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Okmulgee County Family Resource Center, Inc. v. Mackey

Court of Appeals of Oklahoma, Division IV

March 9, 2017

OKMULGEE COUNTY FAMILY RESOURCE CENTER, INC., an Oklahoma non-profit corporation, Plaintiff/Appellee,
DANETTE MACKEY, an individual, Defendant/Appellant.

          Mandate Issued: 07/26/2017


          Christopher L. Camp, CAMP LAW FIRM, Tulsa, Oklahoma, for Plaintiff/Appellee

          Cynthia Rowe D'Antonio, GREEN JOHNSON MUMINA & D'ANTONIO, Oklahoma City, Oklahoma, for Defendant/Appellant


         ¶1 Defendant, Danette Mackey, appeals the order and judgment of the District Court of Okmulgee County, entered on June 30, 2015, granting Plaintiff, Okmulgee County Family Resources Center, Inc. (OCFRC), default judgment and damages, together with attorney fees and costs, as a discovery sanction. On review, [1] we hold that the district court abused its discretion by (1) granting a default judgment of liability as a sanction for the claimed discovery violation in the absence of a viable order compelling Mackey to answer prior to the imposition of sanctions; and (2) awarding actual damages, together with attorney fees and costs, as a sanction without affording Mackey notice and an opportunity to contest OCFRC's claims at hearing. We reverse the lower court's orders and judgments, and remand for further proceedings.


         ¶2 This appeal arises from the trial court's "Final Judgment, " entered on June 30, 2015, granting OCFRC default judgment and damages, together with attorney fees and costs, as a discovery sanction, because Mackey declined to answer certain questions at a deposition set by OCFRC as part of its malicious prosecution action against Mackey.

         ¶3 The record reflects that on October 26, 2010, Mackey, through counsel, filed a complaint against OCFRC in the United States District Court for the Northern District of Oklahoma (Case No. 11-CV-662), alleging federal Title VII violations that she claimed had occurred during Mackey's employment with OCFRC. The federal court granted summary judgment in favor of OCFRC, and dismissed Mackey's state law wage claims without prejudice to refiling. [2]

         ¶4 Based on the ruling in the federal case in its favor, OCFRC sued Mackey for malicious prosecution in the District Court of Okmulgee County (Case No. CJ-2014-00081) on April 22, 2014. Mackey, appearing pro se, timely filed her answer on May 12, 2014, claiming as a defense, inter alia, that she had relied upon the advice of counsel. [3]

         ¶5 The court entered a scheduling order [4] on July 9, 2014, setting a discovery cut-off date of November 10, 2014. A dispute then developed concerning the efforts of OCFRC's counsel, Christopher Camp, to secure Mackey's deposition. OCFRC claims that Mackey was sent statutory notice of the deposition together with a subpoena to appear for the deposition to be held at the OCFRC offices on November 3, 2014. [5]

         ¶6 On October 31, 2014 (three days before the noticed deposition), Mackey moved to quash the subpoena directing her to appear for the deposition. [6] Mackey argued that the parties had not engaged in any written discovery; that OCFRC had withheld information regarding a key witness in the case; that she did not have adequate time to prepare; and that the location of the requested deposition (at OCFRC's offices) imposed an unfair burden due to Mackey's safety concerns. Mackey also filed a motion to amend the scheduling order to extend discovery deadlines to January 30, 2015. [7]

         ¶7 OCFRC opposed Mackey's motions, and filed its own combined motion for relief by responding to Mackey's motion to quash and by seeking an order compelling discovery, citing 12 O.S.2011 § 3237 (E). [8] On November 19, 2014, the trial court heard and considered Mackey's motion to quash and motion to extend deadlines, along with OCFRC's motion for relief and opposition to motion to quash. The court entered a "Court Minute" [9] that, inter alia, directed Mackey to appear on December 12, 2014, for deposition. The minute was on a pre-printed Okmulgee County form, and will be discussed in our analysis below.

         ¶8 On December 12, 2014, Mackey appeared for deposition as instructed by the court. Mackey was not represented by counsel at the deposition. It is undisputed that she declined to answer questions by asserting by her Fifth Amendment right against self-incrimination. Mackey testified that she was invoking her Fifth Amendment privilege based upon advice, but she declined to disclose the name of the person on whom she had relied. In her appellate brief in chief, Mackey asserts she was advised by counsel that the malicious prosecution action against her had criminal consequences in addition to civil consequences. [10]

