CHARLESTON – The West Virginia Supreme Court of Appeals has ruled that a trial court abused its discretion by dismissing a lawsuit as a sanction.
The case is upon the appeal of Terri Smith and Kenneth Smith from a Feb. 3, 2017, order of Ohio Circuit Court dismissing their civil action as a sanction for alleged discovery violations.
“Upon review of the briefs, arguments of counsel, appendix record, and applicable precedent, this Court reverses the circuit court’s decision and remands this matter for further proceedings consistent with this opinion,” the opinion states.
Chief Justice Margaret Workman authored the majority opinion. Justice Robin Jean Davis authored a separate, concurring opinion.
The Smiths contracted with Robert Gebhardt in 2009 to construct a single story home with cement block foundation and concrete basement flooring for $226,102.23
Portions of the basement were finished with drywall and ceiling, and brick was to be placed on the home’s exterior, creating a three-foot veneer around the bottom wall of the home, with the remainder of the exterior finished with aluminum siding.
Approximately four months after the Smiths took occupancy of the home, they informed Gebhardt that the block in the basement was wet and Gebhardt unsuccessfully attempted to remedy the water infiltration for the following three years.
On Sept. 27, 2013, the Smiths filed a complaint, which they amended on Dec. 18, 2014. The Smiths alleged unfair and deceptive acts; breach of express and implied warranties; breach of contract; negligence intentional interference with warranty contracts; common law fraud and fraudulent inducement; and intentional, willful, wanton, malice or outrageous conduct.
Gebhardt filed multiple motions in limine, a motion for sanctions and a motion to strike regarding the Smiths’ experts on Sept. 21, 2015.
Gebhardt also filed five motions for summary judgment on various theories of liability and a motion to dismiss based upon spoliation of evidence. Another defendant, Michael Coyne, also filed 12 motions with the circuit court.
The circuit court postponed trial until Nov. 14, 2016, due to the volume of pretrial motions, responses, exhibits and expert testimony for the court to address.
On Nov. 8, 2016, Gebhardt was personally served by a professional process server with a subpoena requesting that he bring to trial receipts for gravel applied to the basement floor before the concrete was poured. Gebhardt’s counsel was not served and the following day, he filed a second motion to dismiss, arguing that the serving the subpoena directly upon him without notice to his counsel constituted harassment and intimidation.
The circuit court responded by canceling the trial and setting the matter for a Nov. 15, 2016, evidentiary hearing.
At the evidentiary hearing, Gebhardt denied being harassed, intimidated or threatened by the service of the subpoena directly upon him.
On Feb. 3, 2017, the circuit court granted Gebhardt’s motion to dismiss as a sanction for the alleged discovery violations.
The petitioners then appealed, contending that the circuit court based its sanction upon a variety of erroneous legal conclusions and that dismissal of the civil action was an abuse of discretion.
“Dismissal of a civil action as a sanction for a party’s inappropriate conduct during discovery is a severe result to be used sparingly,” the opinion states. “Imposition of such a drastic sanction is justified only where an offending party has engaged in willfulness, bad faith, or fault.”
The court found that based upon its review, the circuit court abused its discretion by imposing the sanction of dismissal.
“For the reasons stated, the judgment of the Circuit Court of Ohio County is reversed,” the opinion states. “The civil action shall be reinstated and is remanded for further proceedings.”
In her concurring opinion, Davis wrote that while she agreed with the reasoning of the opinion and conclusion, she wanted to wrote separately to address an issue the majority opinion made reference to in passing.
Davis took issue with the majority not further discussing whether or not a Rule 45 subpoena duces tecum could be served on a party.
“A party does not have unbridled discretion in serving a Rule 45 subpoena duces tecum on another party,” Davis wrote.
“In the final analysis, all federal courts agree that ‘[a] Rule 45 trial subpoena…cannot be substituted for an untimely Rule 34 document request,’” Davis wrote. “Because of this, I believe that when the proper case presents itself to this Court, the majority view of service of a Rule 45(b)(1) subpoena duces tecum on a party should be adopted. As previously mentioned, in the instant proceeding the parties did not brief this issue. Therefore, the majority opinion properly did not address the matter.”
W.Va. Supreme Court of Appeals case number: 17-0206