Gowin v. Hazen Memorial Hosp. Ass'n, 10563

• Citation: 349 N.W.2d 4
• Decision Date: 24 April 1984
• Docket Number: No. 10563,10563
• Parties: Verna GOWIN, Plaintiff and Appellant, v. HAZEN MEMORIAL HOSPITAL ASSOCIATION, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 4

349 N.W.2d 4

46 A.L.R.4th 391

Verna GOWIN, Plaintiff and Appellant, v. HAZEN MEMORIAL HOSPITAL ASSOCIATION, Defendant and Appellee.

Civ. No. 10563.

Supreme Court of North Dakota.

April 24, 1984.

Hagen, Quast & Alexander, Beulah, submitted brief, for plaintiff and appellant.

Richardson, Blaisdell, Isakson & Lange, Hazen, for defendant and appellee; argued by J.C. Blaisdell, Hazen.

SAND, Justice.

Verna Gowin appealed from a summary judgment dismissing her claims against the Hazen Memorial Hospital Association [Hospital] of wrongful demotion, slander, and breach of contract. We affirm.

On 6 May 1980, Gowin was relieved of her duties as head of the laboratory department at the Hospital. She remained as an employee in the laboratory but her salary was not reduced. Bonnie Johnson was appointed to replace Gowin as head of the laboratory. At the time of her demotion, Gowin was 37 years old and Johnson was 23 years old.

Gowin brought suit against the Hospital alleging that she was wrongfully demoted from her position as head of the laboratory and replaced by a younger person, and that her professional reputation was slandered by the wrongful demotion. The Hospital denied the allegations and moved for judgment on the pleadings pursuant to Rule 12(c), N.D.R.Civ.P. The Hospital's motion was granted and Gowin appealed. This Court, after concluding the complaint stated a cause of action, reversed and remanded for further proceedings. See Gowin v. Hazen Memorial Hospital Ass'n, 311 N.W.2d 554 (N.D.1981).

Discovery was thereafter conducted through the use of interrogatories and depositions. On 30 September 1982, the Hospital moved for summary judgment. In support of the motion, the Hospital offered affidavits of Johnson, counsel for the Hospital, and Clarence Lee, administrator of the Hospital. Johnson stated that she had nothing to do with Gowin's demotion and that she "at no time ... uttered 'to the public generally' anything with regard to the hospital lab or its personnel." Lee stated essentially that he removed Gowin as head of the laboratory because of "numerous problems and deficiencies" which occurred while the laboratory was under her supervision, and which continued despite his warnings. He further stated that he took no cognizance of the relative ages of Gowin or her replacement. Lee also stated that any conferences concerning Gowin's capabilities in the performance of her duties were conducted in private with Gowin on hospital premises, except on one occasion when Johnson, who was head of the laboratory at the time, was present.

Gowin responded to the motion with only a brief setting forth general rules of law and claiming "[d]emoting Verna and saying that she cannot perform the duties as head of the department" constituted slander as defined in Sec. 14-02-04(3), N.D.C.C.

The district court, in order to allow further time for discovery purposes, on 15 December 1982, denied the summary judgment motion.

On 17 April 1983, the Hospital renewed its motion for summary judgment on the wrongful demotion and slander counts. The Hospital supported its motion with the affidavits submitted with the prior motion. Gowin's return to the motion for summary judgment requested the district court to deny the motion "based upon the Brief which was presented to the Supreme Court, when the Motion was made for Judgment on the pleadings." We do not find in the record certified to this Court that a copy of that brief was provided to the district court. The return was also based on an affidavit of Gowin and "upon all of the pleading [sic ] and documents which are a part of this file." Gowin's affidavit stated:

"That when your affiant was demoted by the Administrator of the Hazen Memorial Hospital Association, she was given no reason whatever for the demotion, nor was your affiant informed in any manner that her work had not been acceptable up to that point, and your affiant believes that the only reason she was demoted was because she was older than Bonnie Johnson, the head of the department who replaced your affiant.

"That the qualifications of the said Bonnie Johnson are not as good as those of your affiant and that your affiant had a great deal more experience working in a laboratory and being an actual head of the laboratory than Bonnie Johnson did.

"That your affiant had a written contract with the Hazen Memorial Hospital Association wherein she was hired to be head of the laboratory department, and she was bound by the handbook of the Hazen Memorial Hospital Association, which required that if she were going to quit as head of the laboratory department, she would have to give four weeks' notice, but that when she was replaced as head of the laboratory by the administrator, she was given no prior notification, but was summarily and immediately replaced."

