Case No. 2021-SC-0196-DG
Jefferson Circuit Court
Decided by VanMeter, Conley, Keller, Lambert, Nickell, McTighe, and Reynolds
Opinion by VanMeter
Date Rendered: June 15, 2023
Issue: Whether a plaintiff/petitioner may unilaterally dismiss an action after an answer/response has been served.
Issue: Whether a non-party can be ordered to pay attorney’s fees under CR 37.03(3) when he fails to comply with discovery orders.
As part of an action resulting from an automobile collision, Plaintiffs brought a contract claim against Insurer for failure to pay basic reparation benefits as required under the policy. Plaintiffs had sought chiropractic treatment from Chiropractor, and Insurer disputed charges from Chiropractor. To establish the validity of the charges, Insurer subpoenaed Chiropractor, requesting he supply a corporate representative and supply documentation related to his involvement in the lawsuit, his relationship with Plaintiffs’ attorney, and general information about the business. Chiropractor moved for a protective order, limiting the subpoena to medical information relevant to the Plaintiffs’ case, which was granted in part.
Insurer sought to depose Chiropractor but had to reschedule the deposition several times. Insurer moved for an order compelling compliance with the subpoenas, which the court granted. After a failed attempt at a writ of prohibition, Insurer moved to compel again and for an award of costs.
Thereafter, Chiropractor zeroed out Plaitiffs’ balances with his office, and Plaintiffs file a notice of voluntary dismissal. No agreed order was tendered, and the Court did not enter an order dismissing. Insurer then filed a memorandum in support of its motion for attorney’s fees under CR 37.02(3). After a hearing, Chiropractor was ordered to pay the reasonable fees associated with Insurer’s motion to compel. Chiropractor appealed. The Court of Appeal affirmed. Chiropractor sought discretionary review, which the Supreme Court granted.
Chiropractor argued that the court did not have jurisdiction to enter the order for attorney’s fees, because Plaintiffs voluntarily dismissed the action, noting that when the main litigation ended, so did the ancillary issues related to him. The Supreme Court disagreed, holding that a plaintiff may unilaterally dismiss his case without court acquiescence by filing a notice of voluntary dismissal only if the adverse party has not served its answer or made a motion for summary judgment. Otherwise, voluntary dismissal requires a stipulation by all parties. Because Insurer had served its answer, the notice of dismissal, signed only by Plaintiffs and Chiropractor was ineffective to dismiss the action. Thus, the Court had jurisdiction to order Chiropractor to pay the costs.
Next, the Supreme Court held that the plain language of CR 37.02(3) did not permit the court to sanction Chiropractor, because he is not a party to the action. CR 37.02 states:
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
Chiropractor was not a party to the action, which has been previously determined to mean a party to the proceeding and those who were before the court by service of process, and Chiropractor was only before the court because of the subpoenas served upon him. “The remedy of CR 37.02 sanctions including attorney fees is simply unavailable against the non-parties.”
However, the Supreme Court noted that there are other avenues for recourse against third parties, including CR 37.01(d)(i) (permitting assessment of the costs of moving for an order compelling discovery against a deponent whose conduct necessitated the motion); CR 37.02(1) (stating that “[i]f a deponent fails to be sworn or to answer a question after being directed to do so by the court . . . , the failure may be considered a contempt of that court”); CR 45.06 (providing that “[d]isobedience of a subpoena or a refusal to be sworn or to answer as a witness may be punished as a contempt of the court in which the action is pending”).
Digested by Nathan R. Hardymon