In the Missouri Court of Appeals Western District
BRANDIE C. NOBLE, ) ) Appellant, ) WD86378 ) V. ) OPINION FILED: ) MARCH 26, 2024 L.D. ENTERPRISES, INC., ) ) Respondent. )
Appeal from the Circuit Court of Benton County, Missouri The Honorable Michael Brandon Baker, Judge
Before Division One: Alok Ahuja, Presiding Judge, Cynthia L. Martin, Judge and Thomas N. Chapman, Judge
Brandie C. Noble ("Noble") appeals from the trial court's entry of a judgment that
dismissed with prejudice her claim for damages against L.D. Enterprises, Inc. ("L.D.") as
a sanction under Rule 61.011 for Noble's failure to timely and properly respond to
discovery requests from L.D. Noble argues that deficiencies in her responses to
discovery were insufficient to warrant the dismissal of her claim with prejudice as a
sanction. Finding no error, we affirm.
1 All rule references are to Missouri Court Rules, Volume 1 -- State, 2023 unless otherwise noted. Factual and Procedural History2
On or around July 14, 2014, Noble was walking on a parking lot controlled by
L.D. that was cracked, uneven, and in an unrepaired condition. Noble sustained injuries
while walking on L.D.'s parking lot that required her to undergo medical procedures and
need ongoing medical treatment.
On January 21, 2019, Noble filed a lawsuit seeking damages from L.D.3 Noble
claimed in her petition that L.D. was negligent for failing to repair the dangerous
conditions of the parking lot and for failing to barricade or warn people walking in the
parking lot of its treacherous condition. Noble voluntarily dismissed her lawsuit without
prejudice on November 2, 2020.
Noble refiled her claim for damages against L.D. on October 18, 2021. L.D. filed
an answer in response to Noble's petition. On May 25, 2022, L.D. filed certificates of
2 When reviewing whether the trial court's decision to use its inherent powers to sanction was an abuse of discretion, we view "only those facts . . . that were before the trial court when it ruled on the motion to dismiss, and the evidence will be viewed in a light favorable to the result of the trial court." Crawford v. Family Tree, Inc., 670 S.W.3d 55, 59 (Mo. App. W.D. 2023) (quoting State ex rel. Wyeth v. Grady, 262 S.W.3d 216, 219 (Mo. banc 2008); and see Hale v. Cottrell, Inc., 456 S.W.3d 481, 488 (Mo. App. W.D. 2014) (citing Anglim v. Mo. Pac. R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992)) (finding that our view of the evidence in the light most favorable to the trial court's verdict applies to cases in which we review the trial court's decision to sanction for an abuse of discretion). 3 "It has long been the law that courts may (and should) take judicial notice of their own records in prior proceedings which are (as here) between the same parties on the same basic facts involving the same general claims for relief." Ruff v. Bequette Construction, Inc., 669 S.W.3d 701, 707 n.3 (Mo. App. E.D. 2023) (quotation omitted). "Judicial notice of records from other related proceedings involving the same parties can be on the court's own motion or at the request of a party." Id. (quoting Moore v. Mo. Dental Board, 311 S.W.3d 298, 305 (Mo. App. W.D. 2010)). 2 service indicating that "Opening Interrogatories to Plaintiff" and a "First Request for
Production of Documents to Plaintiff" had been served on Noble.4 Although Noble was
required by Rules 57.01(c)(1) and 58.01(c)(1) to serve responses to discovery on L.D.
within thirty days of service, Noble failed to do so. L.D. filed a motion to compel
discovery on September 19, 2022. Noble did not file a response to the motion to compel.
Following a hearing, the trial court sustained L.D.'s motion to compel on October 5, 2022
and ordered Noble to respond to L.D.'s outstanding discovery within thirty days. Noble
failed to serve responses to L.D.'s outstanding discovery as ordered by the trial court.
On December 13, 2022, L.D. filed a motion to dismiss Noble's petition with
prejudice as a sanction for Noble's failure to respond to outstanding discovery. L.D.
alleged that Noble had still failed to produce, object, or otherwise respond to the
discovery that had been served on May 25, 2022, notwithstanding the trial court's
October 5, 2022 order. Noble did not file a response to the motion to dismiss. On
January 4, 2023, the trial court conducted a hearing on L.D.'s motion. Although the
parties did not request that the hearing be on the record, such that there is no transcript of
the hearing, subsequently filed pleadings indicate that during the hearing Noble delivered
a "box of documents" to L.D. Noble did not file a certificate of service as required by
Rule 57.01(c)(6) verifying that a signed original of the answers and objections, if any, to
L.D.'s interrogatories had been served on L.D. Noble did not file a certificate of service
4 Pursuant to Rule 57.01(b)(3) at the time of service of interrogatories on an opposing party "a certificate of service, but not the interrogatories, shall be filed with the court as provided in Rule 57.01(d)." Pursuant to Rule 58.01(b)(3) the same is true for service of requests for the production of documents. 3 as required by Rule 58.01(c)(6) verifying that a signed original of the responses and
objections, if any, to L.D.'s requests for production of documents had been served on
L.D. The trial court took the motion to dismiss Noble's petition with prejudice under
advisement.
