Phillips v. Winsett

717 So. 2d 818, 1998 Ala. Civ. App. LEXIS 429, 1998 WL 307941
CourtCourt of Civil Appeals of Alabama
DecidedJune 12, 1998
Docket2970216
StatusPublished
Cited by1 cases

This text of 717 So. 2d 818 (Phillips v. Winsett) is published on Counsel Stack Legal Research, covering Court of Civil Appeals of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Phillips v. Winsett, 717 So. 2d 818, 1998 Ala. Civ. App. LEXIS 429, 1998 WL 307941 (Ala. Ct. App. 1998).

Opinion

WRIGHT, Retired Appellate Judge

On January 25, 1996, Sherry Winsett and Troy Winsett, individually, and as father and next friend of McKenzie Winsett, a minor child, filed a complaint against William Thomas Phillips in the Madison County Circuit Court. They also filed interrogatories to Phillips. Thereafter, the Winsetts filed a motion to compel and a motion for sanctions. On July 15, 1996, the trial court entered an order, compelling Phillips to answer, within 10 days from the date of the order, the Winsetts’ interrogatories “in full compliance with the Alabama Rules of Civil Procedure.” On August 18, 1996, Phillips’s attorney, Tom E. Ellis, sent Phillips’s interrogatory answers to the Winsetts’ attorney. Ellis objected to disclosing the liability limits of Phillips’s insurance policy.

On April 28, 1997, the Winsetts filed a motion to compel, requesting that the trial court order Phillips to fully respond to the interrogatories and requesting an attorney fee. On May 5, 1997, Ellis, on behalf of Phillips, filed an objection to the motion to compel, alleging that the limits of Phillips’s liability insurance policy were not discoverable. The same day, the Winsetts filed a motion for an attorney fee and costs, pursuant to the Alabama Litigation Accountability Act, §§ 12-19-271 through -276, Ala.Code 1975, and to Rule 37, Ala. R. Civ. P.

On May 7, 1997, the trial court entered an order, stating that “[u]pon review of this matter, it appears that [Phillips] and/or his attorney of record have flagrantly failed to abide by this court’s previous order entered July IS, 1996.” The trial court ordered Phillips, among other things, to provide the Win-setts’ attorney, within seven days, with a legible copy of Phillips’s liability insurance policy. The trial court ordered the Winsetts to submit an affidavit of their attorney “as to the expenses incurred in obtaining discovery.” On May 9,1997, Phillips filed a motion to reconsider and requested oral argument of the Winsetts’ motion for an attorney fee and costs. The trial court denied Phillips’s motion, except to grant his request for oral argument on the Winsetts’ motion.

On May 13, 1997, the Winsetts’ attorney filed an affidavit for an attorney fee, setting forth in great detail his actions regarding discovery and the amount of time he spent in seeking Phillips’s responses. The attorney stated that he spent 9.75 hours to gain Phillips’s compliance in discovery and that his normal billing rate was $150 per hour. He requested a $1,350 attorney fee. On May 15, 1997, the Winsetts filed a motion for a default judgment, alleging that Phillips failed to comply with the trial court’s May 7, 1997, order.

Phillips filed an objection to the affidavit of the Winsetts’ attorney and moved to strike the affidavit. Thereafter, Phillips filed an objection to the motion for a default judgment. On October 23, 1997, the trial court entered an order, denying the motion for a default judgment. The trial court entered a separate order on the request for an attorney fee, stating, in pertinent part, as follows:

“This matter is pending before the court on the [Winsetts’] motion for a default judgment and for [an attorney fee] pursuant to Rule 37, Alabama Rules of Civil Procedure.
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“However, the court is of the opinion that the [Winsetts] are entitled to a reasonable [attorney] fee for the services of their attorney in pursuing the discovery issues which led to the filing of the motion for [a] default judgment.
“The court specifically finds that the sum of $1,350.00 is reasonable and was incurred by the [Winsetts] in obtaining discovery which had been previously ordered by the court.
“The [Winsetts] shall have and recover of [Phillips] and his attorney [Ellis], jointly and severally, the sum of $1,350.00, for which execution shall issue pursuant to the Alabama Rules of Civil Procedure.”

The trial court made its order final and appealable pursuant to Rule 54(b), Ala. R. Civ. P.

Phillips and Ellis appeal, contending (1) that the trial court failed to make the re[820]*820quired findings to award an attorney fee pursuant to the Alabama Litigation Accountability Act, (2) that the trial court erred in finding that Phillips failed to produce discovery as ordered, and (3) that the trial court erred in assessing an attorney fee in the amount requested by counsel, when his affidavit showed excessive charges.

“Where a party fails to provide or permit discovery ordered by a court, the choice of sanctions to be imposed is largely within the discretion of the trial court, and this choice will not be disturbed on appeal absent a gross abuse of that discretion.” Woods v. Woods, 653 So.2d 312, 313 (Ala.Civ. App.1994) (citation omitted).

The Winsetts sought sanctions pursuant to the Alabama Litigation Accountability Act, §§ 12-19-271 through -276, Ala.Code 1975, and Rule 37, Ala. R. Civ. P. The trial court did not refer to the Alabama Litigation Accountability Act in its October 23,1997, order regarding an attorney fee, nor did the trial court state that Phillips’s objection to the disclosure of his insurance liability limits was “without substantial justification,” as required under the Alabama Litigation Accountability Act. Pacific Enter. Oil v. Howell Petroleum, 614 So.2d 409 (Ala.1993). However, the trial court did specifically refer to Rule 37 in its award of a $1,350 attorney fee.

Rule 37(b)(2) provides that a court may sanction a party who fails to obey an order to provide or permit discovery by requiring the disobedient party to

“pay the reasonable expenses, including attorney 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.”
Rule 37(d) provides as follows:
“If a party ... fails (1) to appear before the officer who is to take the deposition after being served with proper notice, or to comply with a properly served request for production under Rule 30(b)(5), without having made an objection thereto, or (2) to serve answers or objections to interrogatories submitted under Rule 33, after proper service of the interrogatories, or (3) to serve a written response to a request for production or inspection submitted under Rule 34, after proper service of the request, the court in which the action is pending on motion may make such orders in regard to the failure as are just, and among others it may take any action authorized under paragraphs (A), (B), and (C) of subdivision (b)(2) of this rule. In lieu of any order or in addition thereto, the court shall require the party failing to act 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.”

Consequently, we conclude that the trial court awarded an attorney fee to the Win-setts under Rule 37, Ala. R. Civ. P.

Phillips and Ellis argued before the trial court, and argue on appeal, that the limits of Phillips’s liability insurance policy are not discoverable under Rule 26, Ala. R. Civ. P.

Rule 26(b)(2), Ala. R. Civ. P., as amended effective October 1,1995, provides as follows:

“A party may obtain discovery of

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Related

Badham v. Emeraude Corp.
730 So. 2d 135 (Supreme Court of Alabama, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
717 So. 2d 818, 1998 Ala. Civ. App. LEXIS 429, 1998 WL 307941, Counsel Stack Legal Research, https://law.counselstack.com/opinion/phillips-v-winsett-alacivapp-1998.