Hicks v. Cent. Okla. United Methodist Ret. Facility, Inc.

• Citation: 423 P.3d 684
• Decision Date: 21 September 2016
• Docket Number: Case Number: 113117,(Cons. w/ 113652)
• Parties: William HICKS, individually, and as Guardian ad Litem for Virginia Hicks, an incapacitated person, Plaintiff/Appellee, v. CENTRAL OKLAHOMA UNITED METHODIST RETIREMENT FACILITY, INC. d/b/a Epworth Villa Health Services, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

423 P.3d 684

William HICKS, individually, and as Guardian ad Litem for Virginia Hicks, an incapacitated person, Plaintiff/Appellee,

v.CENTRAL OKLAHOMA UNITED METHODIST RETIREMENT FACILITY, INC. d/b/a Epworth Villa Health Services, Defendant/Appellant.

Case Number: 113117

(Cons. w/ 113652)

Court of Civil Appeals of Oklahoma, Division No. 1.

Decided: September 21, 2016

Mandate Issued: May 11, 2017

Melissa S. Hedrick, Oklahoma City, Oklahoma, and Kirk Olson, Oklahoma City, Oklahoma, and Joe E. White, Jr., Charles C. Weddle, III, White & Weddle, P.C., Oklahoma City, Oklahoma, for Plaintiff/Appellee.

Charles D. Neal, Stacie L. Hixon, Clark W. Crapster, Gary C. Crapster, Steidley & Neal, P.L.L.C., Tulsa, Oklahoma, and Graydon Dean Luthey, Jr., Gable Gotwals, Tulsa, Oklahoma, for Defendant/Appellant.

Bay Mitchell, Judge:

¶ 1 Defendant/Appellant Central Oklahoma United Methodist Retirement Facility, Inc. d/b/a Epworth Villa Health Services ("Epworth Villa" or "Defendant") appeals several of the trial court's rulings in this personal injury suit brought by Plaintiff/Appellee William Hicks ("Mr. Hicks" or "Plaintiff") in his personal capacity and as guardian ad litem for his wife, Virginia Hicks ("Mrs. Hicks"). Mr. and Mrs. Hicks were residents at Epworth Villa's Oklahoma City facility when Mrs. Hicks suffered a broken wrist while under the care of Epworth Villa in its specialized, memory care unit. Mr. Hicks filed suit against Epworth Villa for breach of contract, negligence, and intentional infliction of emotional distress ("IIED") seeking both actual and punitive damages. On appeal Epworth Villa argues the trial court erred when it entered default judgment on Plaintiff's breach of contract and negligence claims as a sanction for failure to comply with discovery orders. Epworth Villa also argues the trial court erred by ordering additional sanctions in the form of default judgment on Plaintiff's claim for punitive damages and by eliminating Epworth Villa's right to jury trial on the IIED claim. Further, Epworth Villa asserts the trial court erred in allowing the IIED claim to be tried and that the actual and punitive damages awarded by the court were excessive and not supported by the evidence. Additionally, Epworth Villa objects to the trial court's award of attorney fees and costs to Mr. Hicks, which was appealed separately from the underlying judgment and consolidated with this appeal by order of the Supreme Court.

I. DISCOVERY SANCTIONS

A. Default Judgment on Breach of Contract and Negligence Claims

¶ 2 We first address the trial court's entry of default judgment on Plaintiff's negligence and breach of contract claims as a discovery sanction. Title 12 O.S. 3237 Failure to Make or Cooperate in Discovery—Sanctions, provides, in part:

B. FAILURE TO COMPLY WITH ORDER

2. SANCTION BY COURT IN WHICH ACTION IS PENDING. If a party or an officer, director or managing agent of a party or a person designated under paragraph 6 of subsection C of Section 3230 or subsection A of Section 3231 of this title to testify on behalf of a party fails to obey an order to provide or permit discovery, including an order made under subsection A of this section or Section 3235 of this title, or if a party fails to obey an order entered under subsection F of Section 3226 of this title, the court in which the action is pending may make such orders in regard to the failure as are just. Such orders may include the following:

c. An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceedings or any part thereof, or rendering a judgment by default against the disobedient party,....

¶ 3 When a trial court sanctions a party for disobeying discovery orders by default judgment, that sanction is reviewed by this court for an abuse of discretion. Payne v. Dewitt , 1999 OK 93, ¶ 9, 995 P.2d 1088. "To reverse for abuse of discretion, we must determine the trial court made a clearly erroneous conclusion and judgment, against reason and evidence. Although we examine and weigh any proof in the record, we abide the presumption that the lower court decision on the sanction question is legally correct and cannot be disturbed unless it is contrary to the weight of the evidence or to a governing principle of law." Garnett v. Government Employees Insurance Co., 2008 OK 43, ¶ 14, 186 P.3d 935 (examining sanctions imposed pursuant to 12 O.S. 2011) (footnotes omitted). See also Lee v. Max Intern., LLC , 638 F.3d 1318, 1320 (10th Cir. 2011).¹ When imposing the sanction of default judgment, the trial court should make a fact-specific inquiry considering the following factors: "(1) the quantum of prejudice noncompliance has caused the adversary (or moving) party, (2) the extent of interference with the judicial process, (3) culpability of the litigant, (4) whether the court warned the party in advance that noncompliance could lead to dismissal or default judgment, and (5) the efficacy of lesser sanctions."

