from Tuscaloosa Circuit Court (CV-15-900165).
Horton appeals from a judgment of the Tuscaloosa Circuit
Court dismissing her personal-injury action as a sanction for
disregarding the requirements of the discovery process. We
affirm the trial court's judgment.
February 2015, Horton sued Bria Monique Hinton, alleging that
Hinton had negligently or wantonly operated an automobile in
a manner so as to strike Horton. Horton also asserted that
Hinton's actions amounted to outrageous conduct and that
Horton had suffered emotional distress as a result of that
2015, Hinton filed a motion to dismiss Horton's action,
alleging that Horton had failed to respond to interrogatories
and requests for production of documents, that the trial
court had entered an order compelling Horton to respond to
those discovery requests, and that Horton had failed to
comply with the trial court's order. Apparently, after
Hinton had filed her motion to dismiss, Horton responded to
the discovery requests, and the trial court entered an order
denying Hinton's motion to dismiss as moot.
record indicates that, subsequently, Hinton scheduled
Horton's deposition for a date in October 2015, that
Hinton later canceled that deposition at Horton's
request, that Hinton sent two letters to Horton's counsel
requesting potential dates for the rescheduling of
Horton's deposition, and that Horton failed to respond to
those letters. Accordingly, Hinton chose a new date for
Horton's deposition and issued a new notice of
deposition. On the date set for Horton's deposition,
Hinton's counsel traveled from Birmingham to Tuscaloosa
to depose Horton, but neither Horton nor her counsel appeared
for the deposition. There is no explanation in the record as
to why Horton and her counsel failed to appear.
response to a motion to compel, the trial court entered an
order directing Horton to make herself available for
deposition within 21 days "or be subject to possible
dismissal" of her action. Hinton rescheduled and
re-noticed Horton's deposition, and, although
Horton's counsel appeared at the scheduled time and
location, Horton did not. Accordingly, Hinton filed a motion
to dismiss Horton's action.
month after Hinton had filed her motion to dismiss, to which
Horton had not responded, the trial court entered a judgment
dismissing the action. Thereafter, Horton filed a
postjudgment motion requesting the trial court to
"reconsider" that ruling. In support of her motion,
Horton submitted an affidavit that had been executed by her
mother, who attested that she had attempted to drive Horton
to the deposition but had gotten stuck in traffic. She also
attested, somewhat vaguely, that:
"... My phone number was [a previous telephone number],
but I was having trouble with that phone and my attorney did
"... I was using another phone with [a different
"... My attorney did not know this number, nor that I
was having trouble with the other phone.
"... I called my attorney to inform him of the
Interstate traffic jam and that I would be to the deposition
shortly. My attorney informed me that he had attempted to
call me on my old number, but he could not get me and that
the deposition was cancelled."
postjudgment motion also indicates that her attorney had
failed to attend the hearing on Hinton's motion to
dismiss. The trial court denied Horton's
postjudgment motion, and Horton appealed.
37(b), Ala. R. Civ. P., authorizes a trial court to dismiss
an action as a sanction against a party who violates an order
compelling him or her to provide or permit discovery.
Similarly, Rule 37(d), Ala. R. Civ. P., authorizes dismissal
as a sanction for a party's failure to answer
interrogatories or requests for production or to attend his
or her properly noticed deposition. "The choice of
discovery sanctions is within the trial court's
discretion and will ...