                                                                       FILED
                                                                  Jun 22 2017, 9:03 am

                                                                       CLERK
                                                                   Indiana Supreme Court
                                                                      Court of Appeals
                                                                        and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
John R. Maley                                              Kevin W. Betz
Barnes & Thornburg LLP                                     Sandra L. Blevins
Indianapolis, Indiana                                      Benjamin C. Ellis
                                                           Betz + Blevins
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

The Care Group Heart Hospital,                             June 22, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1603-PL-580
        v.                                                 Appeal from the Marion Superior
                                                           Court
Roderick J. Sawyer, M.D.,                                  The Honorable David J. Dreyer,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause Nos.
                                                           49D10-1208-PL-32513
                                                           49D10-1307-PL-28479



Brown, Judge.




Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                    Page 1 of 39
[1]   The Care Group Heart Hospital (the “Hospital”) appeals from an order denying

      its motion to dismiss issued on January 28, 2013, a final judgment entered on

      February 18, 2016, and an order denying its motion to correct errors issued the

      same day, in favor of Roderick J. Sawyer, M.D.1 The Hospital raises one issue

      which we revise and restate as whether the trial court erred in denying the

      Hospital’s motion to dismiss and in entering judgment in favor of Dr. Sawyer.

      Additionally, Dr. Sawyer presents the following issues on cross-appeal:


            I.     Whether the court erred in granting partial summary judgment in
                   favor of the Hospital; and

           II.     Whether the court abused its discretion in awarding attorney fees to
                   Dr. Sawyer as a result of the Hospital’s misconduct during discovery.

      We affirm in part, reverse in part, and remand.2


                                        Facts and Procedural History

[2]   Dr. Sawyer began practicing as a cardiologist in 1996 and became a

      partner/shareholder of The Care Group (“TCG”) in 1999. In 2003, he became

      a member of the Hospital when it was founded by physicians of TCG and St.

      Vincent Health. On July 1, 2010, St. Vincent Health purchased the assets of

      TCG, resulting in the formation of the St. Vincent Medical Group, Inc.

      (“SVMG”). At that point, Dr. Sawyer became an employee of SVMG. On




      1
       Also named as defendants below are the St. Vincent Medical Group, Inc. and Christopher Hollon, M.D.
      The St. Vincent Medical Group, Inc. does not appeal the judgment entered against it, and the jury found in
      Dr. Hollon’s favor.
      2
       On May 23, 2017, we held oral argument in Indianapolis. We thank counsel for their well-prepared
      advocacy.

      Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                         Page 2 of 39
      July 22, 2011, SVMG notified Dr. Sawyer by letter that his employment was

      terminated, effective immediately. The letter stated:


              The decision to terminate your [employment] was made due to
              your continued failure to comply with SVMG’s policies,
              guidelines and expectations around appropriate coding services
              and medical record documentation, despite SVMG’s efforts to
              help you improve. Further, as we have also discussed on several
              occasions, your office management style and unprofessional
              behavior has contributed to a dysfunctional work environment.


      Appellant’s Appendix Volume 2 at 116.


[3]   The relationship between Dr. Sawyer, SVMG, and the Hospital is governed by

      three contracts. First, SVMG and Dr. Sawyer are parties to an employment

      agreement (the “Employment Agreement”) regarding Dr. Sawyer’s

      employment by SVMG as a cardiologist. Second is the Amended and Restated

      Operating Agreement of the Hospital (the “Operating Agreement”), signed by

      the Hospital’s secretary, which governs “certain aspects of the operations” of

      the Hospital and sets forth “the rights and obligations of the Members,” which

      included Dr. Sawyer. Id. at 118. Third, SVMG, Dr. Sawyer, and the Hospital

      signed a “Joinder Agreement” regarding the redemption of Dr. Sawyer’s

      membership interest in the Hospital in the event of the termination of his

      employment. Id. at 114.


[4]   The letter of July 22, 2011, stated that Dr. Sawyer’s employment under the

      Employment Agreement was terminated pursuant to Section 4.2-2(a) and 4.2-



      Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 3 of 39
2(i). Those provisions, as well as other relevant sections of the Employment

Agreement, are as follows:


                                           ARTICLE IV


                               TERM AND TERMINATION


        4.1 Term. This Agreement shall be effective as of the date of its
        execution but the employment contemplated hereunder shall
        begin on July 1, 2010 (“Physician’s Start Date”). The Agreement
        shall have a term of ten (10) years beginning with Physician’s
        Start Date. The Agreement shall automatically renew thereafter
        for one (1) year terms . . . .


        4.2 Termination. Notwithstanding Section 4.1, this Agreement
        shall terminate on the occurrence of any of the following events:


                                               *****


                 4.2-2 Immediate Termination for Cause. [SVMG] may
                 immediately terminate this Agreement at its sole option by
                 providing Physician written notice, upon the occurrence of
                 any of the following:


                          (a) any act or omission of Physician which, in
                          [SVMG’s] reasonable opinion, after consultation
                          with the Division (or as determined through the
                          Division’s peer review process for (i) the evaluation
                          of the qualifications, competence, or professional
                          conduct of a professional health care provider, or
                          (ii) the evaluation of patient care (collectively, the
                          “Peer Review Matters”), as set forth in I.C. § 34-
                          30-15-16), is grossly and materially contrary to the


Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017            Page 4 of 39
                                business interests, reputation or goodwill of
                                [SVMG];


                                                     *****


                                (i) in [SVMG’s] reasonable opinion, Physician
                                consistently fails to provide professional medical
                                services within the standard of care expected by
                                [SVMG];


                                                     *****


                                                ARTICLE VIII


                                            MISCELLANEOUS


              8.14 Joinder Agreement re: SVHCI. If, as of the date of this
              Agreement, Physician is a member of [the Hospital], as a
              continuing condition of employment hereunder a Joinder
              Agreement having the form attached hereto as Exhibit C shall
              remain in effect as among Physician, [the Hospital], and
              [SVMG].


      Id. at 94-95, 103. Dr. Sawyer signed the Employment Agreement on May 10,

      2010, and Richard I. Fogel, M.D., signed as CEO of SVMG on June 25, 2010.


[5]   The Joinder Agreement provides as follows:


              This Joinder Agreement is effective as of the 1st day of July, 2010,
              by and among [SVMG], [the Hospital], and Roderick J. Sawyer,
              M.D. (“Physician”).



      Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017        Page 5 of 39
        WHEREAS, [SVMG] and the Physician are parties to that
        certain Physician Employment Agreement of even [sic] date
        herewith (the “Agreement”); and


        WHEREAS, Physician is a member of [the Hospital]; and


        WHEREAS, [the Hospital] is a member of St. Vincent Heart
        Center of Indiana, LLC (“SVHCI”); and


        WHEREAS, the parties hereto desire that Physician and [the
        Hospital] shall cause Physician’s membership interest in [the
        Hospital] to be redeemed and Physician to no longer have any
        continuing direct or indirect membership, ownership or
        investment interest in SVHCI in the event that Physician’s
        employment referenced in the Agreement is terminated for any
        reason (other than a termination pursuant to Section 4.4(c)[3] of
        the Agreement).


