August 13, 1998
HABIBAH HAQQ, APPELLANT,
BARBARA JEAN DANCY-BEY, APPELLEE.
APPEAL FROM THE SUPERIOR COURT, STEPHANIE DUNCAN-PETERS, LINDA TURNER-HAMILTON, JJ.
Before Schwelb and Reid, Associate Judges, and Greene,
Associate Judge of the Superior Court of the District of
[715 A2d Page 912]
[fn*] Sitting by designation pursuant to D.C.Code § 11-707(a)
The opinion of the court was delivered by: Schwelb, Associate Judge:
This action was brought by the mother of Tariq Haqq, a minor, on Tariq's behalf for personal injuries sustained by Tariq, then seven years old, when he was struck by an automobile operated by Barbara Jean Dancy-Bey. Prior to trial, the motions judge issued an order precluding Tariq from presenting the testimony of his accident reconstruction expert, Gregory Manning. Counsel for plaintiff had proposed to call Manning to show that the defendant was operating her vehicle at approximately 50 m.p.h. in a posted 25 m.p.h. zone, and that the defendant's speeding and inattention proximately caused the accident.
When the case went to trial, the plaintiff proceeded without an accident reconstruction expert. Ms. Dancy-Bey presented evidence that she was driving within the speed limit and that Tariq darted in front of her car without looking out for traffic. The jury returned a verdict in the defendant's favor. *fn1 The plaintiff now appeals, alleging that Manning should have been permitted to testify.
The motions judge's preclusion order was based on what the judge found to be willful violations by Tariq's trial counsel of Rules 11 and 37 of the Superior Court's Rules of Civil Procedure. In his statement of expected expert testimony filed pursuant to Super. Ct. Civ. R. 26(b)(4), the plaintiff's counsel had identified Manning as his expert witness on the circumstances and cause of the accident, and Ms. Dancy-Bey's attorney promptly noticed Manning's deposition. Upon receiving the notice, however, Manning telephoned the defense attorney and advised the attorney that he (Manning) had not been retained by plaintiff's counsel and that he had not received from Tariq's attorney any information regarding the accident. Tariq's attorney subsequently did retain Manning, but Manning had not completed his investigation prior to the expiration of the time for discovery.
The matter came before the motions judge on the plaintiff's request for an extension of discovery and the defendant's motion for sanctions. The judge refused to extend discovery and held that Manning would not be permitted to testify. In a five-page written order dated August 28, 1994 (Order No. 1), and again in a forty-five page order dated November 1, 1995 denying reconsideration (Order No. 2), the trial judge set forth in detail the reasons for her ruling. In Order No. 1, the judge found, inter alia, that counsel for plaintiff had filed a false Rule 26(b)(4) statement, in violation of Rule 11, and she declined to extend discovery because an extension would "reward the entirely inappropriate and unprofessional conduct of the [p]laintiff's counsel." In Order No. 2, the judge reaffirmed all of her initial findings and further found that Tariq's trial counsel, in defending what the judge found to be indefensible conduct, had made a number of additional false or misleading statements to the court. Our review of the record satisfies us that there is evidentiary support for the judge's findings with respect to counsel's misconduct, and that those findings are therefore binding upon us pursuant to D.C.Code § 17-305(a) (1997).
In Order No. 2, the motions judge explained her choice of sanction:
This [c]ourt is aware that the sanction of exclusion is a serious and harsh one. But, the [c]ourt has considered lesser sanctions and none would serve the interests of justice and ensure the efficient administration of this case as well as the exclusion of Mr. Manning's testimony. A monetary sanction imposed on the [p]laintiffs or on [their counsel] would not satisfactorily sanction the behavior that [counsel] has demonstrated in this case so far. It would simply allow [counsel], in return for a payment of money, to set his own scheduling deadlines [715 A2d Page 913]
and force the [c]ourt and the defense to wait until he is ready to prepare this case. For the deliberate and willful actions involved in this case, that would be as good as no sanction at all.
In this [c]ourt's view, it is a better solution to exclude Mr. Manning from testifying in this case. Such a sanction would reinforce to the [p]laintiffs, their counsel, and other members of the bar that attempts to thwart the rules and orders of this [c]ourt by the use of false statements will not be tolerated and will result in serious adverse consequences.