         ¶9 OCFRC'S attorney, Camp, ended the deposition but did not apply for an order compelling Mackey to answer the questions she had declined to answer. [11] On April 21, 2015 (some four months after the deposition was adjourned), OCFRC filed a "Motion for Default Judgment or other Appropriate Sanctions." This motion cited 12 O.S.2011 § 3237 (B), and alleged that Mackey had failed to comply with the court's November 19, 2014 minute order by refusing to answer questions on Fifth Amendment grounds. [12] OCFRC also suggested that Mackey hindered the discovery process by bringing an infant to the December 12, 2014 deposition. [13] OCFRC's motion was not verified, and according to the record on appeal, was never set or noticed for a hearing. [14]

         ¶10 On June 8, 2015, the trial court entered a journal entry granting OCFRC's motion for default judgment against Mackey as to liability, by way of sanction pursuant to 12 O.S.2011 § 3237 (B). The court found that Mackey, "[d]espite this Court's admonition, on December 12, 2014, after being sworn and stating her name for the record.... refused to answer all but one (1) of the one hundred sixty-four (164) questions propounded by OCFRC's attorney, purporting to 'assert [her] Fifth Amendment rights under the United States Constitution.'" [15] According to the court, no hearing was required prior to entry of its order because Mackey had failed to file a brief in opposition as provided by Rule 4(e), 12 O.S.Supp. 2013, Ch. 2, App., Rules for the District Courts of Oklahoma (District Court Rules). As a consequence, the court stated, it was authorized to treat Mackey's failure as "an implicit concession that [OCFRC's] arguments have merit" so as to work as "a voluntary waiver by Mackey of her opposition to such arguments." Accordingly, the court deemed OCFRC'S motion to have been confessed. [16]

         ¶11 In a separate part of the journal entry, the court noted that, "[b]ecause the amount of damages sought is not readily ascertainable from the face of OCFRC's Petition, " OCFRC was directed to submit (within 20 days) an affidavit describing the amount of damages it sought together with its reasonable expenses, including attorney fees, incurred as a result of Mackey's "failure to comply with this Court's discovery order of November 19, 2014 " (emphasis added). The journal entry further recited that the court would then "enter final judgment by separate order after submission of that affidavit" (emphasis added) . [17]

         ¶12 Thereafter, on June 29, 2015, Attorney Camp submitted, directly to the court, his billing records and an affidavit declaring that OCFRC incurred damages of $141, 305.74 in the form of attorney fees expended in defending the federal action, and an additional $9, 809.40 in attorney fees and expenses due to Mackey's failure to comply with the Court's minute order of November 19, 2014. [18] The parties dispute whether Mackey received a copy of Camp's affidavit and records. [19]

         ¶13 The day after receiving Camp's affidavit and records, on June 30, 2015, the trial court apparently reviewed the items and entered its "Final Judgment" in favor of OCFRC and against Mackey in the sum of $141, 305.74 as damages on OCFRC's claim for malicious prosecution, and the additional sum of $9, 225.00 in attorney fees, plus costs of $584.40, as a result of Mackey's failure to comply with the Court's discovery order of November 19, 2014. [20] This order was entered without hearing or notice to Mackey. It is from this judgment that Mackey now appeals.


         ¶14 We review the correctness of the trial court's imposition of sanctions under the abuse of discretion standard. Payne v. Dewitt, 1999 OK 93, ¶ 9, 995 P.2d 1088; State ex rel. Moshe Tal v. City of Okla. City, 2002 OK 97, ¶ 2, 61 P.3d 234; Meadows v. Wal-Mart Stores, Inc., 2001 OK 25, ¶ 5, 21 P.3d 48. To reverse for abuse of discretion, "it must be found that the trial judge made a clearly erroneous conclusion and judgment, against reason and evidence . " Abel v. Tisdale, 1980 OK 161, ¶ 20, 619 P.2d 608. To determine whether an abuse of discretion occurred, a review of the facts and the law is essential. Bd. of Regents of Univ. of Okla. v. Nat'l Collegiate Athletic Ass'n, 1977 OK 17, ¶ 3, 561 P.2d 499.


         ¶15 The key to analyzing Mackey's claim that the court erred in its sanction judgments is found in the Oklahoma Discovery Code and the clear and unambiguous case law that a motion to compel is a prerequisite to sanctions being imposed for violations of discovery orders . Helton v. Coleman, 1991 OK 43, ¶¶ 10-13, 811 P.2d 100. OCFRC argues that this requirement was met because the court's minute order following hearing on Mackey's motion to quash was an "order compelling discovery" that Mackey subsequently breached during her December 2014 deposition. The prime questions, therefore, are (1) whether the district court's minute order of November 19, 2014, [21] was an "order compelling discovery, " and (2) whether Mackey violated that order by refusing to answer questions at her deposition on Fifth Amendment grounds.

