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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Wooten v. Hinton (03/06/2009) sp-6341
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| JASON WOOTEN, d/b/a | ) |
| GLYNWOOD APARTMENTS, | ) Supreme Court No. S-12883 |
| and DENNIS RAY SKAN, | ) |
| ) Superior Court No. 3AN-06-06649 CI | |
| Appellants, | ) |
| ) O P I N I O N | |
| v. | ) |
| ) No. 6341 March 6, 2009 | |
| JASON HINTON, LYDIA | ) |
| MARTINEZ, ROBERT BRANDON, | ) |
| and SAMANTHA MOFFET, | ) |
| ) | |
| Appellees. | ) |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Craig F. Stowers, Judge.
Appearances: Brett von Gemmingen, Law
Offices of Brett von Gemmingen, LLC,
Anchorage, for Appellants. James J. Davis,
Jr., Goriune Dudukgian, and Ryan Fortson,
Northern Justice Project, Anchorage, for
Appellees.
Before: Fabe, Chief Justice, Matthews,
Carpeneti, and Winfree, Justices. [Eastaugh,
Justice, not participating.]
FABE, Chief Justice.
I. INTRODUCTION
This appeal addresses the claim of the owner and the
senior apartment manager of the Glynwood Apartments (Glynwood)
that they were the prevailing parties, and thus entitled to
attorneys fees, in a lawsuit brought by four of their tenants.
Glynwood argues that because the tenants chose to dismiss their
case with prejudice after they reached a settlement with
Glynwoods insurance carrier, it is the prevailing party. Glynwood
also appeals the trial courts refusal to award discovery
sanctions against the tenants. Because the superior court acted
well within its discretion, because accepting Glynwoods arguments
would lead to a decision contrary to the policies in favor of
settlement agreements, and because the real dispute in this case
is between Glynwood and its insurance carrier, we affirm the
superior courts judgment in all respects.
II. FACTS AND PROCEEDINGS
On April 5, 2006, four tenants, Jason Hinton, Lydia
Martinez, Robert Brandon, and Samantha Moffet, filed a complaint
for declaratory and injunctive relief and damages against their
landlord, Jason Wooten, and senior apartment manager, Dennis Ray
Skan. The tenants sought to remedy the racist, illegal and
abusive policies they alleged Glynwood was applying to low-income
tenants who lived at Glynwood Apartments. The tenants claimed
that the Glynwood management team had created a culture of fear
and intimidation by verbally abusing them and threatening them
with baseless eviction actions as retaliation for routine
maintenance requests. The tenants also alleged that Skan used
racial epithets and that Glynwood evicted, intimidated, or
bullied other African-American tenants of the apartment complex.
All four tenants alleged violations of Alaskas Uniform
Residential Landlord Tenant Act,1 as well as claims of assault,
wrongful eviction, threats of eviction, and intentional and
negligent infliction of emotional distress. In addition,
plaintiff Hinton alleged slander and violation of the Alaska
Human Rights Act,2 and in an amended complaint, plaintiff
Martinez alleged malicious prosecution.
Glynwood was initially represented by Brett von
Gemmingen. Glynwoods insurance carrier then became involved in
the case under a reservation of rights and Donald Thomas filed an
entry of appearance as co-counsel. Thomas later stated that the
express reference to himself as co-counsel in his entry of
appearance was done in recognition that so long as the insurer
was defending under a reservation of rights, [Glynwood] had the
right under AS 21.89.100 to be represented and defended in the
lawsuit by their own independent counsel. Von Gemmingen then
withdrew from the case, and he stated in a letter to Thomas that
his services as independent counsel were no longer needed [s]ince
the insurer has elected to waive its coverage defenses by
defending with [Thomas as] counsel. Thomas filed a motion to
withdraw from the case, stating that a dispute [had] arisen as to
the legal effects of his appearance as co-counsel for Glynwood.
Glynwood then re-hired von Gemmingen as its attorney at [its] own
expense.
The following month, the tenants reached a settlement
with Glynwoods insurer, under which the tenants received $45,000
in exchange for the release of their claims against Glynwood.
