Bigelow v. Bigelow

Bigelow v. Bigelow (99-116); 171 Vt. 100; 759 A.2d 67 

[Filed 16-Jun-2000]
[Motion for Reargument Denied 19-Jul-2000]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal  revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of  Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any  errors in order that corrections may be made before this opinion goes
  to press.

                                 No. 99-116

Harold and Sheila Bigelow	                 Supreme Court
(Randy Olley, Appellee)
                                                 On Appeal from
     v.	                                         Rutland Family Court


Carolyn Bigelow	                                 December Term, 1999
(Marvin Wolf, Appellant)

Ben W. Joseph, J.

A. Jeffry Taylor of Abatiell & Valerio, Rutland, for Appellee Olley.

Marvin Wolf, White River Junction, Appellant.

PRESENT:  Amestoy, C.J., Dooley, Morse, Johnson and Skoglund, JJ.


       SKOGLUND, J.  Appellant Marvin Wolf appeals from a family court order
  imposing  sanctions of attorney's fees and expenses, totaling $3610,
  payable to appellee Randy Olley, Ph.D.,  and a further fine of $2500,
  payable to the court, for violations of V.R.C.P. 26(g).  Appellant 
  contends: (1) the court failed to provide proper notice that sanctions
  would be imposed under Rule  26; (2) the evidence failed to support an
  award of sanctions; (3) the sanctions awarded were  excessive; and (4)  the
  court abused its discretion in awarding sanctions after its recusal from
  the  case.  We affirm that portion of the order awarding the remedial
  sanction of attorney's fees and  expenses, and reverse that portion
  imposing the punitive sanction of $2500.  

       A full recitation of the procedural history is necessary to appreciate
  the tortured and  convoluted road this case has traveled.  It originated as
  two petitions filed by Harold and Sheila  Bigelow requesting emergency
  relief from abuse on behalf of their two grandchildren against their 

 

  daughter, the children's mother.  By order dated January 23, 1997, the
  court ordered a  psychiatric evaluation of mother by Otto Marx, M.D.  The
  order provided that the results of the  examination, including reports or
  other documents in connection therewith, should be made available  to
  counsel for plaintiffs, counsel for defendant mother, counsel for the minor
  children, and the  guardian ad litem. As part of the psychiatric
  evaluation, a psychologist, Randy Olley, performed  psychological testing
  of mother.

       Following a hearing in June 1997,  the court issued a final
  relief-from-abuse order, awarding  grandparents temporary custody of the
  minors.  All of the parties were represented by counsel at the  hearing
  except mother, who appeared  pro se.  Thereafter, mother obtained counsel,
  appellant, who  filed a motion under V.R.C.P. 60(b) to vacate the order. 
  The court denied the motion, and mother  appealed.  (FN1)   Coinciding with
  the appeal, the grandparents filed a guardianship petition in the  probate
  court, which, in January of 1998, was transferred to the family court and
  merged with the  abuse docket.

       In December 1997, while the appeal was pending, appellant wrote to
  Olley  requesting copies  of her testing data, notes, and all other
  documents in her files pertaining to mother, and enclosed a  medical
  release signed by mother.  Olley's attorney, Jeffry Taylor, wrote back and
  reported that his  client declined to supply the material requested because
  Olley had performed only a forensic  evaluation, rather than treatment, and
  therefore mother was not a patient entitled to the materials.   Appellant
  responded with a motion to compel Olley to produce the requested records. 
  Attorney 

 

  Taylor filed an opposition, arguing that mother's letter and subsequent
  motion to compel had  no basis in law, and suggesting that appropriate
  discovery procedures be utilized.

