Katarina Hoock v. SLB Acquisition LLC d/b/a Scottrade Center

In the Missouri Court of Appeals
Eastern District
DIVISION THREE
KATARINA HOOCK, ) No. ED108473
)
Respondent, ) Appeal from the Circuit Court
) of the City of St. Louis
v. )
) Honorable Clinton R. Wright
SLB ACQUISITION, LLC D/B/A )
SCOTTRADE CENTER, )
)
Appellant. ) FILED: March 23, 2021
Introduction
SLB Acquisition, LLC (“SLB”) appeals from the trial court’s judgment following a jury
trial on Katarina Hoock’s (“Hoock”) personal injury action. SLB raises two points on appeal.
Point One argues the trial court lacked authority under Rule 61.011 to enter an order of default
against SLB for discovery violations because the order improperly expanded the sanction from a
prior order that merely struck their pleadings. Point Two contends the trial court abused its
discretion in denying SLB’s continuance motion due to Hoock’s late production of medical
records. Because the trial court was free to modify its interlocutory order striking SLB’s
pleadings, the trial court did not err in entering its order of default against SLB, and we deny
Point One. Because the record of medical history disclosures and prior litigation in the case
provided SLB ample opportunity to avoid unfair surprise or prejudice arising from trying the
1
All Rule references are to Mo. R. Civ. P. (2019).
case on the date of trial, the trial court did not abuse its discretion in denying SLB’s second
motion for a continuance the day before trial, and we deny Point Two. Accordingly, we affirm
the judgment of the trial court.
Factual and Procedural History
This appeal arises out of a personal injury action filed against SLB by Hoock following
her injury at a St. Louis Blues hockey game at the Scottrade Center on January 18, 2016. At that
game, an unruly patron fell on Hoock from a higher seating row. Hoock was taken by
ambulance to the hospital, where doctors performed a CT scan and determined she had suffered a
closed head injury and cervical strain. Hoock took time off work for recovery and followed up
with her primary care physicians. When Hoock complained of memory issues, nausea, and
vertigo, she was diagnosed with post-concussive syndrome and was directed to a neurologist.
Hoock’s medical records indicated short-term memory dysfunction, dizziness, headaches,
depression, and fatigue. Hoock filed a personal injury action against the patron and SLB in
November, 2016.
As the case was litigated, both parties alleged violations of the rules of discovery against
the other. Following Hoock’s second motion to compel and to award sanctions, the trial court
found a history of delay and obfuscation on the part of SLB and issued an order (the “Sanction
Order”) finding that SLB’s discovery violations constituted contumacious and deliberate
disregard of the trial court’s authority. The Sanction Order struck SLB’s pleadings and
affirmative defenses. The Sanction Order also ordered SLB to present its corporate
representative for deposition, ordered SLB to produce certain documents and respond to certain
interrogatories, and awarded Hoock $5,000 in attorneys’ fees. SLB later moved for leave to file
its answer and affirmative defenses following its compliance with the Sanction Order. Hoock
2
opposed the motion, arguing that the sanctions were proper, SLB had not fully complied with the
Sanction Order, and Hoock would suffer prejudice if the sanction were vacated. After a change
of judge, the trial court heard SLB’s motion and argument at two subsequent hearings, and took
the sanction matter under submission.
The trial court issued its order (the “Default Order”) denying SLB’s motion for leave to
file an answer and affirmative defenses, and entered a judgment of default against SLB as to
liability on Hoock’s claim. The trial court explained that SLB was “effectively asking the Court
to reconsider its sanctions against it” and denied SLB leave to refile its pleadings. In the Default
Order, the trial court found:
Based on the briefs, the arguments of counsel and the Court’s review of the
file, the Court finds that there is no justification for setting aside or vacating the
sanction entered against [SLB] or disturbing the Court’s earlier finding that [SLB]
exhibited a “contumacious and deliberate disregard of this Court's authority” due
to a number of discovery abuses, and that [Hoock] has suffered substantial
prejudice as a result thereof. Accordingly, [SLB]’s Motion for Leave to File
Answer and Affirmative Defenses is hereby denied.
Further, based on the arguments presented in the briefs and at the hearing,
the Court finds it would be beneficial to clarify its earlier Sanction Order. In the
Sanction Order, by striking [SLB’s] entire answer and its affirmative defenses, the
Court’s intention was to foreclose all argument regarding and [sic] need for Plaintiff
to prove [SLB]’s liability at trial, leaving the extent of [Hoock]’s damages as the
only issue for trial with respect to [Hoock]’s claims against [SLB]. While the Court
believes that its earlier Sanction Order was sufficient to accomplish this goal, in
order to avoid any confusion at trial, the Court hereby enters an interlocutory
judgment of default against [SLB] as to liability on [Hoock]’s claims against
[SLB].
