FSM SUPREME COURT TRIAL DIVISION
Cite Adams v. Island Homes Constr., Inc.
10 FSM Intrm. 510 ( Pon. 2002)
 
[10 FSM Intrm. 510]
 
YVETTE ETSCHEIT ADAMS, d/b/a POHNPEI
ACE HARDWARE, and ADAMS BROTHERS
CONSTRUCTION, INC.,
Plaintiffs,
 
vs.
 
ISLAND HOMES CONSTRUCTION, INC., FSM
DEVELOPMENT BANK and PAULUS PERMAN,
Defendants.
 
CIVIL ACTION NO. 2000-012
 
ORDER AND MEMORANDUM
 
Martin Yinug
Associate Justice
 
Decided: February 21, 2002
 
APPEARANCES:
 
For the Plaintiffs:                               Craig D. Reffner, Esq.
                                                            Law Office of Fredrick L. Ramp
                                                            P.O. Box 1480
                                                            Kolonia, Pohnpei FM 96941
 
[10 FSM Intrm. 511]
 
For the Defendant:                            James P. Woodruff, Esq.
(FSM Dev. Bank)                              P.O. Box M
                                                            Kolonia, Pohnpei FM 96941
* * * *
 
HEADNOTES
 
Civil Procedure ) Depositions
     Generally, the designated representative of a party who is not a natural person, and parties who are natural persons, may attend depositions. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 512 (Pon. 2002).
 
Civil Procedure ) Depositions
     In the case of corporations, partnerships, associations, or governmental agencies, the organization so named must designate one or more officers, directors, or managing agents, or other persons who consent to testify at depositions on its behalf. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 512-13 (Pon. 2002).
 
Equity ) Estoppel and Waiver
     Waiver is the relinquishment of a known right, either by action or words, which rests upon the equitable principle that one will not be permitted to act contrary to his former position when to do so results in detriment to another. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 513 (Pon. 2002).
 
Equity
     Rescission is equitable in nature, just as waiver is. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 513 (Pon. 2002).
 
Equity
     One who would seek the benefit of equitable relief must himself demonstrate that he has done equity, or that he has clean hands. Obversely stated, he who has done inequity shall not have equity. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 513 (Pon. 2002).
 
Civil Procedure ) Discovery; Equity
     When a defendant has unprofessionally refused to comply with the plaintiffs' discovery requests without any justification for doing so, in the limited context of discovery proceedings, its hands are unclean and it is in no position to make a case under rescission or other equitable principle. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 513 (Pon. 2002).
 
Civil Procedure ) Depositions
     When one party has agreed to accept a personal representative for the larger question of deposing a sole proprietor party, it has also accepted him for the secondary purpose of attending other depositions as a representative where the sole proprietor would otherwise be entitled to be present. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 514 (Pon. 2002).
 
Civil Procedure ) Depositions
     Depositions upon written questions under Rule 31 are an alternative to oral depositions. The Civil Procedure Rules contemplate that either an oral or written deposition will be taken, and not both. A party therefore waived its right to propound written deposition questions to another party at the same time it waived its right to take her oral deposition, but if information is sought, other discovery methods
 
[10 FSM Intrm. 512]
 
are available under the Rules. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 514 n.3 (Pon. 2002).
 
Civil Procedure ) Depositions
     If parties intend to continue a deposition at a later time, the deposition transcript itself will so indicate. In the absence of such clear direction, the deposition is complete at its conclusion. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 510, 514 (Pon. 2002).

* * * *

COURT'S OPINION

MARTIN G. YINUG, Associate Justice:

     The following motions are disposed of as indicated.

     1. The motion for exclusion of witnesses filed by the defendant FSM Development Bank ("the Bank") on January 9, 2001. That portion of the motion which seeks to preclude Ritchie Adams and Larry Adams from attending depositions is denied. Ritchie Adams may attend any depositions as the designee of plaintiff Yvette Etscheit Adams ("Mrs. Adams") where Mrs. Adams herself would be entitled to attend under Rule 615(1) of the FSM Rules of Evidence. Larry Adams may attend any depositions on behalf of Adams Brothers Construction, Inc., as contemplated by Rule 615(2) of the FSM Rules of Evidence.

     Because there is no indication that any individuals other than Ritchie Adams and Larry Adams seek to attend the depositions of other witnesses, the remainder of the motion is denied as moot. Generally, however, the designated representative of a party who is not a natural person, and parties who are natural persons, may attend depositions. FSM Evid. R. 615.