       Appellant's response to the opposition characterized Olley's position
  that mother was not a  patient as "ludicrous," argued that Olley and Dr.
  Marx were "indispensable parties" who could be  joined in the action,
  ridiculed the "supposed mental health experts [who] are busy playing
  symantical  (sic) games," and asserted that Olley's position  "reeks of
  bias and un-professionalism."  Attorney  Taylor responded with a motion for
  sanctions under V.R.C.P. 11(b),  (FN2) arguing that the motion  to compel
  had no legal basis, that the allegation that Olley and Marx could be joined
  as parties was

 

  frivolous and unsupported by existing law, and that the personal attacks
  against Olley and  her attorney were reckless and unwarranted.   Appellant
  responded, describing Attorney Taylor's  motion as "vexatious and inane."
  Attorney Taylor filed a supplemental memorandum in support of  the motion
  for sanctions, again claiming that the legal and factual allegations in the
  response to the  opposition were frivolous, reckless, unsupported by law,
  and "blind, personal attacks" warranting  sanctions under Rule 11.  
  Appellant filed a supplemental response in which he declined to "bore the 
  Court with the all too easy attacks that it could launch against Mr. Taylor
  and this insidious motion  for sanction" but noted that, as the request for
  documentation from Olley was a discovery request,  Rule 11 was 
  inapplicable.  See V.R.C.P. 11(d) (making subdivisions (a) through (c) of
  the Rule  inapplicable to  "discovery requests, responses, objections, and
  motions that are subject to the  provisions of Rules 26 through 37"). 
  (FN3) One day later, attorney Taylor filed a supplemental

 

  memorandum arguing that  appellant's motions, "unique though they may be,"
  were not  founded on discovery rules and therefore were subject to Rule 11. 

       In March 1998, the court held a hearing on the motion to compel and
  the motion for  sanctions.  The court questioned counsel at the threshold
  as to whether Rule 11 or Rule 26 applied  and whether it mattered,
  observing that "whether you had chosen [Rule] 11 or [Rule] 26, we were 
  kind of coming to the same issues."  The court then strongly admonished
  appellant for the tone of his  pleadings, explaining that there was no
  place for such language  in court, and that he would not  tolerate
  "repeated filings of pleadings that really get down to name-calling."  The
  court indicated that  appellant's "lack of civility is going to be
  punished."  The court also observed that the materials  sought by appellant
  were discoverable through proper discovery procedures and urged appellant
  to  channel his efforts in that direction.  The court thus denied the
  motion to compel and granted the  motion for sanctions.  The court reserved
  ruling on the amount of sanctions to be imposed, but   stated that they
  would not be "anything Draconian." 

       Appellant subsequently served a request to produce on Olley, which
  triggered a new round of  responses and counter-responses.  Appellant also
  filed a motion to reconsider the decision granting  sanctions.  Attorney
  Taylor responded with a motion for monetary sanctions, requesting that 
  appellant be ordered to pay some or all of the reasonable attorney's fees
  and expenses incurred as a  result of the Rule 11 violation.

       On August 26, 1998,  the court issued its opinion and order regarding
  sanctions.  The court 

 

  determined that  Rules 26 and 37,  rather than Rule 11,  governed.  The
  court further found   that there was no legal basis for either the motion
  to compel or for the assertion that Olley and Dr.  Marx could be joined as
  parties; and that appellant had engaged in personal attacks and
  name-calling  intended to harass Olley and her attorney.  The court thus
  concluded that appellant had violated Rule  26(g) by signing the pleading,
  thereby certifying falsely that it was "warranted by existing law" and 
  "not interposed for any improper purpose, such as to harass."  V.R.C.P.
  26(g).  The court imposed  two sanctions against appellant, ordering him to
  reimburse Olley for attorney's fees and expenses,  and to pay the Rutland
  Family Court the sum of $2500  "as an appropriate sanction for his
  egregious  violations of Rule 26(g) of the Vermont Rules of Civil
  Procedure." Attorney Taylor subsequently  submitted a statement of 
  attorney's fees and expenses, and the court ordered appellant to pay Olley
  a  total of $3610.   