The foregoing passage demonstrates that the motions judge carefully considered the various sanctions available to her and that she made a conscientious effort to exercise appropriately her considerable discretion in that regard. See, e.g., Perry v. Sera, 623 A.2d 1210, 1217-18 (D.C. 1993) (discussing trial court's discretion with respect to sanctions for discovery violations); Park v. Sandwich Chef, Inc., 651 A.2d 798, 802 (D.C. 1994) (applying abuse of discretion standard to trial court's imposition of Rule 11 sanctions). Our standard of review is therefore deferential, and in the absence of a showing of abuse of discretion or legal error, it is our duty to sustain the motions judge's disposition.
"Judicial discretion must, however, be founded upon correct legal principles." Park, supra, 651 A.2d at 802 (citations omitted). Our examination of the record and of the motions judge's written orders leaves us in some doubt as to whether, in precluding Mr. Manning from testifying, the judge included in her calculus, and gave appropriate consideration to, the legal significance of Tariq's age.
In Order No. 1, the motions judge wrote that she had
no way of knowing whether the [p]laintiffs were aware of the actions of their counsel. Even if they were not, the [c]ourt cannot separate the actions of the [p]laintiffs from those of their counsel. The [p]laintiffs have to accept the consequences of their actions and the action of their attorney.
But Tariq Haqq, the person on whose behalf the suit was brought, was only seven years of age at the time of the accident and nine years old when the complaint was filed. He therefore could not have been meaningfully "aware of the actions of [his] counsel," nor could he exercise control over them.
Although we have held that "in the ordinary case, the acts and omissions of counsel are imputed to the client even though detrimental to the client's cause," Godfrey v. Washington, 653 A.2d 371, 373 (D.C. 1995) (quoting Railway Express Agency, Inc. v. Hill, 250 A.2d 923, 926 (D.C. 1969)) (internal quotation marks omitted), we have qualified that doctrine in cases in which attorneys or guardians have failed adequately to represent the interests of their minor clients or wards. In Jones v. Roundtree, 225 A.2d 877 (D.C. 1967), for example, we reversed the dismissal of a minor's complaint, notwithstanding the inexcusable neglect of the case on the part of his attorney, because we were unwilling to "visit the sins of an attorney on his client, especially when that client is a minor." Id. at 878. More recently, in Godfrey, we stated that, in appropriate cases,
the trial court should rule so as to preserve the rights of a minor who would otherwise suffer a significant loss due entirely to the default of some representative who was supposed to be, but was not, acting in the minor's best interest. See Brandon [v. Debusk, 85 Ill. App.3d 645, 41 Ill.Dec. 1,] 407 N.E.2d [193,] 195 [(Ill. 1980)]. ("Minor litigants are . . . entitled to special protection by the courts, particularly to see that their rights are protected even from the neglect of their representative in order to do substantial justice").
653 A.2d at 373-74. *fn2
Here, of course, the sanction imposed by the motions judge was less Draconian and [715 A2d Page 914]
more directly related to the misconduct of counsel than in Godfrey or Jones. She did not dismiss Tariq's complaint, but only precluded him from calling as a witness the very individual about whom his counsel had made substantial misrepresentations to the court. Nevertheless, the motions judge did not allude in her written orders to any of the authorities we have cited or to the court's duty to provide special protection to litigants who are minors. An exercise of discretion informed by the principles articulated in Godfrey and like cases might have led the judge to impose a different sanction, and to penalize the errant attorney rather than the blameless minor plaintiff. *fn3 Accordingly, we remand the case for reconsideration of the sanction in light of the authorities cited in this opinion. We do not mandate a specific outcome, but elect instead to defer in the first instance to the exercise by the trial court of a fully informed discretion. *fn3
If the trial court concludes that, under the standards articulated in this opinion, Mr. Manning should not have been precluded from testifying, then the court shall determine whether the exclusion of Mr. Manning's testimony was harmless. *fn4 If the imposition of the sanction is found to have been unwarranted and not harmless, then the trial court shall order a new trial.
Remanded with directions. *fn5 [715 A2d Page 115]