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04/30/93 CLAUDETTE PERRY v. MARY ELLEN SERA

April 30, 1993

CLAUDETTE PERRY, APPELLANT
v.
MARY ELLEN SERA, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. Richard S. Salzman, Motions Judge)

Before Steadman, Schwelb and King, Associate Judges.

The opinion of the court was delivered by: Steadman

STEADMAN, Associate Judge : Appellant, Claudette Perry, challenges the pretrial dismissal of her complaint against appellee, Mary Ellen Sera, for failure to make discovery responses, and the denial of a motion for reconsideration of that dismissal. Appellant argues that the trial court abused its discretion in dismissing the complaint in that 1) the trial court could not sanction appellant under Super. Ct. Civ. R. 37 unless there was first a violation of a motion to compel discovery; 2) there were no circumstances in this case severe enough to warrant dismissal; and 3) the trial court failed to consider lesser sanctions. We disagree with appellant's contentions and therefore affirm.

I.

Appellant initiated this lawsuit on May 2, 1990, alleging that, almost three years previously, on May 14, 1987, appellee's dog attacked her, causing various injuries. An initial order was issued by the trial court which among other things set up an initial scheduling conference on September 7, 1990, to establish a schedule for the completion of all pretrial matters. Appellee filed an Answer, a Request for Production of Documents and a set of Interrogatories on June 14, 1990. At the time of the September 7, 1990 conference, appellant still had not produced the documents or responded to the interrogatories. *fn1 The court ordered appellant to file answers to the interrogatories and to produce the documents within two weeks of the scheduling conference subject to sanctions or dismissal for noncompliance. The court also issued a Scheduling Order setting forth the timing of discovery and other matters for the period prior to pretrial conference. *fn2 Appellant filed answers to the Interrogatories and a response to the Request for Production of Documents after the two week time limit had passed. Thereafter, further discovery was conducted by the parties.

On March 1, 1991, appellee filed a Motion for Sanctions against appellant, asserting the failure of appellant to respond to discovery requests and asking the court either to dismiss appellant's complaint or to prohibit appellant from introducing expert testimony or testimony or records concerning appellant's medical or dental history. Appellee asserted that she did not have appellant's full and complete medical and dental records and could not properly and adequately prepare for trial. She stated that she had been seeking such records for a considerable length of time *fn3 and that appellant had obviously failed to cooperate with her attorney in providing the requested items.

In support of her assertions, appellee attached two letters her attorney had written to appellant's attorney, Alan J. Ackerman. The first, dated December 27, 1990, requested various information that appellant had been unable to provide in her deposition. This included information on rehabilitative programs, health care providers and dentists, the details of litigation concerning earlier car accidents appellant was involved in and supplemental answers to the interrogatories on experts. The second letter, dated January 11, 1991, stated that, as Mr. Ackerman was aware, appellee's attorney had been "attempting for several months to obtain complete medical and dental records" regarding appellant's claim. Despite these efforts, appellant had "steadfastly failed and refused to produce and furnish all of her relevant medical and dental records despite both formal discovery requests and informal requests as well." In the letter, appellee's attorney offered to assist appellant by sending an authorization form for medical records so he could attempt to get some of the information himself. He reminded appellant that "it is the obligation of the Plaintiff to furnish the requested discovery" and warned that if the request was not satisfied, he would "file the appropriate motion with the Court in an effort to limit and exclude certain matters at trial."

Additionally, appellee attached as evidence of appellant's own personal disregard of discovery requests letters that had been given to the trial court by Mr. Ackerman when he moved to withdraw as counsel for appellant on February 15, 1991. *fn4 These letters indicate that appellant was repeatedly asked for information concerning her medical and dental health providers that had been requested by appellee. One letter indicates that appellant was seeking, and perhaps had found, a new doctor but had not informed her own attorney, much less appellee. At one point, Mr. Ackerman warned appellant that "your lack of cooperation and our inability to communicate hurts your case."

Additionally, letters dated January 31 and February 8, 1991, (well past the close of discovery) *fn5 from Mr. Ackerman to appellee's attorney revealed the names of three additional dentists that appellant had seen. In the Motion for Sanctions, appellee asserted that the medical and dental records were "absolutely critical to the issues of the instant case and in particular to [appellant's] claims that she suffers from T.M.J. Syndrome as a result of the incident of May, 1987." Due to appellant's providing the names of the dentists so far past the discovery deadline, appellee had no opportunity to obtain records from or depose them.

Appellant, through her second attorney, filed on March 27, 1991, an unopposed Motion for Extension of Time to respond to the Motion for Sanctions. *fn6 In the motion, appellant asked to be permitted to file an opposition "on or before April 1, 1991." However, no opposition was in fact filed. On April 3, 1991, the trial court granted appellee's Motion for Sanctions with respect to which no grounds for denial had been presented *fn7 and dismissed appellant's complaint "for failure to make appropriate discovery responses thereby prejudicing the defendant's ability to defend herself against the plaintiff's suit for damages." *fn8

On April 17, 1991, appellant filed a Motion for Reconsideration of the order dismissing her complaint. In that motion, appellant argued many of the legal points that she argues on appeal. Appellant asserted that many of the documents requested by appellee had been produced by the time the motion was filed and that the documents not produced were difficult to get due to their age. She argued that the trial court should have conducted a hearing before dismissing the claim and that she was denied due process in that she was not given notice that her claim was in danger of dismissal. She stated that of the various particularized items that appellant's new counsel was informed were missing, several had already been obtained (although not sent to appellee) and others were being sought.

Appellee filed an Opposition to Motion for Reconsideration on April 26, 1991. She stressed that the Motion for Sanctions was unopposed (even after appellant's request for more time) and therefore the court's Memorandum and General Order authorized treating the motion as conceded. See note 6, (supra) . She asserted that appellant was warned by the Motion for Sanctions and the Rules of Superior Court that her complaint could be dismissed. Appellee argued that appellant had treated the entire process of the lawsuit cavalierly and without regard for the rules. This attitude was evident in the way she handled the Motion for Sanctions as well. Appellee listed ten specific discovery items that had been requested and still not produced by appellant despite assurances over time that they would be. *fn9 Appellee noted that dental records, critical to defending the claim that appellant suffered from T.M.J., had not been produced -- even to appellant's treating physician. The trial court denied the Motion for Reconsideration on August 13, 1991, and appellant appealed on September 10, 1991.

II.

Initially, there is an issue whether we have jurisdiction to hear this appeal. Appellee argues that, because appellant designated an order on the Notice of Appeal which itself is not appealable, the appeal must fail. Indeed, on the Notice of Appeal, appellant wrote in the space for the "Description of judgment or order" that she was appealing from the denial of the "Motion for Reconsideration of Order dismissing complaint." *fn10 However, on the very next line where appellant was to indicate the "Issues to be presented by appellant on appeal," she presented the exact issue that she ...


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