        NOW THEREFORE, in consideration of the foregoing premises
        and the mutual agreements and covenants contained herein, the
        parties hereto agree as follows:


        1. Mandatory Redemption. Within ninety (90) days of any
        termination of employment between Physician and [SVMG] . . .
        and provided that [the Hospital] then holds a membership
        interest in SVHCI, Physician and [the Hospital] shall cause
        Physician to be redeemed of his interest in [the Hospital] such
        that, following such redemption, Physician shall have no




3
 Section 4.4 of the Employment Agreement concerns voluntary termination of employment by the physician
on certain conditions, and subsection (c) addresses the termination or elimination of the cardiology division
or the TCG practice unit by SVMG.

Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                          Page 6 of 39
              continuing direct or indirect membership, ownership or
              investment interest in SVHCI.


      Id. at 114. The Joinder Agreement stated that the parties executed the

      agreement as of the date noted, July 1, 2010, and was signed by Richard I.

      Fogel, M.D., FACC, as CEO of SVMG, James B. Hermiller, M.D., FACC,

      FSCAI, as Board Chairman of the Hospital, and Dr. Sawyer.


[6]   In addition, the relevant portions of the Hospital’s Operating Agreement are as

      follows:


                                                AGREEMENT


              NOW, THEREFORE, in consideration of the mutual covenants
              contained herein, and in consideration of becoming a Member of
              the [Hospital], the Members . . . agree as follows:


                                                  ARTICLE I


                        DEFINITIONS AND GENERAL PROVISIONS


              Section 1.1 Definitions. . . .


                                                 *****


              “Involuntary Withdrawal” means, with respect to any Member,
              the occurrence of any of the following events: . . . (v) the
              termination of employment or any material agreement the
              Member is a party to with [TCG] or, after the Acquisition Date,
              SVMG.


      Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 7 of 39
                                               *****


                                           ARTICLE III


                     MEMBERS AND CAPITAL STRUCTURE


                                               *****


        Section 3.2 Units Representing Interests. Interests in the
        [Hospital] shall be represented by the Units held by each
        Member. . . .


                                               *****


        Section 3.6 No Redemption Rights. Except as may otherwise
        be specifically provided in this Agreement or be determined by
        the Managers, no Member or former Member shall be entitled, at
        or after the time the Member ceases to be a Member of the
        [Hospital] or at any other time, to demand or receive from the
        [Hospital] a return of any of the Member’s Capital Contributions
        or the purchase or redemption of, or other payment for, the
        Member’s Units or Interest.


                                               *****


                                          ARTICLE VIII


                          TRANSFERS AND WITHDRAWAL


                                               *****




Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 8 of 39
        Section 8.3 Involuntary Withdrawal. Immediately upon the
        date of an Involuntary Withdrawal, the withdrawing Member
        shall cease being a Member of the [Hospital] and all rights
        associated with such membership shall terminate. The
        involuntary withdrawing Member’s Interest shall be purchased
        by the [Hospital] pursuant to Section 8.4 hereof.


        Section 8.4 Payment to Withdrawing Member. . . . [I]f
        withdrawal occurs after completion of three (3) years of
        operation of the Heart Hospital, the [Hospital] shall pay a cash
        amount equal to the greater of: (i) three (3) times the annual cash
        flow distribution based on the average of the three (3) most recent
        full fiscal years; or (ii) the value of Member’s Capital Account at
        the point of withdrawal. . . .


                                           *****


        Section 8.8 Injunction. The parties recognize that a breach or
        threatened breach by any Member of the Company of the
        provisions of Article VIII will result in immediate and irreparable
        injury to Company as to which there will be no adequate remedy
        at law. Accordingly, Company shall in such event be entitled to
        obtain temporary and permanent injunctive relief to enjoin or
        restrain any such breach or threatened breach by any Member of
        the Company and each such person hereby waives by
        requirement that Company post any bond or security in such
        event. Each party shall be entitled to pursue any other available
        remedies in connection with a breach of this Agreement,
        including recovery of monetary damages, and shall in any event
        be entitled to cover from the non-prevailing party, reasonable
        attorneys’ fees and costs incurred in the successful enforcement
        of the provisions of this Agreement. The remedies herein
        provided shall be cumulative and no one remedy shall be
        construed as exclusive of any other or of any remedy provided by
        law and failure of any party to exercise any remedy at any time

Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 9 of 39
              shall not operate as a waiver of the right of such party to exercise
              any remedy for the same or subsequent act at any time thereafter.


      Id. at 118, 120, 123-124, 132-133, 136-137. The effective date of the Operating

      Agreement is listed as May 3, 2010.


[7]   Following Dr. Sawyer’s termination, Brian Morris, who was SVMG’s Chief

      Financial Officer and a CPA, calculated Dr. Sawyer’s unit redemption payment

      pursuant to Section 8.4 of the Operating Agreement, determining that the three

      prior year distributions computation totaled $196,787, which was greater than

      Dr. Sawyer’s capital account balance of $123,572. On March 15, 2012, Morris

      sent Dr. Sawyer a redemption check in the amount of $196,787 and an attached

      letter detailing the calculation.


[8]   On August 29, 2012, Dr. Sawyer filed an Amended Complaint for Damages

      and Demand for Jury Trial against SVMG and the Hospital alleging claims of

      breach of contract, breach of duty of good faith and fair dealing, and tortious

      interference with business relationships against SVMG and a claim of breach of

      contract against the Hospital.4 The claim against the Hospital, listed as Count

      II of the amended complaint, stated that: (1) the Joinder Agreement mandates

      redemption of all interests in the Hospital within ninety days of any

      termination; (2) the Operating Agreement, as amended, was adopted by the




      4
       On July 22, 2013, Dr. Sawyer filed a complaint against Christopher Hollon, M.D., under another cause
      number. On July 23, 2015, that cause was consolidated with this case for jury trial.

      Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                     Page 10 of 39
      Hospital upon the acquisition by SVMG of TCG’s assets, and outlines each

      Member’s interests in the Hospital; (3) the Hospital sent Dr. Sawyer a Unit

      Redemption Agreement and check for $196,787, allegedly for the ten

      membership unit interest in the Hospital, almost eight months after his

      employment was terminated; (4) the $196,787 amount “is substantially less

      than what [he] would have received had he remained employed by SVMG for

      the duration of his Employment Agreement”; (5) such payment was well

      outside the ninety-day time period; and (6) as a result the Hospital breached the

      Joinder and Operating Agreements. Id. at 82.


[9]   On October 22, 2012, the Hospital filed a motion for partial dismissal pursuant

      to Ind. Trial Rule 12(B)(6) to dismiss Count II of the complaint “to the extent it

      relates to the specific value of Plaintiff’s membership interest in [the Hospital]

      as reflected on the redemption check remitted to him in March of 2012.” Id. at

      144. In its brief in support of its motion, the Hospital asserted that Dr. Sawyer’s

      argument amounts to a claim that he “was wronged because [the Hospital]

      actually followed the language of the Operating Agreement, instead of ignoring

      its precise valuation formula . . . and awarding [Dr. Sawyer] a higher amount

      based on what he might have received if he had remained employed for the

      duration of his Employment Agreement,” which has no basis in law or fact. Id.

      at 151. It argued that it is possible that the ten-unit membership interest held by

      Dr. Sawyer could have decreased in value were he to have remained employed

      for the duration of the Employment Agreement. On November 20, 2012, Dr.

      Sawyer filed a response in opposition to the Hospital’s motion to dismiss


      Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 11 of 39
       asserting that “[b]ecause SVMG and [the Hospital] are both parties to the

       Joinder Agreement which required the redemption of Dr. Sawyer’s interest in

       [the Hospital] upon the termination of his employment, SVMG’s wrongful

       termination” and “breach of the Employment Agreement is also a breach by

       [the Hospital] of the Joinder Agreement which is a part of the Employment

       Agreement.” Id. at 161. On January 28, 2013, the court denied the Hospital’s

       motion.