       In September, appellant moved to reconsider the order on sanctions,
  which led in turn to new  charges of misconduct by Attorney Taylor based
  upon allegations that appellant had  fabricated and  misrepresented the
  law.  In January 1999, the court issued a decision denying the motion for 
  reconsideration, and ordering appellant to show cause why he should not be
  held in contempt for  failure to pay the $2500  sanction, and for further
  misrepresentations contained in the reconsideration  motion.  In February,
  appellant filed a notice of appeal from the court's denial of the motion
  for  reconsideration.  We  subsequently stayed execution of the order
  imposing sanctions and the order to  show cause pending resolution of the
  appeal. (FN4)
  
       Appellant first contends the court abused its discretion and violated
  his due process rights  

 

  by awarding sanctions under V.R.C.P. 26(g) notwithstanding the fact that
  the motion for  sanctions was predicated  on V.R.C.P. 11. We note at the
  outset that appellant was clearly entitled to  avail himself of the
  traditional discovery procedures.  Rules 4 and 9 of the Family Court Rules
  make  clear that the Rules of Civil Procedure apply to actions for abuse
  prevention, which is how this  matter started, and to family court
  proceedings in general.  See V.R.F.P. 4(a) & (g), 9(a)(1).  Thus,  when a
  mental evaluation is ordered pursuant to V.R.F.P.  5, as occurred here, the
  rules of civil  procedure govern.  See V.R.F.P. 5(a).  The rules assume
  that copies of an examiner's report,  including the results of all tests
  made, diagnoses and conclusions, will be available from the  requester of
  the examination.  See V.R.C.P. 35(b)(1).  The rules also provide that the
  subdivision  does not preclude discovery of a report of an examiner or the
  taking of a deposition of the examiner  in accordance with the provisions
  of any other rule.  See id. § 35(b)(3).  Thus, V.R.C.P. 30  (depositions)
  or 34 (production of documents) could have been utilized to obtain access
  to the  documents which appellant sought.  We note, as well, that the order
  for psychiatric evaluation  provided that the results would be made
  available to counsel for the parties.  Therefore, appellant  could have
  served a proper request for production and, if unsuccessful, could then
  have sought relief  pursuant to VR.C.P. 37.

       Although appellant did not properly avail  himself of these
  established discovery procedures,  we agree with the trial court that
  appellant's efforts to obtain the materials from Olley were in the  nature
  of discovery requests.  Therefore,  the sanctions motion was properly
  governed by V.R.C.P.  26 and 37.  See V.R.C.P. 11(d) (Rule 11 sanctions "do
  not apply to discovery requests, objections,  and motions that are subject
  to the provisions of Rules 26 through 37" ).  Violation of Rule 26(g) was 
  not, however, specifically alleged or noticed by Attorney Taylor or the
  court, although the latter did  consider its applicability at the hearing. 
  Nevertheless, we are not persuaded that appellant was  prejudiced by the
  omission.  Both Rule 11 and Rule 26 treat signed papers as certifying that
  the 

 

  pleading is not offered for any improper purpose, such as to harass, that
  the claims and  contentions therein have a basis in existing law, and that
  the contentions have evidentiary support.    Thus,  actions that violate
  Rule 11(b) also violate the provisions of Rule 26(g), and sanctions 
  imposed pursuant to either rule are reviewed under identical abuse of
  discretion standards.  See, e.g.,  In re Byrd, Inc., 927 F.2d 1135, 1137
  (10th Cir. 1991) (courts apply Rule 11 standards and case law   to Rule
  26(g));  Apex Oil Co. v. Belcher Co. of New York, Inc., 855 F.2d 1009, 1015
  (2d Cir. 1988)  (in interpreting and applying Rule 26(g), courts look to
  case law and standards under Rule 11); Estate  of Miles v. Miles, 994 P.2d 1139, 1146 (Mont. 2000) (since Rule 26(g) contains same language as  Rule
  11 to the effect that pleading or discovery request or objection may not be
  "interposed for any  improper purpose," same standard of review applies);
  see also Jerome v. Pardis, 783 P.2d 919, 922-23 (Mont. 1989) (although
  trial court erred in imposing sanction under Rule 37(b) in the absence of a 
  prior discovery order, sanction would be affirmed under Rule 26(g)).  
  Accordingly,  we find no  prejudicial error resulting from the court's
  imposition of sanctions under Rule 26(g) for the actions  alleged,
  notwithstanding the fact that the evidence and argument to the court at the
  hearing on the  motion for sanctions was offered in the erroneous belief
  that the procedure was governed by Rule 11. 

