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Marks v. Saville

Court of Appeals of Arkansas, Division III

December 6, 2017

GARY MARKS AND KRISTIN MARKS APPELLANTS
v.
BECKIE SAVILLE, GUARDIAN OF THE ESTATE OF WILLA DEAN JACKSON APPELLEE

         APPEAL FROM THE POPE COUNTY CIRCUIT COURT [NO. 58CV-16-216] HONORABLE GORDON W. "MACK" McCAIN, JR., JUDGE

          Robert S. Tschiemer, for appellants.

          Phillips & Veach, P.A., by: Robert M. Veach, for appellee.

          DAVID M. GLOVER, JUDGE.

         Gary and Kristin Marks (jointly the "Markses") appeal from the trial court's discovery sanctions that struck their answer and granted default judgment in favor of Beckie Saville as guardian of the estate of Willa Dean Jackson. They raise three points of appeal: 1) this court should reverse and remand the judgment appealed from and allow a trial; 2) this court should reverse and remand the denial of the motion to alter or amend, or alternatively motion for new trial, or judgment notwithstanding the verdict, and remand for trial; and 3) the trial court should have reopened the record in light of the appellants' affidavits to allow testimony. We affirm.

         Trial Court Proceedings

         On April 16, 2016, Beckie Saville, as guardian of the estate of Willa Dean Jackson, filed a complaint seeking to set aside a warranty deed to Gary Alan Marks and also to recover $32, 500 from him. The complaint alleged that Gary exerted threats, duress, and undue influence against Willa Dean's attorney-in-fact (her sister Bobbie Jackson McGoughan) to acquire the warranty deed and the money. Beckie filed an amended complaint on May 24, 2016, when she learned Gary had married Kristin, and added Kristin as a party. On June 1, 2016, Beckie propounded discovery requests to the Markses. By July 13, 2016, the Markses had failed to respond to the discovery requests, and Beckie's counsel sent a good-faith letter to the Markses' counsel, asking that the responses be provided within seven days. Partial responses were provided, but in an attempt to obtain more complete responses, Beckie's counsel filed a second good-faith letter to opposing counsel on July 22, 2016. The July 22 letter reported that the responses were deficient, explained why, asked for complete discovery responses within ten days, and asserted that a failure to do so would result in Beckie is filing a motion to compel and a request for attorney's fees, costs, and other sanctions.

         On August 17, 2016, Beckie's counsel filed a motion to compel discovery. In it, he set forth the above timeline of events and further explained that Beckie had also agreed to an additional request for an extension of time to August 10, 2016, submitted by email on July 28, 2016, but that as of August 16, 2016, the Markses had still failed to fully respond to the discovery requests, resulting in the August 17, 2016 motion to compel. Beckie's counsel sought an order compelling discovery, Rule 37 sanctions, attorney's fees, and costs. The trial court granted the motion and entered an order compelling discovery on September 19, 2016. The Markses were ordered to provide full and complete responses to Beckie's discovery requests by 5:00 p.m. on September 30, 2016. Before the order was entered, the Markses had provided supplemental responses on September 14, 2016. On September 16, 2016, Beckie's counsel prepared yet another good-faith letter advising the Markses that their responses were still deficient and that Beckie would file a motion to strike the Markses' answers and request judgment if they did not comply with the order compelling discovery by 5:00 p.m. on September 30, 2016. The Markses did not comply, and on October 6, 2016, Beckie filed a motion for sanctions. In it, she sought to have the Markses' answers struck and default judgment entered pursuant to Rule 37(b)(2) of the Arkansas Rules of Civil Procedure, along with a request for attorney's fees and costs.

         On November 10, 2016, a hearing on the sanctions motion was held. Counsel for both parties were present but not the Markses themselves. Beckie's counsel recounted his efforts to obtain the requested discovery from the Markses, the court's order to compel, and the continued failure to provide complete discovery, along with similar failures to respond to discovery requests in the companion probate case before the same judge. At the trial court's request, Beckie's counsel also reviewed the specific interrogatories and requests for production for which he had not received complete responses. Also at the trial court's request, he differentiated the discovery requests he felt the Markses were evading and those to which they were not fully responsive.

         The trial court then turned to the Markses' counsel and asked if he was aware of any defenses that would counter or mitigate what "appeared to be an attempt to thwart the discovery process by the Markses." The Markses' counsel reported that he had spoken to them at length regarding the deficiencies in their discovery responses; that they had "flat out" refused to respond in any other way; that he had explained the consequences of their actions, "up to and including a default judgment"; and that they told him they did not care about the consequences because they did not intend to rehash their lives and did not feel the requests were relevant. Their counsel further stated he did not know of any defense for their actions, expressed his frustration that he had never had a client refuse to respond to even simple discovery requests, and stated that he could not make them budge. The trial court then questioned both counsel to satisfy itself that the discovery failures were caused by the Markses themselves and not their counsel. At the conclusion of the hearing, the trial court ruled from the bench that it was going to grant the requested relief.

         On November 23, 2016, the Markses filed a verified motion for reconsideration, asserting that although their counsel had informed them "of the ramifications of not giving complete answers, " they believed their responses were complete. They further stated that they "had not disclosed contact information for their witnesses for fear of retaliation to them"; they requested more time to get answers to Beckie "in a way that would ensure safety of the witnesses"; and asked the court to reinstate the pleadings and set aside the default judgment.

         On November 29, 2016, the trial court entered an order granting the Markses' counsel's request to withdraw from representation of the Markses in this matter. The court also inserted a handwritten sentence in this order denying the Markses' motion for reconsideration. (On December 5, 2016, the trial court entered a separate order, explaining that the purpose of the order was "to note that as of November 29, 2016, Defendants' Motion for Reconsideration filed November 23, 2016 was denied.") On December 2, 2016, the trial court entered the written order and judgment that struck the answers, granted the default judgment, voided the warranty deed, directed the Markses to vacate the premises, and awarded $32, 500 to the guardianship estate, as well as $3, 266.57 in attorney's fees and costs.

         On December 9, 2016, the Markses filed a notice of appeal from the December 2, 2016 order and judgment. Additional post-trial motions were filed on December 9, 2016, in the form of a motion to alter or amend, or alternatively for new trial or JNOV, and a motion to set aside default judgment. Also on December 9, 2016, a motion to stay was filed. On December 22, 2016, the Markses filed a motion to reopen the record. On January 18, 2017, the trial court entered an order specifically denying the motions filed on December 9 (at least one of which was deemed denied as of January 9, 2016), and also denying ...


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