The day the settlement was reached, Glynwood filed a motion to
consolidate this case with a different action regarding the
tenants security deposits. On January 17, 2007, the tenants
opposed the motion to consolidate and notified the court that
they had reached a global settlement and would be filing a
stipulated dismissal of this case with prejudice in accordance
with Civil Rule 41(a). The tenants also notified the court that
they had sent a copy of their opposition to the motion to
Glynwoods counsel on the same date. But an affidavit by von
Gemmingen dated January 24, 2007, maintained that he had not had
any settlement discussions with Plaintiffs or their attorneys and
that his clients had not agreed to any settlement of this case.
A week later Glynwood filed a motion to compel discovery and a
request for sanctions.
Thirteen days later, on February 13, 2007, the tenants
voluntarily moved to dismiss their case with prejudice under
Alaska Civil Rule 41(a)(2),3 stating that their motion was [i]n
exchange for a $45,000 settlement payment from Glynwoods insurer.
Glynwood opposed the motion for voluntary dismissal and filed a
cross-motion, seeking an entry of final judgment and designation
as the prevailing party. Glynwood also asked the court to
reserve the settlement funds in the court registry until the
costs and fees owed to Glynwood could be determined.
Superior Court Judge Craig F. Stowers heard oral
arguments on the cross-motions and granted the tenants motion to
dismiss their case with prejudice. The superior court concluded
that the tenants were prevailing parties because Glynwood,
through its insurer, had paid a substantial amount of money to
settle the case and that on those facts alone . . . the
plaintiffs would be the prevailing party here. The tenants did
not seek attorneys fees, nor were they granted any.
Glynwood filed a motion for reconsideration, arguing
that while the trial courts ruling was based upon the assumption
that Defendants insurer had reached some type of agreement with
Plaintiffs, any agreement between the tenants and the insurer was
not a part of the record in th[e] case. Glynwood also argued
that the courts decision was predicated upon the assumption that
the acts of Defendants insurer somehow bound Defendants, an
assertion it disputed. Glynwood maintained that its insurer had
no contractual rights because of its prior breach of the
insurance contract when it abandoned its defense of [Glynwood] in
the face of litigation. Glynwood requested limited discovery
regarding the facts that the court found to be relevant in
reaching its decision.
On May 30, 2007, the superior court denied the motion
for reconsideration, concluding that Glynwood had made no showing
that the court has overlooked or misconceived a material fact, a
material question, or a proposition of law. The superior courts
order also included a handwritten addendum reiterating that
Glynwood was not the prevailing party and not entitled to
attorneys fees:
Moreover, the courts decision was based
primarily on the fact that the plaintiffs,
having received [$45,000] in consideration
from defendants insurer to settle the case,
have moved to dismiss their case with
prejudice against the defendants. As long as
the dismissal is with prejudice, the court
does not think it can require plaintiffs to
continue litigating their claims. As
recipients of substantial consideration in
settlement, they are prevailing parties, or,
to put the issue in context, defendants are
not prevailing parties for purposes of
obtaining an award of attorneys fees against
plaintiffs. If defendants are concerned
about their insurers decision to settle the
case, they need to take this issue up with
their insurer in a different forum not this
case.
On September 6, 2007, the superior court entered its
final judgment dismissing the tenants claims with prejudice,
denying prevailing party status to Glynwood, and declining to
enter discovery sanctions against the tenants.
Glynwood appeals.
III. STANDARD OF REVIEW
We review a superior courts determination of prevailing
party status and attorneys fees for abuse of discretion.4 The
abuse of discretion standard also applies to review of the
superior courts rulings on discovery issues.5 We will find an
abuse of discretion only where the record as a whole leaves us
with a definite and firm conviction that a mistake has been made.6
IV. DISCUSSION
Glynwood presents two issues on appeal. First,
Glynwood argues that it is the prevailing party and should
therefore be awarded attorneys fees on remand. Second, Glynwood
argues that it was an abuse of discretion for the superior court
to deny sanctions for the tenants failure to respond to discovery
and for their failure to confer regarding their lack of discovery
responses. We address these challenges in turn.
A. The Superior Courts Entry of a Dismissal Without an
Award of Fees Was Proper.
1. The superior court did not abuse its discretion by
refusing to place conditions on the dismissal.