By March 29, 2023, no ruling had been issued on the pending motion to dismiss.
L.D. filed a renewed motion to dismiss Noble's petition with prejudice alleging that the
box of documents Noble delivered to L.D. during the January 4, 2023 hearing were
deficient in several respects. L.D. noted that the box of documents did not include a
written response to the outstanding request for production of documents. Furthermore,
L.D. noted that although the box of documents did include "purported interrogatory
answers," the interrogatory responses were deficient in four respects: (1) the interrogatory
answers were not signed by Noble at all let alone under oath as required by Rule
57.01(c)(5); (2) Noble failed to provide a complete answer to interrogatory number 1; (3)
Noble's response to interrogatory number 7 stated "see attached medical bills" yet no
medical bills were attached; and (4) Noble's response to interrogatory number 19 was
incomplete as it did not list all of her convictions. L.D. alleged that Noble's "willful
disregard" of the trial court's October 5, 2022 order "should not be countenanced." L.D.
also alleged that they had been greatly inconvenienced as a result of Noble's actions and
inactions and that Noble's claim was "a very old claim which [Noble] previously
dismissed," and that L.D. had been forced on three different occasions to file motions to
obtain discovery warranting dismissal of Noble's petition with prejudice. L.D.'s renewed
motion to dismiss was set for hearing on April 5, 2023.
4 Noble did not file a response to the renewed motion to dismiss. On April 1, 2023,
Noble did file a certificate of service which purported to verify that Noble provided L.D.
with amended answers to L.D.'s interrogatories. No certificate of service was filed by
Noble with respect to L.D.'s outstanding request for production of documents.
After hearing arguments from Noble and L.D. during the April 5, 2023 hearing,5
the trial court entered an order of dismissal with prejudice on April 11, 2023, sustaining
L.D.'s motion to dismiss. The trial court noted that it had ordered Noble to respond to
discovery on October 5, 2022; that Noble failed to do so which resulted in L.D.'s initial
motion to dismiss; and that even though the initial motion to dismiss was taken under
advisement (with the effect of affording Noble additional time), Noble "still did not fully
and properly respond . . . even with the threat of her claim being dismissed with
prejudice."
Noble filed a motion for reconsideration and argued that the trial court had never
addressed the purported deficiencies in the discovery responses identified in L.D.'s March
29, 2023 motion to dismiss. Noble also argued that dismissal of her petition with
prejudice was an excessive sanction because the sanction of dismissal should be reserved
for situations where an "offending party exhibits repeated and protracted failure to
comply with the rules of discovery." Noble's motion to reconsider made no mention of
the "amended answers to interrogatories" Noble certified were served on L.D. on April 1,
2023.
5 The parties did not request this hearing be on the record. As a result, there is no transcript from this hearing. 5 L.D. filed suggestions in opposition to Noble's motion for reconsideration. L.D.
noted that Noble's first petition was not filed until four and a half years after her injury
and that her lawsuit was dismissed without prejudice on the eve of a trial setting only to
be refiled almost a year later just weeks before the running of the statute of limitations.
L.D. reiterated Noble's failure to timely or properly respond to discovery first
propounded on May 25, 2022, despite multiple motions having been filed by L.D. to
enforce the discovery, and despite a court order directing Noble to respond to the
discovery. L.D. noted that even the purported "amended answers" to interrogatories
Noble served on L.D. on April 1, 2023, remained incomplete and that no response to the
outstanding request for production of documents had ever been served on L.D. by Noble.
The trial court overruled Noble's motion to reconsider by docket entry on May 2,
2023. On June 6, 2023, the trial court entered a judgment of dismissal with prejudice
("Judgment") that is identical to the order of dismissal entered on April 11, 2023.6
Noble appeals.