[10]   On August 9, 2013, Dr. Sawyer filed a Motion to Compel Documents and

       Interrogatory Responses from SVMG and the Hospital stating at the outset:

               For over eight months, the Defendants have been stalling in
               providing complete responses to Dr. Sawyer’s first set of
               discovery requests, which were served November 5, 2012. After
               months of extensions, the Defendants produced a limited amount
               of information and documents in March 2013, and failed to
               provide any substantive responses to the majority of [his]
               requests, primarily on the basis of boilerplate objections, but also
               on the basis of unsupported claims of privilege. And although
               [he] sent a letter June 14, 2013 requesting supplementation and
               clarification, the Defendants still have not provided any
               additional substantive information or documents. Defendants’
               delays and stalling tactics have caused progress in this case to
               grind to a halt, and Court intervention is necessary to get it back
               on track.


       Appellee’s Appendix Volume 2 at 201-202. Dr. Sawyer also requested attorney

       fees and costs associated with pursuing the motion.




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 12 of 39
[11]   On March 26, 2014, the Hospital filed a motion for partial summary judgment

       and designation of evidence focused on Dr. Sawyer’s claim regarding the

       Operating Agreement. The motion asserted that it “did what it was required to

       do under the Operating Agreement: provide Dr. Sawyer a payout equal to the

       value of his interest on the day that [SVMG] terminated his employment. [It]

       performed in accordance with its obligations under the Operating Agreement.”

       Appellant’s Appendix Volume 3 at 11. SVMG also filed a separate motion for

       summary judgment that same day.


[12]   On June 9, 2014, Dr. Sawyer filed his response to both defendants’ summary

       judgment motions and designation of evidence. Regarding the Hospital’s

       motion, Dr. Sawyer asserted that summary judgment was inappropriate

       “because the redemption of his interests resulted from the wrongful termination

       of his employment, and because the timeliness of redemption payments is

       governed principally by the Operating Agreement.” Id. at 139. He argued that,

       based upon the trend over the past eight years in which the value of the ten

       member unit shares having never decreased, he “believes that the value of his

       interest would have been much greater over the next nine years than the

       $196,787 he received.” Id.


[13]   On October 8, 2014, the court issued its Order Granting Plaintiff’s Motion to

       Compel Documents and Interrogatory Responses from Defendants containing

       numerous specific orders to supplement various interrogatories, to expressly

       identify which documents were responsive to various discovery requests, and to

       provide other substantive responses to document production requests within ten

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 13 of 39
       days of the order. The court also ordered that Dr. Sawyer “shall be, and hereby

       is, awarded his costs and reasonable attorney fees associated with pursuing

       Plaintiff’s Motion to Compel Documents and Interrogatory Responses from Defendants”

       and that Dr. Sawyer shall submit his bill of costs within fourteen days.

       Appellee’s Appendix Volume 5 at 154.


[14]   On October 21, 2014, Dr. Sawyer filed his Motion for Contempt Hearing and

       for new Deadline to Submit Bill of Costs and Response in Opposition to

       Motion for Extension of Time stating that the court should set a contempt

       hearing for SVMG and the Hospital’s failure to comply with the court’s order of

       October 8, 2014, within ten days because their “intransigence serves only to

       further delay resolution of this matter, and because the Defendants have

       embraced a strategy of delay at every step in this litigation.” Id. at 178.


[15]   The court held a hearing on April 15, 2015. On April 23, 2015, it issued its

       Entry of April 23, 2015, stating as follows:

               After hearing on pending motions was conducted April 15, 2015,
               the Court finds:


                                                  *****


               2. Regarding Plaintiff’s motions to compel, all pending motions
               are consolidated with October 21, 2014 Plaintiff’s Motion for
               Contempt Hearing and For New Deadline To Submit Bill of
               Costs. The Court grants as follows:


                        a. Contempt by Defendant is found with respect to time
                        and delay of discovery responses.
       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017    Page 14 of 39
                        b. Any expenses, fees, or costs shall be determined when
                        submitted by [Dr. Sawyer].


       Appellee’s Appendix Volume 7 at 77.


[16]   On November 13, 2015, the court issued its Entry of Orders on Pending

       Motions which granted the Hospital’s summary judgment motion with respect

       to the Operating Agreement and “[d]enied [the motion] with respect to the

       Joinder Agreement.”5 Appellant’s Appendix Volume 3 at 238.


[17]   On January 11, 2016, the court commenced a jury trial. At the close of Dr.

       Sawyer’s case-in-chief, the Hospital moved for judgment on the evidence under

       Ind. Trial Rule 50 because “there has been no evidence presented today in any

       form about Dr. Sawyer’s allegations regarding how [the Hospital] failed to meet

       its obligations under that agreement, what [the Hospital’s] obligations were, or

       any damages arising from any alleged breach . . . .” Transcript Volume 8 at

       1839. The court denied the motion. At the end of trial, the Hospital renewed

       its motion for a directed verdict because “there was no evidence of breach,” and

       the court again denied the motion. Transcript Vol. 11 at 2646.


[18]   On January 22, 2016, the jury entered a verdict in Dr. Sawyer’s favor and

       against SVMG and awarded damages in the amount of $1,112,152. It found for




       5
        As observed above, the Hospital did not move for summary judgment with respect to the Joinder
       Agreement.

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                    Page 15 of 39
       Dr. Sawyer and against the Hospital and awarded damages in the amount of

       $470,000.


[19]   On January 29, 2016, the Hospital filed a motion to correct error asserting that

       there was no breach in calculating and paying the redemption amount of

       $196,787. The Hospital’s motion requested that the court correct the jury’s

       award by entering judgment on the evidence in the amount of $6,559.60, which

       it stated was the amount properly recoverable as interest for the delay in paying

       Dr. Sawyer.6 On February 18, 2016, the court entered judgment on the jury

       verdicts and denied the Hospital’s motion to correct error.


[20]   On March 28, 2016, Dr. Sawyer filed his Verified Petition for Damages

       “pursuant to the Court’s October 8, 2014 Order Granting Plaintiff’s Motion to

       Compel Documents and Interrogatory Responses From Defendants, and the Court’s

       Entry of April 23, 2015” seeking damages in accordance with those orders.

       Appellee’s Appendix Volume 8 at 140. In his verified petition, Dr. Sawyer

       asserted that he “incurred hundreds of thousands of dollars of legal fees and

       expenses” due to the defendants’ discovery misconduct and provided a

       spreadsheet, attached as Exhibit 1, detailing those fees. Id. at 143. The verified

       petition stated that the relevant attorney fees totaled $471,025.15 but that, “[i]n




       6
         The Hospital noted in its motion that “[t]he 12 month interest earned [at the statutory rate of eight percent]
       on the total investment of $196,787 would be $15,742.96 or $1,311.92 per month. Five months of that
       interest is therefore equal to $6,559.60.” Appellant’s Appendix Volume 4 at 36.

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                            Page 16 of 39
       the interests of justice and fairness,” Dr. Sawyer was willing to accept a total of

       $450,000. Id. at 145.