Trial was set for June 3, 2019. SLB moved for a continuance, which the trial court
granted. SLB acknowledged in its subsequent motion for sanctions and to compel that its first
motion for a continuance had been granted so that SLB could depose Dr. Susan Davis (“Dr.
Davis”). Hoock was treated by Dr. Davis in December 2017 and again in 2019 at the same
3
facility as Hoock’s other primary-care practitioners but had not been disclosed prior to SLB’s
expert’s review of the case.
The day before trial, which had been reset for August 26, 2019, SLB filed a second
motion for sanctions and trial continuance (the “Continuance Motion”), alleging a continuance
and other sanction-based remedies were needed due to Hoock’s late production of relevant
medical records. Prior to filing this motion, SLB had moved for sanctions and/or to compel
production of various medical records for delayed disclosure, which SLB incorporated into its
Continuance Motion by Rule 55.12. Following hearings, the trial court had denied SLB’s
motion for sanctions but ordered Hoock to execute additional authorizations to facilitate the
production of various medical records, including records from Dr. Joel Koenig (“Dr. Koenig”).
The parties presented written and oral arguments before the trial court on the
Continuance Motion. The Continuance Motion claimed Hoock had engaged in a pattern of
concealment about her medical condition before and after the incident. The Continuance Motion
alleged Hoock produced new, relevant medical records less than two weeks before trial.
Specifically, SLB alleged Hoock produced new records from 2006 to 2012 (the “2006-2012
Records”), including records involving Dr. Koenig’s treatment of Hoock when she was in middle
school between 2006 and 2007. These records evidenced treatment for depression, headaches,
dizziness, difficulty concentrating, anxiety, and photophobia, all occurring prior to Hoock’s
disclosed 2012 concussions from sports injuries and a car accident.2 SLB also claimed Hoock
produced new records of a December 2017 visit with a late-disclosed medical provider (the
“Davis Records”). Additionally, the Continuance Motion averred that after corrected
authorizations were executed by Hoock earlier that month, SLB received records from other
2
The parties dispute whether these records are properly before us. We find they are sufficiently incorporated by
reference for purposes of evaluating the second continuance motion.
4
practitioners a few days before trial, including a record from Dr. Sonali Jain (“Dr. Jain”), an
obstetrics and gynecology physician who had treated Hoock for postpartum depression in 2017.
The Continuance Motion maintained that a continuance was necessary because the newly
produced records of head-related treatment were relevant to Hoock’s claims for damages, and
SLB’s expert witness was unavailable to opine on the new records in time for trial because he
was out of the country. In the attached affidavit, SLB’s expert witness Dr. Todd B. Silverman
(“Dr. Silverman”) stated that he was on vacation and unavailable, that the Davis Records had not
been provided when he offered his expert opinion on the case, and that Hoock had only attested
to a history of headaches and not of migraines as mentioned in the new records. The
Continuance Motion argued that the newly produced 2006-2012 Records and Davis Records
were relevant to impeaching Hoock’s position that, except for her disclosed 2012 concussions,
she was asymptomatic prior to the hockey game incident. SLB claimed the new records showed
Hoock had an unexplained increase in her antidepressant medication and was suffering from the
same head injuries of which she then complained prior to the hockey game incident, including
headaches, depression, and dizziness. The records also referenced a loss of consciousness in
2010 and a closed head injury in 2011. SLB argued it would suffer prejudice if the trial were not
continued because Dr. Silverman was unavailable to review the original records of Hoock’s
earlier medical treatment and that such records were necessary to opine on the interaction
between Hoock’s preexisting conditions and her injury at the hockey game. SLB asserted that
Dr. Silverman’s testimony was relevant to the amount of damages Hoock was seeking.
In oral argument on the Continuance Motion before the trial court, Hoock countered that
the records were not new. In particular, Hoock explained that the Davis Records had been part
of the record for months and had been the reason the trial court granted SLB’s first request for
5
continuance. Hoock asserted that SLB chose not to pursue deposing Dr. Davis prior to the
rescheduled trial date. Regarding the 2006-2012 Records, Hoock argued that SLB had access to
the records months earlier and had already deposed a witness who testified about Hoock’s six-
month depressive episode when she was in middle school in 2006-2007. Also concerning the
2006-2012 Records, Hoock maintained that the 2012 soccer injury and related concussions had
been resolved, and the records and expert testimony showed she was symptom-free thereafter
until the hockey game incident. Regarding the new mention of migraines in a 2011 record,
Hoock contended that there was no diagnosis of migraines, but only a reference to “childhood
migraines” in the patient-provided medical history. Hoock also noted that Dr. Jain had first
prescribed Hoock the antidepressant medication in 2017 for postpartum depression and that as of
2019 Hoock’s depression was being controlled through that medication.
SLB denied that the middle school medical issues were contained in the previously
acquired medical records. However, the court acknowledged it could see in the record that the
six-month depressive episode and treatment when Hoock was in middle school was part of the
November 2018 report from Hoock’s expert witness, Dr. Joseph Yazdi (“Dr. Yazdi”).