Standard of Review
"The circuit court is vested with 'broad discretion in administering the rules of
discovery and in determining the proper remedy—including sanctions—for a party's non-
compliance with the rules of discovery.'" Washington v. Sioux Chief Mfg. Co., 662
S.W.3d 60, 67 (Mo. App. W.D. 2022) (quoting Lewellen v. Universal Underwriters Ins.
6 Shortly after the May 2, 2023 docket entry Noble appealed the trial court's order of dismissal to this court. See WD86728. However, because Noble's appeal was not yet ripe due to lacking a final appealable judgment, she motioned to dismiss her own appeal on May 26, 2023. Our mandate was issued the same day. 6 Co., 574 S.W.3d 251, 271 (Mo. App. W.D. 2019)); and see Lee v. Lee, 680 S.W.3d 501,
504 (Mo. App. W.D. 2023) (holding that a trial court's imposition of sanctions for a
party's failure to make discovery will not be disturbed on review "unless it is unjust").
"Our review is limited to determining whether the circuit court could have reasonably
concluded as it did, not whether we would have imposed the same sanctions under the
same circumstances." Washington, 662 S.W.3d at 67 (internal brackets and quotations
omitted). Specifically, "we will not disturb the circuit court's imposition of discovery
sanctions unless we find the court abused its discretion." Id. (quoting Lewellen, 662
S.W.3d at 271).
"A trial court abuses its discretion when the ruling is clearly against the logic of
the circumstances and is so unreasonable and arbitrary that the ruling shocks the sense of
justice and indicates a lack of careful, deliberate consideration." Clark v. Shaffer, 662
S.W.3d 137, 142 (Mo. App. W.D. 2023) (citation omitted); see also Holm v. Wells Fargo
Home Mortg., Inc., 514 S.W.3d 590, 596 (Mo. banc 2017). "[I]f reasonable persons can
differ about the propriety of the action taken by the trial court, then it cannot be said that
[it] abused its discretion." Hale v. Cottrell, Inc., 456 S.W.3d 481, 488 (Mo. App. W.D.
2014) (quoting Anglim v. Mo. Pac. R. Co., 832 S.W.2d 298, 303 (Mo. banc 1992)).
Analysis
Noble raises four points on appeal. Each argues that a specific deficiency with
Noble's "interrogatory responses" identified in L.D.'s renewed motion to dismiss, which
was filed after a box of documents was delivered to L.D. by Noble during a January 4,
2023 hearing, was insufficient to warrant the sanction of dismissal of her petition with
7 prejudice under Rule 61.01. Point One argues that Noble's failure to sign the
interrogatory answers included in the box of documents did not warrant dismissal of her
petition. Point Two argues that Noble's failure to completely answer interrogatory
number 1 did not warrant dismissal of her petition. Point Three argues that Noble's
failure to attach medical bills to her interrogatory responses did not warrant dismissal.
Point Four argues that Noble's failure to identify all of her convictions in response to
interrogatory number 19 did not warrant dismissal.
Noble's points on appeal do not challenge the sufficiency of the evidence to
support finding that the interrogatory responses she delivered in the box of documents
were deficient in the four ways identified by L.D.'s renewed motion to dismiss. Noble's
points on appeal do not address the additional deficiency raised in L.D.'s renewed motion
to dismiss and again in their suggestions in opposition to Noble's motion to reconsider
that Noble had never responded to the outstanding requests for production of documents.
And, even more critically, Noble's points on appeal challenging the sanction of dismissal
artificially isolate the discussion of conceded deficiencies in her interrogatory responses
ignoring that the trial court was entitled to cumulatively consider all of the circumstances
relevant to Noble's disregard of the rules of discovery and prior court orders when it
imposed the sanction of dismissal with prejudice of Noble's petition. See Washington,
662 S.W.3d at 67; and see Lewellen, 574 S.W.3d at 274 (citation omitted) (finding that
the court of appeals reviews "the circuit court's ruling for an abuse of discretion under the
circumstances before the court at the time it entered its ruling").
8 These failings warrant summary rejection of Noble's points on appeal. Even if we
generously read Noble's points on appeal to collectively argue that the four identified
deficiencies in the interrogatory responses do not support the sanction of dismissal of
Noble's petition, we would not find that the trial court abused its discretion based on the
totality of the facts and circumstances in this case.
