Court of Appeals of Indiana | Opinion 49A05-1603-PL-580 | June 22, 2017 Page 1 of 39

ATTORNEY FOR APPELLANT

John R. Maley

Barnes & Thornburg LLP

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Kevin W. Betz

Sandra L. Blevins

Benjamin C. Ellis

Betz + Blevins

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

The Care Group Heart Hospital,

Appellant-Defendant,

v.

Roderick J. Sawyer, M.D.,

Appellee-Plaintiff.

June 22, 2017

Court of Appeals Case No.

49A05-1603-PL-580

Appeal from the Marion Superior 

Court

The Honorable David J. Dreyer, 

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 2 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.
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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-
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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 
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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”).
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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. 
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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.
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* * * * *

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

* * * * *
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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 
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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. 
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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 
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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. 
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[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 
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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.
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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.
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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.
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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.
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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.
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[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.
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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.
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[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 22 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 23 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 24 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 25 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 26 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 27 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 28 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 29 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 30 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 31 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 32 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 33 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 34 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. CrossAppellant’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 35 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 CrossAppellant’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 36 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 37 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 38 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 39 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.”