         ¶16 In most cases, an analysis of whether the court has entered the requisite order compelling discovery prior to imposing sanctions is a relatively straightforward matter. Such is not the case here. Our analysis is complicated by the fact that there is no transcript of the court proceedings of November 19, 2014, that purportedly formed the basis for the later sanction of default judgment.


         ¶17 The pre-deposition proceedings began with Mackey's October 31, 2014 motion to quash a subpoena directing her to appear for a November 3, 2014 deposition at the OCFRC offices, and her motion to extend discovery deadlines. [22] This was evidently the first discovery request made in this case. The court entered an order on the same date, setting Mackey's motions for hearing on November 19, 2014, a date 16 days after the challenged deposition was scheduled. [23]

         ¶18 OCFRC waited until the day before the hearing to respond, filing a motion that not only responded to Mackey's motions but also raised other claims for relief. OCFRC took the position that, notwithstanding Mackey's motion to quash on October 31, and the order and notice of hearing filed by the court on the same date, Mackey was still obligated by subpoena to attend the November 3, 2014 deposition. [24] OCFRC thus additionally asserted that it was entitled to sanctions relief as provided for by 12 O.S.2011 § 3237 (E)(1), for fees and costs incurred in preparing for the November 3 deposition, and for an order "compelling discovery." [25] OCFRC's new motion was granted the next day.

         A. The District Court Ruled on OCFRC's § 3237(E) Motion Without Effective Notice or a Reasonable Opportunity for Mackey to Respond

         ¶19 The first serious problem with this process is the fact that OCFRC filed its motion seeking discovery sanctions and an order compelling discovery less than 24 hours before the hearing at which the court granted that motion. A motion requesting sanctions is not one that can be decided without briefing pursuant to District Court Rule 4. However, Mackey was given no opportunity whatsoever to brief this matter. The certificate of service on what was essentially both OCFRC's reply and a motion affirmatively seeking both sanctions pursuant to 12 O.S.2011 § 3237 (E) and a discovery order indicates that the motion was only mailed to Mackey on November 18. Even assuming arguendo that Mackey received the motion early on the morning of November 19 before departing for her 10 a.m. court appearance, it is clear that she was given no notice that the claims for sanctions and an order to compel would be heard that day, and that she had absolutely no realistic opportunity to prepare a response. Although we do not base our decision on these facts, we note that they raise a serious due process problem.

         ¶20 The exact legal effect of the resulting, November 19 minute order takes on considerable significance in this case, because that order is the basis for the court's later order of default as a sanction for alleged discovery order violations. OCFRC argued that the November 19 order was "an order compelling discovery" that Mackey subsequently violated during her December 12 deposition. Hence, OCFRC argues, it could move for sanctions against Mackey for refusal to answer questions at deposition without first complying with the rule of Helton that an order to compel is a prerequisite to sanctions being imposed for violations of discovery orders.


         ¶21 Our first order of business, therefore, is to determine whether the court entered an order compelling discovery that Mackey failed to obey. Failure to obtain such an order would be fatal to OCFRC's quest for sanctions, and would render the trial court's order imposing sanctions, which is the subject of this appeal, void.

         ¶22 We reiterate that Oklahoma case law is clear that a motion to compel is a prerequisite to sanctions being imposed pursuant to 12 O.S.2011 § 3237. See Helton, 1991 OK 43 at ¶ 11, citing with approval , Hill v. Pierce Mobile Homes, Inc., 1987 OK CIV APP 40, 738 P.2d 1380, and stating the Court was "persuaded that the Court of Appeals correctly concluded" in Hill that an order compelling discovery is a prerequisite to sanctions being imposed by the court. See also Martin v. Johnson, 1998 OK 127, ¶ 37, 975 P.2d 889 ("We conclude that when a party fails to appear at a deposition, and a sanction in the form of a dismissal is sought pursuant to the combined authority of § 3237(B)(2) and (E), the dismissal must be based upon the failure to obey an order compelling the person to attend the deposition.")

         ¶23 More recently, in Barnett v. Simmons, 2008 OK 100, 197 P.3d 12, our Supreme Court affirmed that the correct procedure for determining whether sanctions should be imposed for a claimed discovery violation under § 3237(B)(2) is to determine first, if the party has, "'failed to obey'" an order of the court instead of focusing on whether the party's conduct was intentional, willful, or in bad faith. See Barnett at ¶ 24.

         ¶24 To act as the required prerequisite for OCFRC's sanctions request, the November 19 order must, therefore, have two attributes: first, it must be an order compelling discovery; and second, it must have specifically prohibited Mackey from refusing to ...

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