Galloway v. County of Northampton

G
PRESENT: All the Justices

ROBERT E. GALLOWAY, ET AL.
                                                                        OPINION BY
v. Record No. 191387                                              JUSTICE WILLIAM C. MIMS
                                                                        APRIL 1, 2021
COUNTY OF NORTHAMPTON, ET AL.


               FROM THE CIRCUIT COURT OF NORTHAMPTON COUNTY
                            W. Revell Lewis, III, Judge

       In this case, the Court decides whether the Circuit Court of Northampton County abused

its discretion in granting the appellees’ motions to exclude the appellants’ expert witnesses and

subsequently dismissing the appellants’ complaints with prejudice.

               I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

       In December 2014, appellants (the “Taxpayers”) filed three separate complaints against

the County of Northampton (the “County”) and the Town of Cape Charles (the “Town”),

alleging that their real property had been overvalued in recent tax assessments. The complaints

were later consolidated into one case.

       In April 2015, the County issued an interrogatory that asked whether the Taxpayers

intended to call any expert witnesses. The Taxpayers’ responded with the following statement:

              Plaintiff will rely upon the testimony of each author of Exhibits
              “A”, “B”, and “C” to provide details, the substance of facts and
              their opinions as regarding the fair market values of the vacant and
              improved lots. Each identified author is found the (sic) respective
              exhibits “A”, “B”, and “C.”

Jason Restein was the author of one of the identified exhibits.

       The matter then remained on the circuit court’s docket for almost four years. In

September 2018, the court scheduled trial for April 16–17, 2019. The court directed that the

Uniform Pretrial Scheduling Order (“PTSO”) would dictate the discovery procedure. The PTSO
was circulated and signed by the parties but, for reasons not in the record, was not entered by the

court until January 16, 2019. It stated that “[i]f requested in discovery, plaintiffs’… experts shall

be identified on or before 90 days before trial” and that “[i]f requested, all information

discoverable under Rule 4:1(b)(4)(A)(i) of the Rules of the Supreme Court of Virginia shall be

provided or the expert will not ordinarily be permitted to express any non-disclosed opinions at

trial.”

          In December 2018, the County sent the Taxpayers a supplemental interrogatory to

determine whether their intended experts had changed since 2015. The Taxpayers responded on

January 8, 2019 by stating, “Plaintiffs identify as their expert witness L. Steven (Steve) Noble.”

They also indicated that they would elaborate on their response to the interrogatory by January

18, 2019, pursuant to an extension that the County had granted.

          The Taxpayers did not supplement their response until two months later, on March 8,

2019, when they filed a detailed report of the testimony they expected Noble to present at trial.

They also offered to make Noble available for deposition, but the defendants did not respond to

the offer.

          On March 14, 2019, the Taxpayers’ counsel realized, without prompting from opposing

counsel or the court, that he had failed to sign the signature blanks on the May 2015

interrogatory answers that identified Restein as an expert witness. He had, however, signed the

discovery responses once at the end of document and again after the certificate of service. 1 He

promptly signed the empty signature blanks and sent the corrected document to the court.



          1
          The discovery responses were entitled “Robert Galloway’s 1st Set of Responses to
Interrogatories & Document Production.” Counsel signed the document production response and
the certificate of service, but did not sign the interrogatory response. However, the plaintiff,
Robert Galloway, signed the interrogatory response, under oath, as being “true to the best of his
information and belief.” This signature was then notarized.


                                                  2
        On March 18, 2019, the County and the Town each filed a motion in limine and motion

to dismiss, arguing that the Taxpayers’ experts should be excluded because the Taxpayers had

not complied with the PTSO. 2 Under the terms of the PTSO, the Taxpayers were required to

identify their experts at least 90 days before trial. The defendants asserted that the identification

of Restein as the Taxpayers’ intended expert in their response to the 2015 interrogatory was

insufficient because the response was not adequately signed by an attorney before the deadline

set out in the PTSO. They contended that the interrogatory answer therefore did not become

effective until March 14, 2019, when signed by the Taxpayers’ counsel, just over one month

before trial.

        Likewise, the defendants argued that the Taxpayers failed to provide a timely detailed

report on the substance of Noble’s intended testimony in violation of Rule 4:1(b)(4)(A)(i), which

was incorporated into the PTSO. The Taxpayers were required to provide a description of

Noble’s testimony by January 18, 2019. The description was not tendered until March 8, 2019.

