CONTEREZ v. O'DONNELL

CONTEREZ v. O'DONNELL
2002 OK 67
58 P.3d 759
Case Number: 95759
Decided: 09/10/2002
Modified: 09/18/2002

THE SUPREME COURT OF THE STATE OF OKLAHOMA

JESSE G. CONTEREZ, Plaintiff-Appellant
v.
TERRY S. O'DONNELL, Real Party in Interest-Appellee

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV

¶0 In a medical malpractice suit in the District Court, Tulsa County, Deborah C. Shallcross, Judge, denied plaintiff's quest for sanctions for discovery-related misconduct of a lawyer for a deposition witness. Within thirty days of the action's termination by settlement, plaintiff brought this appeal for corrective relief from the sanctions' denial. The Court of Civil Appeals dismissed the appeal sua sponte. On certiorari granted upon the plaintiff's petition,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE
APPEAL ORDERED DISMISSED FOR WANT OF AN APPEALABLE ORDER

Glenn R. Beustring, Glenn R. Beustring and Associates, Tulsa, Oklahoma, and Joan Godlove, Tulsa, Oklahoma, for appellant
Joseph A. Sharp, Karen M. Grundy, Catherine L. Campbell, Matthew B. Free, Best & Sharp, Tulsa, Oklahoma, for real party in interest/appellee.

OPALA, J.

¶1 The sole dispositive issue tendered on certiorari is whether the Court of Civil Appeals [COCA] erred in dismissing sua sponte the plaintiff's appeal. We answer in the negative. Although certiorari review results in the same disposition as that reached by COCA, today's dismissal is rested on different grounds.

I
THE ANATOMY OF LITIGATION

¶2 The plaintiff, Jesse G. Conterez [Conterez or plaintiff], brought a medical malpractice action against two defendants. During the course of discovery, Conterez's counsel deposed a pathologist (not a party in the case) who had examined the plaintiff. Terry O'Donnell [O'Donnell] acted as the physician's counsel at the deposition hearing.

¶3 A dispute arose between O'Donnell and plaintiff's counsel concerning the scope of his client's deposition examination, the questions that could be asked of the witness and related issues. O'Donnell instructed his client not to answer certain questions and then adjourned the deposition hearing. Plaintiff's counsel later invoked the provisions of 12 O.S.2001 § 3230(E)(1)2 to move for sanctions against O'Donnell. The trial court denied the quest for sanctions by order entered 25 April 2000. Nearly eight months later the parties entered into an agreement that settled the claim for $500,000.00 and the cause was voluntarily dismissed by order entered 19 December 2000. In another order entered the same day the court recites that Conterez "desires to pursue his appellate rights arising out of" the April 25 denial of sanctions.3 The appeal from denial of sanctions was brought 17 January 2001.

¶4 COCA dismissed the appeal sua sponte on two grounds: (a) the appeal time had expired thirty days after the denial's entry (and proceedings subsequent to the entry would not operate to extend that statutory time limit) and (b) the plaintiff lost standing as an aggrieved party to claim harm from the denial because his interest in the sanctions' enforcement came to be extinguished by the settlement of the principal tort claim.

¶5 We granted certiorari upon the plaintiff's petition. For the reasons to be explained in Parts II and III, we now vacate COCA's opinion and order the appeal dismissed.

¶6 The plaintiff argues on certiorari that (a) his petition in error was timely filed because the express and implicit terms of 12 O.S.2001 § 993(A)(5)4 give him the option either of taking an immediate appeal from that part of the April 25 order which refused to direct the payment of money pendente lite or of awaiting the final determination of his medical malpractice action to bring an appeal, (b) he reserved the right to appeal the sanctions' denial at the settlement of the medical malpractice claim, (c) COCA erred (in its sua sponte dismissal of the appeal) by not first calling for additional briefs or a show-cause response5 and lastly, (d) the trial court abused its discretion by refusing to award sanctions for O'Donnell's discovery misconduct.

