Before Wagner, Chief Judge, and Terry and Schwelb, Associate
The opinion of the court was delivered by: Wagner, Chief Judge
Appeals from the Superior Court of the District of Columbia (Hon. Mary Ellen Abrecht, Motions Judge) (Hon. Lee Satterfield, Motions and Trial Judge)
Appellants, Roger Vann Smith and Faye Smith, seek reversal of an order dismissing their complaint for wrongful foreclosure, entering a default against them on a complaint for possession of real property and counterclaim to quiet title, and striking their plea of title for failure to make discovery. Appellants argue that the trial court abused its discretion in taking these actions under Super. Ct. Civ. R. 37 and 41 (b) because: (1) no motion to compel discovery had been entered; (2) the circumstances were not severe enough to warrant the extreme sanctions imposed; and (3) the trial court failed to consider lesser sanctions. We conclude that the trial court abused its discretion in that it failed to consider lesser sanctions and to determine whether Fairfax Village was prejudiced by any failure of the Smiths to comply with discovery requests. Therefore, we reverse and remand for further proceedings consistent with this opinion.
Fairfax Village foreclosed on a condominium owned by the Smiths because of their failure to pay condominium assessments. Fairfax Village purchased the condominium at the foreclosure sale. The Smiths filed in the Superior Court an action against the Board of Directors of Fairfax Village (Board) alleging wrongful foreclosure (94-CA-11200). The Smiths contended that they had disputed the amount of the condominium assessments and that the time for the Board to assert a lien and foreclose had lapsed under D.C. Code § 45-1853 (e) (1996 Repl.). *fn1 Fairfax Village filed a counterclaim to quiet title. On January 20, 1995, the Smiths filed a new case alleging wrongful foreclosure, libel, slander, and intentional infliction of emotional distress (95-CA- 481). By consent of the parties, the two cases were consolidated on April 21, 1995. Subsequently, Fairfax Village filed a complaint for possession of the property in the Landlord-Tenant Branch of the Superior Court (95-LT-10043). The Smiths filed a Plea of Title and an Undertaking in response. All three cases were consolidated.
The trial court (Judge Abrecht) entered a scheduling order setting various deadlines, including a discovery deadline of August 21, 1995; motions to be filed by September 6, 1995; with mediation/case evaluation to occur between October 21, 1995 and November 11, 1995. The parties filed and served discovery requests upon each other, and disputes arose between them. On May 25, 1995, Fairfax Village filed a motion to compel the Smiths to respond to its first request for production of documents. Fairfax Village reported to the court that the Smiths' counsel had responded that the documents requested could be reviewed in the court jacket; however, Fairfax Village informed the Smiths' counsel that the court file was not readily available and that the Smiths were obligated to respond. The Smiths filed a motion to strike the motion to compel, contending that the checks requested by Fairfax Village were not readily available to them and that they had submitted copies to the court (front and back) during a hearing on a motion for a temporary restraining order.
On July 24, 1995, the Smiths filed a motion to compel the Fairfax Village parties to respond to interrogatories and requests for production of documents and for admissions that had been mailed to Fairfax Village on June 20, 1995. On July 25, 1995, the Fairfax Village parties filed a motion for leave to late file their responses to the request for admissions, to extend the time to respond to the outstanding discovery, and an opposition to the motion to compel. Fairfax Village indicated that their responses were not due until July 24th, the date on which the Smiths filed their motion, but that they were nevertheless unable to respond timely due to primary counsel in the case taking sabbatical leave from defense counsel's law firm. Fairfax Village requested an extension of time of two weeks to respond fully. The Smiths filed a second motion to compel discovery, contending that responses provided by Fairfax Village were inadequate or non-responsive. On September 1, 1995, Fairfax Village filed a motion to compel discovery, contending that the Smiths failed to answer some of the interrogatories, in whole or in part; that they failed to appear for depositions scheduled and rescheduled for August 9, 1995 and September 7, 1995, respectively; and that they indicated that they would not be available until the week of October 2, 1995. The trial court (Judge Abrecht) ordered the parties to meet and attempt to resolve their discovery disputes before October 5, 1995 or appear before the court for a hearing on October 13, 1995.