Gowin also made a motion to amend her complaint to allege breach of contract.

The district court granted the Hospital's motion for summary judgment dismissing the wrongful demotion and slander counts but granted Gowin's motion to amend her complaint. Gowin amended the complaint by alleging breach of contract.

The Hospital again moved for summary judgment on the breach of contract count on 13 June 1983. Gowin responded with a one-page document claiming that certain unspecified provisions in the Hospital's Employee Manual required the Hospital to give her a four-week notice prior to the demotion. The Hospital supported the motion with a brief and an affidavit of Lee claiming that nothing in the manual required any notification whatsoever in the event of a demotion.

The district court granted the Hospital's motion, and judgment dismissing all three counts of Gowin's complaint and amended complaint was entered on 8 September 1983. Gowin appealed from that judgment.

Before considering whether or not summary judgment was appropriate in this case, we first consider Gowin's contention that the district court erred in limiting the scope of discovery she was allowed to conduct involving the records of the Hospital.

Gowin issued a subpoena duces tecum to the Hospital administrator ordering him to produce all tax forms and information used to complete the forms for the years 1977 through 1981, records of all employees demoted or terminated since 1976, the written policies of demotion and termination the Hospital has used since 1976, all salary schedules since 1976, the written policy and job description and procedures for reviewing qualifications of department heads since 1976; records of all personnel working with or supervised by Gowin since 1976, tape recordings of any recorded conversations involving the Hospital and Gowin, all written documents concerning Gowin's demotion, and all of Johnson's records since she was hired by the Hospital.

The Hospital responded with a motion to quash or modify the subpoena duces tecum pursuant to Rule 45(b), N.D.R.Civ.P., and for a protective order pursuant to Rule 26(c), N.D.R.Civ.P. The record reveals that the district court did not rule on this motion until it issued its order denying the Hospital's first motion for summary judgment on 15 December 1982. In that order, the district court stated:

"The plaintiff will be given until Mar. 31, 1983, to engage in discovery regarding the issue of age. Discovery should be confined to this issue except as mutually agreed by the parties or as broadened by the court upon motion...."

Gowin thereafter requested the district court to reconsider its decision and expand the scope of discovery and allow her until the end of April 1983 to complete discovery. The motion to reconsider was denied on 28 January 1983.

Gowin on appeal argued in effect that the trial court erred in not allowing her discovery of the items listed in the subpoena duces tecum. However, the district court's order limiting discovery to the relatively broad "issue of age" did not per se deny Gowin the right to discover the items sought in her subpoena duces tecum. All of the items sought by Gowin, with the possible exception of the Hospital's tax records, touch at least peripherally on the issue of whether or not Gowin was wrongfully demoted because of her age.

Apparently, the Hospital did not comply with the subpoena duces tecum, at least not to the extent desired by Gowin. However, the record does not reflect that Gowin moved for an order compelling compliance pursuant to Rule 37, N.D.R.Civ.P., or for an order broadening the scope of discovery as provided by the district court's original order of 15 December 1982.

We now turn to the limitations on the subpoena duces tecum the only issues on which Gowin conceivably could complain. They are: the district court's apparent disallowance of discovery of the Hospital's financial records; and the district court's limitation of the time period in which Gowin could conduct discovery.

Initially we note that a trial court has broad discretion in regard to the scope of discovery. Gerhardt v. D.L.K., 327 N.W.2d 113, 114 (N.D.1982). Gowin argued that the tax records were necessary to show whether or not the Hospital was financially sound. Pretrial discovery of a defendant's financial condition is generally not available to a plaintiff who seeks to recover only compensatory damages, as opposed to exemplary or punitive damages. See Doak v. Superior Court For County of Los Angeles, 257 Cal.App.2d 825, 65 Cal.Rptr. 193 (1968); Annot., 27 A.L.R.3d 1375 (1969). We agree with this concept. In view of the fact that Gowin's complaint seeks only compensatory damages, and the fact that the date set by the trial court for completion of discovery was almost a year and a half after our Court reversed and remanded this case, we conclude that the trial court did not abuse its discretion.

We next determine whether or not summary judgment was properly granted on Gowin's claims of wrongful demotion, slander, and breach of contract.

The purpose of summary judgment is to promote the expeditious...