II
THE DENIAL OF DISCOVERY-RELATED SANCTIONS
IS NOT AT ONCE APPEALABLE

¶7 A mid-litigation sanction against a lawyer (rather than a party) for discovery-related misconduct is appealable.6 Appeal time begins to run from the date of the sanctions' entry upon the court's record. Although a nonparty is deemed aggrieved at once by a sanctioning order, Oklahoma jurisprudence is silent on the appealability of mid-litigation denial of discovery-related sanctions. Federal jurisprudence on this issue is instructive.7 Generally, the denial of discovery-related sanctions is not considered final until the district court litigation comes to an end.8 This is so because the trial court is not bound by, and may hence reconsider, all of its mid-litigation rulings at any time before the case comes to an end.

¶8 The April 25 denial fails to meet the two-prong finality test9 for appealability of prejudgment orders under the provisions of 12 O.S.2001 § 953.10 The order refusing to sanction the witness' lawyer neither conclusively settles the nonsanctionability of the lawyer's actions nor does the ruling's effect leave the aggrieved party plaintiff without any further relief at nisi prius.11 In sum, a sanction's denial is interlocutory in character and subject to reconsideration before entry of a final order or judgment.12

¶9 We therefore conclude and hold that the April 25 denial of §3230(E)(1) sanctions against O'Donnell was not at once appealable.13   

III
ALLEGED ERROR IN THE SANCTIONS' DENIAL, THOUGH
INCHOATELY REVIEWABLE, STANDS MOOTED HERE FOR
WANT OF ANY APPEALABLE DECISION IN THE CASE
WHICH FOLLOWS THAT DENIAL

¶10 All prejudicial error that stands preserved by the record through an intermediate order or proceeding that precedes any appealable decision is inchoately reviewable together with all other errors asserted to be present in the appealable disposition before the court. This common-law concept of reviewability is explicitly embodied in the terms of 12 O.S.2001 § 952(a).14 An aggrieved party has the unquestionable right to secure review of every preserved prejudicial error committed at nisi prius in the course of proceedings which precede an appealable decision.

¶11 Although error in denial of discovery-related sanctions is a reviewable issue that no doubt stood preserved by the record, the post-denial course of litigation failed in this case to produce an appealable order in the context of which the denial's error could be presented for corrective relief (together with other errors and those asserted to be present in the appealable order). This is so because the action's voluntary termination did not result in an appealable order but rather operated to extinguish the inchoately reviewable feature of the April 25 denial.15 The action's dismissal, which merely recites the parties' agreement, lacks the attributes of appealability. Appeals are triggered neither by reviewable errors nor by an agreement of the litigants but solely by orders defined by statute to be subject to immediate appellate scrutiny. There is here no disposition that would sustain an appeal.

¶12 In sum, the plaintiff can secure no corrective relief from the sanction's denial for want of any appealable disposition in the case which followed the denial's entry.

IV SUMMARY

¶13 Alleged error in the sanctions' denial stands mooted and its reviewability extinguished by the absence of an appealable decision in the case which follows the error's occurrence. The appeal must hence be dismissed for want of an appealable disposition from which it may be prosecuted. The district court litigation came to an end by an order that memorialized the parties' settlement agreement but failed to constitute an appealable post-denial decision.

¶14 On certiorari granted upon the plaintiff's petition, the Court of Civil Appeals' opinion is vacated and the appeal is ordered dismissed for want of an appealable order.

¶15 HARGRAVE, C.J., HODGES, LAVENDER, OPALA, KAUGER, SUMMERS, BOUDREAU, WINCHESTER, JJ., concur;

¶16 WATT , V.C.J., concurs in result._________________________

FOOTNOTES

1Identified herein are only those counsel for the parties whose names appear on the certiorari briefs.