A trial court has an obligation to ensure that discovery rules are followed and to
expedite litigation. See Lee, 680 S.W.3d at 504. To facilitate this obligation "Rule 61.01
gives trial courts significant discretion to impose sanctions that are 'just' when a party
fails to answer interrogatories, produce documents, or attend depositions." Holm, 514
S.W.3d at 596. For purposes of Rule 61.01 "[a]n evasive or incomplete answer to an
interrogatory is considered a failure to answer." Cosby v. Cosby, 202 S.W.3d 717, 721
(Mo. App. E.D. 2006). "The rule expressly contemplates that a trial court may, in its
discretion, sanction a party for such misconduct by striking pleadings, limiting the party's
ability to present evidence or otherwise participate at trial, [or by] entering a default
judgment against the disobedient party[.]" Holm, 514 S.W.3d at 596-97. Furthermore,
"an order striking pleadings . . . against a disobedient party can be made without a
violation of a court order." Frontenac Bank v. GB Investments, LLC, 528 S.W.3d 381,
390 n.9 (Mo. App. E.D. 2017) (quotation omitted).
Though dismissal of a plaintiff's case, or the entry of a default judgment against a
defendant,
is an unforgiving punishment, . . . it is properly invoked in cases where the record sufficiently shows (1) the disobedient party engaged in a pattern of repeated disregard of the obligation to comply with the rules of
9 discovery, i.e., the party has demonstrated a contumacious and deliberate disregard for authority of the trial court; and (2) the opposing party was prejudiced thereby.
Washington, 662 S.W.3d at 67 (internal brackets and citations omitted). This is not to
say that a "trial court must make a specific finding that the party's actions were
contemptuous and resulted in prejudice from the non-compliance with discovery" as a
precursor to imposing the harsh sanction of dismissal or entry of a default judgment.
Binder v. Thorne-Binder, 186 S.W.3d at 864, 867 (Mo. App. W.D. 2006). "No such
requirement appears in the Supreme Court Rules governing sanctions." Id.7 But
certainly where the record supports finding both contumacious and deliberate disregard
for the authority of the trial court and prejudice to the opposing party we will not find that
a trial court has abused its discretion in imposing the authorized Rule 61.01 sanction of
dismissing an action or rendering a judgment by default.
Here, the record plainly supports the conclusion that Noble engaged in a pattern of
repeated disregard of the obligation to comply with the rules of discovery that constituted
7 The holding in Tate v. Dierks that "[p]rior to imposing sanctions upon the errant party 'the trial court first will determine whether in the particular situation the opposing party has been prejudiced'" is not inconsistent. 608 S.W.3d 799, 807 (Mo. App. W.D. 2020) (internal brackets omitted) (quoting Laws v. Wellston, 435 S.W.2d 370, 375 (Mo. 1968)). Tate v. Dierks addressed a trial court's decision to exclude testimony from a witness who was not disclosed until five days before trial. See id. at 804-808. Although a party's late identification of a witness often implicates a failure to comply with discovery rules requiring timely supplementation of responses, Tate did not involve a pattern of contumacious disregard of the rules of discovery rendering the court's focus on the prejudice, if any, that would be occasioned to the other party by late disclosure of a witness, an appropriate inquiry in determining whether to exclude the testimony at trial. Tate reinforces that Rule 61.01 does not require proof of unstated steps or evidentiary prongs as a precondition of imposing a particular sanction and instead bestows broad discretion on a trial court to impose sanctions that are just under the circumstances. 10 a contumacious and deliberate disregard for the authority of the trial court and that L.D.
was thereby prejudiced. Noble was served with interrogatories and requests for
production on May 25, 2022, and her answers or objections were due to be served on
L.D. within thirty days. Noble did not respond to the outstanding discovery. Nor did she
seek an extension of time to do so. L.D. was required to file a motion to compel Noble to
respond to the outstanding discovery. Noble failed to file a response to this motion. The
trial court granted the motion to compel and on October 5, 2022, entered an order
directing Noble to serve responses to the outstanding discovery within thirty days. Noble
ignored the trial court's order and failed to serve discovery responses on L.D. or to seek
an extension of time to do so. L.D. was forced to file yet another motion and this time
sought the sanction of dismissal of Noble's petition. Noble filed no response to this
motion and instead appeared at the January 4, 2023 hearing on the motion with a "box of
documents" that were unceremoniously delivered to L.D. Noble did not, however, file
required certificates of service with the trial court affirming that the box of documents
constituted served responses to the outstanding discovery. Noble was nonetheless
afforded additional time to ensure compliance with outstanding discovery requests as the
trial court took the pending motion to dismiss under advisement.