Payne , 1999 OK 93, ¶ 8-9, 995 P.2d 1088. The penalty of default judgment "should be applied only when a party's failure to comply with a discovery order is occasioned by fault, willfulness, or bad faith." Id. at 9. "Where aggravating factors outweigh the court's strong predisposition to resolve cases on the merits, dismissal is an appropriate sanction." Agrawal v. Duke Energy Field Servs., LP , 2013 OK CIV APP 61, ¶ 31, 307 P.3d 371.

¶ 4 Mr. Hicks filed suit October 28, 2011. On April 13, 2012 Mr. Hicks served his first set of discovery requests on Epworth Villa, including interrogatories, requests for production of documents, and requests for admissions. Mr. Hicks filed a Motion to Compel June 19, 2013 requesting the trial court order Epworth Villa to produce documents requested pursuant to the Discovery Code, 12 O.S. 3224, et seq. In the Motion to Compel, Mr. Hicks represented to the trial court that, despite at least one formal discovery conference, several email and phone conversations between the parties, and the parties' agreement about what would be produced, Epworth Villa had not produced the requested documents. Epworth Villa denied that an agreement had been reached about what documents would be produced, but following a hearing held July 26, 2013, the trial court sustained Mr. Hicks' Motion to Compel, in part, ordering Epworth Villa to produce certain documents by August 30, 2013 and to provide a privilege log if necessary.² A written order memorializing the trial court's ruling was filed September 25, 2013. Although there was some disagreement between the parties about the scope of Mr. Hicks' requests and whether some of the documents actually existed, it was largely undisputed the documents requested by Mr. Hicks were discoverable.

¶ 5 On October 18, 2013, having not received any documents, Mr. Hicks filed a Motion to Enforce the trial court's order compelling discovery. The trial court then held five subsequent hearings on December 16, 2013; December 30, 2013; January 2, 2014; January 17, 2014; and January 30, 2014 regarding Epworth Villa's production of documents. At each of these hearings Epworth Villa denied that it had certain documents within its control or possession, represented to the trial court that it was unaware of the existence of additional responsive documents, and had produced all documents responsive to Mr. Hicks' requests. Despite these representations, Epworth Villa later produced additional responsive documents when faced with the imposition of sanctions or as a result of deposition testimony from its current and former employees revealing the existence of such documents. Mr. Hicks filed his Motion for Sanctions February 25, 2014 and requested that the trial court enter judgment as to liability on all of his claims (i.e. negligence, breach of contract, and IIED).³ Following the April 18, 2014 hearing, the trial court sanctioned Epworth Villa by entering default judgment on Mr. Hicks' negligence and breach of contract claims relying on 12 O.S. 3237, Payne v. Dewitt , 1999 OK 93, 995 P.2d 1088, and Hotels, Inc. v. Kampar Corp. , 1998 OK CIV APP 93, 964 P.2d 933.

¶ 6 As described by the trial court in its written order filed May 12, 2014 entering default judgment on the negligence and breach of contract claims and as confirmed by review of the appellate record, examples of the most egregious conduct include:⁴

Despite being requested in Mr. Hicks' first discovery requests, Epworth Villa failed to produce until January 3, 2014 additional complaints and investigations of physical abuse, emotional abuse, neglect, and/or bedsores

contained within two banker's boxes, consisting of thousands of pages of incident reports, which were tabbed, labeled, and separated within 3-ring binders or folders and categorized by incident year. This production occurred only after the trial court threatened the sanction of allowing certain reports into evidence at trial if the documents were not produced by 5:00 p.m. on January 3, 2014. The documents were originally requested in April 2012.

Epworth Villa failed to produce until January 8, 2014, a document referred to as the "Hicks Investigation File" maintained by Lois Baer, the Director of Nursing ("DON") at the time of Mrs. Hicks' injury on May 9, 2010. Production of the Hicks Investigation File revealed that Epworth Villa had the document within its possession and control since May 2010. The file was located in the same filing cabinet drawer where DON Baer had left it nearly 4 years earlier. Strikingly, each subsequent DON, including Epworth Villa's current DON, utilized the same office and filing cabinets where the file had been located for the previous 4 years. Epworth Villa's production of the file coincided with and was the result of DON Baer's anticipated deposition testimony on January 9, 2014 that said file existed and its location. Mr. Hicks requested the production of all investigation files in April 2012.

Epworth Villa failed...