Warner v. Hillcrest Medical Center
| Decision Date | 26 September 1995 |
| Docket Number | No. 83555,No. 4,83555,4 |
| Citation | 914 P.2d 1060,1995 OK CIV APP 123 |
| Parties | 1995 OK CIV APP 123 Willa WARNER, Linda Jones, and Merle Levitt, Personal Representatives of the Estate of Norma Levitt, Deceased, Plaintiffs, v. HILLCREST MEDICAL CENTER, a corporation, Robert Morton, M.D., Christine Jones, CRNA, and Tulsa Anesthesiologists, Inc., an Oklahoma corporation, Defendants, and Hillcrest Healthcare Corporation, Hillcrest Medical Center Foundation, Hillcrest Real Estate, Inc., Hillcrest Service Company, Frederick Jones, M.D., Gary Breipohl, M.D., Jonathan Anthony, M.D., Robert Spohr, M.D., Thomas Singletary, M.D., Harold Voss, M.D., Dan Wiesemeyer, M.D., Jerry Puls, M.D., Douglas Hubner, M.D., Duane Brothers, M.D., Jerry L. Puls, M.D., Inc., and South Utica Pathology Laboratories, Inc., Appellees, and Wilkinson and Monaghan, a Professional Corporation, and Bill V. Wilkinson, Appellants. Court of Appeals of Oklahoma, Division |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
Appellants Wilkinson & Monaghan, a Professional Corporation (law firm), and Bill V. Wilkinson, an individual, appeal from the trial court's order awarding sanctions to multiple defendants against the law firm and Wilkinson.
Wilkinson and his law firm (hereinafter Wilkinson) were retained by the personal representatives of the estate of Norma Levitt to pursue a medical malpractice claim. Norma Levitt died on the operating table at Hillcrest Medical Center in Tulsa, Oklahoma on November 8, 1989, following successful hip replacement surgery. A nurse anesthetist gave Levitt a unit of Levitt's own blood which had been warmed in a microwave oven located in the employees' lounge. 1 Wilkinson alleged the negligent introduction of this blood into Levitt's system was a direct cause of her death minutes later. The defendants argued that Levitt died from a blood clot, rather than the hemolyzed blood. Wilkinson's first petition named only Hillcrest Medical Center as defendant. The petition was amended over 15 months later, on November 8, 1991, to include twenty additional individual and corporate defendants. 2
A jury trial was held, following more than three years of discovery. The trial lasted over three weeks. After seventeen days of trial, the plaintiffs rested. The trial court sustained demurrers by Drs. Jones, Breipohl, Anthony, Spohr, Voss, Wiesemeyer, Puls, Hubner and Brothers. Demurrers on behalf of South Utica Pathology Lab, Jerry L. Puls, M.D., Inc., Hillcrest Health Care Corporation, Hillcrest Real Estate Corporation, Hillcrest Medical Center Foundation, and Hillcrest Service Corporation were also sustained. Demurrers by Hillcrest Medical Center, Drs. Morton and Singletary, Christine Jones, C.R.N.A., and Tulsa Anesthesiology, Inc., were overruled. 3 The case was submitted to the jury against Dr. Morton, Christine Jones, C.R.N.A., Tulsa Anesthesiology, Inc., and Hillcrest Medical Center, Inc., only. A defendants' verdict was returned.
Wilkinson and the law firm filed a motion for new trial. In the meantime, Levitt's estate fired Wilkinson and the law firm, and retained other counsel. The new counsel was able to settle the case against the final four remaining defendants in exchange for foregoing an appeal. None of the issues raised at trial are before us today. The evidentiary and procedural rulings made by the trial judge are not raised on appeal. We will therefore indulge in the presumption that those rulings were correct.
Following the confidential settlement, the non-settling defendants who had earlier been dismissed by the trial court applied for sanctions against Wilkinson and the law firm, alleging violations of 12 O.S.1991 § 2011. Following a two-day hearing, the trial court entered an order on April 11, 1994, which consisted of detailed findings of fact and conclusions of law. The order gave judgment in favor of the sixteen moving defendants in the sum of $12,500 per defendant, for a total judgment against Wilkinson and the law firm of $200,000.
It is from this order Wilkinson and the law firm appeal. Wilkinson's petition in error sets out fifty-three propositions of error. Wilkinson's brief preserves but one: whether or not the sanctions levied were an abuse of the trial court's discretion. Except for those propositions of error set out in the petition in error which are included within the single briefed issue, the balance of the propositions of error are deemed waived. Hadnot v. Shaw, 826 P.2d 978 (Okla.1992); American First Abstract Co. v. Western Information Systems, Inc., 735 P.2d 1187 (Okla.1987); State ex rel. Remy v. City of Norman, 642 P.2d 219 (Okla.1981). All other allegations of error which occurred during the course of the trial itself are deemed waived, as no appeal from the jury verdict has been perfected.
The applicable portions of 12 O.S.1991 § 2011, 4 read: The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.... If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee.
The appellees essentially contend that Wilkinson violated § 2011 either by improperly naming them in the lawsuit without any basis in law or fact or, presuming such a basis in law or fact initially existed, Wilkinson was unable to develop sufficient evidence to maintain a viable cause of action against them, at which time he had the obligation to dismiss them from the lawsuit. Title 12 O.S.1991 § 2011, is adopted from its federal counterpart, Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A. Therefore, we are permitted to review appropriate federal caselaw to aid in our interpretation and application of this rule to the facts in this case. Unit Petroleum Co. v. Nuex Corp., 807 P.2d 251 (Okla.1991).
The standard of review is whether the trial court abused its discretion in imposing sanctions. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447, 110 L.Ed.2d 359 (1990); Broadwater v. Courtney, 809 P.2d 1310 (Okla.1991); Berko v. Willow Creek I Neighborhood Ass'n, Inc., 812 P.2d 817 (Okla.Ct.App.1991). Whether or not the acts of an attorney are done in good faith is no longer the test. First National Bank and Trust Company of Vinita v. Kissee, 859 P.2d 502, 512 (Okla.1993) (emphasis in original) (footnotes omitted). "Rule 11 requires lawyers to think first and file later, on pain of personal liability." Stewart v. RCA Corp., 790 F.2d 624, 633 (7th Cir.1986). There is a duty to dismiss lawsuits when it becomes apparent there is no viable claim against a named defendant. See Flip Side Productions, Inc. v. Jam Productions Ltd., 843 F.2d 1024 (7th Cir.1988). The advisory committee notes to Fed.Rules Civ.Proc.Rule 11, 28 U.S.C.A., lend insight to the application of sanctions.
The rule continues to require litigants to "stop-and-think" before initially making legal or factual contentions. It also, however, emphasizes the duty of candor by subjecting litigants to potential sanctions for insisting upon a position after it is no longer tenable.... [This duty continues and is] not measured solely as of the time [the allegations] are filed with or submitted to the court, but include reaffirming to the court and advocating positions contained in those pleadings and motions after learning that they cease to have any merit.... Moreover, if evidentiary support is not obtained after a reasonable opportunity for further investigation or discovery, the party has a duty under the rule not to persist with that contention.
The imposition of sanctions, on the other hand, should not be used to punish parties with unpopular claims.
The standard for bad faith...
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