Following oral argument, the trial court went off the record to further consider the
arguments and evidentiary record. The trial court then denied the Continuance Motion. The trial
court articulated its reasoning that Hoock had made available the matters from middle school
through Dr. Yazdi’s report and that both parties had previously made use of the medical
conclusion that after 2012 Hoock was deemed nonsymptomatic. The trial court did not see a
reason to delay the trial merely to investigate how or why the dosage increased for Hoock’s
depression medication. The trial court opined that Hoock adequately provided evidence about
her three 2012 concussions for purposes of presenting her pre-existing medical history prior to
6
the hockey game injury in 2016. The trial court acknowledged some memory issues with respect
to Hoock’s medical history but determined from the record that the most significant prior history
had been provided or made accessible through executed authorizations.
The case proceeded to trial on the issue of damages. After Hoock adduced evidence and
rested her case, Hoock moved for a directed verdict on liability, which the trial court granted.
Defendant then adduced evidence. Following deliberation solely on the issue of damages, the
jury found in favor of Hoock and awarded her $1.2 million in damages.
SLB preserved its points on appeal in a motion for new trial, which the trial court denied.
SLB then filed this appeal. Hoock stipulated as to the dismissal of SLB’s co-defendant, the
patron from the game, as the result of a settlement. During the pendency of the appeal, Hoock
moved to dismiss SLB’s brief for violations of Rule 84.04.
Points on Appeal
SLB brings two points on appeal. Point One argues the trial court erred in entering the
Default Order because it lacked authority under Rule 61.01 to further sanction SLB in that the
prior Sanction Order only struck SLB’s pleadings and a default on liability exceeded what was
necessary to enforce compliance with the Sanction Order. Point Two asserts the trial court
abused its discretion in denying SLB’s motion for a continuance because SLB was denied
sufficient time to review relevant late-produced medical records.
Discussion
I. Point One—Default Order
In Point One, SLB contends the trial court lacked authority to enter a judgment of default
against it on the issue of liability. Specifically, SLB maintains that the Sanction Order addressed
SLB’s discovery violations by striking its pleadings and affirmative defenses, and that the trial
7
court’s further sanctioning by subsequently entering the default judgment exceeded the trial
court’s authority under Rule 61.01.3
A. Standard of Review
We review a trial court’s imposition of sanctions for discovery violations for whether the
trial court abused its discretion. Lewellen v. Franklin, 441 S.W.3d 136, 149 (Mo. banc 2014)
(internal citation omitted). However, in reviewing the actions and authority of the trial court, we
defer to the trial court’s factual determinations and review questions of law de novo. State ex
rel. Kander v. Green, 462 S.W.3d 844, 847 (Mo. App. W.D. 2015) (internal citation omitted).
B. Analysis
“The trial court is vested with broad discretion to control discovery and to choose a
remedy to address any non-disclosure of evidence.” Gallagher v. DaimlerChrysler Corp., 238
S.W.3d 157, 162 (Mo. App. E.D. 2007) (internal citation omitted). Rule 61.01 authorizes a trial
court to enter an order of default as a sanction for discovery violations. Specifically, the trial
court may “[e]nter an order striking pleadings or parts thereof or staying further proceedings
until the order is obeyed or dismissing the action or proceeding or any part thereof or render a
judgment by default against the disobedient party[.]” Rule 61.01(b), (d); Hooks v. MHS Hosp.
Grp., LLC, 526 S.W.3d 136, 145 (Mo. App. W.D. 2017) (noting Rule 61.01 grants broad
discretion over sanctions such that a trial court may even enter a default judgment without first
striking the sanctioned party’s pleadings). The word ‘or’ as used in Rule 61.01(b) and (d) is
3
With regard to Hoock’s motion to dismiss SLB’s appellate brief for violations of Rule 84.04, we recognize that
failure to satisfy Rule 84.04(c)’s demand for “a fair and concise statement of the facts relevant to the questions
presented for determination without argument” is a sufficient basis on which we may dismiss an appeal. See Blanks
v. Fluor Corp., 450 S.W.3d 308, 324 n.1 (Mo. App. E.D. 2014) (“An inadequate statement of facts is grounds for
dismissal.”). We are troubled by SLB’s flagrant disregard for the requirements of Rule 84.04(c) and do not
countenance the lack of respect for the rules of appellate procedure lightly. However, because Point One is limited
to challenging the trial court’s authority, which is a question of law, the glaring deficiencies in SLB’s presentation of
the facts do not fatally hinder the narrow scope of our review. For this reason alone we will exercise our discretion
to review Point One. See id.8
inclusive, meaning the trial court may award a combination of sanctions as it deems just,
including simultaneously striking pleadings and issuing a default order. See, e.g., Stockmann v.
