Gulbrandsen v. Summit Acres, Inc.

• Decision Date: 31 March 2016
• Docket Number: 14CA27.,Nos. 14CA26,s. 14CA26
• Citation: 63 N.E.3d 566
• Parties: Eveline GULBRANDSEN, Plaintiff–Appellee, v. SUMMIT ACRES, INC., et al., Defendants–Appellants.
• Court: Ohio Court of Appeals

63 N.E.3d 566

Eveline GULBRANDSEN, Plaintiff–Appellee,

v.SUMMIT ACRES, INC., et al., Defendants–Appellants.

Nos. 14CA26

14CA27.

Court of Appeals of Ohio, Fourth District, Washington County.

March 31, 2016.

Bret C. Perry and Jason Paskan, Bonezzi Switzer Polito & Hupp Co. LPA, Cleveland, OH, for AppellantG. Brenda Coey.

Susan C. Rodgers, Akron, OH, for AppellantBuckingham, Doolittle & Burroughs, LLC.

Susan E. Petersen and Todd Petersen, Chardon, OH, for Appellees.

ABELE, J.

{¶ 1} This is an appeal from a Washington County Common Pleas Court judgment that (1) sanctioned Attorney G. Brenda Coey, appellant herein, (2) found Coey in direct contempt of court, and (3) awarded Susan E. Petersen and Todd Petersen, appellees¹ herein, $37,433.81 in attorney fees.The court further ordered Coey and her former law firm, Buckingham, Doolittle & Burroughs LLC (BDB), appellant herein, to be jointly and severally liable to the Petersens.

{¶ 2} In Case Number 14CA26, Coey assigns the following error for review:

“THE TRIAL COURT ABUSED ITS DISCRETION IN ORDERING SANCTIONS AGAINST G. BRENDA COEY, ESQ.DURING HER REPRESENTATION OF DEFENDANTSSUMMIT ACRES, INC., DBA SUMMIT ACRES SKILLED NURSING AND REHABILITATION IN THE ABOVE CAPTIONED MATTER.”

{¶ 3} In Case Number 14CA27, BDB assigns the following errors for review:

FIRST ASSIGNMENT OF ERROR:

“THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING THAT ATTORNEY G. BRENDA COEY COMMITTED AN ACT OF CONTEMPT WHICH RESULTED IN THE IMPOSITION OF SANCTIONS AGAINST APPELLANT BUCKINGHAM.”

SECOND ASSIGNMENT OF ERROR:

“THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLANT BUCKINGHAM JOINTLY AND SEVERALLY LIABLE FOR THE SANCTIONS ASSESSED FOR THE PURPORTED CONTEMPTUOUS ACT OF ATTORNEY COEY AS APPELLANT BUCKINGHAM WAS NOT PROVIDED NOTICE OF THE APRIL1, 2014 CONTEMPT HEARING NOR THE OPPORTUNITY TO APPEAR AND TO DEFEND ITSELF.”

THIRD ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN ITS IMPOSITION OF SANCTIONS AGAINST APPELLANT BUCKINGHAM PURSUANT TO OHIOCIV.R. 37 WHERE ATTORNEY BRENDA G. COEY COMMITTEDNO ACTS IN VIOLATION OF OHIOCIV.R 37.”

FOURTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED IN ITS IMPOSITION OF SANCTIONS AGAINST APPELLANT BUCKINGHAM AS A LAW FIRM IS NOT VICARIOUSLY LIABLE FOR AN ATTORNEY'S ACTS OF CONTEMPT.”

{¶ 4} The procedural history of the events that gave rise to the instant appeal is rather tortuous, but this appeal concerns an alleged lie that Coey (while employed at BDB) told opposing counsel, Ms. Petersen,² during the course of discovery in the underlying litigation between the parties.

The Petersens represent the plaintiffs.Coey represents the primary defendant, Summit Acres, Inc., dba Summit Acres Skilled Nursing and Rehabilitation (Summit Acres).

{¶ 5} In April 2013, the plaintiffs served subpoenas duces tecum upon Summit Acres' two retained experts: Dr. Keith Armitage and Dr. Kenneth Writesel.The plaintiffs requested the physicians to produce “[a]ll reports or summaries of opinions * * * in connection with a medical legal review for each of the years 2003 to date in 2013,”i.e., expert reports prepared for other litigation.Summit Acres subsequently filed a motion to modify the subpoenas duces tecum and requested, inter alia, that the court modify the request for expert reports or summaries that the physicians prepared for other cases.Summit Acres asserted that the disclosure of the expert reports prepared for other cases would violate uninterested, third parties' privacy rights and would require the disclosure of work product information and/or violate the attorney-client privilege of uninterested, third-parties.

{¶ 6} At an oral hearing, the trial court partially granted Summit Acres' motion.The court ordered the physicians to produce the expert reports, but further ordered that the reports be redacted to remove all personal identifiers.Coey indicated that she would discuss the matter with the physicians to “see how comfortable they are” with the modified terms of the subpoenas.

