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Horton v. Hinton

Alabama Court of Civil Appeals

March 24, 2017

Brianna Horton
v.
Bria Monique Hinton

         Appeal from Tuscaloosa Circuit Court (CV-15-900165).

          PITTMAN, Judge.

         Brianna 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.

         In 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 alleged conduct.

         In June 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.

         The 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.

         In 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.

         One 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 not know.
"... I was using another phone with [a different telephone number].
"... 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."[1]

         Horton's postjudgment motion also indicates that her attorney had failed to attend the hearing on Hinton's motion to dismiss.[2] The trial court denied Horton's postjudgment motion, and Horton appealed.

         Rule 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 ...


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