Howe v. Air & Liquid Systems Corp. ( 2021 )

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.
THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Timothy W. Howe, Individually and as Personal
Representative of the Estate of Wayne Erwin Howe,
Deceased, and Jeannette Howe, Respondents,
v.
Air & Liquid Systems Corp., individually and as
successor-in-interest to Buffalo Pumps, Inc.; Albany
International Corp.; Asten-Johnson, Inc.; Aurora Pump
Company; A.W. Chesterton Company; Borg Warner
Morse TEC, Inc., as successor to Borg-Warner
Corporation; CBS Corporation, A Delaware Corporation
f/k/a Viacom, Inc., successor by merger to CBS
Corporation, A Pennsylvania Corporation, f/k/a
Westinghouse Electric Corporation; CGR Products, Inc.
f/k/a Carolina Gasket and Rubber Company; CNA
Holdings, Inc., f/k/a Hoechst Celanese Corporation;
Celanese Corporation f/k/a Hoechst Celanese
Corporation (sued individually and as successor-in-
interest to Fiber Industries, Inc.); Cleaver Brooks, Inc.;
Covil Corporation; Crane Co.; Crown Cork & Seal
Company, Inc.; Daniel International Corporation; Fluor
Enterprises, Inc., f/k/a Fluor Daniel, Inc., f/k/a Daniel
Construction Company, Inc.; Fluor Daniel Services
Corporation; Foster Wheeler Energy Corporation;
General Electric Company; The Gorman-Rupp
Company; Goulds Pumps, Incorporated; Ingersoll-Rand
Company; Metropolitan Life Insurance Company, a
wholly-owned subsidiary of MetLife Inc.; Peerless Pump
Company; Presnell Insulation, Inc.; Riley Power, Inc.,
Individually and as successor-in-interest to Babcock
Borsig Power, Inc., and Riley Stoker Corporation,
Individually and as successor-in-interest to D.B. Riley;
SEPCO Corporation; Sterling Fluid Systems (USA)
LLC; Trane U.S., Inc., f/k/a American Standard, Inc.,
f/k/a American Radiator & Standard Manufacturing
Company; Uniroyal, Inc., f/k/a United States Rubber
Company, Inc.; United Conveyor Corporation; Velan
Valve Corp.; Viking Pump, Inc.; Warren Pumps LLC;
and Zurn Industries, Defendants,
Of which Cleaver Brooks, Inc. is the Appellant.
Appellate Case No. 2019-000164
Appeal From York County
Jean Hoefer Toal, Acting Circuit Court Judge
Unpublished Opinion No. 2021-UP-422
Submitted September 1, 2021 – Filed December 1, 2021
AFFIRMED
Matthew Todd Carroll, of Womble Bond Dickinson (US)
LLP, of Columbia; M. Elizabeth O'Neill, of Womble
Bond Dickinson (US) LLP, of Charlotte, NC; and Steven
James Pugh, of Richardson Plowden & Robinson, PA, of
Columbia, all for Appellant.
Theile Branham McVey and John D. Kassel, both of
Kassel McVey, of Columbia; and Renee Melancon and
Jonathan Marshall Holder, both of Dean Omar Branham
Shirley, LLP, of Dallas, TX, all for Respondents.
PER CURIAM: Cleaver-Brooks, Inc. (Cleaver-Brooks) appeals an order
requiring it to pay all of the attorneys' fees, costs, and expenses for Timothy W.
Howe, Individually and as Personal Representative of the Estate of Wayne Erwin
Howe, Deceased, and Jeannette Howe (the Howes). Cleaver-Brooks argues (1) the
trial court's order is contrary to the history of the case; (2) the Howes waived any
argument for sanctions by questioning the witnesses about documents upon which
their request for sanctions was based; (3) the court's sanctions order is procedurally
improper; and (4) the sanctions are grossly disproportionate and amount to an
abuse of discretion. We affirm pursuant to Rule 220(b), SCACR, and the
following authorities:
1. As to whether the trial court's order is contrary to the history of the case, we
agree with the trial court's findings of fact and conclude the trial court did not
abuse its discretion in imposing sanctions in the form of attorneys' fees and costs
on Cleaver-Brooks for failing to provide discovery. See Rule 26(b)(1), SCRCP
("Parties may obtain discovery regarding any matter, not privileged, which is
relevant to the subject matter involved in the pending action, whether it relates to
the claim or defense of the party seeking discovery or to the claim or defense of
any other party, including the existence, description, nature, custody, condition and
location of any books, documents, or other tangible things and the identity and
location of persons having knowledge of any discoverable matter."); Rule 34(a),
SCRCP (allowing any party to request from any other party "any designated
documents, or electronically stored information (including writings, drawings,
graphs, charts, photographs, phonorecords, and other data compilations from which
information can be obtained [and] translated, if necessary, by the respondent
through detection devices into reasonably usable form) . . . which are in the
possession, custody or control of the party upon whom the request is served");
Rule 37(b)(2), SCRCP (providing "[i]f a party or an officer, director, or managing
agent of a party or a person designated under Rule 30(b)(6) or 31(a) to testify on
behalf of a party fails to obey an order to provide or permit discovery, . . . the court
shall require the party failing to obey the order or the attorney advising him or both
to pay the reasonable expenses, including attorney's fees, caused by the failure,
unless the court finds that the failure was substantially justified or that other
circumstances make an award of expenses unjust"); Scott v. Greenville Hous.
