Chris Carr, Jr. v. Geico Casualty Company and Shana Fairchild

CHRIS CARR, JR. * NO. 2019-CA-0310

VERSUS *
COURT OF APPEAL
GEICO CASUALTY *
COMPANY AND SHANA FOURTH CIRCUIT
FAIRCHILD *
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-00419, DIVISION “F”
Honorable Christopher J. Bruno, Judge
******
Judge Tiffany G. Chase
******
(Court composed of Judge Daniel L. Dysart, Judge Joy Cossich Lobrano, Judge
Tiffany G. Chase)

DaShawn P. Hayes
THE HAYES LAW FIRM, PLC
1100 Poydras Street, Suite 1530
New Orleans, LA 70163

COUNSEL FOR PLAINTIFF/APPELLANT

Alejandro “Alex” Cobar
LAW OFFICE OF ROBERTO R. AROSTEGUI
3510 N. Causeway Blvd., Suite 608
Metairie, LA 70002

COUNSEL FOR DEFENDANT/APPELLEE

JUDGMENT AMENDED;
AFFIRMED AS AMENDED
OCTOBER 16, 2019

This is an appeal from a judgment of dismissal granted in favor of

defendants, GEICO Casualty Company and Shana Fairchild (collectively

“GEICO”), against plaintiff, Chris Carr, Jr. (hereinafter “Mr. Carr”). After

consideration of the record, and the applicable law, we amend the judgment of the

trial court and affirm as amended.

FACTUAL AND PROCEDURAL HISTORY

On January 13, 2017, Mr. Carr filed a petition for damages for injuries

allegedly sustained in a November 26, 2016, automobile accident. GEICO served

Mr. Carr with interrogatories and a request for production of documents by mail on

March 30, 2017. Mr. Carr did not respond. Pursuant to Rule 10.1 of the Rules for

Louisiana District Courts, a telephone conference was scheduled for October 2,

2017, to discuss the outstanding discovery. Counsel for Mr. Carr did not

participate in the telephone conference. GEICO subsequently filed a motion to

compel and a hearing on the matter was set for November 30, 2017.

On the morning of the hearing, counsel for Mr. Carr sent an e-mail to the

trial court and counsel for GEICO, stating that he was ill with the flu and would be

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unable to attend the hearing. The parties reached an agreement that an additional

thirty days would be given to reply to the requested discovery.

On February 5, 2018, counsel for GEICO e-mailed counsel for Mr. Carr

indicating he would be filing a second motion to compel regarding the continued

absence of discovery responses. The following day, plaintiff’s counsel replied that

discovery responses would be provided no later than February 9, 2018. Despite

this assurance, no responses were provided and GEICO filed its second motion to

compel.

The hearing on the second motion to compel took place on March 1, 2018.

No opposition was filed and neither Mr. Carr nor his counsel made an appearance.

At the hearing, counsel for GEICO recounted the history of prior events:

Defense Counsel:
[Counsel for Mr. Carr] said [he would] get me stuff in 30 days. I told
him 30 days was fine. Sixty days later we tried to contact him again.
He says give me until the end of the week; still [did] not get it.

Wait a few more weeks; file a motion to compel; talked to him
yesterday he is now telling me that the problem has been that he has
lost touch with his client, but it is the first time he mentions that to
anyone.

The Court:
How much time do you want me to give him?

Defense Counsel:
Your Honor, what I would like is let’s give him 30 days. If he does
not produce it by then, sanctions or dismissal of the case.

The trial court granted GEICO’s motion to compel. The judgment was reduced to

writing on March 15, 2018, ordering plaintiff to respond to the outstanding

discovery within thirty days.

On April 26, 2018, over a year after the initial request for discovery was

sent, GEICO filed a motion for sanctions and dismissal averring that plaintiff had

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failed to comply with the trial court’s order compelling discovery. A hearing was

set for June 15, 2018, and an opposition was filed two days prior to the hearing.

