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Andrews v. Bradshaw (5/26/95), 895 P 2d 973
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Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, telephone (907) 264-0607, fax (907) 276-
5808.
THE SUPREME COURT OF THE STATE OF ALASKA
EVERETT L. ANDREWS and )
MONEYMAKER/HUB CITY ) Supreme Court No. S-5580
CONSTRUCTION COMPANY, INC. )
) Superior Court No.
Appellants, ) 4FA-90-2187 CI
)
v. ) O P I N I O N
)
WILLIAM BRADSHAW, ) [No. 4212 - May 26, 1995]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Fairbanks,
Martha Beckwith,
Judge.
Appearances: Thomas R. Wickwire,
Fairbanks, for Appellants. Gary Foster,
Call, Barrett & Burbank, Fairbanks, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, Compton, Justices, and
Bryner, Justice pro tem.*
BRYNER, Justice pro tem.
COMPTON, Justice, dissenting in part.
I.
INTRODUCTION
Everett L. Andrews and Moneymaker/Hub City
Construction Co., Inc., appeal the superior court's order
precluding Andrews' testimony at trial based on a violation of
the court's underlying order directing their counsel to make
Andrews available for a deposition during the two weeks preceding
trial. We reverse the superior court's order and remand the case
for further proceedings consistent with this opinion.
II. FACTS AND PROCEEDINGS
In December 1990 William Bradshaw filed suit against
Everett Andrews and Moneymaker/Hub City Construction, Inc.,
(hereinafter Andrews/Moneymaker) for breach of contract, arising
out of services that Bradshaw performed for Andrews/Moneymaker.
The pretrial order required that the parties file witness lists
by September 11, 1992. On September 11, 1992, Andrews/Moneymaker
timely filed its witness list, naming Andrews as a witness.
Andrews/Moneymaker's counsel, Thomas Wickwire, alleges that on
the same day, it served a copy of the witness list on opposing
counsel. Bradshaw's counsel, Gary Foster, submits that he never
received a copy of this witness list, and thus canceled his
scheduled deposition of Andrews, allegedly presuming that
Andrews/Moneymaker did not intend to call any witnesses.
Upon discovering that Andrews/Moneymaker did, in fact,
file a witness list, Foster faxed a letter to Wickwire, informing
him that Foster had not received the witness list. Foster
indicated that he did not intend to make a motion regarding
delinquent receipt of the witness list, provided that he be
permitted to take Andrews' deposition and that Wickwire provide
him with a short statement of the proposed testimony of two other
named witnesses. Wickwire refused to comply with Foster's
requests, claiming that the process server delivered the witness
list to Foster's office and that Wickwire was not accountable for
any mistake in delivery beyond the reception desk.
At the November 6, 1992 pretrial conference, Bradshaw
requested that the court preclude Andrews/Moneymaker from
presenting any witnesses due to the delinquent receipt of the
witness list. The court, Judge Mary E. Greene presiding, found
that although it was unclear who was at fault, a mistake had
occurred somewhere in the delivery process and that Bradshaw had
been prejudiced as a result. Judge Greene decided not to
preclude testimony of the witnesses on the condition that
Andrews/Moneymaker's counsel provide Bradshaw's counsel with
statements of two named witnesses' proposed testimony and arrange
for Andrews to be available for a deposition during one of the
two weekends before trial was scheduled to begin on November 16
before Judge Martha Beckwith.
Wickwire expressed reservations as to Andrews'
availability for a deposition, disclosing that Andrews was out of
town, transporting his ailing father from Pennsylvania to Alaska.
In response to counsel's qualms, Judge Greene stated that counsel
could make Andrews available telephonically, adding that, if
counsel failed to make Andrews available, "He isn't gonna
testify."
On November 17, one day before trial actually
commenced,1 Wickwire faxed a letter to Foster which, in
accordance with Judge Greene's order, provided the anticipated
testimony of the two named witnesses. In the letter, Wickwire
proposed to arrange to have Andrews available for a telephonic
interview at some point during the trial. Later the same day,
Wickwire also offered Foster the opportunity to take Andrews'
deposition that evening. Foster rejected the proposal and
informed Wickwire that he planned to object to the calling of
Andrews as a witness at trial.
