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March v. Levine3/17/2003
r status to have proper standing in the case and certainly occurred at a stage sufficiently ahead of the trial date so as not to cause any prejudice.
Finally, the remaining issue is whether or not the default judgment entered as a sanction by the court for Perry March's failure to comply with discovery order should be sustained. The majority opinion would not permit the trial judge to consider Mr. March's conduct prior to the amendment in making his decision. I would disagree with the majority opinion on this issue. The trial judge must make a decision on sanctions based upon the new issue raised, the wrongful death action, but in determining the futility of whether to proceed with further discovery requests, motions and orders should not be made in a vacuum. He should have a right to consider his course of dealing in the conduct with a party litigant up to that stage of the proceeding. In this case, it is fairly clear the trial court had difficulty in getting Mr. March to comply with its orders for a period of years. After the July 1999 amendment to permit a wrongful death cause of action, the parties continued to have difficulty in establishing discovery schedules. The record indicates Mr. March was noticed to two separate depositions, which he failed to attend. On one occasion, Mr. March through his attorney filed a motion for protective order. Subsequently, the parties agreed to a deposition date and Mr. March failed to attend that. As a result of Mr. March's failure to attend the December 1999 agreed upon deposition date, the court ordered Mr. March very specifically to notify the court and the parties of his willingness to attend a court ordered deposition of December 27 and 28 by December 17, 1999. Mr. March did not give notice to the court or the parties nor did he attend the court ordered deposition dates in December. The court also gave notice by the same order of a hearing scheduled for January 14, 2000 where the court would consider a motion for sanctions and default judgment filed by the Levines. Again, Mr. March failed to attend and default judgment was entered. While this sanction may be extreme, "it is appropriate where there has been a clear record of delay or contumacious conduct." Shahrdar v. Global Housing, Inc., 983 S.W.2d 230 (Tenn. App. 1998) "when a trial court exercises its discretion in rendering a default as a sanction, its decision will be disturbed only upon a finding of abuse of discretion." Shahrdar, Id. I do not think it was inappropriate for the court to consider the past conduct of Mr. March in light of his conduct since the amendment was granted and that this was not an abuse of his discretion.
I would however remand the case back to the trial court. It would appear under TCA ยง30-3-102 the issue of death shall go to the court or jury as one of fact to be determined upon evidence. From the record in this case it appears no evidence of the death of Janet March was presented to the jury and the jury simply made a finding or award based upon damages. Therefore, I would remand the case to the presentation of facts to the jury to decide the issue of death.
Jeffrey F. Stewart, SP .J.
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