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11/17/92 MARYLAND DRYWALL COMPANY v. ANDRE

November 17, 1992

MARYLAND DRYWALL COMPANY, INC., APPELLANT
v.
ANDRE ROBERTSON, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge)

Before Ferren, Terry, and Steadman, Associate Judges.

The opinion of the court was delivered by: Terry

TERRY, Associate Judge:

This appeal arises from a trial court order imposing sanctions on appellant, Maryland Drywall Company, in June 1991. According to appellant's brief:

The court ordered sanctions because Maryland Drywall did not supplement its answers to the plaintiff's interrogatories served upon and answered by Maryland Drywall in November 1990. The court ruled that Maryland Drywall should have supplemented its answers with information Maryland received in April 1991. Maryland Drywall appeals the order of sanctions on the ground that it was not required to supplement its interrogatory answers since it had been severed from the plaintiff's case in February 1991 -- two months before it received the additional information.

We conclude, after examining the record, that the claim against Maryland Drywall was not "severed" within the meaning of Super. Ct. Civ. R. 21, but that the court merely ordered a separate trial of its portion of the case *fn1 under Super. Ct. Civ. R. 42 (b). Consequently, Maryland Drywall remained a party and was under a duty to provide further discovery under Super. Ct. Civ. R. 26 (f). We therefore hold that the trial court did not err in imposing sanctions for failure to perform that duty, and accordingly affirm the order under review.

I

Andre Robertson, an employee of Maryland Drywall, was injured when he tell from a third-story window in a building owned by the District of Columbia which was undergoing renovation and remodeling. He sued the District, the W.M. Schlosser Company ("Schlosser"), which was the general contractor, and others who were later dismissed from the case. Schlosser in turn filed a third-party complaint against its subcontractor, Maryland Drywall, and against a sub-subcontractor, Fredco Construction Company, and Fredco's owner. After discovery closed, Robertson settled with Schlosser and then moved to preclude the third-party defendants, including Maryland Drywall, from participating in the trial of his claim against the District of Columbia. The court held a hearing and orally granted Robertson's motion on February 28, 1991. No written order embodying that oral ruling, however, was ever entered.

On June 24, 1991, a jury trial began on Robertson's claim against the District of Columbia. On the second day of trial, when counsel for the District asked Robertson on cross-examination about certain statements he had made to two other persons, Robertson's counsel objected on the ground that he had not been made aware of these statements through discovery. The court held an extended hearing and eventually granted a mistrial, ruling that not only the District but also Maryland Drywall should have supplemented its answers to interrogatories with information about these statements. Later the court awarded to Robertson all costs he had incurred for the aborted trial, to be divided equally between the District and Maryland Drywall as sanctions for their failure to provide full discovery. The court's order, filed June 27, 1991, stated that Maryland Drywall and the other third-party defendants were "deemed by this Court to be under a continuing obligation, pursuant to D.C. Super. Ct. Civ. R. 26 (f), to supplement their respective responses to discovery requests." *fn2 Maryland Drywall's motion to reconsider this order was denied.

The retrial of Robertson's claim against the District resulted in a verdict in his favor in the amount of $6,000,000. Judgment was entered on that verdict on September 16, 1991. Maryland Drywall filed its notice of appeal on October 11, 1991.

II

On this appeal we must decide what was the effect of the trial court's February 28 ruling which divided the case into two parts. If it was a severance under Rule 21, then Maryland Drywall was, at least arguably, out of the case involving the District, and the court probably should not have awarded discovery sanctions against Maryland Drywall four months later. On the other hand, if the court was merely granting separate trials under Rule 42 (b), *fn4 then Maryland Drywall was still very much in the case, and the imposition of sanctions was within the court's discretion. Although the record is not crystal clear, we think it is clear enough to permit us to conclude that the court effected a separation under Rule 42 (b), not a severance under Rule 21.

At the end of the February 28 hearing on Robertson's motion to preclude Maryland Drywall and others from participating in the trial against the District, the following exchange occurred:

MR. O'CONNELL (counsel for Schlosser): . . . Your Honor's ruling is apparent, but I don't know ...


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