Opinion
No. 3-850 / 03-0127
Filed February 11, 2004
Appeal from the Iowa District Court for Polk County, Ronald H. Schechtman, Judge.
The plaintiffs appeal an order dismissing their lawsuit as a discovery sanction. AFFIRMED.
Theodore Boecker of Sherrets Boecker, L.L.C., Omaha, Nebraska, for appellants.
Dwight James and Jennifer Lampe, Des Moines, and John McClintock and Aaron Oliver of Hansen, McClintock Riley, Des Moines, for appellees.
Considered by Vogel, P.J., and Hecht and Vaitheswaran, JJ.
On March 4, 2002, Brian Krueger, Eric Conard, KC Development, Ltd., Sports Drink, Limited Partnership, and Sports Drink, L.L.C. (hereinafter Sports Drink) filed a legal malpractice suit against Peter S. Cannon and his former law firm Connelly, Lillis, Hansen Olson. L.L.P. The suit arose out of Cannon's representation of Sports Drink's interests in its attempt to buy a bar/restaurant in Des Moines. On November 7, 2002, the district court entered an order on the defendant's motion to compel, noting dismissal could result from Sports Drink's failure to comply with the order. On December 20, 2002, the district court dismissed the action as a sanction for abuse of the discovery process, pursuant to Iowa Rule of Civil Procedure 1.517(2)( b)(3). Sports Drink appeals from this order.
This suit was identical to one brought in October of 2000, but which the plaintiffs had voluntarily dismissed in October of 2001.
A district court's order imposing discovery sanctions will not be disturbed unless the court abused its discretion. See Kendall/Hunt Publ'g Co. v. Rowe, 424 N.W.2d 235, 240 (Iowa 1988). An abuse of discretion consists of a ruling which rests upon clearly untenable or unreasonable grounds. See Squealer Feeds v. Pickering, 530 N.W.2d 678, 681 (Iowa 1995).
In dismissing the action, the district court noted Sports Drink's repeated failure to respond to requests for production of documents, its failure to respond to letters from the counsel for Cannon, its failure to respond to a motion to compel, and other abuses. It found Sports Drink, through its counsel, "find[s] this whole discovery process as too burdensome and unnecessary." Further, it found the failure to comply with its November 7, 2002, order had been done "deliberately, without cause, and lacking good faith." See Troendle v. Hanson, 570 N.W.2d 753, 755 (Iowa 1997) (holding that in order to justify dismissal as a discovery sanction, the non-compliance must be the result of willfulness, fault, or bad faith). Notwithstanding Sports Drink's tardy and partial compliance at the hearing on defendants' motion to dismiss, we agree with the district court the plaintiffs' tactics kept defendants at a sustained disadvantage. See Aquadrill, Inc. v. Environmental Compliance Consulting Serv, Inc., 558 N.W.2d 391, 396 (Iowa 1997). We conclude the district court's findings of fact are supported by substantial evidence, see Troendle, 570 N.W.2d at 755 (noting substantial evidence must support factual findings necessary to the court's exercise of its discretion), and that it did not abuse its discretion in determining dismissal to be an appropriate remedy. The longstanding deliberate delay and disobedience to requests and orders, coupled with the knowledge dismissal was a potential result of non-compliance, warrants the sanction imposed.