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Loden v. Schmidt

Court of Appeals of Tennessee, Nashville

April 24, 2015

JAMES C. LODEN, M.D., P.C., d/b/a LODEN VISION CENTERS, and JAMES C. LODEN, M.D., Individually

Session April 07, 2015.

Appeal from the Circuit Court for Davidson County No. 10C1034 Thomas W. Brothers, Judge.[1]

Gerald Michael Schmidt, Franklin, Tennessee, Pro se.

James Bryan Lewis, Nashville, Tennessee, for the appellee, James C. Loden, M.D., P.C., d/b/a Loden Vision Centers, and James C. Loden, M.D., Individually.

J. Steven Stafford, P.J., W.S., delivered the opinion of the Court, in which Arnold B. Goldin, J., and Kenny Armstrong, J., joined.




Plaintiff/Appellee Dr. James C. Loden ("Dr. Loden") performed LASIK eye surgery[2]on Gerald Schmidt ("Mr. Schmidt") on May 18, 2007 at Dr. Loden's clinic, Loden Vision Center. Mr. Schmidt contends this caused corneal neuropathy and vitreous floaters in his eyes. Mr. Schmidt filed two malpractice actions against Dr. Loden, but both were eventually dismissed.[3]

In 2008 and 2009, Mr. Schmidt allegedly began posting on Dr. Loden's Facebook page and other internet sites "warning others about his negative experiences" with his LASIK procedure performed by Dr. Loden. In these posts, Mr. Schmidt allegedly claimed that Dr. Loden acted improperly with regard to Mr. Schmidt and other patients. Eventually, on March 19, 2010, Dr. Loden, individually and d/b/a Loden Vision Center, filed a complaint against Mr. Schmidt for malicious prosecution. Dr. Loden granted Mr. Schmidt an extension in which to file an answer, allowing until approximately May 15, 2010. Counsel for Mr. Schmidt filed a notice of appearance on April 29, 2010; however, Mr. Schmidt failed to file an answer by May 15, 2010.

On July 28, 2010, Dr. Loden filed an amended complaint, asserting additional claims for tortious interference, defamation, and intentional infliction of emotional distress. The amended complaint alleged that Mr. Schmidt engaged in a pattern of defamatory, harassing, and sometimes threatening behavior against Dr. Loden and the staff at Loden Vision Center, which negatively affected Dr. Loden's business and made Dr. Loden and his staff fearful of their safety. On the same day, Dr. Loden filed a request for a temporary injunction preventing Mr. Schmidt from making defamatory comments about Dr. Loden. Mr. Schmidt responded in opposition to the motion for temporary injunction on August 3, 2010. The trial court nevertheless granted the temporary injunction on August 9, 2010.

On January 12, 2011, Mr. Schmidt's counsel was permitted to withdraw from the case.[4] On February 25, 2011, Mr. Schmidt, acting pro se, filed an answer to the amended complaint, denying the material allegations contained therein. In addition, Mr. Schmidt asserted that his statements were true, were not communicated with malice, and were protected by the First Amendment of the United States Constitution. The case languished for several years; the parties were ordered to attend several status conferences, and the trial court entered numerous case management orders. Mr. Schmidt also filed a motion to dismiss Dr. Loden's complaint, which was denied by the trial court over a year after the motion was filed.

Discovery disputes are at the center of this appeal. First, on November 20, 2013, Dr. Loden filed a motion to compel Mr. Schmidt to answer a question propounded to Mr. Schmidt during his deposition but which Mr. Schmidt refused to answer.[5] The trial court granted Dr. Loden's motion to compel on December 20, 2013 and awarded Dr. Loden $200.00 in discretionary costs as a sanction. Soon thereafter, on January 8, 2014, Dr. Loden filed a second motion for sanctions against Mr. Schmidt for failure to answer interrogatories or respond to requests for production of documents. Mr. Schmidt subsequently filed a motion to be permitted additional time to respond to discovery. On February 14, 2014, however, the trial court entered an order finding that Mr. Schmidt was timely and properly notified of his inadequate discovery responses on November 20, 2013, and that he willfully failed to correct his discovery responses since that date. Accordingly, the trial court awarded Dr. Loden $1, 600.00 in attorney's fees as a sanction. The trial court further ordered that Mr. Schmidt should answer all outstanding discovery requests within thirty days of the entry of its order.

Thirty days passed with no response from Mr. Schmidt. Accordingly, on April 7, 2014, Dr. Loden filed a third motion for sanctions against Mr. Schmidt, indicating that Mr. Schmidt had neither responded to discovery as ordered nor paid the two prior awards of sanctions within the time frame set by the trial court. The motion requested that the trial court strike Mr. Schmidt's answer as a discovery sanction pursuant to Rule 37.02 of the Tennessee Rules of Civil Procedure, or, in the alternative, set a show cause hearing as to why Mr. Schmidt should not be held in contempt. Dr. Loden also requested attorney's fees associated with the filing of his motion.

The trial court held a hearing on Dr. Loden's motion for sanctions on April 25, 2014. The trial court entered a written order granting Dr. Loden's motion on May 21, 2014. In the order, the trial court found:

1. [Mr.] Schmidt, failed to file a response to [Dr. Loden's] Motion as required by Davidson County Local Rules of Practice 26.04.[6]The [c]ourt finds [Mr. Schmidt] has been advised by this [c]ourt previously concerning this Local Rule, and [Mr. Schmidt] has continued to ignore Local Rule 26.04 concerning timely responses to motions.
2. The [c]ourt finds the [Mr. Schmidt] has consistently ignored the Tennessee Rules of Civil Procedure as they relate to discovery, and this [c]ourt has previously sanctioned [Mr. Schmidt] on December 20, 2013 and February 14, 2014 as a result of non-compliance with discovery.
3. The [c]ourt finds the [Mr. Schmidt] has purposely ignored this [c]ourt's order of February 14, 2014 to answer Plaintiffs' discovery request and has been in direct violation of this [c]ourt's order for over two (2) months. The [c]ourt finds the Defendant was advised by Special Master Mary Ashley Nichols on April 7, 2014 to comply with the [c]ourt's order of February 14, 2014, and [Mr. Schmidt] purposely [sic] continued to ignore and violate this [c]ourt's order.
4. Based on [Mr. Schmidt's] consistent and willful pattern of ignoring this [c]ourt's orders as it relates to the discovery process in this ease, as well as [Mr. Schmidt's] repeated and willful conduct of disregarding Local Rule 26.04, the [c]ourt finds the [Dr. Loden's] Motion shall be granted and the [Mr. Schmidt's] Answer struck from the record. [Dr. Loden] shall be ...

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