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Al-Gharib v. Al-Kheyat9/4/2001
he court properly found that he refused to reasonably cooperate regarding scheduling.
The court stated in its order on Al-Kheyat's motion to vacate: In this case, demonstrably false testimony by one plaintiff could affect the fact-finder's decision as to the underlying facts, inasmuch as the three plaintiffs are close friends whose testimony as to fault and causation initially coincided with each other, and then all three reversed their testimony on that same topic; the fact that three witnesses' testimony underwent an identical transformation, and that one of the three may be demonstrated to have presented knowingly false testimony on an additional material topic, may properly be considered by a fact-finder when determining credibility, using both direct and circumstantial evidence{.}
The court went on to rule that Al-Khuzzaee intentionally concealed vital evidence from Al-Kheyat during discovery and intentionally misrepresented facts and acted in a fraudulent manner during litigation. Because of that misconduct Al-Kheyat was unable to obtain vital evidence in defense of the case. The misconduct of Al-Khuzzaee could reasonably be deemed to impact the litigation as to all parties. The new evidence could not have been discovered in time for a new trial under CR 59(b). For these reasons the trial court vacated the arbitration judgment and ordered the case to be tried.
On December 22, 1999 the court dismissed the action with prejudice after Al- Gharib, Al-Saadi, and Al-Khuzzaee failed to comply with the court's order to appear for deposition on or before December 10, 1999. The court held that the failure of Al-Gharib, Al-Saadi, and Al-Khuzzaee to appear for deposition constituted a willful and deliberate disregard of the court's order. The court concluded that lesser sanctions would not cure the improper behavior or advance the deterrent aspects of CR 37.
Two separate appeals followed. First, Al-Gharib, Al-Saadi, and Al- Khuzzaee appealed the vacation of the arbitration judgment. Then they separately appealed the dismissal of this action. Those two appeals have been consolidated.
DISCUSSION
Here, the court dismissed the action with prejudice because Al-Gharib, Al-Saadi, and Al-Khuzzaee willfully and deliberately disregarded the court's order to appear for deposition on or before December 10, 1999. The court concluded that lesser sanctions would not cure the improper behavior or advance the deterrent aspects of CR 37. In the order of dismissal the court went on at length noting how plaintiffs' counsel had stonewalled efforts to schedule a deposition by successively refusing dates offered by Al-Kheyat without suggesting alternative dates when the plaintiffs would be available. The court also noted that counsel claimed unavailability due to a scheduled vacation, but failed to provide the court with any verification that he would be unable to make changes. We cannot find any abuse of discretion in the trial court's action in this regard. It seems apparent that plaintiffs and their counsel were determined to frustrate the trial court's action because of their dissatisfaction with the action setting aside the judgment. The trial court must not countenance such conduct, nor will we. The judgment of dismissal is affirmed.
Because we have affirmed dismissal under CR 37, we will not reach the merits of the appeal regarding the trial court's action setting aside the judgment on the arbitration award except to note that we see no abuse of discretion in that action either.
The trial court is affirmed.
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