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Dighans v. Nordstrom11/14/2000
Nov. 14, 2000
Vance W. Dighans appeals from a Spokane County Superior Court order denying his CR 60(b) motion to vacate an order dismissing with prejudice his personal injury complaint for damages against Nordstrom, Inc., for failure to comply with a discovery order. Mr. Dighans contends the court abused its discretion in denying his motion to vacate. We find no error and affirm.
Mr. Dighans filed his complaint against Nordstrom on June 24, 1997, claiming he was injured after the chair he was sitting in at the Nordstrom espresso bar in Spokane abruptly broke. Trial was set for March 1998. On August 9, 1997, Nordstrom propounded to Mr. Dighans interrogatories, requests for production and a request for a statement of damages. One month later, Nordstrom granted Mr. Dighans an additional 30-day extension. When Mr. Dighans failed to provide this information as of October 21, Nordstrom filed a motion to compel discovery. On November 7, the court entered an order granting that motion. The order required Mr. Dighans to answer the discovery requests within 10 days, and if he failed to do so, 'then defendant may, ex parte, enter an order of dismissal with prejudice.' Mr. Dighans's counsel signed the order.
On March 16, 1998, Nordstrom served Mr. Dighans with a notice to depose him on March 26 in the office of his attorney. On March 23, the deposition was renoted for April 3. On April 30, the court entered an agreed order compelling Mr. Dighans's attendance at a deposition, or face dismissal of his case, ex parte. Mr. Dighans was deposed in his attorney's office on May 28, 1998.
More than a year after the court's November 7, 1997 order compelling discovery, Mr. Dighans had yet to answer interrogatory number 10, which required disclosure of tax information. On November 25, 1998, Nordstrom's counsel faxed the following letter to Mr. Dighans's counsel:
We have attempted unsuccessfully to obtain from Mr. Dighans a release to allow us to review his IRS tax returns. As you know, on November 7, 1997, the court entered an order compelling Mr. Dighans to answer Interrogatory No. 10, which required disclosure of tax information. Since he has refused to give us an IRS release and has not provided us with information to answer Interrogatory No. 10, we plan to enter an Order Ex Parte dismissing this case if we have not received either an IRS release, or information sufficient to complete Interrogatory No. 10, by December 1, 1998.
Nordstrom did not receive the requested information by December 1. On December 2, 1998, at approximately 9:30 a.m., Nordstrom presented a motion and affidavit for an order to dismiss the complaint with prejudice pursuant to CR 37(b). Included in that affidavit was a statement that Nordstrom's 'preparation of this matter for trial is substantially prejudiced by plaintiff's failure to provide evidence regarding his wage loss claim for over a year since the Order on Motion to Compel.'
The court entered the order of dismissal on December 2, and Nordstrom's counsel returned to the office that morning with a conformed copy. The order included findings by the court that (1) Mr. Dighans failed to provide the requested discovery for more than a year after the motion to compel was entered, despite Nordstrom's second request and Mr. Dighans's counsel being a signatory to the order providing for ex parte dismissal; (2) Mr. Dighans's ongoing failure to respond to discovery requests warrants a conclusion that his noncompliance with the November 7, 1997 order was willful and deliberate; (3) Mr. Dighans's failure to provide responses substantially prejudiced Nordstrom's preparation of the matter for trial; and (4) the court consi
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