#28048-a-GAS
2017 S.D. 66

                            IN THE SUPREME COURT
                                    OF THE
                           STATE OF SOUTH DAKOTA

                                       ****
LAURA COLONI,                                 Plaintiff and Appellant,

      v.

JOHN COLONI and
BRYAN SPRINGER,                               Defendants and Appellees.


                                ****
                   APPEAL FROM THE CIRCUIT COURT OF
                     THE FOURTH JUDICIAL CIRCUIT
                     MEADE COUNTY, SOUTH DAKOTA

                                       ****

                 THE HONORABLE JEROME A. ECKRICH, III
                            Retired Judge
                                ****


JAY C. SHULTZ
Rapid City, South Dakota                      Attorney for appellant.


BARBARA ANDERSON LEWIS of
Lynn, Jackson, Shultz &
 Lebrun, PC
Rapid City, South Dakota                      Attorneys for appellee John
                                              Coloni.

HEATHER M. LAMMERS BOGARD
Costello, Porter, Hill, Heisterkamp,
 Bushnell & Carpenter, LLP
Rapid City, South Dakota                      Attorneys for appellee Bryan
                                              Springer.

                                       ****

                                              CONSIDERED ON BRIEFS
                                              ON OCTOBER 2, 2017
                                              OPINION FILED 11/01/17
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SEVERSON, Justice

[¶1.]        Laura Coloni sued John Coloni and Bryan Springer for injuries

sustained in a motorcycle accident. Almost two years after Laura filed her

complaint, the circuit court granted Springer’s motion to dismiss. The court

dismissed Laura’s case because Laura failed to comply with two discovery orders

and did not pay an attorney’s fees sanction ordered for her failure to comply with a

motion to compel discovery. Laura appeals raising three issues, which we restate as

follows:

             1. Whether the circuit court erred in granting Springer’s motion
                for a sanction of attorney’s fees against Laura for her failure
                to produce documents.

             2. Whether the circuit court erred in dismissing Laura’s
                complaint as a sanction for failing to produce IRS Form
                W-2s.

             3. Whether the circuit court erred in dismissing Laura’s
                complaint as a sanction for failure to pay the attorney’s fees
                sanction.

We affirm.

                                   Background

[¶2.]        In August of 2014, Laura sued John and Springer alleging negligence

and seeking money damages for injuries sustained in a motorcycle accident. On

December 4, 2015, as part of that action, the circuit court entered an order

compelling Laura to produce her W-2 wage statements (W-2s) from 2004 up to the

date of the hearing. The deadline to produce the W-2s was December 17, 2015.

Laura failed to meet that deadline, and on January 21, 2016, Springer filed a

motion to compel seeking Laura’s W-2s and other records. On March 9, 2016, the


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circuit court granted Springer’s motion and ordered Laura to produce the requested

documents within thirty days. The order also assessed attorney’s fees in the

amount of $1,151.16 for Laura’s failure to comply with discovery.

[¶3.]        After the thirty days had expired, Laura did not produce W-2s from

2004-2007, 2009-2010, and 2012-2014. She also did not pay the attorney’s fees

sanction. On June 2, 2016, Springer filed a motion to dismiss. On September 13,

2016, the court heard the motion.

[¶4.]        On October 22, 2016, the court released its findings of fact and

conclusions of law. The court’s findings noted Laura could have obtained the

equivalent of the requested information by filing an SSA-7050-F4 with the Social

Security Administration. The court also found Laura failed to, in the alternative,

make a motion for a protective order or supplement discovery to indicate she did not

intend to seek lost wages or loss of future earnings.

[¶5.]        The circuit court’s conclusions of law stated, in full, that:

             1. Plaintiff has violated this court’s orders dated December 3,
                2015, and March 3, 2016 regarding Plaintiff’s discovery
                obligations in this case.

             2. Plaintiff’s violations of said orders and her failure to
                cooperate in discovery were in bad faith.

             3. Plaintiff’s violations of said orders and her failure to
                cooperate in discovery have prejudiced Defendant Springer.

             4. Plaintiff’s bad faith violation of discovery orders presents a
                need for deterrence.

             5. Plaintiff was previously warned that continued failure to
                cooperate in discovery and to obey this court’s orders could
                result in the dismissal of her complaint.



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             6. The lesser sanction of an award of attorney’s fees has been
                attempted against Plaintiff, but failed to obtain Plaintiff’s
                compliance, with Plaintiff even failing to comply with that
                sanction.

             7. The only appropriate sanction now is dismissal of Plaintiff’s
                complaint pursuant to SDCL 15-6-37(b)(2)(c).

The circuit court dismissed Laura’s complaint with prejudice. Laura appeals this

order.