After reviewing the box of documents, L.D. was required to file a third pleading--a
renewed motion to dismiss--that reasserted the request for the sanction of dismissal of
Noble's petition. L.D. identified four deficiencies in the interrogatory answers that were
in the box of documents (including that the interrogatory answers were not signed, let
alone under oath, as required), and noted that the box of documents included no written
11 response to the request for production of documents. The renewed motion to dismiss was
set for hearing on April 5, 2023. Once again, Noble filed no response to the motion but
purported to file a certificate of service on April 1, 2023, affirming that interrogatory
responses were served on L.D. on that day. No certificate of service was (or has ever
been) filed for the outstanding request for production of documents. The interrogatory
answers that were served on April 1, 2023, remained deficient according to L.D. At no
time did Noble offer the trial court an explanation for her failure to timely or properly
respond to outstanding discovery propounded by L.D. even when ordered to do so by the
trial court. Even in Noble's motion for reconsideration, filed after the trial court entered
its order on April 11, 2023, granting the renewed motion to dismiss and imposing the
sanction of dismissing Noble's petition with prejudice, Noble offered no explanation for
her deliberate indifference to the deadlines imposed on her by Supreme Court Rules and
by the trial court's earlier order.
The result is that after nearly a year of waiting, L.D. still did not have complete
responses to interrogatories nor any response to their request for production of
documents. The record is more than sufficient to permit the conclusion that the trial court
did not abuse its discretion in dismissing Noble's petition with prejudice. See Binder, 186
S.W.3d at 867-68 (affirming the trial court's Rule 61.01 sanction striking parties'
pleadings and refusing to permit cross-examination at trial where party refused to answer
interrogatories in a timely manner after being twice ordered to do so requiring other party
to file three motions to enforce discovery, two of which sought sanctions, and as to which
no responses were ever filed and where the party never sought extensions of time to serve
12 responses to discovery, never provided any explanation to the court for the failure to
provide responses, and only provided responses (which were deemed deficient) after
sanctions were imposed).
Noble argues on appeal that her incomplete answers to interrogatories did not
warrant dismissal of her petition because they were only "partial violations" and asserts
that "[o]nly total failures to comply with discovery or repeated contemptuous actions
should warrant a dismissal with prejudice."8 Rule 61.01 expressly states to the contrary
as it provides that "an evasive or incomplete answer is to be treated as a failure to
answer." Rule 61.01(a).
Noble also argues on appeal that two of the four deficiencies in her interrogatory
responses identified in L.D.'s renewed motion to dismiss were remedied by the
interrogatory responses she served on L.D. on April 1, 2023. However, Noble never
argued before the trial court (including in her motion for reconsideration) that her
contumacious and deliberate disregard of the rules of discovery and of the trial court's
earlier order should be excused by her delinquent service of interrogatory responses on
8 To support this proposition, Noble cites Cosby v. Cosby out of the Eastern district. See 202 S.W.3d at 722. However, Cosby does not hold that a dismissal with prejudice is only warranted when there have been total failures to comply with discovery. Id. Instead the Cosby court found that dismissal was not warranted when a party provided a few incomplete answers but had otherwise timely responded to interrogatories, objected to specific requests and responded to a motion to compel. The court reasoned that on these facts there "was not a total failure to comply with discovery nor . . . repeated contemptuous actions" and that the party was "ultimately, in compliance with the trial court's orders." Id. Therefore, Noble's contention that Cosby holds that a court can not enter a dismissal with prejudice for "partial violations" of discovery orders is misguided. 13 April 1, 2023, that even now Noble admits remained deficient. Even had she made this
argument before the trial court, we would not find the trial court to have abused its
discretion in imposing the sanction of dismissal given the pattern of deliberate disregard
demonstrated by Noble prior to April 1, 2023, and given Noble's continued failure to
serve responses of any kind to the outstanding request for production of documents.9
The trial court did not abuse its discretion by entering a Judgment dismissing
Noble's petition with prejudice as a Rule 61.01 sanction for Noble's discovery abuses.
Points One, Two, Three, and Four are denied.
Conclusion
The trial court's Judgment is affirmed.
__________________________________ Cynthia L. Martin, Judge
All concur
9 Curiously, Noble defends her failure to attach medical bills to the interrogatory responses included in the box of documents delivered to L.D. on January 4, 2023, (despite an interrogatory answer that referred L.D. to the attached medical records) by arguing the records were included in the box as a part of Noble's response to the outstanding request for production of documents. That bare assertion is not verified by the record which affords no basis for us to conclude that medical records were included in the box of documents Noble gave L.D. on January 4, 2023. More to the point, Noble never served a written response to the outstanding request for production of documents on L.D. making it impossible to "excuse" a deficiency in Noble's interrogatory responses by reference to a nonexistent response to L.D.'s request for production of documents. 14