     2. Plaintiffs' motion for a protective order filed on January 21, 2002. The motion is granted. The deposition notice directed to Mrs. Adams filed on January 8, 2002, is quashed.

Discussion

     On July 6, 2000, the Bank, by its former counsel, noticed the deposition of, and requested documents from, the plaintiff Pohnpei Ace Hardware, which is a sole proprietorship1 owned by Mrs. Adams. The deposition notice and its corresponding document production request were renoticed in the same form twice. The deposition took place on July 25, 2000, pursuant to the second renotice, which was filed on July 18, 2000. That notice, like the prior two, specifies the deponent as "Pohnpei Ace Hardware," without any reference to Mrs. Adams. The caption of the complaint, as well as all captioned filings in the court file, make it plainly apparent that Pohnpei Ace Hardware is Mrs. Adam's d/b/a. At the time set for the deposition, Ritchie Adams appeared and was deposed as the representative of Pohnpei Ace Hardware without any objection from the Bank.

     The Bank, which is represented by different counsel, now seeks to depose Mrs. Adams. The Bank cites to FSM Rule of Civil Procedure 30(b)(6), which provides that in the case of corporations, partnerships, associations, or governmental agencies, "the organization so named shall designate one

[10 FSM Intrm. 513]

or more officers, directors, or managing agents, or other persons who consent to testify on its behalf." Because Rule 30(b)(6) does not apply to sole proprietorships, the Bank contends that Mrs. Adams' voice is the only one that may be heard to speak on behalf of Pohnpei Ace Hardware.

      Waiver is the relinquishment of a known right, either by action or words, which rests upon the equitable principle that one will not be permitted to act contrary to his former position where to do so results in detriment to another. Atlas Life Ins. Co. v. Schrimsher, 66 P.2d 944, 948 (Okla. 1937). More than a year and half ago, the Bank, by its actions in accepting Ritchie Adams as the deponent in response to a deposition notice that specified "Pohnpei Ace Hardware," waived any objection to Mrs. Adam's son as the representative of her d/b/a. While the Bank may be correct when it asserts that "it is a rare event when a party [in the sense of a natural person] is exempted from her own deposition," Answer [] and Reply [] at 3 (unnumbered) (Jan. 28, 2002), that general principle does not control here where the Bank accepted Ritchie Adams without objection as the deponent in lieu of Mrs. Adams. Further, it did so over a year and a half ago. According to plaintiffs' counsel, Mrs. Adams, who will be 73 in April of this year, suffered from serious strokes in December of 1998 and October of 1999; has been hospitalized at least four separate times in the last year; and has gone to Hawaii for treatment twice in that period. Thus, to the extent that her health has declined over the last year, the Bank's delay in seeking to depose her has worked to her detriment. That said, the court will consider if there is a basis on which to rescind the Bank's agreement, by waiver of objection, to accept Ritchie Adams as the deponent.2

      Rescission is equitable in nature, Black's Law Dictionary 1307 (6th ed. 1990), just as waiver is. It is hornbook law that one who would seek the benefit of equitable relief must himself demonstrate that he has done equity, or that he has clean hands. Obversely stated, "he who has done inequity shall not have equity." Senda v. Semes, 8 FSM Intrm. 484, 500 (Pon. 1998). As the court has previously noted, the Bank refused to comply with the plaintiffs' discovery requests without any justification for doing so. Adams v. Island Homes Constr., Inc., 10 FSM Intrm. 466, 470-73 (Pon. 2001). Further, the Bank's manner of resistance was splenetic and unprofessional. Id. at 473-74 (discussing the Bank's use of the phrase "endless stream of discovery drivel emanating from plaintiffs' quarter" in reference to plaintiffs' self-evidently relevant discovery requests). Thus, in the limited context of this case's discovery proceedings, the Bank's hands are unclean. It is in no position to make a case under rescission, or other equitable principle, that its acceptance of Ritchie Adams as the deponent in the place of Mrs. Adams more than a year and a half ago should be rescinded, where the deposition notice plainly listed the deponent as "Pohnpei Ace Hardware," and where all parties were on notice from the inception of this litigation that Pohnpei Ace Hardware is Mrs. Adams's d/b/a.

     Accordingly, the deposition notice of Mrs. Adams is quashed.