On November 18 before selection of the jury, Wickwire
requested that Judge Beckwith rule on whether the court would
permit Andrews to testify. Judge Beckwith reasoned that because
Judge Greene's pretrial order expressly conditioned the
admissibility of Andrews' testimony on his counsel's making him
available for a telephonic deposition prior to trial, and his
counsel failed to schedule such a deposition, Andrews would not
be permitted to testify.
The jury returned a verdict for Bradshaw. This appeal
followed.
III. DISCUSSION
Andrews/Moneymaker appeals both the court's order
directing their counsel to make Andrews available for a
deposition during the two weeks preceding trial and the court's
decision to preclude Andrews' testimony upon failure to comply
with the order.2
A. The Deposition Order
Judge Greene ordered Andrews/Moneymaker's
counsel to make Andrews available for a deposition on a weekend
prior to commencement of trial because she found that Bradshaw's
counsel had not received a copy of the witness list filed by
Andrews/Moneymaker. Andrews/Moneymaker argues that because
Andrews is a party, his name did not have to appear on a witness
list. Andrews/Moneymaker further argues that upon receiving no
witness list, Bradshaw's counsel should have reasonably presumed
that a mistake had occurred, given that Andrews/Moneymaker's case
management memorandum stated that they intended to call
approximately six witnesses, and should not have canceled
Andrews' scheduled deposition. Therefore, Andrews/Moneymaker
argues that the superior court abused its discretion by ordering
its counsel to make Andrews available for a deposition prior to
trial.
Andrews/Moneymaker's argument is without merit.
Whether Bradshaw's counsel should have reasonably presumed that
Andrews was going to testify is not the issue. The issue is
whether the court abused its discretion in ordering the
deposition. Judge Greene found that regardless of fault,
Bradshaw's counsel did not see the witness list and was
prejudiced as a result.3 Judge Greene attempted to strike a
balance that would accommodate both parties and enable them to
proceed to trial as scheduled. In allowing the deposition to be
conducted telephonically, the court considered Andrews'
predicament of being "on the road" and fashioned its order
accordingly. We conclude that the court did not abuse its
discretion in ordering Andrews/Moneymaker's counsel to make
Andrews available for a telephonic deposition prior to trial.
B. Preclusion Order
Andrews/Moneymaker argues that Judge Beckwith abused
her discretion in precluding Andrews' testimony for failing to
comply with the court's order requiring that he be available for
a deposition.
Judge Greene ordered Andrews/Moneymaker's counsel to
"make [Andrews] available for a deposition"on one of the two
weekends preceding trial. She stated to counsel, "You can make
him available telephonically, and if Mr. Foster wants to take it
on one of these two weekends that are between now and the time of
trial, that's fine, he can do so."
When Andrews/Moneymaker's counsel disclosed that the
matter had slipped his mind and that the deposition had not been
arranged, Judge Beckwith responded by precluding Andrews from
testifying:
I find that you did violate the spirit
of Judge Greene's order, whether intentional
or not, and that the sanction for that is
preclusion of Mr. Andrews testifying, and
that was Judge Greene's clear statement at
the time.
In our view, the trial court abused its discretion by
ordering preclusion based solely on Judge Greene's prior warning,
and without any independent determination of the reasonableness
of preclusion under the totality of the circumstances that
existed at the time the sanctions were ordered.
Although the forgetfulness of Andrews/Moneymaker's
counsel would hardly seem to constitute excusable neglect, it is
apparent, considering the totality of the circumstances, that
Bradshaw's counsel likewise failed to conduct himself in a manner
comporting with "the spirit of Judge Greene's order."
Judge Greene's original order requiring Andrews'
deposition to be held on one of the two weekends prior to trial
plainly contemplated the cooperation of both counsel in the
scheduling and taking of the deposition. Although the deposing
party would ordinarily be required to take the initiative in
arranging a deposition, given the limited time remaining,
Bradshaw's counsel obviously would have been unable to depose
Andrews without the assistance of Andrews/Moneymaker's counsel.
