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2049 GROUP LTD. v. GALT SAND CO.11/28/1994
, or bad faith. Under this record, it could not justifiably make such a finding. It was an abuse of discretion to enter an order of dismissal given the attorney-client dispute, the ordinary delay caused by substitution of counsel, the withholding of the case file by predecessor counsel from substitute counsel, and the array of lesser sanctions available.
The harsh sanction of default is disproportionate to 2049 Group's failure to comply with discovery orders. The cases Galt Sand cites to the contrary are readily distinguishable.
In Eaton v. Meester, 464 N.W.2d 691 (Iowa App. 1990), we held the trial court's dismissal of a medical malpractice action for discovery delay was not an abuse of discretion. In Eaton, counsel and client knew for several months of records of a preexisting condition, but the client denied knowledge of such a condition in a deposition and never produced the records despite a court order to do so. Id. at 693-94. Under these extreme circumstances the trial court made an explicit finding of willfulness and bad faith. Id. Again, there was no such finding in the instant case.
The conduct was also much more egregious in Krugman v. Palmer College, 422 N.W.2d 470, 473 (Iowa 1988), cert. denied, 488 U.S. 944, 109 S.Ct. 370, 102 L.Ed.2d 359 (1988). In Krugman, the attorney's violation of not one, but three court orders, together with his long record of procrastination and inattentiveness, resulted in the dismissal of client's petition. Id. at 474.
In McQuillen v. City of Sioux City, 306 N.W.2d 789 (Iowa 1981), plaintiff's action was dismissed after he failed to comply with an order to submit to a medical exam. "His refusal to take the arteriography was willful because it was intentional and deliberate." Id. at 791 (citation omitted). Here 2049 Group never indicated its refusal to comply with any order.
Again, the trial court did not make a finding of willfulness, fault, or bad faith. It was an abuse of discretion to dismiss plaintiff's petition under this record. The order dismissing plaintiff's petition is reversed. The petition is reinstated, and this case is remanded for further trial court proceedings consistent with this opinion. Costs are to be taxed one-half to each party.
REVERSED AND REMANDED. [049 GROUP LTDvGALT SAND CO, 526 NW2d Page 1]
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