       Appellant next asserts that the evidence failed to demonstrate a
  violation of Rule 26.  The  claim is without merit.  As noted, the trial
  court found that appellant's  motion to compel was   without support in
  existing law, as was the threat to join Olley and Dr. Marx as parties to
  the  litigation, and that the language and tone of appellant's response to
  attorney Taylor's opposition was  unwarranted and intended to harass.  The
  law and the record evidence fully support these findings.   See Bissonnette
  v. Wylie, 166 Vt. 364, 370, 693 A.2d 1050, 1055 (1997) (trial court
  findings will not  be set aside unless, viewing evidence in light most
  favorable to prevailing party, they are clearly 

 

  erroneous).  Rule 26(g), like Rule 11, requires an attorney who signs a
  discovery request,  response, or objection to make a reasonable inquiry
  into the factual and legal bases of the statements  contained therein.  See
  Byrd, 927 F.2d  at 1137; State v. Delaney, 157 Vt. 247, 256, 598 A.2d 138, 
  143 (1991); Clipse v. State, 808 P.2d 777, 779 (Wash. Ct. App. 1991). 
  There was no credible legal  basis for the motion to compel, as there was
  no properly filed discovery request pending,  nor was  there any legal
  basis or authority for joining the medical examiners as parties to the
  underlying  litigation.  (FN5)  Appellant's certifications of the motion
  and response, therefore, violated Rule  26(g).

       As for the intemperate language in appellant's response to attorney
  Taylor's opposition,  the  record amply supports the court's finding that
  it was unprofessional, uncivil, and intended solely to  harass and
  embarrass the opposing counsel and party.  Accordingly, we discern no error
  in the  court's conclusion that appellant violated V.R.C.P. 26(g).

       Appellant also contends that the sanctions awarded were excessive and
  an abuse of  discretion. Rule 26(g) provides that the court may impose "an
  appropriate sanction, which may  include an order to pay the amount of the
  reasonable expenses incurred because of the violation,  including a
  reasonable attorney's fee."  As noted, we review a court's award of
  sanctions under Rule  26(g) by the same abuse of discretion standard that
  governs Rule 11.  See Byrd, 927 F.2d  at 1137;  see also Gilbert v. Gilbert,
  163 Vt. 549, 561, 664 A.2d 239, 245 (1995) (we will not reverse Rule 11 
  sanctions absent abuse of discretion).  The order requiring appellant to
  pay Olley's attorney's fees  and costs was clearly reasonable.  A
  contributing psychologist to a court-ordered examination should 

 

  not have to bear the costs of an attorney to defend against improperly
  framed and personally  abusive discovery requests.  This is particularly
  true where attorney Taylor had attempted to direct  appellant to proper
  discovery channels to pursue the request for production of documents in
  Olley's  possession.  Accordingly, we find no abuse of discretion in the
  sanction consisting of attorney's fees  and costs to compensate Olley for
  these unwarranted expenses.

