Neppel v. Dev. Homes, Inc.
| Decision Date | 12 January 2021 |
| Docket Number | No. 20200036,20200036 |
| Citation | 953 N.W.2d 642 |
| Parties | Pamela NEPPEL, individually and as the parent and legal guardian of Z.N. an incapacitated individual, Plaintiff, Appellant and Cross-Appellee v. DEVELOPMENT HOMES, INC., Defendant, Appellee and Cross-Appellant and Sandra J. Marshall, individually; Mark Indvik, individually, and Mark and Amelia Indvik as Co-Guardians of S.K.O.; Konah Zunugo, individually, Defendants and Appellees |
| Court | North Dakota Supreme Court |
Jonathon Yunker (argued) and Jason P. Sayler (on brief), Devils Lake, ND, for plaintiff, appellant, and cross-appellee.
William J. Behrmann (argued) and Jerry W. Evenson (on brief), Bismarck, ND, for defendants, appellees, and cross-appellant.
David E. Boeck, Special Assistant Attorney General, and Mandy R. Dendy, Bismarck, ND, for amicus curiae Protection & Advocacy Project.
Murray G. Sagsveen, Bismarck, ND, for amicus curiae North Dakota Association of Nonprofit Organizations.
[¶1] Pamela Neppel, individually and as the parent and legal guardian of Z.N., an incapacitated individual, appeals from an amended judgment entered after a jury trial. She also appeals from an order denying leave to amend her complaint, an order for an amended judgment, and an order denying her motion for attorney fees and costs. Development Homes, Inc. (DHI) cross appeals from an order denying its motion for judgment as a matter of law. We affirm the order denying Neppel leave to amend her complaint and the order denying her motion for attorney fees and costs. We reverse the order denying DHI's motion for judgment as a matter of law, and we hold Neppel's appeal from the order for amended judgment is moot. We remand for entry of a judgment consistent with this opinion.
[¶2] Z.N. is a developmentally disabled individual who, at the time of the incident giving rise to this case, was living at a residential care facility operated by DHI. Neppel is Z.N.’s mother. Neppel filed this lawsuit alleging Z.N. was raped by another resident, referred to as S.O., who lived on the same floor of the facility as Z.N.’s housemate. Neppel alleged DHI had knowledge S.O. was a sexual predator and Z.N. was susceptible to abuse, yet DHI withheld information from her about the risk of placing the two together. Neppel also alleged DHI did not immediately report the rape or provide prompt and adequate medical care for Z.N. Along with DHI, Neppel sued various DHI employees, as well as S.O.’s co-guardians.
[¶3] Neppel asserted various theories of liability. Prior to trial, Neppel filed a motion for leave to file a fourth amended complaint to add claims under the Developmental Disability Act, N.D.C.C. ch. 25-01.2, and for exemplary damages. The district court denied the motion. The case was tried to a jury on counts of negligence and intentional infliction of emotional distress.
[¶4] At the close of Neppel's case, and again at the end of the trial, DHI moved for judgment as a matter of law on the intentional infliction of emotional distress claim. The district court denied DHI's motions. The jury returned a verdict awarding Neppel and Z.N. $550,000 in damages. The jury specifically awarded Z.N. $100,000 for damages caused by DHI's negligence. The jury also awarded Z.N. and Neppel $400,000 and $50,000 in damages, respectively, for past and future severe emotional distress caused by DHI. The jury did not find any of the individually-named defendants liable.
[¶5] Four days after the jury rendered its verdict, Neppel filed a motion for attorney fees. The district court denied the motion because it was premature. After the court entered judgment, which included interest and taxed costs and disbursements, Neppel filed a renewed motion for attorney fees and costs. She argued she was statutorily entitled to attorney fees and costs under the Developmental Disability Act. The court again denied her motion.
[¶6] DHI filed a motion to amend the judgment asserting it was entitled to charitable immunity under N.D.C.C. ch. 32-03.3, which sets out liability limits for certain charitable organizations. The court granted the motion and entered an amended judgment that applied the $250,000 charitable organization liability limit.
[¶7] Neppel argues the district court erred when it denied her leave to amend her complaint.