[21]   On May 18, 2016, SVMG, the Hospital, and Dr. Hollon filed their Defendants’

       Responses to Plaintiff’s Verified Petition for Damages stating at the outset that

       Dr. Sawyer, “based upon a very limited Order of the Court, has asked for

       several hundred-thousand dollars, hoping that even a ‘compromise’ will reward

       him with far more in attorney’s fees than he deserves.” Appellee’s Appendix

       Volume 9 at 2. They asserted that Trial Rule 37 does not provide for the extent

       of the fees requested by Dr. Sawyer, and that SVMG agrees to certain fees,

       listed in the filing as Appendix A totaling $27,233.19. Regarding the Hospital,

       the response stated that Dr. Sawyer “never identified an iota of discovery [it]

       failed to produce. [The Hospital] respectfully requests that this Honorable

       Court DENY [Dr. Sawyer’s] fee petition as to it individually.” Id. at 6. It also

       noted that Dr. Sawyer was requesting fees for other unrelated matters, including

       responding to a motion that he lost which was not related to the discovery

       dispute, a qui tam lawsuit, agreed protective orders, peer review motions,

       quashed depositions, expert witnesses, a motion for default judgment filed by

       Dr. Sawyer which was denied, responding to motions for summary judgment

       filed by SVMG, Dr. Hollon, and the Hospital, which were granted, and a

       number of other matters enumerated in the filing.7 The defendants requested




       7
        The defendants broke Dr. Sawyer’s fee schedule down to appendices A through V related to each of the
       categories identified in the response.

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                     Page 17 of 39
       that the court not grant any fees against Dr. Hollon or the Hospital and that it

       “only grant those fees consistent with the Court’s prior order and [SVMG’s]

       stipulation, and with Trial Rule 37 and controlling case-law.” Id. at 13.


[22]   On June 30, 2016, the court entered an order which in relevant part granted Dr.

       Sawyer’s verified petition in the amount of $27,233.19, without explanation.


                                                  Issue on Appeal

[23]   The issue raised on appeal by the Hospital is whether the trial court erred in

       denying the Hospital’s motion to dismiss and in entering judgment in favor of

       Dr. Sawyer. We first address the Hospital’s motion to dismiss.


[24]   A complaint may not be dismissed under Ind. Trial Rule 12(B)(6) for failure to

       state a claim upon which relief can be granted unless it appears to a certainty on

       the face of the complaint that the complaining party is not entitled to any relief.

       McQueen v. Fayette Cnty. Sch. Corp., 711 N.E.2d 62, 65 (Ind. Ct. App. 1999),

       trans. denied. We view motions to dismiss for failure to state a claim with

       disfavor because such motions undermine the policy of deciding causes of

       action on their merits. Id. When reviewing a trial court’s grant of a motion to

       dismiss, we view the pleadings in a light most favorable to the nonmoving

       party, and we draw every reasonable inference in favor of that party. Id. We

       will not affirm a dismissal under Ind. Trial Rule 12(B)(6) unless it is apparent

       that the facts alleged in the challenged pleading are incapable of supporting

       relief under any set of circumstances. Id.




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 18 of 39
[25]   The Hospital argues that it followed the plain language of the Joinder

       Agreement and the Operating Agreement in redeeming Dr. Sawyer’s ten-unit

       membership interest and in valuing those shares pursuant to Section 8.4 of the

       Operating Agreement. It asserts that Dr. Sawyer concedes that the calculation

       is accurate and that he essentially argues “that the Employer’s wrongful

       termination means that the Employer and the Hospital are accountable for the

       alleged ‘loss of redemption value.’” Appellant’s Brief at 22. The Hospital

       postulates that this argument is erroneous for three reasons. First, it asserts

       that, under the Operating Agreement, withdrawal is automatic upon

       termination “for any reason”8 and that it makes sense that physicians no longer

       employed at the Hospital would not remain owners. Id. Second, the Hospital

       notes that it and SVMG are separate entities and that Dr. Sawyer did not bring

       a claim of tortious interference with his employment against the Hospital.

       Third, it argues the plain language of the Operating Agreement, in Section 3.6,

       does not allow for “an alleged ‘loss of redemption value.’” Id.


[26]   Dr. Sawyer argues that “[b]ecause the Joinder Agreement and the Operating

       Agreement were integrated into the Employment Agreement, [the Hospital]

       breached the Joinder Agreement when it prematurely redeemed [his] unit

       interests caused by SVMG’s breach of the Employment Agreement” in

       wrongfully terminating him. Appellee’s Brief at 35 (footnote omitted). He

       asserts that the Joinder Agreement “ensured that [he] would receive at least 10



       8
           We observe that this language is found in the Joinder Agreement, not the Operating Agreement.


       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                        Page 19 of 39
       years of investment income from [the Hospital] unless he voluntarily quit his

       employment or passed away.” Id. at 36. Dr. Sawyer maintains that the

       contracts were executed as a part of, and in consideration for, the sale of his

       physician practice to St. Vincent Hospital and that “[r]ather than pay [him] and

       his partners the full value of [TCG] and [the Hospital], [he] received only a

       partial payment over three years, and also received a guarantee of employment

       and investment income for a period of no less than ten years.” Id. at 37. He

       argues that while the Hospital was required to redeem his membership interest

       upon a termination “in accordance with the Employment Agreement,” it was

       not permitted to otherwise redeem his interest. Id. He contends that it was

       therefore proper for the court to have allowed him to try this claim.


[27]   The Hospital argues in its reply that Dr. Sawyer waived this issue by failing to

       cite to any authority for his position. It states that Dr. Sawyer does not cite to

       legal authority to demonstrate that the Hospital and SVMG “are somehow not

       separate because there is some relation and common ownership” and that in

       fact the Hospital, a limited liability company, and SVMG, a corporation, are in

       fact separate, noting that Dr. Sawyer “was an owner in one and an employee of

       the other.” Appellant’s Reply Brief at 13-14. The Hospital also asks this Court

       to take judicial notice of the fact that, as demonstrated by filings with the

       Indiana Secretary of State (submitted via addendum), SVMG and the Hospital

       have “different principals, different addresses, and different registered agents.”

       Id. at 14 n.2.




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 20 of 39
[28]   This question is one of contract interpretation. Generally, “[i]nterpretation of a

       contract is a pure question of law and is reviewed de novo.” Dunn v. Meridian

       Mut. Ins. Co., 836 N.E.2d 249, 252 (Ind. 2005). If its terms are clear and

       unambiguous, courts must give those terms their clear and ordinary meaning.

       Id. Courts should interpret a contract so as to harmonize its provisions, rather

       than place them in conflict. Id. “A contract will be found to be ambiguous only

       if reasonable persons would differ as to the meaning of its terms.” Beam v.

       Wausau Ins. Co., 765 N.E.2d 524, 528 (Ind. 2002), reh’g denied; see also McDivitt v.

       McDivitt, 42 N.E.3d 115, 117 (Ind. Ct. App. 2015) (a contract may be

       ambiguous if its terms are susceptible to more than one interpretation and

       reasonably intelligent persons would honestly differ as to its meaning), trans.

       denied. A contract is not ambiguous merely because the parties disagree as to its

       proper construction. Jernas v. Gumz, 53 N.E.3d 434, 444 (Ind. Ct. App. 2016),

       trans. denied. When interpreting a contract, our paramount goal is to ascertain

       and effectuate the intent of the parties. Id. This requires the contract to be read

       as a whole, and the language construed so as not to render any words, phrases,

       or terms ineffective or meaningless. Id. Rules of contract construction and

       extrinsic evidence may be employed in giving effect to the parties’ reasonable

       expectations. Id. at 444-445 (citing Lily, Inc. v. Silco, LLC, 997 N.E.2d 1055,

       1064 (Ind. Ct. App. 2013) (citing Johnson v. Johnson, 920 N.E.2d 253, 256 (Ind.