Alaska Civil Rule 82(a) provides that the prevailing
party in a civil case shall be awarded attorneys fees. Glynwood
argues that because the tenants chose to dismiss their case with
prejudice, Glynwood was the prevailing party and thus entitled to
attorneys fees. Glynwood relies on case law that recognizes a
dismissal with prejudice as an adjudication on the merits of a
lawsuit.7 Glynwood analogizes this case to our decision in Bovee
v. LaSage, where the defendant was found to be the prevailing
party and awarded attorneys fees after plaintiff Bovees suit was
dismissed with prejudice.8 But Glynwoods reliance on Bovee is
misplaced. In Bovee, we recognized that a plaintiffs dismissal
with prejudice makes a prevailing party determination possible.9
We have never held that a plaintiffs dismissal with prejudice
automatically makes the defendant a prevailing party. Instead,
as the tenants note, we have adopted a more common sense approach
to determine prevailing party status: the prevailing party is the
party who has successfully prosecuted or defended against the
action, the one who is successful on the main issue of the action
and in whose favor the decision or verdict is rendered and the
judgment entered.10 With few exceptions, the party who obtains an
affirmative recovery is considered prevailing.11 The tenants are
also correct in noting that in Bovee, the police officer was
declared to be the prevailing party not simply because Bovee had
dismissed his case with prejudice, but because as a result of the
dismissal the officer had prevailed on every claim in the
lawsuit. In this case, the tenants received $45,000 in exchange
for their dismissal and were therefore successful on the main
issue of the action.
Glynwood further argues that the settlement agreement
between its insurer and the tenants is collateral to the
prevailing party issue. Glynwood relies on Municipality of
Anchorage v. Baugh Construction & Engineering Co.12 as instructive
on the question whether payments by a collateral source influence
a prevailing party determination. In Baugh, the Municipality of
Anchorage contracted with Baugh to build a waste-shredding
facility.13 An explosion and fire severely damaged the facility,
and the Municipality sued Baugh, asserting a number of claims
including one for products liability.14 The Municipality reached
a settlement with the third-party defendant manufacturer of the
equipment and then dismissed with prejudice its products
liability claims against Baugh.15 Because the verdict was
unequivocally in Baughs favor, Baugh was declared the prevailing
party and awarded attorneys fees.16 Glynwood contends that it is
the prevailing party and entitled to attorneys fees because, as
in Baugh, the tenants dismissed their case against Glynwood with
prejudice after settlement with a third party. But as the
superior court correctly recognized, Baugh is distinguishable
because while in Baugh, the settlement was reached with a third-
party defendant, the settlement agreement in this case was
reached with Glynwoods own insurer.
We have never endorsed such an inflexible definition of
prevailing party as that advocated by Glynwood and instead have
held that the prevailing party is the one who succeeds on the
main issue of the case.17 In addition, a party need not prevail
on every issue to enjoy prevailing party status, nor need the
party obtain formal judicial relief.18
The tenants requested that the superior court dismiss
their case with prejudice under Civil Rule 41(a)(2). Civil Rule
41(a)(2) covers situations where dismissal is requested after the
answer has been filed and the defendant has not stipulated to
dismissal. In deciding a voluntary dismissal motion, Alaska
courts balance the interests of both the plaintiff and the
defendant in the dismissal in order to obtain a result which will
be fair and equitable under all the circumstances of the case.19
But as the tenants have noted, federal courts have held that a
plaintiffs motion for dismissal with prejudice must be granted.20
Voluntary dismissal with prejudice carries a heavy
price for a plaintiff: unless the court has made some other
provision, a dismissal with prejudice is subject to the rules of
res judicata,21 and one who acquiesces to a dismissal with
prejudice waives the right to an appeal.22 Legal commentators
Charles Wright and Arthur Miller state that [s]ince such a
dismissal is a complete adjudication of the claims and a bar to a
further action on them between the parties, it has been held that
the [federal] district court has no discretion to refuse such a
dismissal and cannot force an unwilling plaintiff to go to trial.23
Civil Rule 41(a)(2) also provides that an action shall
not be dismissed at the plaintiffs instance save upon order of
the court and upon such terms and conditions as the court deems
proper. In Dome Laboratories v. Farrell, we determined that this
rule provides an independent basis for an award of attorneys
fees.24 In this case, the tenants voluntarily moved to dismiss
their case with prejudice under Civil Rule 41(a)(2), stating that
their action was necessary because Glynwoods counsel had
refus[ed] to sign off on any stipulation for dismissal. The
superior court had the discretion to grant the dismissal on any
conditions it found to be just. Its choice to not impose
conditions in this case was reasonable given that a global
settlement had been reached in which Glynwoods own insurer paid
the tenants $45,000. As the superior court recognized, the real
issue in this case is between Glynwood and its insurance carrier.