Thus, as we have already indicated, it was appropriate for Judge
Greene to order Andrews/Moneymaker's counsel to cooperate in the
holding of Andrews' deposition, and the judge plainly intended to
order such cooperation.
On the other hand, however, it is difficult to construe
Judge Greene's order as one that required Andrews/Moneymaker's
counsel to bear the entire burden of arranging the deposition.
The record gives no indication that Judge Greene meant to shift
full responsibility for Andrews' deposition to
Andrews/Moneymaker. Judge Greene had no apparent reason to force
Andrews/Moneymaker to bear the full responsibility for the
deposition. While such an order might have made sense as a
sanction for dilatory conduct on Andrews/Moneymaker's part, Judge
Greene had not found either party at fault for the failure to
arrange a timely deposition. Nor does a common sense reading of
Judge Greene's admonition requiring Andrews/Moneymaker's counsel
to "make [Andrews] available"suggest that the court expected one
party to bear the responsibility for the deposition. Rather, the
wording of admonition implies that the court expected that
counsel for both parties would agree on a mutually acceptable
time and date for the deposition, that Bradshaw's counsel would
make the usual arrangements for the deposition to be held, and
that Andrews/Moneymaker's counsel would then "make [Andrews]
available" by ensuring his appearance on short notice, either
telephonically or in person.
Although Andrews/Moneymaker's counsel failed to notify
Bradshaw's counsel regarding a specific time to depose Andrews,
Bradshaw's counsel similarly failed to take any steps toward
taking the deposition, evidently contenting himself with allowing
the two weekends remaining before trial to pass without inquiring
of opposing counsel or notifying the court. Because Judge
Greene's order realistically charged counsel for both parties
with mutual responsibility for taking Andrews' deposition, the
parties were mutually responsible for the failure to arrange for
the deposition to be taken.
In entering the preclusion order, Judge Beckwith did
not reject Andrews/Moneymaker's counsel's explanation or
determine whether Andrews/Moneymaker's counsel acted willfully;4
the judge similarly made no effort to independently evaluate the
reasonableness of Bradshaw's conduct under the circumstances, and
failed to explore the suitability of alternative sanctions.
Instead, Judge Beckwith simply accepted and enforced Judge
Greene's previous warning that Andrews would not be permitted to
testify if he were not made available for a deposition. By
precluding Andrews from testifying, the trial court imposed
severe sanctions for the unexcused inaction of
Andrews/Moneymaker's counsel. In the process, however, the court
allowed Bradshaw to reap a windfall benefit from his own
counsel's equally unjustified -- and evidently tactical --
inaction.
The discovery process is meant to promote the search
for truth, not to reward gamesmanship.5 Considering the totality
of the circumstances, we conclude that the trial court abused its
discretion in precluding Andrews from testifying.
IV. CONCLUSION
For the foregoing reasons, we REVERSE the superior
court's order precluding Andrews from testifying at trial, and
REMAND for further proceedings consistent with this opinion.
COMPTON, Justice, dissenting in part.
After reviewing the record as a whole, I am not left
with a definite and firm conviction that the trial court abused
its discretion in precluding Mr. Andrews from testifying.
Therefore, I dissent as to that issue.
Judge Mary E. Greene found: (1) Mr. Foster did not see
the witness list; (2) he did not know that Mr. Wickwire had filed
a witness list; and (3) he had been prejudiced by his failure to
be informed that Mr. Wickwire had filed a witness list. These
findings are not challenged on appeal. In addition to Judge
Greene's findings, Mr. Wickwire himself admitted that he had no
doubt that Mr. Foster never saw a witness list.
As this court notes, when Mr. Foster became aware that
Mr. Wickwire had filed a witness list, Mr. Foster tried to
resolve the matter informally. He suggested that he would not
move to strike Mr. Wickwire's witness list if Mr. Wickwire would
do two things: "First, I want to take Mr. Andrews' deposition. .
. . Secondly, I would like a short statement of what Witnesses
No. 3 and 4 -- Richard Bush and Bill Putnam -- will testify."
