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In re Wiley11/10/2004
ed the picture and re-enrolled as Ms. Wiley's attorney. He got the February 28 hearing on Dr. Miller's motion to dismiss rescheduled to March 28 and provided the discovery responses to Dr. Miller's attorney on March 27, 2003.
Ms. Wiley did not appear and was not represented by counsel at one hearing for which she was personally served notice to attend. As discussed above, the record indicates that she believed she was represented by an attorney at that time and that she provided her responses to the discovery to him. It was reasonable for her to believe the attorney would attend the hearing on her behalf. Ms. Wiley also did not answer the requested discovery as ordered by the trial court. However, when she was again represented by Mr. Flournoy, she did provide responses to the requested discovery prior to the hearing on the motion to dismiss.
Horton, 635 So.2d 199, sanctions dismissal of a plaintiff's claims only in extreme circumstances. We do not believe the circumstances here are extreme and find that the dismissal was an abuse of discretion. There must be a finding that the party's failure to provide the discovery was "due to willfulness, bad faith, or fault." There was no such finding by the trial court and the record does not evidence that Ms. Wiley's actions were in bad faith. While her failure to answer the discovery within fifteen days was "willful"-she made a conscious decision not to answer the discovery after being served with a judgment ordering her to do so-she was not represented by counsel and had been told by the attorney she thought was going to represent her that she "did not have a case." Accordingly, we do not see her failure to do so as "flouting" the court's orders. Once she was again represented by counsel she complied with the order prior to the hearing at which the trial judge dismissed her claims. Additionally, we note that, prior to dismissing her lawsuit, the trial court did not hold Ms. Wiley in contempt or impose any of the lesser sanctions provided by La.Code Civ.P. art. 1471.
There is no evidence that Dr. Miller's defense has been prejudiced by Ms. Wiley's delayed responses. There are other defendants involved in this litigation who also had motions to compel discovery pending at the same time that Dr. Miller's motion was pending. Those defendants accepted Ms. Wiley's discovery responses and dismissed their pending motions. Thus, the record indicates that all of the defendants' discovery is essentially at the same stage.
Disposition
Under the circumstances herein, we find that a sanction less drastic than dismissal would be effective. Accordingly, the judgment of the trial court dismissing Ms. Wiley's action is reversed. Ms. Wiley is ordered to pay $1,000.00 in attorney fees to counsel for Dr. Miller and all costs associated with the motion to compel and the motion to dismiss filed by Dr. Miller. Costs of this appeal are assessed one-half to Ms. Wiley and one-half to Dr. Miller.
REVERSED, RENDERED IN PART, AND REMANDED.
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