     The next question is whether Ritchie Adams may represent Mrs. Adams at other depositions in this case under Rule 615 of the FSM Rules of Evidence. As between the two questions ) whether Ritchie Adams could testify as the representative of Mrs. Adam's d/b/a, and whether Ritchie Adams thereafter can represent Mrs. Adams at other depositions ) the former presents a larger concern than

[10 FSM Intrm. 514]

the latter. Since the Bank has agreed to accept Ritchie Adams for the larger question, it stands to reason that it also accepted him for the secondary purpose of attending other depositions in this case as Pohnpei Ace Hardware's representative. In other words, since Ritchie Adams has spoken on Pohnpei Ace Hardware's behalf with the Bank's consent, he may now also listen on its behalf at other depositions where Mrs. Adams would otherwise be entitled to be present.3

     The Bank also contends, by its new counsel, that the documents produced in response to the first document production request were incomplete. Though the Bank does not request additional documents by court order under the July 18, 2000, discovery request, it apparently has requested it from the plaintiffs, since it references its attempt to seek "proper document production from them [i.e., the plaintiffs]." Answer [] and Reply [] at n.2 (Jan. 28, 2002). The record discloses no contemporaneous objection by the Bank to the document production at or near the time the documents were tendered at the deposition on July 26, 2000, over a year and a half before the objection was stated. The Bank has thus waived any objection to the document production in July of 2000.

     The Bank also states "[i]t seems implicit from a review of [the deposition of Ritchie Adams] . . . that the deposition was not complete." If parties intend to continue a deposition at a later time, the deposition transcript itself will so indicate. In the absence of such clear direction, the deposition is complete at its conclusion. No point is served by leaving to conjecture whether a deposition, as the Bank asserts, is "implicit[ly]" complete or not. However, the plaintiffs have indicated their willingness to submit Ritchie Adams for a second deposition on the condition that the Bank withdraw Mrs. Adams' deposition notice. While the Bank can no longer unilaterally meet this condition ) this order quashes the notice ) the parties are certainly free to come to terms regarding a second deposition of Ritchie Adams.

      Counsel of record, the deponent, parties or their designated representatives, and the person charged with administering the oath and recording will attend depositions. No paralegals or other office staff will attend.

      Pursuant to Rule 37(a)(4) of the FSM Rules of Civil Procedure, attorney's fees associated with these motions will be considered at trial.

      Finally, it appears that the full name of the plaintiff Adams Brothers Corporation is Adams Brothers Construction, Inc. The caption is amended accordingly.

__________________________________________

Footnotes:

1. Pohnpei Ace Hardware is referred to variously throughout as "Mrs. Adams's d/b/a," or "her d/b/a," since she does business as that entity.

2. Based on the representations of plaintiffs' counsel, the decision to accept Ritchie Adams as the deponent appears to have been reasonable. Those representations are as follows. Mrs. Adams relinquished day-to-day control of Pohnpei Ace Hardware to her children in 1990, or seven years before the alleged agreement that gave rise to this lawsuit. Since 1995, Ritchie Adams has been exclusively responsible for managing Ace Hardware on behalf of Mrs. Adams. Mrs. Adams was not present at the meeting in September of 1997 when the alleged agreement was reached that the Bank would pay construction loan proceeds directly to plaintiffs for the materials purchased by the defendants.

3. By accepting Ritchie Adams for deposition purposes) as deponent under the Pohnpei Ace Hardware deposition notice, and Mrs. Adam's representative at other depositions ) the Bank did not accept Ritchie Adams as Mrs. Adams' representative for all aspects of this litigation. Mrs. Adams in her individual capacity remains a party to this case.

The plaintiffs have alleged that the Bank seeks to take the deposition of Mrs. Adams, who is elderly and evidently ill, for the purposes of harassment. The court makes no finding on this point, although in all candor such a motive could be viewed as consistent with the fashion in which the Bank has resisted discovery in this case. But if information is what the Bank seeks from Mrs. Adams, it has the other discovery methods under the FSM Rules of Civil Procedure available to it, with the exception of a deposition upon written questions under Rule 31. "Depositions upon written questions [under Rule 31] are an alternative to oral depositions." 8 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure 2131 (1970). Since the Rules of Civil Procedure contemplate that either an oral or written deposition will be taken, and not both, the Bank waived its right to propound written deposition questions to Mrs. Adams at the same time it waived its right to take Mrs. Adams' oral deposition.

 
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