Auth., 353 S.C. 639, 652, 579 S.E.2d 151, 158 (Ct. App. 2003) ("The gist and
gravamen of the discovery rules mandate full and fair disclosure to prevent a trial
from becoming a guessing game or one of ambush for either party."); id.("Discovery is the quintessence of preparation for trial and, when discovery rights
are trampled, prejudice must be presumed."); Davis v. Parkview Apartments, 409
S.C. 266, 281, 762 S.E.2d 535, 543 (2014) ("The imposition of sanctions is
generally entrusted to the sound discretion of the [trial c]ourt." (quoting Downey v.
Dixon, 294 S.C. 42, 45, 362 S.E.2d 317, 318 (Ct. App. 1987))); Father v. S.C.
Dep't of Soc. Servs., 353 S.C. 254, 261, 578 S.E.2d 11, 14 (2003) ("[W]here the
appellate court agrees with the trial court's findings of fact, it reviews the decision
to award sanctions, as well as the terms of those sanctions, under an abuse of
discretion standard."); id. ("An abuse of discretion occurs where the decision is
controlled by an error of law or is based on unsupported factual conclusions.").
2. As to whether the Howes waived any argument for sanctions by questioning
the witnesses about documents upon which their request for sanctions is based, we
find Cleaver-Brooks put unit number 0-18344 at issue by listing both unit numbers
in its Bowater file; thus, the Howes were entitled to ask the witnesses about the
boilers without waiving their right to sanctions for failure to provide discovery. Cf.
Frazier v. Badger, 361 S.C. 94, 104, 603 S.E.2d 587, 592 (2004) ("A litigant
cannot complain of prejudice by reason of an issue he has placed before the
court."). Further, sanctions are imposed by the court at its discretion based on the
conduct of the parties. See Rule 37(b)(2), SCRCP (providing the court in which an
action is pending may award sanctions in regard to the failure to comply with an
order compelling discovery as are deemed just by the court); Floyd v. Thornton,
220 S.C. 414, 425-26, 68 S.E.2d 334, 339 (1951) ("One may not on review
complain of a ruling which he has invited or induced the trial court to make."). We
additionally find the Howes preserved their right to move for sanctions by their
objection to the "midnight documents" following Cleaver-Brooks' motion for
directed verdict and their request during trial to move for sanctions at a later time.
See Richardson on Behalf of 15th Cir. Drug Enf't Unit v. Twenty-One Thousand &
no/100 Dollars ($21,000.00) U.S. Currency & Various Jewelry, 430 S.C. 594, 598,
846 S.E.2d 14, 16 (Ct. App. 2020) ("The text of Rule 37, SCRCP, tells us a party
does not need to file a motion to compel to request a sanction for another party's
failure to answer a properly served discovery request. A party served with written
discovery has a duty to answer it, unless the party objects based on a stated reason
or moves for a protective order."); id. at 599, 846 S.E.2d at 16 ("The sanctions
authorized by Rule 37(d) are therefore available even to a discovering party who
has not spoken up about his adversary's silence."); id. ("The distinction between
the two subdivisions [of Rule 37] is that there must be an order of the [c]ourt
before sanctions are imposed under subdivision (b), while under subdivision (d)[,]
a party may move directly for the imposition of sanctions.").
3. As to whether the court's sanctions order is procedurally improper, we find
no error in the court's decision to instruct the clerk of court to wait to enter the
verdict until after the court rendered its decision on the motion for sanctions
against Cleaver-Brooks. See Rule 58, SCRCP (providing "upon a general verdict
of a jury, . . . the clerk, unless the court otherwise orders, shall forthwith prepare,
sign, and enter the judgment without awaiting any direction by the court"
(emphasis added)). We also agree with the trial court that the "midnight
documents" were requested by the Howes, and Rule 37(b)(2), SCRCP, applies as
Cleaver-Brooks violated the discovery order by not producing the requested
documents until mid-way through trial. See Rule 37(b)(2) (allowing for sanctions
for failure to provide discovery).
