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Keith v. Valdez2/20/1997
l court and should not be disturbed absent an abuse of discretion. In imposing sanctions pursuant to discovery violations, however, the trial court should exercise informed discretion in imposing a sanction which is commensurate with the seriousness of the disobedient party's conduct. Severe sanctions such as issue or witness preclusion should only be invoked when there has been serious misconduct by the party seeking modification of the pretrial order. J.P. v. District Court, supra.
A court abuses its discretion if its decision is manifestly arbitrary, unfair, or unreasonable. Therefore, if the trial court's actions substantially tip the balance in an effort to avoid prejudice and delay and thereby unreasonably deny a party his or her day in court, the reviewing court must overturn the decision of the trial court. J.P. v. District Court, supra.
When Keith filed her disclosure certificate, C.R.C.P. 16(a) required that the certificate be signed in conformance with C.R.C.P. 11. C.R.C.P. 11 requires the signature of an attorney of record for the filing party or, if unrepresented, the signature of the party.
Here, Keith's disclosure certificate was due on December 9, 1994. Her first attorney moved to withdraw on November 10, 1994, and the court allowed the withdrawal on November 28, 1994. Her first attorney had assured her, however, that he would file the disclosure certificate on her behalf.
Accordingly, on December 9, 1994 plaintiff's disclosure certificate was filed. It was accompanied by a cover letter on her former attorney's letterhead which stated that "this filing does not constitute a re-entry of appearance by [counsel], but is performed for Ms. Keith as a courtesy while she retains other counsel." The letter and disclosure certificate were signed by the attorney's paralegal. The disclosure certificate also contained the notation "for Darcy Keith appearing pro se."
Under these circumstances, the disclosure certificate was filed timely and contained the information required by C.R.C.P. 16. While we do not condone the signing of the disclosure certificate by the former attorney's paralegal and not by Keith, defendants did not suffer any prejudice as a result of the improper signing of the certificate since the filing served its purpose of timely informing them of the evidence that Keith intended to present at trial.
In addition, we note that Keith made various efforts to file a properly signed disclosure certificate. Specifically, while acting pro se, she moved for reconsideration of the motion to strike the disclosure certificate and filed a properly signed disclosure certificate which was virtually identical to the stricken disclosure certificate. The trial court, however, struck this certificate as well.
Under these circumstances, the severe sanction of witness preclusion imposed by the trial court, which denied Keith the opportunity to present relevant evidence, was not commensurate with Keith's conduct. Accordingly, we conclude that the trial court abused its discretion in imposing the sanctions, and thus, reversal of the judgment is required.
In reaching this Conclusion, we reject defendants' assertion that they have suffered prejudice because of Keith's litigation tactics here and in her previously dismissed action.
Specifically, they assert that the refiling of this previously dismissed lawsuit represents little more than "Judge shopping" and an attempt to circumvent the dismissal of Keystone in the previous suit, and that they relied on Keith's former counsel's representations that if Keith was able to collect uninsured motorist coverage from her insured she would dismiss the case. They
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