Frank, 239 S.W.3d 650, 656 (Mo. App. E.D. 2007) (noting a trial court does not abuse discretion
in both striking the pleadings and entering default judgment where the record reflects the
offending party showed a contumacious, deliberate disregard for the circuit court’s authority);
Anderson v. Arrow Trucking Co., 181 S.W.3d 185, 188–89 (Mo. App. W.D. 2005) (same); see
also Holm v. Wells Fargo Home Mortgage, Inc., 514 S.W.3d 590, 596–97 (Mo. banc 2017)
(“The rule expressly contemplates that a trial court may, in its discretion, sanction a party for
such misconduct by striking pleadings, limiting the party’s ability to present evidence or
otherwise participate at trial, entering a default judgment against the disobedient party, and
requiring the disobedient party to pay the reasonable expenses incurred by the other party in
pursuing discovery.” (emphasis added)).
Although Missouri recognizes default as a harsh remedy, particularly where a judgment
of default is issued on liability, a party maintains the right to have a jury determine the amount of
damages. Holm, 514 S.W.3d at 601. Default is properly invoked where “(1) the disobedient
party engaged in a pattern of repeated disregard of the obligation to comply with the rules of
discovery, i.e., the party has demonstrated a contumacious and deliberate disregard for authority
of the trial court; and (2) the opposing party was prejudiced thereby.” Frontenac Bank v. GB
Invs., LLC, 528 S.W.3d 381, 390 (Mo. App. E.D. 2017) (internal citations omitted); Stockmann,
239 S.W.3d at 656; Anderson, 181 S.W.3d at 188–89.
On appeal, the parties dispute whether the Default Order was a modification of the
interlocutory Sanction Order or, alternatively, a separate, additional order requiring new and
independent discovery violations to authorize its issuance under Rule 61.01. This distinction
9
touches the core of our analysis because the Supreme Court of Missouri reiterated as recently as
2019 that a trial court’s interlocutory order “remains modifiable and, therefore, at any time
before final judgment a court may open, amend, reverse, or vacate an interlocutory order.”
Meadowfresh Sols. USA, LLC v. Maple Grove Farms, LLC, 578 S.W.3d 758, 761 (Mo. banc
2019) (internal quotation omitted); Universal Credit Acceptance, Inc. v. Ware, 556 S.W.3d 69,
74–75 (Mo. App. E.D. 2018) (noting Rule 74.01(b) provides that an interlocutory order is subject
to revision at any time before the entry of a final judgment (internal citations omitted)).
By comparing the different language used in the Default Order and the Sanction Order,
SLB argues that the Default Order did not clarify the first order but instead imposed an
additional sanction. Implicit in SLB’s argument is its misguided assumption that modifications
to the trial court’s initial order may be only clerical in nature. Unlike a final judgment, which
may be modified only via a nunc pro tunc order for clerical errors, an interlocutory order may be
substantively amended, reversed, or vacated at any time before final judgment. See Sanford v.
CenturyTel of Missouri, LLC, 490 S.W.3d 717, 719–20 (Mo. banc 2016).
SLB next reasons that if the Default Order was not a mere modification of an
interlocutory order, then trial court lacked any basis for imposing additional discovery sanctions
because SLB complied with the requirements of the Sanction Order and committed no further
discovery violations. We reject SLB’s characterization of the Default Order as being separate
and distinct from the Sanction Order. The record before us demonstrates that, following Hoock’s
second motion for sanctions and to compel, the trial court entered its Sanction Order granting
Hoock’s motion and striking SLB’s pleadings and affirmative defenses. SLB subsequently
moved for leave to file its answer and affirmative defenses. Although SLB denies it sought
reconsideration of the Sanction Order, the trial court noted SLB effectively asked the trial court
10
to reconsider the Sanction Order entered against it by seeking leave to file its pleadings after they
were struck by the Sanction Order. Hoock opposed the motion, arguing that the Sanction Order
was proper, that SLB had failed to fully comply with the Sanction Order, and that Hoock would
suffer prejudice if the sanction were vacated. At two subsequent hearings, the trial court heard
SLB’s motion and argument, and took the sanction matter under submission. Hoock requested
the trial court enter a default judgment on liability. When the case proceeded to its initial June
trial date, the trial court issued its Default Order denying SLB’s motion for leave to file its
answer and affirmative defenses and ordering the entry of a default judgment on the issue of
SLB’s liability for Hoock’s claim. The Default Order specifically found that “based on the
arguments presented in the briefs and at the hearing, the Court finds it would be beneficial to
clarify its earlier Sanction Order.” The Default Order reasoned that “by striking [SLB]’s entire
answer and its affirmative defenses, the Court’s intention was to foreclose all argument regarding
and [sic] need for Plaintiff to prove [SLB]’s liability at trial[.]”
