Discovery Sanctions Affirmed in Lebanon, Tennessee: Mikhail v. Mikhail

June 12, 2023 K.O. Herston 1 Comments

Facts: Husband and Wife divorced after 21 years of marriage. The marital estate primarily consisted of the marital residence and a business.

An agreed order left Husband in charge of the day-to-day business operations but required that Wife “be given complete access to all bank accounts and daily business records” and other bank accounts in Husband’s name, including requiring Husband to provide Wife with the passwords to all his financial accounts.

Husband disobeyed the order and took affirmative steps to prevent Wife from gaining access to the business and its records.

Husband’s actions during pretrial discovery were no better. Wife filed for motions to compel discovery responses, and despite court orders, his responses remained deficient. The trial court warned Husband that failing to provide complete answers could result in sanctions.

Husband also twice failed to attend his scheduled deposition.

The trial court found that Husband twice did not appear at his scheduled deposition, repeatedly violated court orders to answer discovery, provide documentation, provide access to his business records and accounts, and even failed to appear at the court-ordered mediation despite earlier warnings that he would be subject to sanctions.

Per Rules 37 and 41, the trial court sanctioned Husband for this behavior by prohibiting him from putting on any proof that supported his allegations. Husband’s role at trial was to be limited to cross-examining Wife and her witnesses.

After Wife concluded her proof, the trial court amended its earlier sanctions ruling, granted Wife a divorce by default on grounds of inappropriate marital conduct and allowed Husband to testify to the valuation and proposed division of marital property, as well as his income and expenses.

The trial court divided the marital estate equally and ordered Husband to pay Wife alimony of $5000 per month “for life.”

Husband appealed, arguing the trial court’s “extreme sanction” was not justified under the circumstances.

On Appeal: The Court of Appeals affirmed the trial court.

Tennessee law is clear that a default judgment is a proper sanction when there has been a clear record of “delay or contumacious conduct.” The Court found that’s exactly what happened here.

Twice, Husband failed to appear at his scheduled deposition. He also failed to appear at court-ordered mediation. And he repeatedly failed to comply with the [trial] court’s discovery orders. He missed court-ordered deadlines for answering Wife’s discovery requests. And that the answers he provided were incomplete. He also disobeyed orders requiring him to allow Wife access to his business and banking records. Husband’s conduct impeded Wife’s ability to prepare for trial. The [trial] court gave Husband multiple chances to comply with its orders. And it warned him that he could be sanctioned for his behavior. Yet Husband’s obstructive behavior persisted.

Husband also complains that he was unfairly prejudiced by the [trial] court’s refusal to allow him to present evidence at trial. We disagree. The [trial] court allowed Husband to testify about the parties’ assets and debts and their valuations, how he wanted the assets and debts distributed and divided, and his income and expenses. The [trial] court even admitted his packet of exhibits, overruling Wife’s objection that the documents have not been disclosed during discovery. The [trial] court only prevented Husband from testifying about matters that were no longer at issue [i.e., grounds].

The trial court’s decision to impose sanctions was not an abuse of discretion. The [trial] court identified and applied the correct law. The evidence in the record supports the factual basis for its decision. And the [trial] court’s choice was within the range of acceptable dispositions.

The Court affirmed the trial court’s ruling.

Source: Mikhail v. Mikhail (Tennessee Court of Appeals, Middle Section, June 7, 2023).

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Discovery Sanctions Affirmed in Lebanon, Tennessee: Mikhail v. Mikhail was last modified: June 11th, 2023 by K.O. Herston

1 people reacted on this

  1. Whenever you see this type of case, it’s always a safe bet that there’s “a series of different attorneys” involved. That never bodes well for the litigating party who is “burning through” attorneys. While not stated, judges often seem to see that as a sign of misbehavior on the part of a litigant.

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