       2010), reh’g denied, trans. denied). When a contract’s terms are ambiguous or

       uncertain and its interpretation requires extrinsic evidence, its construction is a

       matter for the fact-finder. Id. at 445; see also McDivitt, 42 N.E.3d at 117 (when a

       contract is ambiguous, extrinsic evidence may be examined to determine the
       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 21 of 39
       parties’ reasonable expectations). When a contract contains general and

       specific provisions relating to the same subject, the specific provision controls.

       Ryan v. Lawyers Title Ins. Corp., 959 N.E.2d 870, 875 (Ind. Ct. App. 2011).


[29]   We are not persuaded by the Hospital’s argument that the language in the

       Joinder Agreement that Dr. Sawyer’s membership interest be “redeemed” if his

       “employment referenced in the [Employment] Agreement is terminated for any

       reason” includes circumstances constituting a breach of the Employment

       Agreement. Appellant’s Appendix Volume 2 at 114 (emphasis added). We

       disagree with the Hospital’s suggestion that Dr. Sawyer’s request would have

       the effect of his maintaining an ownership interest in the Hospital after he was

       no longer employed by SVMG. Dr. Sawyer’s complaint requests consequential

       damages, i.e., the benefit of his bargain, as a result of a breach by the Hospital

       and not an order that the Hospital transfer his ownership interest back to him to

       hold through the end of the ten-year term. See, e.g., L.H. Controls, Inc. v. Custom

       Conveyor, Inc., 974 N.E.2d 1031, 1043 (Ind. Ct. App. 2012) (noting that “[a]

       party injured by a breach of contract may recover consequential damages from

       the breaching party,” that “[s]uch consequential damages may include lost

       profits, providing the evidence is sufficient to allow the trier of fact to estimate

       the amount with a reasonable degree of certainty and exactness,” and that

       “[c]onsequential damages may be awarded if the non-breaching party’s loss

       flows naturally and probably from the breach and was contemplated by the

       parties when the contract was made”).




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017    Page 22 of 39
[30]   Under the plain language of the Joinder Agreement, we find that the key phrase

       is the reference to the “employment referenced in the [Employment] Agreement

       [being] terminated . . . .” Appellant’s Appendix Volume 2 at 114. Grounds for

       termination of Dr. Sawyer’s employment under the Employment Agreement is

       specifically defined in Section 4.2 of that agreement, and the inclusion of this

       phrase in the Joinder Agreement makes clear that termination under the terms of

       the Employment Agreement is required to trigger mandatory redemption of Dr.

       Sawyer’s interest in the Hospital, i.e., his ten membership units. The specific

       reference in that same clause of the Joinder Agreement to Section 4.4(c) of the

       Employment Agreement lends further support to this interpretation. Also, we

       note that the Employment Agreement itself states that “as a continuing

       condition of employment hereunder,” the Joinder Agreement “shall remain in

       effect as among Physician, [the Hospital], and [SVMG].” Id. at 103 (emphasis

       added).


[31]   Under the plain language of the Joinder Agreement, signed by Dr. Sawyer and

       representatives of SVMG and the Hospital, only after termination under the

       terms of the Employment Agreement should the Hospital redeem Dr. Sawyer’s

       membership interest, in which such redemption is governed by Section 8.4 of

       the Operating Agreement. Redemption pursuant to this provision under other

       circumstances would deprive Dr. Sawyer of the benefit of his bargain and

       constitute a breach of the Joinder Agreement. Also, we are unpersuaded by the

       Hospital’s assertion that Section 3.6 of the Operating Agreement, which limits

       the right of a member such as Dr. Sawyer to receive a return of Capital Account


       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 23 of 39
       contributions or redemption of membership unit interest to those rights

       specifically provided in the Operating Agreement (and found in Section 8.4),

       impacts our analysis. We therefore conclude that the court did not err in

       denying the Hospital’s motion to dismiss.


[32]   To the extent the Hospital also challenges the court’s rulings on its motions for

       judgment on the evidence under Ind. Trial Rule 50 and its motion to correct

       error, we need not belabor the topic. Ind. Trial Rule 50 provides that a motion

       for judgment on the evidence shall be granted “[w]here all or some of the issues

       in a case . . . are not supported by sufficient evidence or a verdict thereon is

       clearly erroneous as contrary to the evidence because the evidence is insufficient

       to support it . . . .” Ind. Trial Rule 50(A). “Where the issue involves a

       conclusion of law based on undisputed facts, the reviewing court is to determine

       the matter as a question of law in conjunction with the motion for judgment on

       the evidence, and to this extent, the standard of review is de novo.” Cavens v.

       Zaberdac, 849 N.E.2d 526, 529 (Ind. 2006). Also, we generally review rulings

       on motions to correct error for an abuse of discretion. Ind. Bureau of Motor

       Vehicles v. Charles, 919 N.E.2d 114, 116 (Ind. Ct. App. 2009); Speedway

       SuperAmerica, LLC v. Holmes, 885 N.E.2d 1265, 1270 (Ind. 2008), reh’g denied.


[33]   The crux of the Hospital’s arguments regarding these motions is that Dr.

       Sawyer did not present any evidence of breach of the Joinder Agreement where

       it is undisputed that it redeemed Dr. Sawyer’s membership interest in the

       amount of $196,787, following the formula provided in Section 8.4 of the

       Operating Agreement. It does not challenge the jury’s verdict that SVMG

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 24 of 39
       breached the Employment Agreement when it fired Dr. Sawyer. Having

       concluded above that redemption by the Hospital of Dr. Sawyer’s ten-unit

       membership interest under circumstances other than those constituting a

       termination of Dr. Sawyer’s employment under the Employment Agreement

       would be a breach of the Joinder Agreement, we conclude that the court did not

       err in denying the Hospital’s motion for judgment on the evidence and its

       motion to correct error.


                                               Cross-Appeal Issues

                                                           I.


[34]   The first issue on cross-appeal is whether the court erred in granting partial

       summary judgment in the Hospital’s favor regarding the Operating Agreement.

       We review an order for summary judgment de novo, applying the same standard

       as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). The

       moving party bears the initial burden of making a prima facie showing that there

       are no genuine issues of material fact and that it is entitled to judgment as a

       matter of law. Manley v. Sherer, 992 N.E.2d 670, 673 (Ind. 2013). Summary

       judgment is improper if the moving party fails to carry its burden, but if it

       succeeds, then the nonmoving party must come forward with evidence

       establishing the existence of a genuine issue of material fact. Id. We construe

       all factual inferences in favor of the nonmoving party and resolve all doubts as

       to the existence of a material issue against the moving party. Id.




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 25 of 39
[35]   Dr. Sawyer argues that “[a]s with the Joinder Agreement, [the Hospital]

       breached the Operating Agreement by prematurely redeeming [his] unit

       interests when SVMG wrongfully terminated his employment in breach of his

       10-year Employment Agreement, with more than nine years still remaining.”