Attached to the opposition were the requested discovery responses. Twelve of the

twenty-six answers to the interrogatories stated: “Currently, the undersigned

counsel is not aware of the whereabouts of the Plaintiff. The Plaintiff reserves his

right to supplement this response.” GEICO asserted several other answers to the

interrogatories, and the responses to the request for production of documents, were

similarly insufficient.

At the hearing on the motion for sanctions and dismissal, counsel for Mr.

Carr confirmed he was unable to locate his client despite diligent efforts and

pointed out that he submitted responses to the discovery based on the information

available. The trial court stated that GEICO had a right to receive answers to its

discovery and elaborated:

I cannot let this linger because you think you are going to find your
client. You have had adequate time. You had a motion to compel.
You had inadequate [responses to] discovery. … I have no other
choice [but] to dismiss for noncompliance of the discovery order.

When counsel for GEICO inquired whether the dismissal was to be with or without

prejudice, the trial court stated that the dismissal had to be with prejudice.

Counsel for Mr. Carr requested an additional seven days from the date of the

judgment to further attempt to locate his client and potentially file a motion for

new trial. Counsel for GEICO stated:

I will tell you what I will do, Your Honor, I will circulate the
judgment. It will take five days or whatever anyway. So by the time
the seven days are over at least I have circulated the judgment and the
judgment is done. I can file the judgment that way. I will go seven
days from today including the weekend.

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In the absence of a response from plaintiff’s counsel, GEICO filed the proposed

judgment on the motion for sanctions and dismissal on June 22, 2018. The

judgment was signed on June 29, 2018, dismissing the claims of Mr. Carr against

GEICO with prejudice.

A motion and order for devolutive appeal was filed and signed by the trial

court. This appeal followed.

DISCUSSION

The sole assignment of error presented for our review is whether the trial

court abused its discretion in dismissing Mr. Carr’s claims with prejudice for

failure to comply with the court ordered discovery. A trial court is granted wide

discretion in imposing sanctions for a party’s failure to comply with discovery

orders and its ruling should not be reversed absent an abuse of discretion. Duffy v.

Pendleton Memorial Methodist Hosp., 2010-0660, pp. 4 (La.App. 4 Cir. 12/8/10),

53 So.3d 636, 639.

A court’s power to impose a sanction of dismissal is codified in La. C.C.P.

art. 1471. The statute provides, in relevant part:

A. If a party ... fails to obey an order to provide or permit discovery
... the court in which the action is pending may make such orders in
regard to the failure as are just, including any of the following:
***
(3) An order striking out pleadings or parts thereof, or staying further
proceedings until the order is obeyed, or dismissing the action or
proceeding or any part thereof, or rendering a judgment by default
against the disobedient party.

Although the article provides that dismissal is a remedy available to courts for a

party’s failure to comply with court ordered discovery, dismissal is a harsh penalty

that should be reserved for extreme circumstances and only the most culpable

conduct. See Horton v. McCary, 1993-2315, p. 10 (La. 4/11/94), 635 So.2d 199,

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203. In Horton, our Supreme Court adopted four factors to consider when

evaluating whether a party’s failure to comply with court ordered discovery

warrants a sanction of dismissal. These factors are: (1) whether the violation of the

order was willful or resulted from inability to comply; (2) whether less drastic

sanctions would be effective; (3) whether the violation prejudiced the opposing

party’s trial preparations; and (4) whether the client participated in the violation or

simply misunderstood the court order or innocently hired a derelict attorney. Id.,

pp. 10-11, 635 So.2d at 203.

Refusal to comply with court ordered discovery is a serious matter and trial

courts must have severe sanctions available to deter litigants from disregarding

discovery orders. Id., p. 10, 635 So.2d at 203. We further recognize that delays in

a party’s ability to obtain the most basic of discovery responses frustrate the

judicial system. See Hutchinson v. Westport Ins. Corp., 2004-1592, pp. 3-4 (La.

