Lancaster v. Red Robin Int'l, Inc.

• Court: Arkansas Court of Appeals
• Writing for the Court: DAVID M. GLOVER
• Citation: Lancaster v. Red Robin Int'l, Inc., 2011 Ark. App. 706, 386 S.W.3d 662 (Ark. App. 2011)
• Decision Date: 16 November 2011
• Docket Number: No. CA 11–543.,CA 11–543.
• Parties: Diana LANCASTER, Appellant v. RED ROBIN INTERNATIONAL, INC., Steve Reiger, Jason Riddle, Matthew Natividad, and Kayla Neitzel, Appellees.

2011 Ark. App. 706

386 S.W.3d 662

Diana LANCASTER, Appellant

v.RED ROBIN INTERNATIONAL, INC., Steve Reiger, Jason Riddle, Matthew Natividad, and Kayla Neitzel, Appellees.

No. CA 11–543.

Court of Appeals of Arkansas.

Nov. 16, 2011.

Harry E. McDermott, III, Fayetteville, for appellant.

Peter G. Kumpe, Bonnie Joan Johnson and Jess Askew, III, Little Rock, for appellee.

DAVID M. GLOVER, Judge.

[Ark. App. 1]Appellant Diana Lancaster worked as a bartender on an at-will basis for appellee Red Robin International, Inc. (a restaurant). After Red Robin transferred her from the position of bartender to server, she sued her employer, appellee Steve Reiger (Red Robin's general manager), appellee Jason Riddle (Red Robin's service manager), appellee Matthew Natividad (a co-worker), and appellee Kayla Neitzel (a co-worker) for slander in the Benton County Circuit Court. The trial court granted summary judgment to all appellees. It also struck two of appellant's pleadings and imposed sanctions under Arkansas Rule of Civil Procedure 11 against appellant and her attorney, Harry McDermott, in favor of Natividad and Neitzel, and ordered McDermott to pay appellees $1000 in attorney's fees because of the way he handled a discovery dispute. Appellant argues that the trial court erred in granting summary judgment to all appellees. She also alleges that it abused its discretion in striking her amended complaint and second amended complaint; in awarding attorney's fees to Natividad and Neitzel; and in [Ark. App. 2]ordering her attorney to pay appellees $1000 in attorney's fees. We cannot address the propriety of the circuit court's sanctions against McDermott because appellant's notice of appeal did not indicate that McDermott was also taking an appeal from the orders sanctioning him, and he did not file a notice of appeal in his own right. See Arkansas Dep't of Human Servs. v. Shipman, 25 Ark.App. 247, 756 S.W.2d 930 (1988); Ark. R.App. P.-Civ. 3(e) (2011). Otherwise, we affirm on all issues.

Appellant sued Red Robin, Reiger, and Riddle for slander in January 2008. She alleged that Reiger told Riddle that appellant was “slipping beers to customers” while working as a bartender; that a few days later, Reiger informed her that she would work as a server while he investigated the matter; and that another employee told her that Reiger and Riddle were telling Red Robin's staff that she was selling drugs at the restaurant, so that a good friend of theirs could be hired as bartender in her place. She denied slipping beers or selling drugs and alleged that as a result of their slander, her hours had been reduced, causing her to lose wages, insurance, and vacation pay, and that she was unable to obtain employment as a bartender elsewhere.

The discovery disputes began in April 2008, when appellant filed a motion to compel, arguing that appellees' answers to her interrogatories and requests for production of documents were inadequate. Discovery did not proceed smoothly, and the record is replete with examples of the discord between McDermott and appellees' attorneys. The court held a number of discovery hearings. On June 16, 2008, the court entered an order denying appellant's motions to compel and awarding $1000 to appellees from McDermott because [Ark. App. 3]he did not confer in writing with appellees' attorneys before filing the motions. It noted that Red Robin had filed supplemental responses to the discovery requests that were the subject of the motions to compel and found those responses to be appropriate, but directed Red Robin to provide an unqualified verification of all discovery responses previously submitted. The next day, appellant filed an amended request for entry upon the premises to inspect and copy records and to film inside the restaurant. Red Robin objected.