       Appellee’s Brief at 46. He asserts that the payment was untimely as it was

       made outside the ninety-day period, that the Joinder Agreement “does not in

       any way abrogate the Operating Agreement[] and instead reflects an exercise by

       [the Hospital’s] Board of Managers to set a new (and faster) payment schedule

       in accordance with Section 8.4 of the Operating Agreement,” and that such

       untimely redemption breached not only the Joinder Agreement, but also the

       Operating Agreement. Id. at 48.


[36]   The Hospital points out that Dr. Sawyer does not cite to legal authority, and

       argues that waiver notwithstanding, his argument fails because it is “the same

       meritless argument [] offered as in response to the Hospital’s appeal of the

       $470,000 judgment.” Appellant’s Reply Brief at 32. It states that it is

       undisputed that withdrawal from the Hospital was automatic under the

       Operating Agreement upon termination of employment, regardless of the

       reason, and that there is no basis to rule that it breached the Operating

       Agreement by allegedly prematurely redeeming Dr. Sawyer’s ten-unit

       membership interest. It also argues that, to the extent Dr. Sawyer suggests that

       the payment was untimely, he and Morris exchanged emails in March 2012 and

       Dr. Sawyer did not raise the timeliness of the payment in that exchange and




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017     Page 26 of 39
       that, at most, Dr. Sawyer is entitled to $6,559.60 as a statutory interest award,

       rather than the $470,000 awarded by the jury.


[37]   In his reply brief, Dr. Sawyer states that the Operating Agreement “both

       permitted and required [the Hospital] to redeem Dr. Sawyer’s unit interests only

       in the event that his employment was terminated in accordance with the

       Employment Agreement.” Cross-Appellant’s Reply Brief at 8. He argues that

       “[t]he Operating Agreement is silent as to the effect of a wrongful termination

       on [his] unit interests,” and none of the contracts preclude “a recovery of lost

       business equity income in the event of a premature redemption.” Id. at 9. He

       contends that to ignore the interrelatedness of the three contracts “would render

       the promise of 10 years of security to Dr. Sawyer in his business equity interests

       completely illusory,” that “[n]ot only were the Employment Agreement and

       Joinder Agreement executed in consideration for the sale of Dr. Sawyer’s

       physician practice to St. Vincent Hospital, but the Operating Agreement was

       itself amended to facilitate the sale.” Id. at 11 (citations omitted). Dr. Sawyer

       argues that a breach of the Operating Agreement involves separate and distinct

       damages, asserts that the damages awarded “were extremely conservative,” and

       that “[m]ore important, however, the Operating Agreement includes an

       attorney fee provision [in Section 8.8] – a category of damages that was not

       available at trial.” Id. at 12-13.


[38]   We find that the court did not err in granting partial summary judgment to the

       Hospital as to its request for relief based upon the Operating Agreement. That

       agreement, signed by the Hospital’s secretary, governs the Hospital’s operations

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 27 of 39
       and sets forth the rights and obligations of the Members, including Dr. Sawyer.

       Unlike the Employment Agreement and the Joinder Agreement, the Operating

       Agreement is not a memorialization of an arms-length business transaction

       between Dr. Sawyer, the Hospital, and SVMG for the sale of Dr. Sawyer’s

       practice, but is instead a corporate-governing document. Indeed, while the

       Operating Agreement was amended and restated to account for the sale to

       SVMG, such agreement predated the sale, in which the previous version was

       dated May 7, 2006.


[39]   The relevant provision of the Operating Agreement, under Section 8.3, provides

       that, in the event of an Involuntary Withdrawal, the Member’s interest shall be

       paid pursuant to the formula set forth in Section 8.4. At no point has Dr.

       Sawyer asserted that these provisions were not followed. As a practical matter,

       SVMG would assert that a termination of Dr. Sawyer’s employment complied

       with the Employment Agreement, and such termination would trigger

       redemption of Dr. Sawyer’s membership interest. It was up to Dr. Sawyer to

       challenge his termination in court and show that it did not comply with the

       Employment Agreement. We concluded above that the full benefit of Dr.

       Sawyer’s membership interest was protected from being deprived by improper

       termination of his employment by the Joinder Agreement, observing that the

       Employment Agreement itself states that “as a continuing condition of

       employment hereunder,” the Joinder Agreement remains in effect. Appellant’s

       Appendix Volume 2 at 103 (emphasis added). The Operating Agreement, by




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 28 of 39
       contrast, merely sets forth the formula for how to calculate the redemption

       payment in the event of an Involuntary Withdrawal.


[40]   Dr. Sawyer seeks reversal of the court’s partial summary judgment order in

       order to seek attorney fees under Section 8.8 of the Operating Agreement,

       which in relevant part allows any Member or the Hospital “to pursue any other

       available remedies in connection with a breach of this Agreement, including

       recovery of monetary damages, and shall in any event be entitled to recover

       from the non-prevailing party, reasonable attorneys’ fees and costs incurred in

       the successful enforcement of the provisions of this Agreement.” Id. at 136-137.

       Again, the relevant portion of the Operating Agreement provides the formula,

       agreed upon by the Members, for how to pay a Member who is the subject of an

       Involuntary Withdrawal. Dr. Sawyer does not challenge Brian Morris’s

       calculation of the $196,787 redemption payment itself or the fact that such

       payment was made.9 Consequently, we cannot say that the Hospital breached

       the Operating Agreement.


[41]   In short, it is the Joinder Agreement and not the Operating Agreement that

       protected the benefit of Dr. Sawyer’s bargain, which includes his right to profits

       in the form of investment income from his ten-unit membership interest in the

       Hospital. The Operating Agreement merely provides a method for calculating

       a payment that Dr. Sawyer, throughout the litigation and on appeal, maintains



       9
        Indeed, to the extent Dr. Sawyer brings up the fact that the payment was not made within ninety days, the
       ninety-day timeframe for redemption is contained in the Joinder Agreement, not the Operating Agreement.

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                       Page 29 of 39
       he should not have been paid. The trial court did not err in granting summary

       judgment as to the Operating Agreement.


                                                           II.


[42]   The next cross-appeal issue is whether the court abused its discretion in

       awarding attorney fees to Dr. Sawyer as a result of the Hospital’s misconduct

       during discovery. The rules of discovery are designed to “allow a liberal

       discovery process, the purposes of which are to provide parties with information

       essential to litigation of the issues, to eliminate surprise, and to promote

       settlement.” Huber v. Montgomery Cnty. Sheriff, 940 N.E.2d 1182, 1185 (Ind. Ct.

       App. 2010) (citing Hatfield v. Edward J. DeBartolo Corp., 676 N.E.2d 395, 399

       (Ind. Ct. App. 1997), reh’g denied, trans. denied). “Trial courts exercise ‘broad

       discretion’ in making discovery rulings.” International Business Machines Corp. v.

       ACS Human Servs., LLC, 999 N.E.2d 880, 885 (Ind. Ct. App. 2013) (quoting

       Vernon v. Kroger Co., 712 N.E.2d 976, 982 (Ind. 1999)), trans. denied. Thus, “an

       appellate court will interfere only when the appealing party can show an abuse

       of that discretion.” Id. “Discretion is a privilege afforded a trial court to act in

       accord with what is fair and equitable in each case.” Id. (quoting Vernon, 712

       N.E.2d at 982 (quoting McCullough v. Archbold Ladder Co., 605 N.E.2d 175, 180

       (Ind. 1993))). An abuse of discretion occurs when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances before the

       court, or if it misinterprets the law. Id.