       The $2500 penalty payable to the court presents another matter. 
  Unlike Rule 11, Rule 26(g)  does not expressly authorize sanctions payable
  to the court. See V.R.C.P. 11(c)(2) (sanctions under  Rule 11 may include
  "an order to pay a penalty into court").  Rule 26(g) does, however, broadly 
  authorize the court to impose "an appropriate sanction," and  federal
  courts have recognized  that this  may include a penalty payable to the
  court.  See, e.g., United States. v. Shaffer Equip. Co., 158 F.R.D. 80, 87
  (S.D.W.Va. 1994) (Rule 26 "permit[s] the imposition of a fine, paid to the
  court and  not to the opposing party").   At the same time, however,  a
  number of courts have held  that the  imposition of such non-compensatory
  fines for abuse of the discovery process are punitive in nature  and
  therefore require enhanced due process protections, including specific
  notice of the possibility of  non-remedial sanctions, the opportunity to
  respond to such fines, and other procedural safeguards.   See, e.g.,
  Mackler Prod., Inc. v. Cohen, 146 F.3d 126, 129 (2d Cir. 1998); Law v.
  National Collegiate  Athletic Ass'n, 134 F.3d 1438, 1443-1444  (10th Cir.
  1998); Satcorp Intern. v. China Nat'l Silk  Import Co., 101 F.3d 3, 5-6 (2d
  Cir. 1996).  As this Court has also observed "'an attorney is entitled  at
  least to a meaningful opportunity to argue, either in open court or on
  paper, against the imposition  of any such sanctions against him.'"  Van
  Eps v. Johnston, 150 Vt. 324, 328, 553 A.2d 1089, 1092  (1988) (quoting
  Brady v. Fireman's Fund Ins. Co., 484 A.2d 566, 569 (D.C. 1984)).

       Attorney Taylor's motion for sanctions specified that he was seeking
  only reasonable  expenses, including attorney's fees and costs, and the
  trial court gave no indication at the hearing that  it intended to impose a
  punitive  fine  over and above reasonable attorney's fees and expenses.  



  Indeed, the court  affirmatively indicated that the sanction would not be
  severe.  Accordingly,  we conclude that the $2500 fine cannot stand.  

       Finally, appellant contends the court erred in deciding the sanctions
  issue after recusing  himself from participation in the underlying family
  court proceedings.  The hearing on the motion   for sanctions was held in
  March 1987.   The record indicates that the court recused itself sua sponte  
  sometime in July from further participation in the underlying family court
  proceedings, but continued  to handle the sanctions matter, issuing its
  written decision in August 1998, denying a motion for  reconsideration in
  January 1999, and scheduling a further hearing for April 1999.  

       Although the court's continued handling of the motion for sanctions
  following its voluntary  recusal from the underlying family court
  proceedings raises some concerns, we are not persuaded  that it warrants
  reversal of the judgment.  Appellant cites nothing in the Code of Judicial
  Conduct or  any other authority requiring the court to recuse itself from
  deciding the sanctions motion.   Moreover, appellant never moved to
  disqualify the court at any point in the discovery and sanctions 
  proceedings.  Absent any showing to the contrary, therefore, we must assume
  that the court's recusal  was unrelated to the motion for sanctions, and
  that its continued handling of the matter was  unaffected by the recusal. 
  See In re T.L.S., 144 Vt. 536, 542, 481 A.2d 1037, 1040 (1984) (when 
  judicial partiality is claimed, such prejudice must be affirmatively shown
  by the party seeking  recusal).    

       That portion of the judgment imposing the remedial sanction of
  attorney's fees and expenses  is affirmed.  That portion of the judgment
  imposing the punitive sanction of $2500 is reversed.  




                                       FOR THE COURT:

                                                           
                                      
                                       ______________________________________
                                       Associate Justice



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                                  Footnotes


FN1.  On appeal we concluded that the family court lacked jurisdiction
  because the grandparents  did not have standing as third parties under the
  Abuse Prevention Act, and therefore vacated the  final relief-from-abuse
  order and remanded the case for further proceedings. See Bigelow v. 
  Bigelow, 168 Vt. 618, 620, 721 A.2d 98, 100 (1998) (mem.).  That decision
  has no bearing on the  issues presented in this appeal.