Given the record before us, we hold that the trial court properly exercised its authority
under Rule 74.01(b) to enter the Default Order as a clarifying modification of its earlier
interlocutory Sanction Order. See Meadowfresh, 578 S.W.3d at 761; Universal Credit, 556
S.W.3d at 74–75. To the extent that a trial court’s modification of an interlocutory order should
be issued only with due notice to the affected parties, such that the parties have the opportunity
to be heard, here, SLB expressly moved to refile its pleadings in response to the Sanction Order
and argued its position before the trial court. SLB also had the opportunity to respond when
Hoock sought a default on liability. See Simpkins v. Ryder Freight Sys., Inc., 855 S.W.2d 416,
421 (Mo. App. W.D. 1993). Additionally, SLB has not shown that a change in judge in the case
between the two orders had any impact on the trial court’s authority to modify the interlocutory
11
Sanction Order and issue the Default Order. See Universal Credit, 556 S.W.3d at 75 (noting that
a successor judge has the authority to reconsider and reverse a predecessor judge’s interlocutory
rulings).4
Thus, because the trial court was free to modify its interlocutory Sanction Order striking
SLB’s answer and affirmative defenses, the trial court did not lack legal authority to enter its
Default Order. See Meadowfresh, 578 S.W.3d at 761; Universal Credit, 556 S.W.3d at 74–75.
Point One is denied.
II. Point Two—Continuance Motion
Point Two posits the trial court abused its discretion in denying SLB’s motion for a
continuance based on Hoock’s late production of key medical records shortly before trial.
A. Hoock’s Motion to Dismiss under Rule 84.04
We again note that Hoock has moved to dismiss SLB’s appellate brief for failure to
comply with Rule 84.04. In particular, Hoock complains that SLB’s statement of the facts and
use of facts in the argument sections of its brief fail to adhere to Rule 84.04(c)’s requirement that
parties provide “a fair and concise statement of the facts relevant to the questions presented for
determination without argument.”
4
To the extent SLB also alleges the trial court abused its discretion by imposing the ultimate sanction of default,
such a claim would be multifarious under Point One for invoking two different standards of review. Points on
appeal that raise multiple issues of law and standards of review violate Rule 84.04(d) by “group[ing] together
multiple, independent claims rather than a single claim of error” and thus preserve nothing for review. Griffitts v.
Old Republic Ins. Co., 550 S.W.3d 474, 478 n.6 (Mo. banc 2018) (internal quotation omitted). Nonetheless, we may
choose to review the first point as an exercise of discretion. See id. at 478. Here, we note that SLB acknowledges
that it does not challenge the trial court’s authority to enter the Sanction Order. On appeal, although SLB disagrees
with the severity of the Sanction Order, it limits this appellate challenge to the authority of the trial court to have
entered the Default Order. SLB waived any challenge to the substance or severity of the Sanction Order, and SLB
failed to preserve under Rule 84.04 any implied challenge as to whether the trial court’s modification of the Sanction
Order and entry of default on the issue of liability was an abuse of discretion. The trial court’s authority to enter the
Sanction Order is not disputed. The trial court’s authority to order the entry of default derives from its modification
and clarification of that order. See Hooks, 526 S.W.3d at 145.
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“The primary purpose of the statement of facts is to afford an immediate, accurate,
complete and unbiased understanding of the facts of the case.” Nichols v. Div. of Emp’t Sec.,
399 S.W.3d 901, 903 (Mo. App. W.D. 2013) (internal quotation omitted). Appellants may “not
simply recount appellants’ version of the facts presented at trial.” Blanks, 450 S.W.3d at 324
n.1. “Emphasizing facts favorable to the appellant and omitting others essential to the
respondent does not substantially comply with Rule 84.04.” Id. (internal citation omitted). Rule
84.04 is not merely designed to enforce hypertechnical procedures or to burden the parties on
appeal; rather, “[c]ompliance with the briefing requirements is required, not only so the appellant
may give notice of the precise matters at issue, but also so that unnecessary burdens are not
imposed on the appellate court and to ensure that appellate courts do not become advocates for
the appellant.” Id. (internal citation omitted). A statement of facts that is argumentative does not
substantially comply with Rule 84.04. Hamilton v. Archer, 545 S.W.3d 377, 379 (Mo. App.
E.D. 2018). As Court of Appeals Judge A.P. Stone commented in the Missouri Bar Journal:
[A]n inaccurate or biased statement, whether colored affirmatively by
untruth or negatively by half-truth, is likely to hinder rather than advance
the cause of the brief writer, and there is grave danger that the court may
lose faith not only in that portion of the brief but also in the important
portions following.