       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017    Page 30 of 39
[43]   “Because of the fact-sensitive nature of discovery issues, a trial court’s ruling is

       given a strong presumption of correctness.” Id. (quoting Smith v. Smith, 854

       N.E.2d 1, 4 (Ind. Ct. App. 2006)). This presumption extends as well to the trial

       court’s determinations with respect to violations of discovery orders and

       attendant sanctions, which should not be overturned “[a]bsent clear error and

       resulting prejudice.” Id. (quoting Smith, 854 N.E.2d at 4 (citing, inter alia,

       Vernon, 712 N.E.2d at 982)); see also Wright v. Miller, 989 N.E.2d 324, 330 (Ind.

       2013) (“We presume that the trial court will ‘act in accord with what is fair and

       equitable in each case,’ and thus we will only reverse ‘if the trial court’s decision

       is clearly against the logic and effect of the facts and circumstances before the

       court, or if the trial court has misinterpreted the law.’” (quoting McCullough, 605

       N.E.2d at 180)). We are, as ever, mindful that “[t]he purpose of the discovery

       rules is to allow for minimal trial court involvement and to promote liberal

       discovery.” Whitaker v. Becker, 960 N.E.2d 111, 115 (Ind. 2012). When we

       review for an abuse of discretion, we do not reweigh the evidence. Brightpoint,

       Inc. v. Pedersen, 930 N.E.2d 34, 38 (Ind. Ct. App. 2010), trans. denied.


[44]   “While the discovery process is intended to require little, if any, supervision or

       assistance by the trial court, when the goals of this system break down, Indiana

       Trial Rule 37 provides the trial court with tools to enforce compliance.” Huber,

       940 N.E.2d at 1186 (citation and internal quotation marks omitted). Ind. Trial

       Rule 37(B)(2) allows for sanctions for the failure to comply with a discovery

       order. IBM, 999 N.E.2d at 891. “Such sanctions may include, for parties,

       orders that preclude the introduction of evidence or limit the presentation of

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017    Page 31 of 39
       claims or defenses.” Id. (citing T.R. 37(B)(2)(a)-(e)). In lieu of such procedural

       sanctions, “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.” Id. (citing T.R. 37(B)(2)). “The trial rules do not require the

       discovering party to have suffered substantial prejudice in order for sanctions to

       be assessed” and, indeed, “the language of Trial Rule 37 uses the word ‘shall,’

       that is, the rule requires the trial court to assess sanctions for disobedience

       unless the defying party’s disobedience was substantially justified or sanctions

       would otherwise be unjust.” Id. at 892.


[45]   Dr. Sawyer asserts that the Hospital “engaged in systematic and pervasive

       contempt of court through its discovery misconduct, doing as little as possible,

       as late as possible.” Appellee’s Brief at 32. He argues that this Court should

       reject the claim made in the response to his verified petition that the Hospital

       “never identified an iota of discovery [it] failed to produce” because “[t]he trial

       court already recognized [the Hospital’s] discovery misconduct, and determined

       that an award of attorney fees and costs against [it] was appropriate.” Id. at 33.

       He points to his motion to compel filed on August 9, 2013, which requested

       that the court direct the defendants to provide responses to certain

       interrogatories, and that it was the Hospital that objected to and refused to

       answer some of the interrogatories at issue. He contends that we should not be

       misled by the Hospital’s tactic of creating twenty-two separate groups of fees


       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017    Page 32 of 39
       because the Hospital’s “delay and contempt was systemic and pervasive.” Id. at

       34. Dr. Sawyer also argues that, “[a]t a bare minimum,” we should award fees

       associated with pursuing the Motion to Compel, in which the Hospital’s

       “arbitrary division of the time entries” agreed that he “incurred $17,193.00

       attempting to resolve his discover [sic] disputes without involving the court,” 10

       and “incurred $21,047.39 in presenting his Motion to Compel to the [c]ourt.”11

       Id. at 34-35. He states that these fees are wholly separate from the $27,233.19

       awarded by the court and asks this court to grant fees in the amount of

       $445,500, arriving at that amount by starting with $471,015.15, discounting

       approximately five percent, then discounting an additional five percent, and

       adding $18,000 “for fees incurred in pursuit of this Fee Petition.” Id. at 35 n.7.


[46]   The Hospital argues that “Dr. Sawyer asks this Court to reweigh a lengthy,

       complex discovery dispute involving primarily the Employer, who is not a party

       to the appeal,” offering only “a sparse, six-paragraph argument with no citation

       of legal authority” or the relevant standard of review and that waiver applies.

       Appellant’s Reply Brief at 36-37. It asserts a trial court’s rulings are given a

       strong presumption of correctness, that an abuse of discretion standard applies,

       that this court recently declined to reweigh the evidence regarding attorney fees




       10
         These fees are contained in the response’s Appendix U, titled “Contested Fees Related to Discovery
       Disputes Prior to Judge McCarty’s Order,” containing fees associated with the “discovery dispute” for dates
       between December 7, 2012, and April 30, 2014. Appellee’s Appendix Volume 9 at 76-79.
       11
         These fees are contained in the response’s Appendix V, titled “Contested Fees Related to Motions to
       Compel Prior to Judge McCarty’s Order,” containing fees associated with the “Motion to Compel” for dates
       between August 8, 2013, and March 19, 2014. Appellee’s Appendix Volume 9 at 80-82

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                        Page 33 of 39
       in IBM, 999 N.E.2d at 889, despite fully developed arguments in that case, and

       that Dr. Sawyer has not met his burden. It states that “Dr. Sawyer asks this

       reviewing Court to reweigh a complex discovery dispute that involves all

       Defendants, not just the Hospital, and for which the trial court awarded [him] a

       sanction of $27,233.19.” Id. at 39. The Hospital also argues that it “did not

       agree” to fees incurred by Dr. Sawyer for pursuing his Motion to Compel, that

       Appendix U “merely represents a partial list of contested time entries” totaling

       $17,193, and that in fact in its response of May 17, 2016, the Hospital

       “specifically asserted that the fee petition as to [it] should be denied.” Id. at 39

       n.10.


[47]   Dr. Sawyer argues in his reply that if this Court agrees that it “cannot or should

       not ‘reweigh a complex discovery dispute,’” as termed by the Hospital, it

       should direct the trial court to conduct a hearing for that purpose. Cross-

       Appellant’s Reply Brief at 18. He states that the fact the Hospital does not

       refute its categorization of fees supports an additional award, including the

       $17,193 for attempting to resolve the discovery dispute without involving the

       court and the $21,047.39 incurred in presenting his Motion to Compel. It also

       states that the Hospital’s argument is misleading in that, while it did not agree

       to pay such fees, it did not dispute that such fees were unearned, inaccurate, or

       incomplete. He suggests that the Hospital now attempts to “disavow its own

       classification of Dr. Sawyer’s verified attorney fees . . . .” Id. at 19. He further

       argues that “[t]here is no language in the order, express or implied, that limits

       [his] fee recovery for [the Hospital’s] discovery misconduct to only those fees


       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017    Page 34 of 39
       incurred after the order was entered.” Id. at 20. He asks this court to remand

       with instructions to “either award all of [his] verified attorney fees, or to

       conduct a hearing to determine the appropriate award.” Id. He also argues that

       he did not waive his claim, that Appellate Rule 46(A)(8)(b) applies to an

       appellant’s brief and his is an appellee’s brief filed under Rule 46(B), and that if

       it does apply it “was an inadvertent omission of information . . . both provided

       by [him] to the trial court and cited by [the Hospital] in Cross-Appellee’s

       Response.” Id. at 21.


