Appeals from the Superior Court of the District of Columbia CA-1632-97 (Hon. Stephen F. Eilperin, Motions Judge) (Hon. Geoffrey M. Alprin, Trial Judge)
The opinion of the court was delivered by: Glickman, Associate Judge
Before Terry, Farrell, and Glickman, Associate Judges.
These cross-appeals are the culmination of acrimonious family disputes, some of which the participants chose to record on tape, that ensued following the intestate death of Lew Gin Gee Jung. The decedent's children initially agreed that her daughter, Yok T. Jung, would purchase Lew Gin Gee Jung's home from her Estate, but a dispute erupted between Yok and her brothers, Bow G. Jung and Wee G. Jung, over how much Yok would have to pay. *fn1 The discord between Yok and her brothers also extended to whether Yok was withholding information concerning bank accounts in the name of the decedent to which Yok, alone of the siblings, was a signatory. These disagreements as to the distribution of Lew Gin Gee Jung's estate eventually were resolved in probate proceedings which now are concluded. *fn2 However, Yok filed a separate civil suit against Bow and Wee in Superior Court, charging them with intentional infliction of emotional distress stemming from their arguments with her over the disposition of their mother's estate.
At the trial of this tort action, the court entered judgment as a matter of law against Yok and in favor of Bow and Wee. On appeal, Yok challenges that ruling, as well as an earlier ruling in the case that sanctioned her for withholding discovery. The trial court denied Wee's post-trial motion for an award of attorney's fees as a sanction against Yok for litigating against him in bad faith. In his cross appeal, Wee asks this court to review that denial.
We affirm both the rulings against Yok. We remand the case for the trial court to explain - or if it chooses, to reconsider and modify -its decision on Wee's attorney's fees request.
Pretrial discovery is intended to operate via the parties' voluntary cooperation with a minimum of judicial oversight, and consequently, it is vulnerable to parties who choose to employ obstructive tactics in bad faith. The subversion of the discovery process by such means seriously harms the administration of justice. When discovery abuses come to the attention of the judge, the judge has a duty to take proportionate and effective countermeasures. For that purpose, Super. Ct. Civ. R. 37 permits the trial court to select from a range of sanctions, including the award of attorney's fees and expenses, the preclusion of claims or defenses, and the dismissal of an action or the entry of a judgment of default. See Perry v. Sera, 623 A.2d 1210, 1218 (D.C. 1993). "[T]he decision to impose discovery sanctions is left to the `broad discretion' of the trial court," and this court "will reverse only if the trial court abuses its discretion by imposing a penalty too strict or unnecessary under the circumstances." Lyons v. Jordan, 524 A.2d 1199, 1201 (D.C. 1987).
In deciding to impose discovery sanctions, the motions judge found that this case was "marked by plaintiff's [i.e., Yok's] extreme tardiness in providing even incomplete discovery responses coupled with plaintiff's refusal to comply with court ordered discovery obligations." The judge noted that Yok exacerbated this pattern of obstruction by her "habit of filing frivolous motions for protective orders the day after responses were due, or the day after a deposition was scheduled." A few examples will serve to illustrate the aptness of these observations.
Yok and her counsel repeatedly failed to appear for her properly noticed deposition, even after the motions judge ordered her to make herself available. As well, Yok for months failed to respond to the defendants' interrogatories and document requests - again, even after the judge ordered her to do so. When Yok did respond, she answered evasively. Asked about her allegation that Bow tortiously pressured her to add his name to Estate bank accounts on which she was the sole signatory, Yok professed to be unable to identify the accounts or to specify what Bow did. Not unreasonably, the motions judge found that Yok's response failed to provide Bow "with information necessary to defend himself against her allegation." To interrogatories concerning her damages, Yok answered - unresponsively and inaccurately - that her attorney already had provided the information. Asked to describe the factual basis for her punitive damages claim, Yok's entire response was "My lawyer decided to claim punitive damages." Questioned about the medical problems and wage loss that she attributed to the defendants' intentional infliction of emotional distress, Yok provided answers that were confusing and, in the words of the motions judge, "woefully incomplete." The judge concluded that "the paucity" of Yok's answers did not leave Bow and Wee "in an adequate position to differentiate what portion of [Yok's] medical claims may in fact be the result of a pre-existing medical condition."
Stating that he would have been "fully justified in dismissing the complaint with prejudice at this point," the motions judge instead chose to impose lesser, though still meaningful, sanctions. Focusing "on the subjects where discovery remain[ed] deficient," the judge precluded Yok from introducing evidence at trial in support of her allegation that Bow forced her to add his name to Estate bank accounts. The judge also struck Yok's medical and lost wages claims and her claim for punitive damages. In addition, the motions judge awarded Bow and Wee the verified attorney's fees and costs, amounting to $12,320, that they incurred in attempting to obtain discovery from Yok.
In our view, the motions judge exercised his discretion appropriately. He did not act precipitately, but gave Yok opportunities, which she failed to take, to remedy her discovery violations and avoid the necessity for sanctions. The time had come for the judge to take effective corrective action in the interests of justice - the violations merited sanctions. The sanctions that the judge imposed were not excessive. They did no more than redress the injury to Bow and Wee that Yok's discovery violations caused. Yok has not persuaded us that she is entitled to relief.
II. Judgment as a Matter of Law
"To establish a claim for intentional infliction of emotional distress, a plaintiff must prove that the defendant engaged in: (1) extreme and outrageous conduct that (2) intentionally or recklessly caused (3) severe emotional distress to another." Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 934-35 (D.C. 1995). Conduct does not rise to the level of being either extreme or outrageous if it consists of "mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Waldon v. Covington, 415 A.2d 1070, 1076 (D.C. 1980) (citation omitted). Rather, intentional infliction of emotional distress liability attaches "only when the ...