In her deposition taken in May 2008, appellant acknowledged that Reiger had moved her from bartender to server because of the beer incident, not the drug allegations. She stated that she had incurred damages in lost wages, vacation time, and insurance eligibility because of her transfer to server, but admitted that she did not actually know the difference between what she had earned in those positions. Appellant took Kayla Neitzel's deposition in June 2008. Neitzel testified that she had told Reiger that she had heard multiple employees talk about purchasing drugs from appellant. Appellant deposed Nick Pitzel, an employee of Red Robin, who testified that, upon questioning by Reiger, he had stated that he had heard from Natividad that appellant sold drugs. Appellant took the deposition of Natividad on June 3, 2008. Natividad testified that appellant had sold Xanax and hydrocodone to a certain employee on numerous occasions between October 2007 and January 2008. Soon after this deposition, Red Robin terminated appellant. On June 4, 2008, appellant filed an amended complaint naming Natividad as a defendant.

Red Robin moved to strike portions of appellant's amended complaint, stating that appellant had deposed Natividad the day before she added him as a defendant; that his [Ark. App. 4]testimony was damaging to appellant's case; and that paragraphs 11 through 15 contained redundant, immaterial, impertinent, or scandalous matters. Natividad also moved to dismiss; in the alternative, he asked the court to strike appellant's amended complaint for failure to state a claim. He further argued that any statements that he had made to his employer during the course of their investigation were privileged.

Appellant filed a second amended complaint against Red Robin, Reiger, Riddle, and Natividad in July 2008. Natividad moved to dismiss or, in the alternative, strike that complaint. In response, appellant made extremely derogatory accusations against Natividad. Appellant filed another motion to compel because Red Robin had refused to allow her to film the inside of the restaurant. Red Robin argued that it had produced or made available for inspection all documents responsive to appellant's discovery requests; although six to seven boxes of documents had been available for weeks for appellant to inspect, she had not done so. It also stated that McDermott had entered the restaurant on one occasion without notice and had asked nonmanagement employees to allow him to inspect its employee work logs.

Red Robin moved for sanctions under Arkansas Rule of Civil Procedure 11, alleging that, on the day after appellant deposed Natividad, she amended her pleadings to add him as a named defendant, and that the allegations contained within several paragraphs of appellant's amended complaint and her second amended complaint were included to harass the parties, intimidate prospective witnesses, or retaliate against a witness who had testified adversely to appellant's interest.

[Ark. App. 5]In her second deposition (taken in August 2008), appellant admitted that she had sued Natividad because of his statements about her in his deposition and blamed her termination on the statements. She said that she had a hard time finding another job but admitted that she was hired by Mimi's Café three days later; that no one outside of Red Robin believed that she would sell drugs; and that she did not know whether any business, other than Red Robin, knew of any statement by Natividad about her and drug sales.

The circuit court entered an order striking appellant's amended complaint and second amended complaint on August 18, 2008, and gave her ten days within which to replead. Neitzel moved to dismiss the third amended complaint, which had added her as a defendant, because appellant's only claim against her was based on the written statement, which was privileged, that she had provided to Red Robin during the investigation.

Appellant filed her fourth amended complaint against Reiger, Riddle, Red Robin, Natividad, and Neitzel. Natividad and Neitzel moved to dismiss. Red Robin, Reiger, and Riddle moved for summary judgment. Red Robin argued that appellant had produced no evidence that any allegedly defamatory statements had proximately caused her any damages and that any such statements were subject to a qualified privilege. In response, appellant filed another affidavit in which she was more specific about lost wages and benefits.

Natividad moved for Rule 11 sanctions, alleging that appellant would not have sued him if he had not given sworn testimony in his deposition, and citing testimony from appellant's deposition, in which she admitted that she had sued him because of his testimony. He stated that, on two separate occasions, McDermott had told his attorney that if he were [Ark. App. 6]to change his testimony, appellant would dismiss him as a defendant; that his attorney had informed McDermott that he intended to move for Rule 11 sanctions if McDermott did not withdraw the complaint against Natividad; and that nevertheless, appellant filed second, third, and fourth amended complaints. Natividad supplemented his motion for sanctions, alleging that, during his deposition, McDermott had placed him in the position of having to refuse to answer certain questions or risk self-incrimination, even though he was not represented by counsel at that time, and that McDermott had refused to let him take a break to contact an attorney or even to use the restroom. He asked the court to dismiss the action against him and for attorney's fees and costs. Natividad also moved for summary judgment. He filed a copy of appellant's deposition, in which she admitted that she did not believe that he had anything to do with her being transferred from bartender to server.

On March 11, 2009, the circuit court entered an order granting summary judgment to Red Robin, Reiger, and Riddle because there were no genuine issues of material fact as to their affirmative defense of qualified privilege or as to damages. On April 9, 2009, it granted summary judgment to Natividad and Neitzel, and granted Natividad's motion for sanctions...