[48]   To the extent the Hospital asserts waiver due to the failure of Dr. Sawyer to

       recite the relevant standard of review or discuss relevant case law in his Cross-

       Appellant’s Brief, we observe that a party risks waiver for failure to provide a

       statement of the standard of review or discuss relevant authority in its brief. See

       Ramsey v. Review Bd. of Workforce Dev., 789 N.E.2d 486, 490 (Ind. Ct. App. 2003)

       (holding that the claimant’s substantial noncompliance with rules of appellate

       procedure resulted in waiver of his claims on appeal); Loomis v. Ameritech Corp.,

       764 N.E.2d 658, 668 (Ind. Ct. App. 2002) (holding argument waived for failure

       to cite authority or provide cogent argument), reh’g denied, trans. denied.

       However, whenever possible “‘we prefer to resolve cases on the merits’ instead

       of on procedural grounds like waiver.” Pierce v. State, 29 N.E.3d 1258, 1267

       (Ind. 2015) (quoting Roberts v. Cmty. Hospitals of Ind., Inc., 897 N.E.2d 458, 469

       (Ind. 2008)). We will address the merits of a party’s claim unless we find

       “noncompliance with the rule sufficiently substantial to impede our

       consideration of the issue raised.” Id. (quoting Guardiola v. State, 268 Ind. 404,

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017    Page 35 of 39
       406, 375 N.E.2d 1105, 1107 (Ind. 1978)). Under these circumstances, including

       the otherwise-cogent argument provided by Dr. Sawyer, we elect to address his

       argument.


[49]   The record makes clear that counsel for the Hospital engaged in dilatory tactics

       during discovery that the trial court determined could only be rectified by the

       imposition of sanctions. Dr. Sawyer first raised problems with discovery about

       a year into the litigation, on August 9, 2013, when he filed a Motion to Compel

       Documents and Interrogatory Responses which alleged that defendants’

       counsel had stalled in providing complete responses to discovery requests for

       over eight months. The court ultimately agreed with Dr. Sawyer, issuing its

       Order granting Plaintiff’s Motion to Compel Documents and Interrogatory

       Responses on October 8, 2014 ordering compliance within ten days. The court

       also awarded reasonable attorney fees associated with pursuing the motion and

       asked Dr. Sawyer’s counsel to submit a bill of costs. Then, on October 21,

       2014, Dr. Sawyer filed his Motion for Contempt Hearing and for new Deadline

       to Submit Bill of Costs and Response in Opposition to Motion for Extension of

       Time due to defendant counsel’s failure to comply with the court’s order.12 On

       April 23, 2015, following a hearing, the court granted Dr. Sawyer’s motion

       making a finding of contempt and stating that “[a]ny expenses, fees, or costs




       12
         As observed by Dr. Sawyer in his brief, the Hospital, SVMG, and Dr. Hollon were represented by the
       same counsel in the proceedings before the trial court.

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                     Page 36 of 39
       shall be determined when submitted by [Dr. Sawyer].” Appellee’s Appendix

       Volume 7 at 77.


[50]   Following the trial, Dr. Sawyer filed his Verified Petition for Damages

       “pursuant to the Court’s October 8, 2014 Order Granting Plaintiff’s Motion to

       Compel Documents and Interrogatory Responses From Defendants, and the Court’s

       Entry of April 23, 2015” seeking damages in accordance with those orders.

       Appellee’s Appendix Volume 8 at 140. In his petition, Dr. Sawyer submitted a

       calculation of relevant attorney fees totaling $471,025.15 and requested

       $450,000. SVMG, the Hospital, and Dr. Hollon filed their Defendants’

       Responses to Plaintiff’s Verified Petition for Damages, in which the defendants

       grouped the bill of costs submitted by Dr. Sawyer into twenty-two different

       categories and agreed to certain fees, listed in the filing as Appendix A and

       totaling $27,233.19. The response also requested that the court deny Dr.

       Sawyer’s fee petition as to the Hospital individually. On June 30, 2016, in a

       one-page order, the court in relevant part granted Dr. Sawyer’s verified petition

       in the amount of $27,233.19, i.e., the amount identified by the Hospital’s

       counsel as uncontested, without explanation.


[51]   After a review of the record and the arguments of the parties, we find that the

       court abused its discretion in issuing its Entry of June 30, 2016, when it relied

       exclusively upon the Hospital’s calculation. As Dr. Sawyer observes in his

       argument, we need not delve deep into the record to recognize that the award of

       $27,233.19 is inadequate and does not reflect the depth of the abuse of the

       discovery process exhibited by trial counsel for the Hospital, SVMG, and Dr.

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017   Page 37 of 39
       Hollon. For example, we agree with Dr. Sawyer that there is no discernable

       reason the court did not award the fees listed in Appendix U, which is

       comprised of fees directly associated with the discovery dispute but were for

       services rendered prior to the court’s October 8, 2014 Order, totaling

       $17,193.06. The court in its October 8, 2014 Order awarded to Dr. Sawyer

       “costs and reasonable attorney fees associated with pursuing” his motion to

       compel, which undeniably should include fees predating the order itself.

       Appellee’s Appendix Volume 5 at 154 (emphasis added).


[52]   The court’s failure to award the fees the Hospital grouped into Appendix U is

       an example of fees to which Dr. Sawyer is entitled, and there may be others,

       including some or all of the fees listed in the Hospital’s Appendix V chronicling

       fees associated with pursuing the Motion to Compel itself that were incurred

       prior to the court’s order.13 We reverse the court’s Entry of June 30, 2016, and

       remand with instructions that the court review the fee listing submitted by Dr.

       Sawyer and issue an appropriate award for discovery sanctions following its




       13
          The Hospital in its response to Dr. Sawyer’s petition asserts that some of the fees listed in Appendix V
       include “time spent for discovery that was produced prior to the April 15 hearing and that is not subject to
       the Court’s Order or Defendants’ stipulation.” Appellee’s Appendix 9 at 12. The Hospital also made the
       claim that “[i]n fact, [Dr. Sawyer] did not identify any time related to a ‘motion to compel’ in his entries that
       came after October of 2014, and only a handful subsequent to Judge McCarty’s Order.” Id. at 12-13. It is
       unclear to this Court why the Hospital expected that Dr. Sawyer would incur attorney fees for work litigating
       a motion that the trial court had already ruled on.

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                            Page 38 of 39
       rulings in the October 8, 2014 Order and the Entry of April 23, 2015. In

       rendering its order, the court shall also apportion the sanctions appropriately.14


                                                     Conclusion

[53]   For the foregoing reasons, we affirm the trial court’s denial of the Hospital’s

       motion to dismiss, its judgment entered against the Hospital, and its grant of

       partial summary judgment in favor of the Hospital, reverse the court’s Entry of

       June 30, 2016 related to Dr. Sawyer’s Verified Petition for Damages regarding

       attorney fees due pursuant to the discovery dispute, and remand for further

       proceedings consistent with this opinion.


[54]   Affirmed in part, reversed in part, and remanded.


       May, J., and Pyle, J., concur.




       14
         To the extent that SVMG and Dr. Hollon are not involved in this appeal, we observe that Ind. Appellate
       Rule 17(A) states that “[a] party of record in the trial court . . . shall be a party on appeal.”

       Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017                      Page 39 of 39