2The pertinent terms of 12 O.S.2001 § 3230(E)(1) are:

1. Any objection to evidence during a deposition shall be stated concisely and in a nonargumentative and nonsuggestive manner. A party may instruct a deponent not to answer only where the information sought is not discoverable by law, when necessary to preserve a privilege, to enforce a limitation on evidence directed by the court, to present a motion under paragraph 2 of this subsection, or to move for a protective order under subsection C of Section 3226 of this title. If the court finds a person has engaged in conduct which has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney's fees incurred by any parties as a result thereof.

(emphasis added).

3Another December 19th order also directed the court clerk to amend the caption of the cause by eliminating the named defendants and substituting the name of Terry S. O'Donnell as real party in interest. The new caption is reflected in this opinion on certiorari.

4The terms of 12 O.S.2001 § 993(A)(5) are:

A. When an order:

* * *

5. Directs the payment of money pendente lite except where granted at an ex parte hearing, refuses to direct the payment of money pendente lite, or vacates or refuses to vacate an order directing the payment of money pendente lite;

* * *

the party aggrieved thereby may appeal the order to the Supreme Court without awaiting the final determination in said cause, by filing the petition in error and the record on appeal with the Supreme Court within thirty (30) days after the order prepared in conformance with Section 696.3 of this title, is filed with the court clerk. . . .

5Although every court must inquire sua sponte into its own jurisdiction, concerns for due notice to the parties and for undue surprise counsel that, unless the issue of cognizance has been raised, the question should be resolved only after the litigants have had an opportunity to submit briefs on the sua sponte inquiry the court wishes to undertake. Whitehead v. Tulsa Public Schools, 1998 OK 71, ¶ 0, 968 P.2d 1211; Gilliland Chronic Pain Associates, Inc., 1995 OK 94, ¶ 5 n.5, 904 P.2d 73, 75 n.5; Woody v. State, ex rel. Dept. of Corrections, 1992 OK 45, ¶ 2, 833 P.2d 257, 258; Lambert v. Town of Stringtown, 1992 OK 103, ¶ 1, 834 P.2d 955; Fields v. A & B Electronics, 1990 OK 7, ¶ 4, 788 P.2d 940, 941; Grant Square Bank & Trust Co. v. Werner, 1989 LK 126, 782 P.2d 109, 110; Anderson, Clayton & Co. v. First Am. Bank of Erick, 1980 OK 78, ¶ 14, 614 P.2d 1091, 1095. See also City of Lawton v. Intern. Union of Police, 2002 OK 1, ¶ 3, 41 P.3d 371, 374. Because adequate briefing opportunity was afforded by this court on certiorari, we do not view COCA's failure to give notice to warrant our consideration as dispositional error.

6Hammonds v. Osteopathic Hosp. Founders Ass'n, 1996 OK 54, ¶ 4, 917 P.2d 6, 7, teaches that an order imposing sanctions upon counsel, who is not a party in the case, is appealable as final (under the provisions of 12 O.S.1991 § 953) if it conclusively determines the issue of sanctionability and sets the amount that stands imposed. This view accords with that of the U S. Circuit Court of Appeals for the Ninth Circuit. Rachel v. Banana Republic, Inc., 831 F.2d 1503, 1508 n. 8 (9th Cir. 1987) ("An order imposing sanctions upon counsel, a nonparty, is final and appealable by the person sanctioned upon imposition of the sanction"). The court states in Hammonds that had the sanctioned lawyer been a party to the action, the nisi prius sanctioning order would still be appealable as an interlocutory order for payment of money pendente lite (12 O.S.2001 § 993 (A)(5)), supra note 4). Id. at ¶4, at 7.

7Whenever Oklahoma Discovery Code provisions closely parallel those in the Federal Rules of Civil Procedure, federal jurisprudence on related issues is to be deemed instructive. See in this connection Payne v. DeWitt, 1999 OK 93 ¶ 8, 995 P.2d 1088, 1092 (§ 3237(B)(2) of the Oklahoma Discovery Code follows the terms of FRCP 37 in describing the range of sanctions a court is permitted to employ). Because the provisions of 12 O.S.2001 § 3230(E)(1) are virtually identical to their federal counterpart, FRCP 30(d)(1) and (3), we will look to federal jurisprudence for assistance in dealing here with the trial court's denial of discovery-related sanctions.

