[Copyrighted Material Omitted]
Appeal from the District Court of Grand Forks County, Northeast Central Judicial District, the Honorable M. Richard Geiger, Judge.
Timothy C. Lamb, Grand Forks, N.D., for plaintiff, appellant and cross-appellee.
Howard D. Swanson, Grand Forks, N.D., for defendant, appellee and cross-appellant.
Dale V. Sandstrom, Daniel J. Crothers, Lisa Fair McEvers, Carol Ronning Kapsner, Gerald W. VandeWalle, C.J. Opinion of the Court by Sandstrom, Justice. VandeWalle, Chief Justice, concurring specially.
[¶1] After a jury trial, Faith Krueger appeals and Grand Forks County cross-appeals from a judgment in favor of the County in Krueger's action for breach of fiduciary duty, negligence, trespass to chattel, conversion, intentional infliction of emotional distress, and negligent supervision of a public administrator. Krueger raises issues about the district court's denial of her motion to compel discovery, the denial of her motion for a continuance, the denial of her claim for damages for mental anguish, evidentiary rulings, jury instructions, and statements by counsel during closing arguments. We affirm.
[¶2] In July 2012, Krueger sued the County for breach of fiduciary duty, negligence, trespass to chattel, conversion, intentional infliction of emotional distress, and negligent supervision. Krueger alleged she lost over $300,000 in property and assets after Barbara Zavala, the Grand Forks County Public Administrator, was appointed her guardian and conservator. Krueger claimed the County was liable for Zavala's actions under N.D.C.C. § 32-12.1-03 because Zavala was a county employee.
[¶3] In May 2013, Krueger moved to compel discovery, alleging Debbie Nelson, the Grand Forks County Auditor, provided numerous requested documents at her deposition but failed to produce a September 19, 2011, letter she wrote to Grand Forks Police Department Detective Mike Flannery regarding concerns about Zavala and her assistant, Cathi Westensee-Fisk. Krueger also alleged the County failed to produce its employee handbook, personnel and employment records for Zavala and Westensee-Fisk, and correspondence about coverage from the state bonding
fund for claims related to Zavala and Westensee-Fisk.
[¶4] After a hearing, the district court denied Krueger's motion to compel, finding most of the documents were either provided or were never requested. The court further found Krueger was entitled to the letter from Nelson to Flannery, that Nelson admitted during her deposition that she possessed the letter, and that Nelson agreed to have the letter delivered after she reviewed her deposition. The court found Krueger's motion to compel lacked certification that an effort was made to resolve the discovery issues without court action as required by N.D.R.Civ.P. 37(a)(1), and Krueger made no effort to obtain a copy of Nelson's letter to Flannery after Nelson's deposition and before making the motion to compel. The court found the motion to compel discovery of the letter was moot because Krueger has received the letter, and the court awarded the County attorney's fees.
[¶5] In June 2013, the County moved for summary judgment. The County argued it could not be held vicariously liable for Zavala's acts because Zavala was appointed public administrator by the district court, the court exercised authority over specific appointments and activities related to the appointment, and the County did not have any authority to supervise, oversee, or control Zavala's conduct while she was acting as Krueger's guardian or conservator. The County also argued Krueger could not establish the required elements for her negligence, trespass to chattel, conversion, intentional infliction of emotional distress, and negligent supervision claims.
[¶6] The district court granted the County's motion in part and denied it in part. The court ruled the County could be held vicariously liable for Zavala's acts or omissions under N.D.C.C. § 32-12.1-03 because Zavala was a county employee or officer as defined by N.D.C.C. § 32-12.1-02(3). The court denied the County's motion for summary judgment on the claims for breach of fiduciary duty, negligence, trespass to chattel, and conversion, but dismissed the claims for intentional infliction of emotional distress and negligent supervision.
[¶7] On September 1, 2013, Krueger moved to continue for 90 days the jury trial scheduled for September 10, 2013. Krueger argued a companion case against the County was recently tried involving Zavala and Westensee-Fisk, there were developments in that case affecting Krueger's case, there was not enough time to prepare for this case because the two cases were being tried so close together, and the media coverage for the companion case may have tainted the jury panel. The court denied the motion, stating the parties were aware the cases would be scheduled close together and any potential tainting of the jury panel would not require a continuance. The court also advised that the parties and the court would have to be vigilant about possible tainting of the jury panel and informed Krueger that she could inquire about potential juror's familiarity with the other case and a mistrial could be declared if the entire panel was tainted.
[¶8] On September 5, 2013, the County moved to exclude the admission of any evidence at trial regarding emotional distress and mental anguish and to bar any claims for non-economic damages resulting from mental anguish or emotional distress. The County argued Krueger failed to produce any discovery about any claims for damages for emotional distress or mental anguish and indicated in answering interrogatories that she was not claiming noneconomic damages, until she supplemented her responses to the interrogatories on September 3, 2013, and indicated she intended
to claim damages for mental anguish. The County argued Krueger failed to produce any evidence or disclose any information about the claimed damages and it did not have information to adequately defend against any claims.
[¶9] The court granted the County's motion to exclude the evidence and ordered the non-economic damages claims would not be allowed. The court found Krueger did not indicate non-economic damages were being sought until six days before the trial, the reason for Krueger's delay in advising the County of her decision to seek non-economic damages could not be considered excusable neglect, it was too late for the County to file a motion to compel, and the County was prejudiced by the late disclosure.
[¶10] After a jury trial on September 10-12, 2013, the jury found Zavala breached a fiduciary duty, was negligent, and converted Krueger's property, but found Zavala's conduct was not the proximate cause of Krueger's damages. The jury also found Zavala did not commit a trespass to chattels. The court entered a judgment dismissing Krueger's claims on the merits.
[¶11] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, § § 2 and 6, and N.D.C.C. § 28-27-01.
[¶12] Krueger argues the district court abused its discretion by denying her motion to compel discovery. Krueger claims the court's decision was partially based on a lack of certification under N.D.R.Civ.P. 37(a)(1), but she argues the subpoena duces tecum for Nelson's deposition satisfied the certification requirement and the court abused its discretion by ruling the motion lacked certification.
[¶13] The district court has broad discretion regarding the scope of discovery, and the court's discovery decisions will not be reversed on appeal unless the court abuses its discretion. Lynch v. New Pub. Sch. Dist. No. 8, 2012 ND 88, ¶ 23, 816 N.W.2d 53. A court abuses its discretion when it acts in an arbitrary, unreasonable, or unconscionable manner, when it misinterprets or misapplies the law, or when its decision is not the product of a rational mental process leading to a reasoned determination. Id. " 'An abuse of discretion by the district court is never assumed, and the burden is on the party seeking relief affirmatively to establish it.'" Id. (quoting Leno v. K & L Homes, Inc., 2011 ND 171, ¶ 23, 803 N.W.2d 543). The party seeking relief must show that the court positively abused its discretion and not that the court made a " poor" decision. Lynch, at ¶ 23.
[¶14] Rule 37, N.D.R.Civ.P., provides procedural requirements for a party moving to compel discovery, and states:
On notice to other parties and all affected persons, a party may move for an order compelling discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to ...