On October 10, 1995, the parties filed a "Consent Motion to Extend Time for/Reschedule Mediation and Reflecting Meeting Addressing Discovery Disputes," in which they informed the court that the parties had resolved their discovery disputes and that no hearing was necessary. They also requested that the mediation scheduled for November 1, 1995 be postponed to a date after December 1, 1995 or a date set by the court's Assignment Office. In an order filed on November 1, 1995 and docketed and mailed to the parties on November 3, 1995, the trial court denied the parties' consent motion as "untimely and not well-founded." The court recited the provision of its earlier order requiring the parties to appear on October 13th if discovery disputes had not been resolved, noted that the parties had notified the court by praecipe that the disputes had been resolved, and stated that the court had not authorized an extension of the discovery deadline or a continuance of the mediation date. Therefore, the court ordered the parties to appear for mediation on November 1, 1995 as previously scheduled. The Fairfax Village parties appeared with counsel for mediation as ordered, but the Smiths did not. Prior to the entry of the court's order, Fairfax had noticed depositions for the Smiths for November 8, 1995, pursuant to their mutual agreement, but the Smiths did not appear on the later date.
Thereafter, Fairfax Village filed a motion to dismiss the Smiths' two complaints, to enter a default against the Smiths on Fairfax Village's complaint to quiet title and on its complaint for possession, and to dismiss the Smiths' plea of title on the ground of their failure to make discovery. As reasons for the motion, Fairfax Village cited the Smiths' failure to participate in court ordered mediation and to appear for depositions. The Smiths filed an opposition in which they contended that the parties had agreed to take the depositions of defendants Eloise Campbell, Gloria White and Viola Johnson on November 8, 1995 and that counsel for Fairfax Village informed Mr. Smith that none of these defendants would appear to be deposed on that date. The Smiths also contended that Mrs. Smith had become grievously ill. Defense counsel had responded by letter to the request for depositions that the Smiths' notice was not reasonable and that the date conflicted with the date set for the Smiths' depositions.
On December 15, 1995, the trial court (Judge Abrecht) granted the motion of Fairfax Village and dismissed the Smiths' complaints with prejudice pursuant to Super. Ct. Civ. R. 37 (b)(2)(c) and (d) and 41 (b) and entered a default against them on Fairfax Village's counterclaim to quiet title and for possession, subject to ex parte proof. The Smiths appealed from the trial court's order in appeal no. 96-CV-42. The Smiths also filed a petition for reconsideration on January 29, 1996, to which Fairfax Village filed an opposition on February 12, 1996. The Smiths claimed that their neglect, if any, on November 1, 1995, the scheduled mediation date, and the November 8th date set for their depositions, was excusable based upon their consent agreement, and Fairfax Village's breach of the parties' agreement to allow depositions of defense parties or witnesses on that date. Fairfax Village opposed the motion on the grounds that the Smiths were not entitled to relief under Super. Ct. Civ. R. 60, as requested, and that they should have proceeded by "motion" instead of by "petition." The trial court (Judge Lee Satterfield) denied the motion on the grounds that the Smiths had failed to comply with Super. Ct. Civ. R. 12-I and that the grounds stated did not warrant relief.
Following an ex parte hearing as previously ordered, which the Smiths attended without counsel, *fn2 the trial court (Judge Satterfield) entered an order granting Fairfax Village title in fee simple to the condominium and assessing damages against the Smiths, which included $600 per month from April 15, 1995 until the date that the Smiths vacate the property, payable from funds on deposit in the registry of the court plus interest at the rate of 6% per annum from December 12, 1995 on $20,826.24 (the amount that the condominium association paid to the Smiths' lender) and legal fees pursuant to the By-Laws of the condominium association in the amount of $1,858.25. The Smiths filed a motion requesting the court to stay the execution of the damages award and to eliminate the provision for a supersedeas bond until their appeal was resolved. The trial court denied the stay and required the Smiths to post a supersedeas bond in the amount of $4000. The Smiths filed a second appeal (96-CV-491) from the court's order. The two appeals were consolidated by this court.
The Smiths argue that the trial court abused its discretion in entering a default against them and in dismissing their claims pursuant to Super. Ct. Civ. R. 37 as a sanction for failure to comply with discovery requests and in entering a dismissal and default pursuant to Rule 41 (b). The Smiths contend that the trial court erred in failing to consider lesser sanctions and in imposing such an extreme sanction, since Fairfax Village suffered no prejudice. They contend that Fairfax Village breached an agreement to make the Board's officers available for deposition, which presumably excused their own compliance with deposition requests. They further contend that the imposition of sanctions was premature because Fairfax Village did not file a motion to compel discovery, and the court had not entered an order compelling discovery. Fairfax Village argues that no separate order compelling discovery is required as a prerequisite to the imposition of ...