                                Standard of Review

[¶6.]        “We review a dismissal on the basis of failure to comply with discovery

orders under an abuse of discretion standard.” Storm v. Durr, 2003 S.D. 6, ¶ 8, 657

N.W.2d 34, 36. “An abuse of discretion is ‘a choice outside the range of permissible

choices[.]’” Rumpza v. Zubke, 2017 S.D. 49, ¶ 7, 900 N.W.2d 601, 604 (quoting

MacKaben v. MacKaben, 2015 S.D. 86, ¶ 9, 871 N.W.2d 617, 622). “The trial court

has broad discretion in imposing sanctions for failure to comply with orders for

discovery.” Storm, 2003 S.D. 6, ¶ 16, 657 N.W.2d at 38. “However, when the trial

court imposes dismissal as a sanction, its discretion is ‘narrow, and the losing

party’s noncompliance with discovery must be due to willfulness, fault or bad faith.’”

Id. (quoting Van Zee v. Reding, 436 N.W.2d 844, 845 (S.D. 1989)). “We will accept

the circuit court’s factual findings unless they are clearly erroneous.” Rumpza,

2017 S.D. 49, ¶ 7, 900 N.W.2d at 604

                                       Analysis

             1. Whether the circuit court erred in granting Springer’s
                motion for a sanction of attorney’s fees against Laura
                for her failure to produce documents.




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[¶7.]         Laura claims she made a good faith attempt to obtain the requested W-

2s. She also claims the record in this case showed that she had substantially

justified her inability to produce all the documents. She argues that the sanction of

attorney’s fees was inappropriate.

[¶8.]         SDCL 15-6-37(a)(4)(A) authorizes the assessment of expenses and

sanctions against a party failing to comply with an order to compel. The statute

allows a circuit court to:

              require the party or deponent whose conduct necessitated the
              motion . . . to pay to the moving party the reasonable expenses
              incurred in obtaining the order, including attorneys’ fees, unless
              the court finds that the motion was filed without the movant’s
              first making a good faith effort to obtain the disclosure or
              discovery without court action, or that the opposing party’s
              nondisclosure, response or objection was substantially justified
              or that other circumstances make an award of expenses unjust.

Id.

[¶9.]         In the order approving the sanction of attorney’s fees, the circuit court

found Laura exhibited a “chronic failure to respond to legitimate discovery

requests.” It also found the calculation of attorney’s fees was reasonable

considering the locale and the experience of the attorney. The circuit court also

pointed out that “prompt discovery responses are a necessary function of the

efficient administration of justice [and] attorney fees are allowed by statute.”

[¶10.]        The circuit court’s findings were reasoned and sufficiently justified the

imposed sanctions as allowed by the statute. It found the attorney’s fees were

reasonable; expressed Laura’s “chronic failure” to respond to discovery requests;

indicated Springer had made good faith attempts to obtain the requested

documents; and noted that Laura’s attempts to explain nondisclosure were

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inadequate. The circuit court did not abuse its discretion in ordering the attorney’s

fees sanction on the motion to compel.

             2. Whether the circuit court erred in dismissing Laura’s
                complaint as a sanction for failing to produce IRS
                Form W-2s.

[¶11.]       Regarding the motion to dismiss, Laura again claims she made

repeated, earnest attempts to obtain copies of her missing W-2s. She also contends

Springer was aware of Laura’s difficulty obtaining some of the requested W-2s and

that Laura would not be making a claim for loss of future earnings, making the

requested W-2s irrelevant. For these reasons, Laura maintains the dismissal of her

complaint is drastic and unjustifiable.

[¶12.]       Here, the circuit court issued extensive factual findings to arrive at its

conclusions. In particular, the court found: Laura violated two discovery orders in

bad faith; Laura’s violation of those orders prejudiced Springer; and Laura was

warned that her failure to produce the requested documents could warrant a

dismissal of her case. The court stated it had already imposed the lesser sanction of

attorney’s fees, and therefore, dismissal was appropriate as a more severe sanction.

These findings are free of any clear error. The court’s “narrow” discretion in

dismissing Laura’s case was supported by a finding of bad faith. Storm, 2003 S.D.

6, ¶ 16, 657 N.W.2d at 38.

[¶13.]       Laura’s failure to produce documents or take alternative measures

during discovery resulted in a lack of substantial action on her case for almost two

years after filing. The circuit court did not err in stating her actions hindered the

“efficient administration of justice.” The court’s order to dismiss Laura’s case was


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permitted by statute and well within allowable parameters. There was no abuse of

discretion.

[¶14.]         For the same reasons, there was also no abuse of discretion when the

court dismissed Laura’s case on the secondary basis that she failed to pay the

attorney’s fees sanction ordered as an expense. Thus, we do not further address the

third issue.

                                     Conclusion

[¶15.]         The circuit court made reasoned factual findings and conclusions of

law that Laura’s violations of discovery orders and failure to pay the attorney’s fees

sanction were in bad faith. Laura’s actions prejudiced Springer and delayed the

administration of justice. Therefore, the circuit court’s dismissal of Laura’s case

was within the range of permissible choices, and there was no abuse of discretion.

We affirm on all three issues.

[¶16.]         GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and

WILBUR, Retired Justice, concur.




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