2. The real dispute is between Glynwood and its
insurance carrier.
Glynwoods arguments for prevailing party status and
discovery sanctions are based on its refusal to acknowledge the
settlement agreement between its insurer and the tenants. The
real dispute in this case is between Glynwood and its insurer as
to the coverage guaranteed by its policy.
The record on appeal reveals that Glynwood knew or
should have known of the settlement between the tenants and its
insurer at least two weeks before it moved to compel discovery: a
filing by the tenants attorney on January 17, 2007, informed the
court that a global settlement had been negotiated with Glynwoods
insurer on December 26, 2006. Yet a filing by Glynwood dated
January 24, 2007, included an affidavit from Glynwoods counsel
stating: I have not had any settlement discussions with
Plaintiffs or their attorneys. My clients have not agreed to any
settlement of this case. A week later Glynwood filed its order
seeking a motion to compel discovery and sanctions.
When asked about the settlement at the May 16, 2007
hearing, Glynwoods attorney answered, I dont know that the
insurer has paid or agreed to pay anything other than what I see
in the pleadings. Glynwoods attorney also twice referred to a
secret agreement between its insurer and the tenants. The
tenants, in turn, claimed that Glynwoods attorney was made aware
of the settlement agreement, yet refused to agree to the
dismissal of the case even though it would have absolved his
clients from any liability. At the hearing, the tenants attorney
stated, as far as what weve heard from the insurance adjuster,
they were in constant communication with Glynwoods attorney
during the settlement process.
We have not been provided with a copy of the settlement
agreement. But the transcript of the hearing before the superior
court indicates the tenants attorney provided the court and
Glynwoods attorney with copies of the settlement checks made
payable to each of the tenants individually. It is thus puzzling
that Glynwood continues to refer to the tenants settlement as if
it did not actually occur.25
The real dispute in this case is between Glynwood and
its insurer. Under most liability insurance policies, the
insured relinquishes to the insurer its right to settle claims
and its right to control the litigation during the post-injury to
pre-judgment period.26 As the superior court remarked, usually an
insurance contract says that an insurance company retains the
right to control the litigation and the insureds have an
obligation to cooperate with the insurance company. There is no
copy of Glynwoods insurance contract in the trial record.
Glynwoods insurer has settled with the tenants and
fully indemnified Glynwood as to all the allegations in the
tenants complaint. Yet Glynwood maintains it has been abandoned
by its insurer and has been forced to bear the costs of
litigation. Glynwood put forth this argument at the May 16, 2007
hearing, arguing that this abandonment constitutes a breach of
the insurance contract and that, as a consequence, its insurer
has no right to settle on its behalf. But as the superior court
recognized, the questions whether the insurance contract gave the
insurance company the right to settle without the insureds
consent and whether Glynwood was abandoned by its insurer were
not capable of resolution within the context of the tenants
lawsuit: I hear the argument, but its not a fact that Im finding
or Im able to find today. As the trial court recognized, those
issues can be fully litigated in a separate case between Glynwood
and its insurer.
3. Awarding fees to Glynwood in this case would
undermine public policy.
In addition to having little plausible basis in law,
awarding attorneys fees against the tenants after they had
settled their case would undermine public policy. As noted by
the tenants, Glynwoods proposed rule, whereby an insured
defendant could be declared the prevailing party in a case where
the defendants insurer has agreed to a substantial settlement
with the plaintiffs, would chill future settlements in Alaska and
contravene well-settled public policy. We recently recognized:
[T]here is a strong public policy in favor of
the settlement of disputes. Settlements and
settlement hearings facilitate communication
and compromise; they encourage litigants to
voluntarily resolve their disputes; and they
simplify, shorten and settle litigation
without taking up valuable court resources.
