OKMULGEE COUNTY FAMILY RESOURCE CENTER, INC., an Oklahoma non-profit corporation, Plaintiff/Appellee,
DANETTE MACKEY, an individual, Defendant/Appellant.
Mandate Issued: 07/26/2017
FROM THE DISTRICT COURT OF OKMULGEE COUNTY, OKLAHOMA
HONORABLE KENNETH ADAIR, TRIAL JUDGE
Christopher L. Camp, CAMP LAW FIRM, Tulsa, Oklahoma, for
Cynthia Rowe D'Antonio, GREEN JOHNSON MUMINA &
D'ANTONIO, Oklahoma City, Oklahoma, for
THOMAS THORNBRUGH, VICE-CHIEF JUDGE
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,  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
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.
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. 
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.
The court entered a scheduling order  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,
On October 31, 2014 (three days before the noticed
deposition), Mackey moved to quash the subpoena directing her
to appear for the deposition.  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.
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).  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"
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.
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. 
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.  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.
 OCFRC also suggested that Mackey
hindered the discovery process by bringing an infant to the
December 12, 2014 deposition.  OCFRC's motion was
not verified, and according to the record on appeal, was
never set or noticed for a hearing. 
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.'"
 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
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) .
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.
 The parties dispute whether Mackey
received a copy of Camp's affidavit and records.
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.
 This order was entered without
hearing or notice to Mackey. It is from this judgment that
Mackey now appeals.
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.
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,
 was an "order compelling
discovery, " and (2) whether Mackey violated
that order by refusing to answer questions at her deposition
on Fifth Amendment grounds.
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.
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.
 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. 
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.  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."  OCFRC's new motion
was granted the next day.
District Court Ruled on OCFRC's § 3237(E) Motion
Without Effective Notice or a Reasonable Opportunity for
Mackey to Respond
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.
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.
VALID MOTION TO COMPEL IS A PREREQUISITE TO SANCTIONS IMPOSED
FOR VIOLATIONS OF DISCOVERY ORDERS
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.
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.")
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.
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 ...