CIVIL PROCEDURE & DAMAGES aka FRATZKE – counsel waived strict CR 8.01(2) damages interrogatories by deposing on damages: James B. Tennill, Sr. v. Cyrus M. Talai (SC 2/19/2009)

James B. Tennill, Sr. v. Cyrus M. Talai
2007-SC-000046-DG 2/19/2009
2007-SC-000673-DG 2/19/2009
Opinion by Justice Schroder; all sitting.

Tennill received a default judgment against Talai for personal injuries suffered in a motor vehicle accident. Prior to a hearing on the issue of damages, Talai propounded written interrogatories to Tennill and took Tennill's deposition. The trial court took evidence on damages and awarded Tennill $45,076. The Court of Appeals reversed the damages award on the grounds that since Tennill did not respond or object to Talai's written interrogatories, he was in violation of CR 8.01(2). Following the rule in Fratzke, the Court of Appeals held that Tennill's failure to specify unliquidated damages in response to written interrogatories amounts to an effective answer that his claim for unliquidated damages was zero dollars. The Supreme Court reinstated the damages award, distinguishing the case from Fratzke. The Court noted that unlike Fratzke, Tennill's failure to respond to interrogatories was harmless since Tennill's counsel waived strict compliance with CR 8.01(2) when he deposed Tennill on the issue of damages but failed to ask about Tennill's unliquidated damages claim.