11/8/04), 886 So.2d 438, 440-41 (per curiam). Thus, trial judges must be vested

with inherent power to maintain control of their dockets. At Your Service

Enterprises, Inc. v. Swope, 2007-1620, p. 7 (La.App. 4 Cir. 1/14/09), 4 So.3d 138,

143; see also La. C.C.P. art. 1631(A).

At the time of the hearing on the motion for sanctions and dismissal, counsel

for Mr. Carr had yet to locate his client. In its oral reasons, the trial court

expressed its concern with allowing the case to proceed under those circumstances.

The case had not progressed since the initial filing of the petition which was nearly

a year and a half prior to the hearing. Other than his disappearance, no explanation

was given for Mr. Carr’s failure to respond to GEICO’s discovery for over a year.

Under these unique circumstances, we find dismissal was warranted. However,

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pursuant to Horton, we turn to examine whether the trial court abused its discretion

by dismissing Mr. Carr’s claims with prejudice.

This Court has recognized that dismissal of a claim with prejudice, the

ultimate sanction against a plaintiff, should only be imposed when the record

establishes that the noncompliance with a discovery order was due to the

willfulness or fault of the plaintiff and not merely the attorney. Medical Review

Proceedings of Peter v. Touro Infirmary, 2005-0317, p. 5 (La.App. 4 Cir. 7/6/05),

913 So.2d 131, 134 (citations omitted). Further, dismissal with prejudice should

not be imposed absent evidence in the record that the plaintiff was clearly aware

that noncompliance would result in this sanction. Id.

Counsel for Mr. Carr argues that the record is devoid of any evidence to

show that failure to comply with the court ordered discovery was due to the

willfulness, bad faith, or fault of the plaintiff, himself. Conversely, GEICO

maintains that plaintiff’s disappearance, as substantiated by his counsel’s own

statements, shows willfulness on the part of Mr. Carr by his failure to participate in

the prosecution of his own case. The record reflects that the trial court ultimately

assigned fault to Mr. Carr. We find this determination unsupported by the record.

The sanction of dismissal with prejudice should be reserved for those

plaintiffs whose fault and awareness of this extreme penalty are affirmatively

established by evidence in the record. Such is not the case before us. There is no

evidence in the record reflecting Mr. Carr’s willfulness or awareness of the

consequences of his noncompliance. See Rodriquez-Zaldivar v. Leggett, 2018-

0410, p. 4 (La.App. 4 Cir. 1/23/19), ___ So.3d ___, 2019 WL 302223 (despite

arguments of counsel and assertions in briefs that plaintiff was deported to

Honduras, no evidence was in the record to support the contention). GEICO relies

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on the argument of Mr. Carr’s counsel to establish Mr. Carr’s fault. This is not

evidence. Id. Additionally, we note that no trial date or discovery cutoff dates had

been set in this matter limiting the prejudice to GEICO. Cf. Swope, 2007-1620, p.

12, 4 So.3d at 145-46 (dismissal with prejudice appropriate where, in addition to

failing to respond to discovery, plaintiff also failed to show up to, or produce

witnesses for, his trial). We therefore find the trial court abused its discretion in

granting the dismissal with prejudice.

Accordingly, in consideration of less drastic sanctions, we find the

appropriate sanction under the facts of the case sub judice is dismissal without

prejudice. See Lane v. Kennan, 2004-2118, pp. 4-5 (La.App. 4 Cir. 4/27/05), 901

So.2d 630, 633 (despite failing to respond to discovery for over six months,

judgment of dismissal with prejudice amended to dismissal without prejudice

because record was devoid of evidence of plaintiff’s fault or awareness of potential

sanction of dismissal).

DECREE

For the foregoing reasons, we amend the judgment of the trial court to

dismiss Mr. Carr’s suit without prejudice, and affirm as amended.

JUDGMENT AMENDED;
AFFIRMED AS AMENDED

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