And, because plaintiffs must provide an expert opinion as to the fair market value of the property

to succeed on a claim for overvaluation of property for tax purposes under this Court’s decision

in Western Refining Yorktown v. County of York, 

292 Va. 804

, 818 (2016), they asserted that the

case should be dismissed.




        2
          The County inadvertently failed to attach exhibits to its initial motion in limine and
motion to dismiss. Without obtaining leave of court, it filed an amended motion with the
exhibits the following day. The Taxpayers argue that the trial court did not have jurisdiction to
grant a motion that was amended without leave of court under Rule 1:8 (“No amendments may
be made to any pleading after it is filed save by leave of the court.”). The County asserts that the
trial court ruled on the original motion because the exhibits in the amended motion were not
necessary to support the ruling of the trial court but were merely helpful. We find that the trial
court granted the original, unamended motion. This finding is supported by the fact that the trial
court simultaneously granted the Town’s motion, which adopted the County’s first motion but
not the amended motion.


                                                  3
       The circuit court granted the motion to exclude both Restein and Noble as experts and

dismissed the case with prejudice. The court based its decision to exclude Restein on the failure

of the Taxpayers’ counsel to sign the signature blank on the response to the 2015 interrogatories,

finding that the response did not become effective until it was signed. The court excluded Noble

because the Taxpayers neglected to supply the defendants with a timely explanation of the

substance of Noble’s findings. The action was dismissed with prejudice, as the Taxpayers

conceded that they could not move forward with the suit without expert witnesses to establish the

fair market values of their respective properties.

       We awarded the Taxpayers this appeal.

                                          II. ANALYSIS

       Pursuant to Rule 4:12(b)(2), a trial court may sanction a party that “fails to obey an order

to provide or permit discovery.” One sanction that is available to the court is to prohibit an

offending party “from introducing designated matters in evidence,” including by preventing the

party’s witness from testifying. Rule 4:12(b)(2)(B); Martin & Martin, Inc. v. Bradley Enters.,

256 Va. 288

, 292–93 (1998). Because the trial court “exercises broad discretion in determining

the appropriate sanction,” this Court reviews its decision for an abuse of discretion. Landrum v.

Chippenham & Johnston-Willis Hosps., Inc., 

282 Va. 346

, 352 (2011) (quoting Walsh v. Bennett,

260 Va. 171

, 175 (2000) (internal quotation marks omitted)).

       An abuse of discretion can occur in three principal ways: “when a relevant factor that

should have been given significant weight is not considered; when an irrelevant or improper

factor is considered and given significant weight; and when all proper factors, and no improper

ones, are considered, but the court, in weighing those factors, commits a clear error of

judgment.” 

Landrum, 282 Va. at 352

. A court also abuses its discretion when it “incorrectly




                                                     4
ascertains what the law requires.” Graves v. Shoemaker, 299 Va. ___ (2020) (citing Lawlor v.

Commonwealth, 

285 Va. 187

, 213 (2013)).

                              A. Exclusion of Steven Noble

        The PTSO entered by the trial court required a party, if requested by the opposing party,

to disclose the identities of any expert witnesses the party intended to call 90 days before the date

of trial. It also required the parties to disclose the substance of the facts and opinions to which

the expert was expected to testify, and a summary of the grounds for each opinion, as outlined in

Rule 4:1(b)(4)(A)(i). 3 The PSTO further provided that if a party failed to disclose an expert

opinion, that party “will not ordinarily be permitted” to utilize that opinion at trial.

        Noble was identified by the Taxpayers as one of their intended expert witnesses on

January 8, 2019, several days before the deadline. However, they failed to provide the

information required by Rule 4:1(b)(4)(A)(i), incorporated into the PTSO, until two months later,

on March 8, 2019. The PTSO specifically warned that if a party failed to comply with the

requirements of the PTSO, the party would “ordinarily not be permitted” to use the undisclosed

expert opinion at trial. “This warning reinforces the trial court's presumptive authority to

prohibit a party in material breach of an order regulating discovery from ‘introducing designated

matters in evidence.’” Mikhaylov v. Sales, 

291 Va. 349

, 358–59 (2016).

        The Taxpayers argue that they should not be held to the terms of the PTSO because it

was not entered by the court until January 16, 2019, the same day they were required to disclose

the identity of their experts and the substance of the experts’ facts and opinions. The record does



        3
          Rule 4:1(b)(4)(A)(i) provides that “[a] party may through interrogatories require any
other party to identify each person whom the party expects to call as an expert witness at trial, to
state the subject matter on which the expert is expected to testify, and to state the substance of
the facts and opinions to which the expert is expected to testify and a summary of the grounds for
each opinion.”