4. As to whether the sanctions are grossly disproportionate and amount to an
abuse of discretion, we find the court was permitted to exclude the "midnight
documents" and award sanctions in the form of attorneys' fees and costs. See Rule
37(b)(2), SCRCP (permitting more than one sanction for the same wrong). We
also find the trial court did not abuse its discretion in awarding the Howes
attorneys' fees and costs due to Cleaver-Brooks' failure to cooperate with the
discovery process and mid-trial production of documents despite numerous
requests. See McNair v. Fairfield Cnty., 379 S.C. 462, 465, 665 S.E.2d 830, 832
(Ct. App. 2008) ("Under Rule 37(b)(2)(C), SCRCP, when a party fails to comply
with a discovery order, the trial court has the discretion to impose a sanction it
deems just, including an order dismissing the action."); Davis, 409 S.C. at 283, 762
S.E.2d at 544 (determining the sanctions imposed were not unduly harsh in light of
the appellants' willful and repeated failure to comply with various orders of the
trial court, which resulted in unnecessary delay and prejudice to the respondents);
McNair, 379 S.C. at 467, 665 S.E.2d at 832-33 (finding "the severe sanction" of
dismissal was appropriate in light of the defendant's failure to produce documents
seven and a half months after the trial court granted the plaintiff's motion to
compel, which this court determined amounted to willful disobedience and resulted
in delay and prejudice to the plaintiff's right to have the claim heard); Temple v.
Tec-Fab, Inc., 370 S.C. 383, 390, 635 S.E.2d 541, 544-545 (Ct. App. 2006), aff'd
in part, rev'd in part on other grounds, 381 S.C. 597, 675 S.E.2d 414 (2009)
(finding the trial court did not abuse its discretion when it excluded evidence as a
sanction for defendant's actions in failing to provide, until the day before trial,
documents pursuant to an order compelling production); QZO, Inc. v. Moyer, 358
S.C. 246, 257-58, 594 S.E.2d 541, 548 (Ct. App. 2004) (holding the trial court
properly considered the severity of the sanction when it struck a pleading based on
the appellant's intentional defiance of the trial court's order and his willful
destruction of evidence); Scott, 353 S.C. at 652, 579 S.E.2d at 158 (noting the trial
court had the option to completely strike a party's pleadings in the matter as a
sanction for its failure to cooperate in discovery); Griffin Grading & Clearing,
Inc., 334 S.C. 193, 199, 511 S.E.2d 716, 719 (Ct. App. 1999) (finding the striking
of the defendant's answer as a discovery sanction was warranted based on the
defendant's egregious failure to comply meaningfully with four prior orders
compelling discovery, even after being warned of the consequences of its failure to
comply and after being assessed attorney's fees); id. ("In determining the
appropriateness of a sanction, the court should consider such factors as the precise
nature of the discovery and the discovery posture of the case, willfulness, and
degree of prejudice."); Barnette v. Adams Bros. Logging, 355 S.C. 588, 593, 586
S.E.2d 572, 575 (2003) (stating "[a] trial judge's exercise of his discretionary
powers with respect to sanctions imposed in discovery matters will not be
disturbed on appeal absent a clear abuse of discretion" and "[t]he burden is on the
party appealing from the order to demonstrate the trial court abused its discretion").
Furthermore, we find the amount of attorneys' fees awarded was reasonable. See
Rule 37(b)(2), SCRCP (providing a trial court may award reasonable expenses,
including attorneys' fees, for a party's failure to cooperate in discovery); Burton v.
York Cnty. Sheriffs Dep't, 358 S.C. 339, 357, 594 S.E.2d 888, 898 (Ct. App. 2004)
(stating the amount of attorneys' fees to be awarded in a case is within the
discretion of the trial judge); id. at 358, 594 S.E.2d at 898 (noting the six factors a
court considers when determining the amount of attorneys' fees are: "(1) the nature,
extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3)
professional standing of counsel; (4) contingency of compensation; (5) beneficial
results obtained; and (6) customary legal fees for similar services."). Finally, we
find the requested litigation costs were supported with an affidavit as required by
Rule 54(d), SCRCP, and were within the court's discretion because Cleaver-
Brooks' failure to timely produce the "midnight documents" pervaded the trial and
that evidence was important to the Howes' decision to go to trial in the first place.
AFFIRMED.1
HUFF, THOMAS, and GEATHERS, JJ., concur.
1
We decide this case without oral argument pursuant to Rule 215, SCACR.