{¶ 7} Before Coey received a written copy of the trial court's order regarding Summit Acres' motion to modify, she gave the plaintiffs copies of the expert reports.Coey, however, redacted more information than what the trial court had ordered at the oral hearing.Instead of redacting only personal identifiers, she also redacted the name of the law firm for which the physicians prepared the report.Coey believed that this information was privileged.

{¶ 8} On May 6, 2013, the plaintiffs filed a motion that requested the trial court to order Drs. Writesel and Armitage to appear before the court and show cause why they refuse to abide by the court order regarding the subpoenaed documents.

{¶ 9} On May 7, 2013, the trial court filed its written decision regarding the motion to modify, which tracked its decision pronounced on the record at the oral hearing.The court stated: “Subject to stipulated protective order, Defendant's experts, Drs. Writesel and Armitage, are required to produce all expert reports prepared in the last two years from their review of medical-legal cases.All identifying information should be redacted from the reports.”

{¶ 10} On May 8, 2013, Petersen sent Coey an email regarding the expert reports.The email stated:

“I received a copy of the redacted expert reports in your correspondence dated May 6, 2013 as ordered to be turned over by the court.I see that you redacted not only the patient/personal identifiers but the addressee (attorney) to whom the report was directed.I just listened to the audio tape of the hearing.* * * Redaction of the hiring attorney's information was not part of the order.The concern you raised was disclosure of HIPAA protected patient identifiers.The identity of the attorney who hired these experts is not protected and was ordered to be produced.Please produce this information immediately as ordered by the court.I need Dr. Writesel's today.”

{¶ 11} Coey responded: “The information you received is that which the physicians are willing to supply under the present circumstances.”

{¶ 12} On May 20, 2013, the physicians (through independent counsel who was also an attorney at BDB) filed a joint motion to modify or quash the subpoenas combined with a memorandum opposing the plaintiffs' motion for sanctions.The physicians asserted that the expert reports contained private health information of non-parties to the case and thus were privileged.They further argued that they have not violated a written court order and thus, that the plaintiffs' motion for sanctions is meritless.

{¶ 13} On May 24, 2013, the plaintiffs filed a supplement to the motion to show cause and included a request for sanctions against BDB “for the professional misconduct displayed by its lawyer.”The plaintiffs alleged that Coey “has misled the court and counsel in this litigation and has lied to ‘win.’ ”The plaintiffs asserted that when their counsel deposed the two doctors, counsel learned that the doctors had submitted unredacted expert reports to Coey.The plaintiffs thus argued that Coey misled the court about the physicians' unwillingness to respond to the subpoenas, withheld the expert reports, redacted information beyond what the court ordered, and then lied and blamed the redaction on the experts.The plaintiffs requested the court(1) to find that BDB and Coey “violated the Rules of Professional Conduct,”(2) to enter a default judgment, (3) to award the plaintiffs“[c]osts, expert and attorney fees, and expenses associated with the pleadings relative to the subpoenas and the depositions of the witnesses,” and (4) to award any other relief.On May 30, 2013, the trial court held a hearing to consider several matters, including the plaintiffs' motion for sanctions against Coey and BDB.At this hearing, the plaintiffs claimed that Dr. Writesel's deposition shows that Coey lied when she advised Petersen in the May 8, 2013 email that the information Petersen received from the physicians was all that they were willing to supply.The plaintiffs quoted the following excerpt from Dr. Writesel's deposition as support for their assertion that Coey lied:

“[Peteresen]: Did you tell [Coey]—were you willing to supply me with unredacted reports?

[Dr. Writesel]: I gave them to Miss Coey.”

The plaintiffs asserted that Petersen then asked Dr. Writesel to explain why Coey sent Petersen an email indicating that the information Coey gave Petersen was “all you are willing to supply.”Dr. Writesel responded, “That's between you and Miss Coey.”The plaintiffs thus argued that Coey told “a bold faced lie” and indicated that the physicians “were unwilling to produce documents which we now know they were willing to produce.”

{¶ 14}The plaintiffs further alleged that Coey “led [the]Court to believe that she had been acting on [the physicians'] behalf, not on behalf of Summit Acres, but on behalf of the doctors in saying that they did not want to produce those reports.”The plaintiffs asserted that both doctors testified under oath that they were willing to produce the reports, that they provided the reports to Coey, and that the court modified the subpoena based upon Coey's representation that the doctors would not comply, “when the fact is, they would.”The plaintiffs additionally contended that Coey “filed a motion to modify, when she didn't have authority to represent [the doctors].She portrayed to the Court as if she did represent them, that they were unwilling to produce documents which we now know they were willing to produce and the Court modified * * * the subpoena, based upon [Coey's] representation.”The plaintiffs argued that their counsel was “put at a disadvantage by deposing these experts without this information that they were willing to supply.And she lied to us about the circumstances relating to that.”

{¶ 15} In response, Coey asserted that she filed the motion to modify on behalf of Summit Acres and never indicated that she represented the doctors.She stated: “In fact, during that hearing, the...