Okmulgee Cnty. Family Res. Ctr., Inc. v. Mackey

• Decision Date: 09 March 2017
• Docket Number: Case No. 114,160
• Citation: 400 P.3d 908
• Parties: OKMULGEE COUNTY FAMILY RESOURCE CENTER, INC., an Oklahoma Non–Profit Corporation, Plaintiff/Appellee, v. Danette MACKEY, an Individual, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

400 P.3d 908

OKMULGEE COUNTY FAMILY RESOURCE CENTER, INC., an Oklahoma Non–Profit Corporation, Plaintiff/Appellee,

v.Danette MACKEY, an Individual, Defendant/Appellant.

Case No. 114,160

Court of Civil Appeals of Oklahoma, Division No. 4.

Decided: March 9, 2017

Mandate Issued: July 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

OPINION BY P. THOMAS THORNBRUGH, VICE–CHIEF JUDGE:

¶ 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.

BACKGROUND

¶ 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 order⁴ 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.

STANDARD OF REVIEW

¶ 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.

ANALYSIS

¶ 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...