Accordingly, private settlements and
stipulations are to be favored and should not
be lightly set aside.[27]
But if a defendant could be considered the prevailing party
simply by refusing to accept a settlement negotiated by its
insurer, this would force plaintiffs either to accept the
settlement and risk being liable for the defendants attorneys
fees or to continue litigating the case after an acceptable
resolution has already been reached.
We review a superior courts determination of prevailing
party status and attorneys fees for abuse of discretion.28 We
will find an abuse of discretion only if the record as a whole
leaves us with a definite and firm conviction that a mistake has
been made.29 Glynwood has not shown that the superior court
abused its discretion in denying Glynwood prevailing party
status. Furthermore, accepting Glynwoods arguments would lead to
a decision that is contrary to the public policy in favor of
settlement agreements. Accordingly, we affirm the judgment of
the superior court.
B. Glynwood Was Not Entitled to Discovery Sanctions.
Glynwood argues that it was an abuse of discretion for
the superior court to deny sanctions for the tenants failure to
respond to discovery and the tenants failure to confer regarding
their lack of discovery responses. Glynwood claims that by the
time it moved to compel the tenants discovery responses, the
responses were five months overdue and that the tenants also
ignored Glynwoods efforts to discuss the matter. We review a
superior courts rulings on discovery issues for abuse of
discretion.30 We will find an abuse of discretion only if the
record as a whole leaves us with a definite and firm conviction
that a mistake has been made.31
Under Civil Rule 37(a)(4)(A),32 sanctions are
appropriate in two situations: when the motion to compel is
granted or the requested discovery is provided after the motion
is filed. Neither situation took place here. Although it did
not provide the reasons for its denial, the superior court could
have found that the tenants alleged nondisclosure was
substantially justified because they had entered into a
settlement agreement with Glynwoods insurer and understood that
Glynwood was aware of the negotiations. Alternatively, the
superior court could have found that other circumstances, such as
the settlement of the case, made discovery unnecessary and an
award of discovery sanctions unjust.
Glynwood cites Civil Rule 37(a)(4)(A) and argues that
it is entitled to the $1,440 spent to prepare the motion to
compel, filed on January 30, 2007. But as the tenants correctly
note, Glynwoods motion to compel was moot because the settlement
agreement had already been reached between the tenants and
Glynwoods insurer. Glynwoods counsel conceded this point at oral
argument on October 7, 2008: Glynwoods counsel agreed that it
would not have been an abuse of discretion for the superior court
to deny the motion to compel and the motion for sanctions if
those motions were filed after the plaintiffs had notified the
court and Glynwood that a settlement had been reached and that
they would be dismissing their case with prejudice. This is, in
fact, exactly what happened. On January 17, 2007, the tenants
notified the court and Glynwoods counsel of the settlement with
Glynwoods insurer when they filed their opposition to Glynwoods
motion to consolidate. A week later Glynwood filed its motion to
compel discovery and for sanctions. Glynwood has thus failed to
show the superior court abused its discretion in denying
discovery sanctions.
V. CONCLUSION
Because the superior court acted well within its
discretion, because accepting Glynwoods arguments would lead to a
decision that is contrary to the policy in favor of settlement
agreements, and because the real dispute in this case is between
Glynwood and its insurance carrier, we AFFIRM the judgment of the
superior court.
_______________________________
1 AS 34.03.010 et seq.
2 AS 18.80.010.300.
3 Civil Rule 41 provides in pertinent part:
(a)(2) By Order of Court. Except as
provided in paragraph (1) of this subdivision
of this rule, an action shall not be
dismissed at the plaintiffs instance save
upon order of the court and upon such terms
and conditions as the court deems proper. . .
. Unless otherwise specified in the order, a
dismissal under this paragraph is without
prejudice.
4 Olivit v. City & Borough of Juneau, 171 P.3d 1137, 1142
(Alaska 2007).
5 Stone v. Intl Marine Carriers, Inc., 918 P.2d 551, 554
(Alaska 1996).
6 Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007).
7 (Alaska 1997) (internal quotation marks omitted). Id.