[¶8] Under N.D.R.Civ.P. 15, when the time for amendments as a matter of course has passed, complaints may not be amended unless there is leave of court or written consent by the opposing party. Leave to amend a complaint "shall be freely given when justice so requires." N.D.R.Civ.P. 15(a)(2). A district court has "broad discretion" when deciding whether to grant leave to amend a complaint under N.D.R.Civ.P. 15(a)(2). Ihli v. Lazzaretto , 2015 ND 151, ¶ 18, 864 N.W.2d 483. We review a district court's decision on a motion for leave to amend a complaint for an abuse of discretion. Id. "[A] district court abuses its discretion when it acts in an arbitrary, unconscionable, or unreasonable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination." In re Hirsch , 2014 ND 135, ¶ 12, 848 N.W.2d 719.
[¶9] Neppel amended her complaint once as a matter of course. The parties stipulated to a scheduling deadline of May 15, 2018, for motions for leave to amend the pleadings. Neppel moved for leave to amend her complaint on February 14, 2018 and again on May 15, 2018. The district court granted both motions. On December 10, 2018, Neppel sought leave to file a fourth amended complaint to state claims under the Developmental Disability Act and for exemplary damages. The court denied Neppel's motion.
[¶10] The district court, in its analysis, considered whether justice required the proposed amendment. The court also noted Neppel filed her motion roughly seven months after the deadline set out in the stipulated scheduling order and after the court had already addressed similar issues. We need not address each item the court considered, because it is not an abuse of discretion to deny an untimely motion for leave to amend a complaint. See Ihli , 2015 ND 151, ¶ 20, 864 N.W.2d 483 (); Grandbois & Grandbois, Inc. v. City of Watford City , 2004 ND 162, ¶¶ 14-15, 685 N.W.2d 129 (). We conclude the court did not abuse its discretion when it denied Neppel leave to file a fourth amended complaint.
[¶11] Neppel argues the district court erred when it denied her motion for attorney fees and costs.
[¶12] "A successful litigant is not entitled to attorney's fees unless they are expressly authorized by statute or by agreement of the parties." Gratech Co. v. Wold Eng'g, P.C. , 2007 ND 46, ¶ 17, 729 N.W.2d 326. Whether an award of attorney fees and costs is warranted is a decision that is generally within the district court's discretion. Lynch v. Sweeney , 2007 ND 81, ¶ 9, 732 N.W.2d 377.
[¶13] Neppel claims she is entitled to attorney fees and costs under N.D.C.C. § 25-01.2-17, a provision of the Developmental Disability Act that gives the court discretion to award attorney fees and costs to a plaintiff who is successful in a "proceeding to enforce" any of the rights guaranteed by the Act. Neppel claims that by obtaining redress for Z.N.’s injuries, she successfully enforced various rights enumerated in the Act, including Z.N.’s right to adequate medical care and appropriate treatment and habilitation.
[¶14] We are not persuaded. The claims Neppel successfully asserted in the district court were for negligence and intentional infliction of emotional distress. She did not obtain a declaration that a right guaranteed by the Act was violated. Nor did she obtain injunctive relief to enforce any type of right. Section 25-01.2-17, N.D.C.C., plainly does not authorize an award of attorney fees or costs in common law tort cases that do not concern the enforcement of a right. We conclude the court did not abuse its discretion when it denied Neppel's motion for attorney fees and costs.
[¶15] DHI cross appeals arguing the district court erred when it denied its motion for judgment as a matter of law on Neppel's intentional infliction of emotional distress claim. DHI argues the evidence does not support a reasonable finding that its conduct was extreme and outrageous as is required for a finding of intentional infliction of emotional distress. We agree.
[¶16] We recognized the tort of intentional infliction of emotional distress in Muchow v. Lindblad , 435 N.W.2d 918 (N.D. 1989). We explained it requires a finding of "(1) extreme and outrageous conduct that is (2) intentional or reckless and that causes (3) severe emotional distress." Id. at 924 ; see also Hougum v. Valley Mem'l Homes , 1998 ND 24, ¶ 26, 574 N.W.2d 812. The district court must act as a gate-keeper and initially decide, as a matter of law, whether the conduct in question can reasonably be considered "extreme and outrageous." Hougum , at ¶ 26 ; G.K.T. v. T.L.T. , 2011 ND 115, ¶ 9, 798 N.W.2d 872. "[I]f the district court determines that reasonable people could differ, the question of whether the defendant's conduct is sufficiently extreme and outrageous is left to the trier-of-fact." G.K.T. , at ¶ 9.
[¶17] In Muchow , we explained conduct is not extreme and outrageous unless it goes beyond all possible bounds of decency:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice," or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious,...
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