Mr. Wickwire refused Mr. Foster's compromise, claiming that the
process server delivered the witness list to Mr. Foster's office
and Mr. Wickwire was not accountable for any mistake in delivery.6
Mr. Wickwire's refusal to remedy the failure of service
of the witness list forced Mr. Foster to seek judicial resolution
of the issue. A hearing was held on November 6, ten days prior
to trial. As Judge Greene was about to direct Mr. Wickwire to
remedy the situation, she remarked:
I think that it -- it may very well not
be your fault, that -- it may have been that
the mess-up happened somewhere else, which is
why I'm not going to exclude you from calling
witnesses, Mr. Wickwire. However, in
fairness to the other side, when something
unforseen happens, you know, you need to make
some -- some allowances for that. He didn't
know that you'd filed one -- and he relied on
you not having filed one.
(emphasis added).
Mr. Wickwire informed Judge Greene that he had
considered giving Mr. Foster a continuance, but that "my client
[was] against that." The court directed Mr. Wickwire to supply
summaries of the witnesses' testimony, "and you need to make [Mr.
Andrews] available for a deposition on a weekend, between now and
trial time, if you still want to take it, Mr.-- Mr. Foster." Mr.
Foster stated: "Yes, Your Honor, I do."
Mr. Wickwire then informed Judge Greene that there was
yet another problem; Mr. Andrews was not in Fairbanks. He had
left "[a] week ago Thursday, . . . driving a truck to Seattle,
taking a plane to Pennsylvania"to pick up his aging, ailing
father and return him to Fairbanks. Mr. Wickwire was unsure if
Mr. Andrews was going to be back by November 16, the date trial
was scheduled to start. At that point Judge Greene said that "if
you haven't managed to make him available for a deposition, then
you can make him available telephonically." Stating that
"[t]hose are the breaks," Judge Greene reiterated that Mr.
Wickwire "can make him available telephonically, and if Mr.
Foster wants to take it on one of these two weekends that are
between now and the time of trial, that's fine, he can do so."
Mr. Wickwire did not make Mr. Andrews available. As
this court notes, Mr. Foster did not contact Mr. Wickwire about
Mr. Andrews' availability. Its holding focuses on Mr. Foster's
failure to contact Mr. Wickwire about Mr. Andrews' deposition,
although it would have been futile for him to do so. The
conference at which Mr. Wickwire was told to make Mr. Andrews
available was held on Friday, November 6, yet Mr. Wickwire did
not speak with Mr. Andrews until November 15.7. Mr. Wickwire had
left the pretrial conference on Friday, and, because he had
another trial starting that following Monday, he "just forgot to
go back and calendar this, it was something I needed to do.
That's my fault." Mr. Wickwire justifies his failure to comply
with Judge Greene's order because he was "completely absorbed"in
his other trial.8
On November 16 Mr. Wickwire filed his Motion for
Continuance, see footnote 3 supra, in which he claimed that Mr.
Andrews was not due to return to Fairbanks until November 25. He
claimed to have made the motion "as soon as he learned from his
client that it would not be possible for him to make it back to
Fairbanks by Wednesday, November 18, 1992, the earliest date
trial could begin." Id. In a supporting affidavit, Mr. Andrews
stated that he had reservations to take the ferry from
Bellingham, Washington on November 20, arriving in Fairbanks on
or around November 25. This motion was opposed by Mr. Foster,
and denied by Judge Martha Beckwith November 17.
In a November 17 letter to Mr. Foster, Mr. Wickwire
remarked:
As you probably know, I have been in
trial from the day after the pretrial
conference started until about noon today.
In being absorbed by that case, I did not
calendar a response date for getting you
these written statements, nor do I recall
Judge Greene setting one. . . . Concerning
Mr. Andrews' telephonic deposition, I will
advise you as soon as I have a telephone
number for him where you can take his
telephonic deposition either during the day
or after 1:30 p.m. when the trial day is
over. He is not in Alaska at this time, so I
will be contacting him to get on a plane to
return as soon as possible but, before doing
that, I will have him available for his
telephonic deposition as soon as I can
contact him and set that up.9
At a hearing held November 18, immediately before the
prospective jurors were to be seated, Mr. Wickwire remarked to
Judge Beckwith: "Mr. Foster never called to remind me or
anything, not that [Judge Greene's] order said he had an
obligation to, but it would have helped." Later he again
remarked that "it isn't Mr. Foster's responsibility to remind
me." He candidly stated: "I take the responsibility for having
walked out of here and not made a note of it, and that's why it
didn't get done."
