THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Ottis Owens and Shirley Owens,        Respondents,

v.

Demetris A. Dawson,        Appellant.

Appeal From Berkeley County
Gerald C. Smoak, Sr., Circuit Court Judge

Unpublished Opinion No. 2003-UP-466
Submitted May 12, 2003 – Filed July 18, 2003  

REVERSED

Francis M. Ervin, II, of Charleston, Robert D. Moseley, Jr., of Greenville; for Appellant.

E. Paul Gibson, of N. Charleston; for Respondents.

PER CURIAM:  Demetris Dawson appeals a circuit court order entering default judgment against him as a sanction pursuant to Rule 37, SCRCP, in connection with his failure to attend a scheduled deposition.  We reverse. [1]

FACTS/PROCEDURAL HISTORY

Ottis and Shirley Owens filed this automobile negligence action against Demetris Dawson.  The Owens attempted to serve Dawson through the Richland County Sheriff’s Department at the address Dawson provided the investigating officers at the accident scene.  This service was unsuccessful because the address Dawson had given did not exist.  The Owens then hired a private process server, Ellen Richardson, who determined Dawson was residing with his mother on Orr Street in Columbia.  Richardson served Denice Dawson, a person believed to be Dawson’s mother, at this residence. 

The South Carolina Department of Insurance accepted service on behalf of Allstate, the underinsured motorist carrier.  Allstate filed a notice of appearance pursuant to S.C. Code Ann. § 38-77-160 (2002).  In this notice, counsel stated he did not represent Dawson and was not undertaking representation of him through the notice. 

Dawson’s deposition was first scheduled for December 5, 2000, then rescheduled for January 2, 2001.  By letter dated November 28, 2000, Dawson’s counsel explained to the Owens’ counsel as follows:

Please be advised that we cannot produce Demetris Dawson for his deposition.  We have never made contact with the defendant and do not know of his whereabouts.  We have never been able to confirm that Mr. Dawson resided at the place where the suit papers were served.

Anyway, I just wanted to give you advance notice that we cannot locate the defendant and, therefore, cannot guarantee his appearing for a deposition.  I welcome any suggestions you might have. 

Dawson did not appear for the deposition.  The Owens moved for sanctions against him pursuant to Rule 37(d), SCRCP. 

Counsel for Dawson and the Owens appeared at a circuit court hearing on the sanctions motion, but counsel for Allstate was in trial in another court and did not attend.  The trial court found Dawson failed to comply with discovery and entered judgment by default against him with regard to liability.  The court also ordered a damages hearing be scheduled.  Dawson appeals.

LAW/ANALYSIS

Dawson argues the circuit court abused its discretion in sanctioning him.  We agree.

 “[T]his court will not reverse our lower court’s decision as to an imposition of sanctions under Rule 37(d) absent a clear abuse of discretion.”  Pioneer Elecs. (USA) Inc. v. Cook, 294 S.C. 135, 137, 363 S.E.2d 112, 113 (Ct. App. 1987).  “If a party fails to obey an order to provide or permit discovery, the trial court may impose sanctions such as striking pleadings, dismissing the action, or rendering a default judgment.”  Griffin Grading & Clearing, Inc. v. Tire Service Equip. Mfg. Co., Inc., 334 S.C. 193, 198, 511 S.E.2d 716, 718 (Ct. App. 1999) (citing Rule 37(b)(2)(C), SCRCP).  “However, when the court orders default or dismissal, or the sanction itself results in default or dismissal, the end result is nevertheless harsh medicine that should not be administered lightly.”  Karppi v. Greenville Terrazzo Co., Inc., 327 S.C. 538, 542-43, 489 S.E.2d 679, 682 (Ct. App. 1997).

“Before invoking this severe remedy, the trial court must determine that there is some element of bad faith, willfulness, or gross indifference to the rights of other litigants.”  Id. at 543, 489 S.E.2d at 682.  “The sanction imposed should be reasonable, and the court should not go beyond the necessities of the situation to foreclose a decision on the merits of a case.”  Id.  “The sanction should be aimed at the specific misconduct of the party sanctioned.”  Id.  “In determining the appropriateness of a sanction, the court should consider such factors as the precise nature of the discovery and the discovery posture of the case, willfulness, and degree of prejudice.”  Griffin, 334 S.C. at 199, 511 S.E.2d at 719. 

In Griffin, we found the circuit court did not abuse its discretion in striking the answer of defendant Tire Service.  Before the circuit court struck Tire Service’s answer, four separate orders had been issued requiring Tire Service to comply with discovery requests.  Tire Service had not meaningfully complied with any of these orders.  We affirmed, stating “[i]f there was ever a case where striking a party’s pleading was an appropriate sanction, it is this case where the record is full of multiple, egregious discovery abuses that blocked the opposing party’s attempts to conduct meaningful discovery.”  Id.

In Karppi, we found the circuit court abused its discretion in striking defendant Ogden Teck’s pleadings, including a cross-claim, and entering default judgment against it.  Karppi, 327 S.C. at 542, 489 S.E.2d at 681.  Karppi served a request for the production of documents and noticed the deposition of Herbert Ogden, a Pennsylvania resident.  Ogden Teck maintained Ogden was not required to attend a deposition and would not voluntarily submit to one.  The company offered another individual who was familiar with the facts of the case for a deposition.  Ogden was never made available, despite a court order that he be made available.  Id. at 540-41, 489 S.E.2d at 680-81.  Following a hearing, the circuit court found Ogden Teck had “intentionally and willfully” violated the court order and as a sanction, struck its pleadings and entered default judgment against it.  Id. at 541-42, 489 S.E.2d at 681.  We reversed, holding the circuit court abused its discretion because “the sanction imposed was unduly harsh under the circumstances, and because the sanction was not limited in scope with regard to the violation by [Ogden Teck] of the court’s order.”  Id. at 543, 489 S.E.2d at 682.  We also held the circuit court went beyond what was reasonably necessary to redress the wrong committed by Ogden Teck and noted the sanction imposed for a discovery violation must be “reasonable -- comprehensive, yet not overly broad.”  Id. at 544, 489 S.E.2d at 682.

This case is more akin to Karppi than to Griffin.  In Griffin, Tire Service was sanctioned after it repeatedly and consistently refused to comply with several court orders of which it was aware.  In Karppi, Ogden Teck violated a court order, but the sanction was much more severe than the violation, particularly in light of its harsh effect on other parties to the litigation.  In this case, Dawson failed to appear for a deposition.  Here, as in Karppi, the sanction was unduly harsh when compared to the discovery violation.  Additionally, there is no evidence Dawson willfully and intentionally disregarded his obligation to comply with discovery requests.  Further, Dawson’s failure to appear for his deposition was not a surprise to anyone because Dawson’s counsel had notified the Owens’ counsel that he had been unable to get in touch with him.  The severe sanction imposed by the court went beyond the necessities of the situation.  Moreover, the sanction fashioned by the court would not remedy the harm the Owens claimed the violation caused them.  The Owens argued for default contending Dawson’s failure to attend the deposition prejudiced their ability to discover anything about Dawson that could lead to the imposition of punitive damages or give rise to increased damages.  Holding Dawson in default would not rectify this problem.  The trial judge abused his discretion in striking the answer and putting Dawson in default.

Because we find the decision of the circuit court must be reversed for these reasons, we need not address Dawson’s remaining issues on appeal.

REVERSED.

HEARN, C.J., CONNOR and STILWELL, JJ., concur.