Judge A.P. Stone, Jr., Effective Appellate Briefs, 15 J. MO. BAR 80, 83 (1959). Relatedly, the
unbiased and concise statement of facts must be supported with complete and accurate citation to
the record, which is “mandatory and essential for the effective functioning of appellate courts
because courts cannot spend time searching the record to determine if factual assertions in the
brief are supported by the record.” Duncan-Anderson v. Duncan, 321 S.W.3d 498, 499 (Mo.
App. E.D. 2010) (per curiam) (quoting Johnson v. Buffalo Lodging Assocs., 300 S.W.3d 580,
581 (Mo. App. E.D. 2009)). Because failure to properly present the facts on appeal preserves
13
nothing for our review, “[a]n inadequate statement of facts is grounds for dismissal.” Blanks,
450 S.W.3d at 324 n.1.
Here, Hoock maintains that SLB’s argumentativeness and omission of facts favorable to
the judgment warrant dismissal, given that the facts fail to preserve the arguments for appeal.
See id. We agree that SLB’s brief is deficient in its presentation of facts in numerous respects,
including being argumentative, failing to consistently and accurately cite to the relevant pages in
the transcript, and failing to summarize the trial court’s findings and reasoning for denying the
Continuance Motion. Because the written Continuance Motion was orally heard and decided,
SLB’s mere attachment of the legal file and its 900-page transcript would have burdened our
review given that many of SLB’s citations to the record were imprecise and failed to pinpoint the
argument of the Continuance Motion before the trial court as well as the relevant portions of the
trial court’s decision. SLB devotes significant effort in its Statement of Facts in an apparent
attempt to re-litigate the discovery battle between the parties, as well as rearguing the basis for
its Continuance Motion. The Statement of Facts does not comport with Rule 84.04 nor does it
well serve the merits of SLB’s point on appeal. While these deficiencies are potentially fatal to
SLB’s appeal on this point, we prefer to address claims on their merits, if the presentation of the
facts does not fatally hinder our review. See King v. King, 548 S.W.3d 440, 442 (Mo. App. E.D.
2018). Despite SLB’s briefing deficiencies, we can glean SLB’s basic arguments. Moreover,
because and only because Hoock provided the precise and correct citations to the record, were
we able to locate the relevant trial court findings in the record and provide meaningful review
without becoming an advocate for SLB. We therefore choose to exercise our discretion and
review this point on appeal. See id. Hoock’s motion to dismiss SLB’s appeal is denied.
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B. Standard of Review
A trial court is vested with broad discretion over discovery matters and remedies for
alleged late disclosures of evidence. Gallagher, 238 S.W.3d at 162 (internal citation omitted).
Further, “[o]verruling a motion for continuance is within the sound discretion of the trial court.”
Matter of A.L.R., 511 S.W.3d 408, 414 (Mo. banc 2017) (internal quotation omitted). Thus, we
review the denial of a motion for continuance due to the late production of evidence for abuse of
discretion. Rule 65.01; Macke v. Patton, 591 S.W.3d 865, 868 (Mo. banc 2019) (internal citation
omitted). We will not find a trial court abused its discretion unless “the ruling is clearly against
the logic of the circumstances and is so unreasonable and arbitrary that the ruling shocks the
sense of justice and indicates a lack of careful, deliberate consideration.” Macke, 591 S.W.3d at
868 (quoting Howard v. City of Kan. City, 332 S.W.3d 772, 785–86 (Mo. banc 2011)). “We
view the evidence in the light most favorable to the trial court’s ruling.” Hale v. Cottrell, Inc.,
456 S.W.3d 481, 488 (Mo. App. W.D. 2014) (internal citation omitted). “[I]f reasonable persons
can differ about the propriety of the action taken by the trial court, then it cannot be said that [the
trial court] abused its discretion.” Id. at 488 (quoting Anglim v. Mo. Pac. R.R. Co., 832 S.W.2d
298, 303 (Mo. banc 1992)).
“Denial of a request for a continuance is seldom reversible error.” Newell Mach. Co.,
Inc. v. Pro Circuit, Inc., 596 S.W.3d 635, 643 (Mo. App. W.D. 2020) (quoting Tatum v. Tatum,
577 S.W.3d 146, 153 (Mo. App. E.D. 2019)). “Where we are analyzing a trial court’s actions in
the context of a response to pre-trial discovery, we consider whether, under the totality of the
circumstances, the challenged act has resulted in prejudice or unfair surprise.” Kehr v. Knapp,
136 S.W.3d 118, 122 (Mo. App. E.D. 2004) (per curiam) (quoting Siller v. Rivituso-Siller, 129
S.W.3d 433, 436 (Mo. App. E.D. 2004)). “The party requesting the continuance must make a
15
strong showing of abuse as well as prejudice resulting from the denial of the request.” A.L.R.,
511 S.W.3d at 414 (internal quotation omitted); Wintz v. Hyatt Hotels Corp., 687 S.W.2d 587,
590 (Mo. App. W.D. 1985).
