decision as to an imposition of sanctions under Rule 37(d) absent a clear abuse
of discretion.”  Pioneer Elecs. (USA) Inc. v. Cook, 294 S.C. 135, 137,
363 S.E.2d 112, 113 (Ct. App. 1987).  “If a party fails to obey an order to
provide or permit discovery, the trial court may impose sanctions such as striking
pleadings, dismissing the action, or rendering a default judgment.”  Griffin
Grading & Clearing, Inc. v. Tire Service Equip. Mfg. Co., Inc., 334
S.C. 193, 198, 511 S.E.2d 716, 718 (Ct. App. 1999) (citing Rule 37(b)(2)(C),
SCRCP).  “However, when the court orders default or dismissal, or the sanction
itself results in default or dismissal, the end result is nevertheless harsh
medicine that should not be administered lightly.”  Karppi v. Greenville
Terrazzo Co., Inc., 327 S.C. 538, 542-43, 489 S.E.2d 679, 682 (Ct. App.
1997).

“Before invoking this severe remedy, the trial
court must determine that there is some element of bad faith, willfulness, or
gross indifference to the rights of other litigants.”  Id. at 543, 489
S.E.2d at 682.  “The sanction imposed should be reasonable, and the court should
not go beyond the necessities of the situation to foreclose a decision on the
merits of a case.”  Id.  “The sanction should be aimed at the specific
misconduct of the party sanctioned.”  Id.  “In determining the appropriateness
of a sanction, the court should consider such factors as the precise nature
of the discovery and the discovery posture of the case, willfulness, and degree
of prejudice.”  Griffin, 334 S.C. at 199, 511 S.E.2d at 719. 

In Griffin, we found the
circuit court did not abuse its discretion in striking the answer of defendant
Tire Service.  Before the circuit court struck Tire Service’s answer, four separate
orders had been issued requiring Tire Service to comply with discovery requests. 
Tire Service had not meaningfully complied with any of these orders.  We affirmed,
stating “[i]f there was ever a case where striking a party’s pleading was an
appropriate sanction, it is this case where the record is full of multiple,
egregious discovery abuses that blocked the opposing party’s attempts to conduct
meaningful discovery.”  Id.

In Karppi, we found the circuit
court abused its discretion in striking defendant Ogden Teck’s pleadings, including
a cross-claim, and entering default judgment against it.  Karppi, 327
S.C. at 542, 489 S.E.2d at 681.  Karppi served a request for the production
of documents and noticed the deposition of Herbert Ogden, a Pennsylvania resident. 
Ogden Teck maintained Ogden was not required to attend a deposition and would
not voluntarily submit to one.  The company offered another individual who was
familiar with the facts of the case for a deposition.  Ogden was never made
available, despite a court order that he be made available.  Id. at 540-41,
489 S.E.2d at 680-81.  Following a hearing, the circuit court found Ogden Teck
had “intentionally and willfully” violated the court order and as a sanction,
struck its pleadings and entered default judgment against it.  Id. at
541-42, 489 S.E.2d at 681.  We reversed, holding the circuit court abused its
discretion because “the sanction imposed was unduly harsh under the circumstances,
and because the sanction was not limited in scope with regard to the violation
by [Ogden Teck] of the court’s order.”  Id. at 543, 489 S.E.2d at 682. 
We also held the circuit court went beyond what was reasonably necessary to
redress the wrong committed by Ogden Teck and noted the sanction imposed for
a discovery violation must be “reasonable -- comprehensive, yet not overly broad.” 
Id. at 544, 489 S.E.2d at 682.

This case is more akin to Karppi
than to Griffin.  In Griffin, Tire Service was sanctioned after
it repeatedly and consistently refused to comply with several court orders of
which it was aware.  In Karppi, Ogden Teck violated a court order, but
the sanction was much more severe than the violation, particularly in light
of its harsh effect on other parties to the litigation.  In this case, Dawson
failed to appear for a deposition.  Here, as in Karppi, the sanction
was unduly harsh when compared to the discovery violation.  Additionally, there
is no evidence Dawson willfully and intentionally disregarded his obligation
to comply with discovery requests.  Further, Dawson’s failure to appear for
his deposition was not a surprise to anyone because Dawson’s counsel had notified
the Owens’ counsel that he had been unable to get in touch with him.  The severe
sanction imposed by the court went beyond the necessities of the situation. 
Moreover, the sanction fashioned by the court would not remedy the harm the
Owens claimed the violation caused them.  The Owens argued for default contending
Dawson’s failure to attend the deposition prejudiced their ability to discover
anything about Dawson that could lead to the imposition of punitive damages
or give rise to increased damages.  Holding Dawson in default would not rectify
this problem.  The trial judge abused his discretion in striking the answer
and putting Dawson in default.

Because we find the decision of the circuit
court must be reversed for these reasons, we need not address Dawson’s remaining
issues on appeal.

REVERSED.

HEARN, C.J., CONNOR and STILWELL, JJ., concur.

[1]                We decide this case without oral argument pursuant
to Rule 215, SCACR.