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In Horton v.
Hinton, 26 ALW13-4 (2150631), the Court of Civil Appeals affirmed a trial
court’s dismissal of a lawsuit based on plaintiff’s failure to comply with
In February 2015,
Brianna Horton filed suit against Bria Hinton alleging that Hinton drove her
motor vehicle negligently and/or wantonly causing the subject motor vehicle
accident and resulting in Horton’s claimed bodily injuries and emotional
distress. After attempts to obtain responses to written discovery
requests from Horton, including filing a Motion to Compel with the trial court,
Hinton filed a Motion to Dismiss in June 2015 for want of prosecution.
The Trial Court entered an Order compelling Horton to respond. Horton
filed discovery responses shortly thereafter, and the trial court then entered
an Order denying Hinton’s Motion to Dismiss as moot.
scheduled Horton’s deposition for a date in October 2015. At Horton’s
request, Hinton voluntarily canceled said deposition. Hinton sent two (2)
separate letters to Horton’s counsel requesting dates for rescheduling Horton’s
deposition with no response. Hinton unilaterally set Horton’s deposition
and counsel traveled from Birmingham, Alabama to Tuscaloosa, Alabama for the
deposition; however, neither Horton nor her counsel appeared.
Hinton then filed a Motion to Compel Horton’s deposition. The trial court
granted Hinton’s Motion and ordered Horton to appear for deposition within
twenty-one (21) days, or “be subject to possible dismissal of her
action.” On the date of the re‑noticed deposition, Horton’s attorney
appeared; however, Horton did not.
Hinton then filed a
second Motion to Dismiss for want of prosecution, and this time, the trial
court granted same. Horton filed a post-judgment Motion including an
Affidavit executed by Horton’s mother arguing that Horton’s mother attempted to
drive Horton to the deposition but that they had gotten stuck in traffic and
could not attend. The trial court denied Horton’s post-judgment motion,
and Horton appealed.
The Court of Civil
Appeals affirmed the dismissal. The Court held that pursuant to Ala. R.
Civ. P. 37(b) a trial court can dismiss an action as a sanction against a party
who violates an order compelling her to provide discovery and that
“willingness” on the part of the noncomplying party is a key factor. The
Court found that Horton had demonstrated a “consistent failure” to comply with
the discovery process in the present case, and therefore, the trial court did
not abuse its discretion by dismissing the lawsuit.