                                                   5
not reveal why there was a delay in entering the PTSO. Nevertheless, the Taxpayers’ counsel

had adequate notice of the deadlines required by the PTSO, as he signed it in December 2018.

Therefore, there was no “reasonable excuse” for failing to comply with the PTSO.

Id. at 360.

       Finally, the Taxpayers reason that, because they offered the defendants the opportunity to

depose Noble, they should not be penalized for neglecting to provide the details required by Rule

4:1(b)(4)(A)(i). This Court has held, however, that "a party is not relieved from its disclosure

obligation under [Rule 4:1(b)(4)(A)(i)] simply because the other party has some familiarity with

the expert witness or the opportunity to depose the expert." John Crane, Inc. v. Jones, 

274 Va.

581

, 592 (2007).

       Accordingly, the trial court did not abuse its discretion by excluding Noble from

testifying at trial. “To hold otherwise would reduce the expert disclosure obligation to the status

of a mere recommendation or, worse, a juristic bluff — obeyed faithfully by conscientious

litigants but ignored at will by those willing to run the risk of unpredictable enforcement.”

Mikhaylov, 291 Va. at 360

.

                                B. Exclusion of Jason Restein

       The Taxpayers identified Restein as one of their intended expert witnesses on May 28,

2015, nearly four years before the deadline set by the PTSO, in response to the defendants’

interrogatory. At that time, they also provided to defendants a report describing the substantive

facts and opinions to which Restein would testify. The parties do not dispute that the report

satisfies the requirements of Rule 4:1(b)(4)(A)(i) if tendered in a timely manner.

       The defendants, nonetheless, contend that the Taxpayers’ identification of Restein as an

expert witness was invalid because the Taxpayers’ counsel failed to sign the signature blank on




                                                 6
the response to the interrogatories in violation of Rule 4:1(g). 4 We disagree. The Taxpayers’

counsel’s signatures at the end of the discovery responses, together with the plaintiff’s notarized

and sworn signature, were sufficient to satisfy the requirements of Rule 4:1(g).

         Even if the signatures had been insufficient, the remedy provided in Rule 4:1(g) is for an

unsigned interrogatory response to “be stricken unless it is signed promptly after the omission is

called to the attention of the party making the request, response, or objection.” In this instance,

neither the County nor the Town called this inadvertent omission to the attention of the

Taxpayers. The Taxpayers’ counsel promptly signed the interrogatory response after he realized,

without being alerted by opposing counsel or the court, that he had failed to sign a signature

blank.

         The defendants also argue that the Taxpayers waived their right to have Restein testify as

an expert in their response to the second interrogatory. The response said, “Plaintiffs identify as

their expert witness L. Steven (Steve) Noble.” It did not list Restein as an expert witness. The

Taxpayers did not abandon the right to call to Restein since they had already informed the

defendants that they intended to call him in their response to the 2015 interrogatory. If the

defendants had conferred with the Taxpayers about this issue, as our discovery rules direct

litigants to do, they would have known that the Taxpayers intended to supplement, rather than

supplant, the identification of experts. See, e.g., Rule 4:1(b)(4)(8).

         Because Restein was identified in the Taxpayers’ response to the defendants’ first

interrogatory in May 2015 and his opinions were sufficiently described therein, we find that the

trial court abused its discretion in excluding him as an expert witness.



         4
          Rule 4:1(g) provides that “[e]very request for discovery or response or objection thereto
made by a party represented by an attorney must be signed by at least one attorney of record in
the attorney's individual name, whose address must be stated.”


                                                  7
                                    C. Dismissal of the Case

       The circuit court dismissed the Taxpayers’ case because they conceded that they would

not be able to proceed without expert testimony regarding the fair market value of their

respective properties. The Taxpayers maintain that they could support their case with the

testimony of either Restein or Noble. The court abused its discretion in excluding Restein as an

expert. Consequently, the court also abused its discretion by dismissing the case with prejudice.

                                       III. CONCLUSION

       While the Circuit Court of Northampton County did not abuse its discretion in excluding

Noble as an expert witness, it abused its discretion in the exclusion of Restein and the

consequent dismissal of the case. The judgment is therefore reversed, and this case is remanded

for further proceedings in accordance with this opinion.

                                                                          Reversed and remanded.




                                                 8

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