Mr. Wickwire then suggested to Judge Beckwith that
remedies other than precluding Mr. Andrews from testifying might
be appropriate and should be considered.10 When Judge Beckwith
asked why he was bringing this to the court's attention on the
morning trial was to start, he remarked that it was "yesterday at
1:00 when I got out of my trial and . . . that's when I realized
that I had forgotten about my obligation . . . to make the
defendant available for his deposition." Following Mr. Foster's
objections to alternative sanctions, Judge Beckwith did conclude
they were not appropriate, were untimely, and ordered that Mr.
Andrews be precluded from testifying.
My reading of the record makes it clear that the onus
to proceed was on Mr. Wickwire. This starts with the failure of
service of the witness list on Mr. Foster. When Mr. Foster tried
to adjust the matter informally, Mr. Wickwire refused. When
Judge Greene told Mr. Wickwire that he had to furnish a summary
of the witnesses' testimony and make Mr. Andrews available for a
telephonic deposition, Mr. Wickwire promptly forgot to do either.
Indeed, by the time he realized he had forgotten to furnish a
summary of the witnesses' testimony and make Mr. Andrews
available, the two weekends had passed and the trial would have
started, but for Mr. Wickwire's own unavailability. Judge
Beckwith observes that it was Mr. Wickwire's obligation to make
Mr. Andrews available. Mr. Wickwire admits that it was his
responsibility to do so.
This court opines that Mr. Foster was engaging in
"equally unjustified -- and evidently tactical -- inaction" in
failing to take steps toward taking the deposition (a deposition
which earlier he had noticed, and then cancelled when Mr.
Wickwire failed to serve Mr. Foster with the witness list). This
characterization is both unwarranted and unfair, absent a trial
court inquiry, findings, and conclusions regarding Mr. Foster's
conduct.
This court is quick to point out the inquiries not
pursued and findings not made by either Judge Greene or Judge
Beckwith regarding Mr. Wickwire's culpability. Not to be
deterred by a record barren in this respect, the court then finds
that Mr. Foster engaged in "equally unjustified -- and evidently
tactical -- inaction"and concludes that he was correspondingly
culpable in failing to contact Mr. Wickwire. It supports its
conclusion by citing City of Valdez v. Salomon, 637 P.2d 298, 299
(Alaska 1981), and then comparing Mr. Foster's conduct to
counsel's conduct found wanting in Valdez.
To me, this is a rather typical example of a case in
which counsel who followed the rules, and tried to do the right
thing, ends up being penalized because his opposing counsel did
not follow the rules, and did not do the right thing.
The worst that can be said about Judge Greene's order is that it
is ambiguous, though I suggest it brooks of no ambiguity. Judge
Beckwith found no ambiguity in it and Mr. Wickwire detects none.
To his credit, Mr. Wickwire understands that the obligation was
his, not Mr. Foster's. On this record, I am unpersuaded that
Judge Beckwith abused her discretion.
This court's disposition will require a second trial.
I suggest that the appropriate disposition is to affirm the trial
court. However, if this court is plagued by a nagging suspicion
that Mr. Foster engaged in "equally unjustified -- and evidently
tactical -- inaction"to gain an advantage, I suggest it would be
more appropriate to remand this case to the trial court to
review, and to make factual determinations regarding Mr.
Wickwire's "complete absorption,"forgetfulness, willfulness, the
degree of his culpability, the degree of Mr. Foster's
culpability, the suitability of alternative sanctions, and like
matters.
_______________________________
* Sitting by assignment made under article IV, section
16 of the Alaska Constitution.
1 Due to a conflict with another trial in which
Andrews/Moneymaker's counsel was involved, the trial was
postponed two days until November 18, 1992.