8McCright v. Santoki, 976 F.2d 568 (9th Cir. 1992), teaches that a denial of Rule 11 sanctions is not final within the meaning of 28 U.S.C. § 1291 because not only will litigation on the merits follow but the court may reconsider its denial and decide, upon a renewed motion (or sua sponte), to impose sanctions. According to McCright, a party may appeal the sanctions' denial after there has been a final decision in the underlying lawsuit. Id., citing Giebelhaus v. Spindrift Yachts, 938 F.2d 962, 964 (9th Cir.1991) (the court reviewed a post-judgment denial of Rule 11 sanctions against defendants' lawyer). In Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1107 (9th Cir. 1990), the court reviewed a Rule 11 sanctions' denial as one of several issues upon the litigation's termination). In Buchanan v. U.S. 82 F.3d 706, 708 (7th Cir. 1996), the court notes that although a sanctions order is collateral to the merits, a denial of sanctions cannot be considered final within the meaning of 28 U.S.C. § 1291 until the district court litigation is at an end. See also Matei v. Cessna Aircraft Co., 35 F.3d 1142, 1147 (7th Cir. 1994)(the court reviewed the denial of Rule 37 sanctions as one of several errors in plaintiff's appeal from judgment for the defendants); Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 369 (9}up6th Cir. 1992)(the court reviewed the denial of Rule 11 and Rule 37 sanctions as one of several errors in the appeal from the dismissal of plaintiff's claims); Haskell v. Washington Township, 891 F.2d 132, 133 (6th Cir. 1989). The rationale of these cases is equally applicable to a sanction's denial under the terms of 12 O.S.2001 § 3230(E)(1). In Haskell and McCright, supra, the court observed that the denial of sanctions would not be appealable under the collateral-order doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546, 69 S. Ct. 1221, 1225, 93 L. Ed. 1528 (1949), because error in denial fails to meet the last criterion of the three-part Cohen test - i.e., that it "be effectively unreviewable on appeal."

9The elements of the two-prong test are: (1) Does the order conclusively determine the disputed question then before the court? and (2) Does the ruling's effect leave the aggrieved party without any relief at nisi prius because the defeated litigant stands precluded from proceeding further in the case? Hammonds, supra note 6, at ¶ 3, at 7.

10The terms of 12 O.S.2001 § 953 are:
An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents a judgment, and an order affecting a substantial right, made in a special proceeding or upon a summary application in an action after judgment, is a final order, which may be vacated, modified or reversed, as provided in this article.

11It suffices to say that for the assessment of appealability a denial of sanctions is treated differently from their imposition. See federal jurisprudence, supra note 8.

12Even if the denial had been at once appealable, the appeal here would not have been late. By the terms of 12 O.S.2001 §952(b)(3) failure to appeal from an interlocutory or intermediate order "shall not preclude" one from "asserting error" in that order "after the judgment or final order is rendered." (emphasis added).

13Although the April 25 denial of sanctions against a nonparty did not then rise to an appealable event, the order might have been accelerated for immediate appeal by a 12 O.S.2001 § 994 certification. The certified order would convert the denial into an immediately reviewable disposition and thus make it fit for an immediate appeal. For a discussion of the § 994 certification regime, see May-Li Barki, M.D., Inc. v. Liberty Bank and Trust Co., 1999 OK 87, ¶ 2, n.4, 20 P.3d 135, 142 n.4 (supplemental opinion on rehearing).

14The terms of 12 O.S.2001 § 952(a) are:

(a) The Supreme Court may reverse, vacate or modify judgments of the district court for errors appearing on the record, and in the reversal of such judgment may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof.

(emphasis added).