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Brown v. Curtis3/11/2003
Mandate Issued: 05/23/2003
__ P.3d __
AFFIRMED
Defendants, George Curtis and George Curtis, Jr. (the Curtises), appeal from orders of the Trial Court denying their request for a discovery-related attorney fee award/sanction against Plaintiff, Jim Brown (Brown), and denying their motion to strike certain evidence. Based on review of the record on appeal and applicable law, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Brown originally brought the action for breach of contract against the Curtises and additional defendants, George Cheek and Jay Belt, alleging that all of the defendants had breached indemnity and debt-assumption provisions contained in a stock sale agreement whereby Brown sold them shares of common stock in Anadarko Nursing Center, Inc.
The Curtises filed a request for production of documents by Brown, and later an interrogatory, both of which went unanswered by Brown for a considerable period of time. The Curtises filed a motion seeking dismissal of Brown's claim for failure to prosecute or, in the alternative, an order by the Trial Court compelling Brown to comply with discovery requests. There was a considerable delay before Brown responded, but when he finally responded, he claimed the alleged insufficiencies and delays did not warrant dismissal. He further claimed that at the time his response was due, it was contemplated that another, related lawsuit in federal court would resolve all claims between Brown and the Curtises - "that the federal action would have essentially subsumed this lawsuit and obviated the need for duplicative discovery." Brown also argued that the interrogatory requested information which was confidential, irrelevant and not calculated to lead to discovery of admissible evidence.
A hearing was held on the Curtises' motion, but the hearing was not transcribed. What occurred as part of the hearing is vital to this case.
The Trial Court made certain rulings from the bench. It overruled the Curtises' motion to dismiss, but sustained their motion to compel, ordering Brown to respond to the discovery requests and produce documents supporting his claims. The parties still disagreed as to some issues involving the discovery requests, and the Trial Court directed counsel to confer on these issues and report back regarding their resolution. The parties apparently reached some agreement that would involve entry of a protective order, allowing Brown to limit his response to the interrogatory and to redact portions of produced documents which might contain personal financial information. The parties reported this to the Trial Court, and the Court excused the parties.
In his appellate answer brief, Brown states that when the parties conferred at the direction of the Trial Court (he refers to this as a "discovery conference"), among the multiple issues they discussed was the Curtises' inability to pay any judgment that might be entered against them, and their intention to file bankruptcy within ten days after the entry of any judgment. Counsel for Brown indicated he would discuss the Curtises' financial condition with his client and discern Brown's intentions relative to continued prosecution of his claims. The Curtises do not dispute this account of events in their appellate briefs.
Counsel for Brown subsequently requested, and later received from counsel for the Curtises, written confirmation dated March 12, 2002, of their intent to file bankruptcy if Brown prevailed in the action. The letter characterized Brown's prosecution of his state court claims as an "exercise in futility." The letter was prefaced: "This is a communication
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