2 We review discovery sanctions for abuse of discretion.
Underwriters at Lloyd's London v. The Narrows, 846 P.2d 118, 119
(Alaska 1993); Rohweder v. Fleetwood Homes of Oregon, Inc., 767
P.2d 187, 190 (Alaska 1989). "We will reverse a ruling for abuse
of discretion only when left with a definite and firm conviction,
after reviewing the whole record, that the trial court erred in
its ruling." Betz v. Chena Hot Springs Group, 742 P.2d 1346,
1348 (Alaska 1987).
3 Based on Foster's statements that he never received
the witness list, Judge Greene's factual determinations were not
clearly erroneous. Cf. Parker v. Northern Mixing Co., 756 P.2d
881, 892 (Alaska 1988) ("[I]t is the function of the trial court,
not of this court, to judge witnesses' credibility and to weigh
conflicting evidence.").
4 Because we reverse the trial court's sanction, we do
not need to address whether the preclusion order amounted to an
issue establishment sanction.
5 Cf. City of Valdez v. Salomon, 637 P.2d 298, 299
(Alaska 1981) (holding that trial court abused its discretion in
granting default judgment to a party whose counsel employed
inaction as a tactical tool, after tacitly leading opposing
counsel to believe that action was not necessary.)
6 Mr. Wickwire was under no obligation to cooperate with
Mr. Foster, but, to quote Mr. Wickwire's own expression about Mr.
Foster's later failure to contact him about Mr. Andrews'
availability for a telephonic deposition, "it would have helped."
7 It is possible that Mr. Wickwire talked to Mr. Andrews
as early as Friday night, November 13. See note 2 infra.
8 Despite his claim of complete absorption, Mr. Wickwire
was not so completely absorbed that on November 9 he could not
file in this case a Reply (Memorandum On Motion To Disqualify
Counsel) to an Opposition (To Motion For Order Requiring
Withdrawal For Plaintiff's Counsel) he received that day.
Additionally, when it became evident from messages left at Mr.
Wickwire's office by Mr. Andrews that Mr. Andrews would not
return by November 18, Mr. Wickwire found time to write a motion
for continuance including a supporting memoranda and affidavit.
He did so by telephonically obtaining information from Mr.
Andrews "on Friday night [November 13] and Saturday morning
[November 14] and afternoon, then [preparing] the affidavit
Saturday afternoon and [preparing] this motion [for continuance]
on Sunday, November 15, 1992." Yet it was not until the
afternoon of November 17 that Mr. Wickwire remembered summaries
of the witnesses' testimony and the telephonic deposition.
9 Mr. Wickwire's letter was faxed to Mr. Foster a day
after the trial had been scheduled to start, and a day before it
was rescheduled to start. One can wonder how productive it would
have been for Mr. Foster to have called Mr. Wickwire earlier,
since Mr. Wickwire apparently was unable to contact Mr. Andrews
until November 15 (or 13, depending on which version of Mr.
Wickwire's statements you chose to accept). Furthermore, one can
wonder also at what point talking to Mr. Andrews still would have
been of any value to Mr. Foster. Mr. Foster's response to Mr.
Wickwire's letter was, in part: "I should not have to, nor am I
going to take a party's deposition during the middle of trial."
10 Mr. Wickwire suggested that Judge Beckwith consider
monetary sanctions to compensate Mr. Bradshaw for the actual cost
of the prejudice incurred resulting from the wasted trip from the
Aleutians to Fairbanks (although it is not entirely clear what
costs Mr. Wickwire thought he ought to be responsible for; he
blamed the court system for failing to inform Mr.Bradshaw that
the trial could not have started November 16 in any event). He
also suggested a continuance, presumably so that he could get Mr.
Andrews there for Mr. Foster to depose. The court had just
denied Mr. Wickwire's Motion for Continuance, necessitated by Mr.
Andrews' unavailability for trial. Were the court to have
granted Mr. Wickwire a continuance so that he could make Mr.
Andrews available for a deposition, then Mr. Wickwire would have
obtained the continuance he requested, and just had been denied,
because Mr. Andrews was not available for trial. Mr. Wickwire
claims that precluding Mr. Andrews from testifying would be too
harsh a sanction for violating the order requiring that he make
Mr. Andrews available for a deposition. It is difficult to
imagine how it can be considered too harsh to preclude a party
from testifying, when the party is unavailable for trial anyway.
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