C. Analysis
Initially, we note that our review of Point Two is limited to the Continuance Motion as
written and orally argued before the trial court. See Rule 65.03; see also Jacoby v. Hamptons
Cmty. Assoc., Inc., 602 S.W.3d 869, 873 (Mo. App. E.D. 2020) (noting that we “will not convict
a trial court of error for an issue not presented for its determination” (internal quotation
omitted)). To the extent SLB’s appellate brief asks us to conduct de novo review of the cross-
party conflagration of discovery-violation allegations, such a task far exceeds the permissible
scope of our review. See id. We recognize that the discovery issues are not limited to SLB; the
record is replete with troubling discovery practices by both parties, an unfortunate and
obstructive pattern that too often infects today’s litigation practice. However, we must view the
evidence in the light most favorable to the trial court’s ruling and will affirm the judgment if it is
correct for any reason. Important to our analysis, we will not overturn the trial court’s ruling
merely because we might have reached a different result had we sat in the trial court’s place. See
Hale, 456 S.W.3d at 488 (internal citation omitted).
SLB filed its Continuance Motion the day before trial, alleging that Hoock produced new
medical records just two weeks before trial. Specifically, SLB alleged that the newly produced
medical records included Hoock’s 2006-2012 Records, which for the first time disclosed
Hoock’s treatment for depression, headaches, dizziness, difficulty concentrating, anxiety, and
photophobia, all occurring prior to her disclosed 2012 concussions. The newly produced
medical records also included the Davis Records, which evidenced recent depression treatment
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from a late-disclosed medical provider. SLB maintained that a continuance was necessary
because all head-related treatment was relevant to Hoock’s claims for damages and, importantly,
SLB’s expert witness, Dr. Silverman, was unavailable to opine on the new records in time for
trial. SLB’s position at trial was that Hoock received neurological care only immediately after
the incident and not consistently thereafter to support her claim for head-injury damages. SLB
argued that Hoock was in remission for all symptoms allegedly associated with the hockey game
incident.
A trial court has wide discretion to grant or deny a continuance due to alleged discovery
violations, and “[t]he exercise of this discretion should be directed toward the accomplishment of
fundamental fairness and the avoidance of unfair surprise.” Kehr, 136 S.W.3d at 122 (quoting
Siller, 129 S.W.3d at 436). “[D]iscoverability of medical records before trial helps the trial court
reach the ultimate object of every trial, which is to get at the truth[.]” Hale, 456 S.W.3d at 489
(internal quotation omitted). Here, the trial court appears to have made a good-faith effort to
ascertain the truth despite the contentious discovery process. See Lewellen, 441 S.W.3d at 149
(noting abuse of discretion only occurs where the trial court’s ruling was “so arbitrary and
unreasonable as to shock the sense of justice and indicate a lack of careful consideration”
(internal quotation omitted)).
Hoock maintains that even if she was late in disclosing her medical records, SLB
nonetheless fails to meet its burden of proving that the late disclosures adversely affected SLB’s
conduct at trial in trying the issue of the damages. See Gallagher, 238 S.W.3d at 166 (finding the
trial court did not err in denying a motion for new trial following late production of records in
violation of discovery rules where the trial court found no outcome-determinative prejudice
despite recognizing troubling discovery handling by both parties). We ultimately are persuaded
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that the trial court’s denial of SLB’s second request for a continuance was not clearly against the
logic of the circumstance, but was firmly grounded not only on the record before it, but upon
SLB’s failure to demonstrate the necessary prejudice to warrant reversal. See A.L.R., 511
S.W.3d at 414; Lewellen, 441 S.W.3d at 149; Hale, 456 S.W.3d at 488.
We first address the Davis Records. Hoock first saw Dr. Davis, a member of Hoock’s
primary care practice group, in December 2017 during the pendency of the case. Dr. Davis
indicated that Hoock’s depression was being managed with medication. Critically, SLB
acknowledged in its motion for sanctions and to compel that the trial court granted its first
continuance to move the trial from early June to late August so that SLB could depose Dr. Davis.
We cannot confirm Hoock’s claims that SLB had access to the Davis Records many months in
advance of trial, but do know for certain that SLB acquired the records at least by June based on
SLB’s own statements in its July motion to compel. In that motion, SLB acknowledged that the
documents Hoock produced on June 3 contained medical records regarding Hoock’s visit to Dr.