722 P.2d 919 (Alaska 1986).Id. at 921. Id. at 922.
Id. at 922 n.1.Id. at 929. Halloran v. State, Div. of Ele
ctions, 11
8 P.3d 547, 553 (Alaska 2005).Id.
9 Sherry v. Sherry, 622 P.2d 960, 964 (Alaska 1981) (inte
rnal quotation marks omitted).s. Thus, it is possible to make a
prevailing party determination for purposes of applying Civil
Rule 82 if a case is dismissed with prejudice pursuant to Alaska
R. Civ. P. 41(a)(2). (emphasis added) (citation omitted)).
10 Alaska Ctr. for the Envt v. State, 940 P.2d 916, 921
(Alaska 1997) (internal quotation marks omitted).
11 Id.
12 722 P.2d 919 (Alaska 1986).
13 Id. at 921.
14 Id. at 922.
15 Id. at 922 n.1.
16 Id. at 929.
17 Halloran v. State, Div. of Elections, 115 P.3d 547, 553
(Alaska 2005).
18 Id.
19 Sherry v. Sherry, 622 P.2d 960, 964 (Alaska 1981)
(internal quotation marks omitted).
20 9 Charles A. Wright & Arthur R. Miller, Federal
Practice and Procedure 2367 (3d ed. 2008) (If the plaintiff
moves for an order under Rule 41(a)(2) for voluntary dismissal,
specifically requesting that the dismissal be with prejudice, it
has been held that the district court must grant that request.);
see also Smoot v. Fox, 340 F.2d 301, 302 (6th Cir. 1964), cert
denied, 384 U.S. 909 (1966) (No case has been cited to us, nor
have we found any, where a plaintiff, upon his own motion, was
denied the right to dismiss his case with prejudice.); Shepard v.
Egan, 767 F. Supp. 1158, 1165 (D. Mass. 1990).
21 Wright & Miller, supra note 22, 2367.
22 See Singh v. State Farm Mut. Auto. Ins. Co., 860 P.2d
1193, 1197 (Alaska 1993).
23 Wright & Miller, supra note 22, 2364. Wright and
Miller note that other federal courts have disagreed with that
holding and have required court discretion in all cases. Id.
However, in the cases requiring court discretion, the court was
either concerned about prejudice to defendants because litigation
was in an advanced stage or concerned about possible effects on
third parties. Id.; see also Hudson Engg Co. v. Bingham Pump
Co., 298 F. Supp. 387, 389 (S.D.N.Y. 1969). In the current case
there are only two parties the tenants and Glynwood and despite
a flurry of filings, the litigation had not progressed past
discovery.
24 599 P.2d at 160.
25 The appellants brief refers to the settlement as
allegedly received monies and monies allegedly received by [the]
[t]enants from Mr. Wooten and Mrs. [sic] Skans insurer.
26 See Guin v. Ha, 591 P.2d 1281, 1290 (Alaska 1979); see
also CHI of Alaska, Inc. v. Employers Reinsurance Corp., 844 P.2d
1113, 1115-16 (Alaska 1993). In CHI, we recognized that an
insured is entitled to an independent attorney to control the
defense litigation after an irreconcilable conflict of interest
between the insured and the insurer has appeared. Id. at 1120.
Here, neither party explains why von Gemmingen was not retained
as CHI counsel.
27 Mullins v. Oates, 179 P.3d 930, 937 (Alaska 2008)
(internal quotation marks and citations omitted).
28 Olivit v. City & Borough of Juneau, 171 P.3d 1137, 1142
(Alaska 2007).
29 Hopper v. Hopper, 171 P.3d 124, 128 (Alaska 2007).
30 Coulson v. Marsh & McLennan, Inc., 973 P.2d 1142, 1146
(Alaska 1999).
31 Hopper, 171 P.3d at 128.
32 Civil Rule 37(a)(4)(A) provides:
If the motion is granted or if the disclosure
or requested discovery is provided after the
motion was filed, the court shall, after
affording an opportunity to be heard, require
the party or deponent whose conduct
necessitated the motion or the party or
attorney advising such conduct or both of
them to pay to the moving party the
reasonable expenses incurred in making the
motion, including attorneys fees, unless the
court finds that the motion was filed without
the movants first making a good faith effort
to obtain the disclosure or discovery without
court action, or that the opposing partys
nondisclosure, response or objection was
substantially justified, or that other
circumstances make an award of expenses
unjust.
(Emphasis added.)
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