FN2.  V.R.C.P. 11(b) provides, in part, that in presenting a pleading,
  motion, or other paper to  the court, an attorney or unrepresented party is
  certifying

     that to the best of the person's knowledge, information, and belief, 
     formed after an inquiry reasonable under the circumstances: (1) it is 
     not being presented for any improper purpose, such as to harass or 
     to cause unnecessary delay or needless increase in the cost of 
     litigation; (2) the claims defenses, and other legal contentions 
     therein are warranted by existing law or by a nonfrivolous argument 
     for the extension, modification, or reversal of existing law or the 
     establishment of new law; (3) the allegations and other factual 
     contentions have evidentiary support, or, if specifically so 
     identified, are likely to have evidentiary support after a reasonable 
     opportunity for further investigation or discovery; and (4) the denial 
     of factual contentions are warranted on the evidence or, if 
     specifically so identified, are reasonably based on a lack of 
     information or belief.

  V.R.C.P. 11(c)(2) provides that a court may impose sanctions limited

     to what is sufficient to deter repetition of such conduct or 
     comparable conduct by others similarly situated. . . .  [T]he 
     sanction may consist of, or include, directives of a nonmonetary 
     nature, an order to pay a penalty into court, or, if imposed on 
     motion and warranted for effective deterrence, an order directing 
     payment to the movant of some or all of the reasonable attorney's 
     fees and other expenses incurred as a direct result of the violation.   
   
FN3.  V.R.C.P. 26(g) provides, in part, that every request for discovery or
  response or  objection thereto must be signed by an attorney or
  unrepresented party, and that the signature 

     constitutes a certification that the signer has read the request, 
     response, or objection, and that to the best of the signer's 
     knowledge, information, and belief, formed after a reasonable 
     inquiry it is: (1) consistent with these rules and warranted by 
     existing law or a good faith argument for the extension, 
     modification, or reversal of existing law; (2) not interposed for any 
     improper purpose, such as to harass or to cause unnecessary delay 
     or needless increase in the cost of litigation; and (3) not 
     unreasonable or unduly burdensome or expensive, give the needs of 
     the case, the discovery already had in the case, the amount in 
     controversy, and the importance of the issues at stake in the 
     litigation. . . . .  If without substantial justification a certification 
     is made in violation of the rule, the court, upon motion or upon its 
     own initiative, shall impose upon the person who made the 
     certification, the party on whose behalf the request, response, or 
     objection is made, or both, an appropriate sanction, which may 
     include an order to pay the amount of the reasonable expenses 
     incurred because of the violation, including a reasonable attorney's 
     fee.

       V.R.C.P. 37 allows a court to impose sanctions in a variety of
  discovery-related  circumstances, including the granting or denial of a
  motion to compel, id. § 37(a)(4),  failure to  comply with an order to
  provide or permit discovery, id. § 37(b), failure to admit, id. § 37(c), 
  failure to appear at a deposition, to serve answers or objections to
  interrogatories, or to serve  responses to a request for production or
  inspection, id. § 37(d), and failure to participate in the  framing of a
  discovery plan, id. § 37(e).

FN4.  Our order, dated March 24, 1999, also denied appellee's motion to
  dismiss, which had  argued that the appeal was untimely, and that appellant
  had failed to preserve for review the  underlying sanctions imposed in the
  court's order of August 26, 1997.  For the reasons stated in  our order, we
  reject identical assertions raised in appellee's brief on appeal.   

FN5.  The trial court may have erred in concluding that the motion to compel
  was without a  legal basis due to the pending appeal, as the guardianship
  petition was still before the family court.  Nevertheless, as noted above,
  its conclusion that the motion lacked a legal basis was sound. See  Putter
  v. Montpelier Pub. School Sys., 166 Vt. 463, 471, 697 A.2d 354, 359 (1997)
  (this Court  may affirm correct judgment even though grounds stated in
  support of it are erroneous).