Davis. Although the first continuance was granted for purposes of allowing SLB to investigate
the Davis Records, the record lacks any indication that SLB attempted to depose Dr. Davis. This
opportunity to pursue investigation into Dr. Davis’s primary-care treatment contrasts with the
facts in Wintz, in which the Western District found prejudicial error in the trial court’s denial of
a continuance where the defendants lacked any opportunity to have their medical expert examine
a newly-disclosed x-ray exhibit that went directly to the nature and extent of the plaintiff’s
compensable injuries. Wintz, 687 S.W.2d at 591; see Newell, 596 S.W.3d at 644 (noting “a
circuit court does not abuse its discretion in refusing to grant a continuance to allow for
additional discovery when the party seeking the discovery had adequate means and ample time to
conduct it without court intervention” (internal quotation omitted)). SLB’s complaints regarding
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the late disclosure of the Davis Records served as the basis of the trial court’s granting of the first
continuance and provided SLB sufficient time to adequately explore issues pertaining to Hoock’s
treatment referenced therein. Accordingly, we find SLB fails to make a strong showing of unfair
surprise or prejudice. See A.L.R., 511 S.W.3d at 414.
We next consider SLB’s complaint that Hoock untimely produced the 2006-2012
Records shortly before trial. The medical issues in these records included Hoock’s six-month
depressive episode in middle school, ten years before the hockey game incident, as well as
Hoock’s sports injuries and three previously-disclosed concussions in 2012. The parties dispute
when SLB acquired access to the 2006-2012 Records and also dispute whether the 2006-2007
medical issues were mentioned in medical records disclosed prior to the 2006-2012 Records.
Our review of the record confirms the trial court’s finding that Dr. Yazdi’s November
2018 report specifically referenced Hoock’s treatment for a bout of depression for several
months in middle school. Therefore, SLB falls short of making the strong showing of unfair
surprise and prejudice shortly before trial for us to conclude that the trial court abused its
discretion in denying another continuance. See A.L.R., 511 S.W.3d at 414.
We also find the record supports the trial court’s assessment that Hoock provided
sufficiently timely disclosure about her 2012 concussions for purposes of offering relevant pre-
existing medical history prior to the hockey game injury. See Hale, 456 S.W.3d at 489. Hale
involved a worker’s injury in a products liability action. In Hale, the Western District held that
the plaintiff “conceal[ed] certain medical records as part of a scheme to preclude the defense
from challenging the nature and extent of claimed injuries” which “constitute[d] fraud on the
court, and, at the very least, demonstrate[d] bad faith conduct.” Id. at 491. We concur with the
trial court that Hale is distinguishable because, unlike here, the plaintiff’s undisclosed records
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went to causation. See id. at 494 (noting the plaintiff claimed that his operation of the rig caused
a herniated disc or resulted in his already asymptomatic herniated disc becoming symptomatic,
yet he willfully concealed a prior partial-spondylolisthesis diagnosis that could have caused the
herniated disc). Contrastingly, while the trial court here acknowledged some memory issues
with respect to the Hoock’s recollection of her medical history going back to the eighth grade,
the trial court found no willful concealment of medical records. We defer to the trial court’s
factual findings. Id. at 488. Moreover, as the trial court recognized, both parties relied on the
medical experts’ conclusions that Hoock’s sports-related injuries and concussions in 2012 were
fully resolved and that Hoock was asymptomatic prior to the incident. We are persuaded that a
deeper dive into those records would not have had a significant impact on Hoock’s claim for
damages. See Wegeng v. Flowers, 753 S.W.2d 306, 308–09 (Mo. App. W.D. 1988) (noting a
change in the plaintiff’s claim that substantially enlarges the available damages may be a proper
subject for a continuance). Similarly, in the context of the damages issue before the jury, neither
the singular attestation to childhood migraines in Hoock’s patient history nor the increase in
known antidepressant medication rise to a level justifying a trial delay for more medical expert
analysis. See id. In Wegeng, the trial court improperly denied the defendants’ motion for
continuance where the plaintiff underwent surgery one month prior to trial such that the plaintiff
“knew that her condition changed after the case was set for trial and that her claim was
substantially enlarged.” Id. at 308. The present case is distinguishable from Wegeng because
the 2006-2012 Records merely added to previously established details of Hoock’s prior medical
history, which had been disclosed and made accessible through executed medical authorizations.
See id.; Hale, 456 S.W.3d at 489.
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When viewing the evidence in the light most favorable to the ruling, we are not
persuaded that SLB has met its burden to show the necessary prejudice to the outcome of the
case to find that the trial court’s denial of its motion for continuance was clearly against the logic
of the circumstances and so unreasonable and arbitrary as to shock the sense of justice. See
Macke, 591 S.W.3d at 868. Accordingly, we find the trial court did not abuse its discretion in
denying the Continuance Motion. See A.L.R., 511 S.W.3d at 414. Point Two is denied.
Conclusion
The judgment of the trial court is affirmed.
_______________________________
KURT S. ODENWALD, Judge
Angela T. Quigless, P.J., concurs.
James M. Dowd, J., concurs.
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