Payne v. Dewitt

applied. practices relating The bank’s

guaranty support agreements would not ex- agreement

tension all of the notes guaranteed.

allegedly There is no evidence guarantor or bank’s

that the officer ever guaranty

intended for the to cover all of the majority

notes. Cinco will recover the allegedly guaranteed.

antecedent debt supporting application law

There case 1823(e).29

of state law defenses to 18 U.S.C.

Nevertheless, was successful Cinco meet-

ing I challenge Cinco demonstrate underlying guaran- consideration for the

ty of two of the antecedent debts. We hold

that Cinco is entitled to recover on note No. $18,301.57 $27,-

1 for and on note No. 2 for holding

500.00. Our is based on Oklahoma provides fide, separate,

law which bona ade-

quate independent grounds for our deci-

sion.30

COURT OF CIVIL APPEALS OPINION

VACATED; TRIAL AFFIRMED COURT

IN PART; PART AND REVERSED IN REMANDED.

CAUSE

SUMMERS, C.J., HARGRAVE, V.C.J.,

HODGES, SIMMS, JJ., KAUGER, concur.

LAVENDER, OPALA, WATT, JJ.,

dissent.

1999 OK Payne,

Rick PAYNE and Jennifer wife,

husband and Plain

tiffs/Appellees,

Larry DEWITT, Defendant/Appellant.

No. 89796.

Supreme Court of Oklahoma.

Nov. supra; Peterson, supra; see FDIC, supra; note Cavett v. Guaranty Title Stewart Co. v. 15, supra; Roberts, see note Severson v. Powell v. supra. see note Co., supra. Mining Milling see note United & 1032, 1042, Michigan Long, 463 Co., 29. FDIC v. Aetna see note Casualty Surety & 3469, 3476, S.Ct. L.Ed.2d Lau, supra; v.. see FDIC Alvarez supra; see note Bailey Drilling In re Pemie Ray Wilburn, Smiling, H. A. Mark Wil- burn, Tulsa, Smiling, Masterson & Okla- homa, appellant, for Maddux, Gregory Maddux, H. Maddux & Tulsa, Oklahoma, appellees.1 for OPALA, J. dispositive question tendered on

certiorari is whether there was error in the imposition O.S.Supp.1996 court’s of 12 3237(B)(2)2 against sanctions the defendant noncompliance with both notice-imparting process and court-ordered fail- ing appear depositions? twice scheduled (1) We hold: there is no error in the nisi judg- declaration of directing ment and in the order a bench trial only 1. Identified pertinent herein are those O.S.Supp.1996 counsel for the 2. For the terms of parties appear whose names 3237(B)(2), the certiorari see note 5. infra briefs. (2) he issues; and that “should be court’s “should be sustained” the trial on the to be determined participation entitled fees and costs allow defendant’s refusal (on damages) is excessive and hearing application”. counsel was upon Dewitt’s (3) aside; the award set be im- must be that further sanctions would warned supported fee and costs is counsel appeal’ for a court- posed if Dewitt did not record. deposition May 19. When Dewitt ordered appear deposition, Payne at that failed

I quest judgment renewed for default his At the prayed costs and counsel fee. OF LITIGATION THE ANATOMY motion, May the renewed injuries [Payne] Payne sustained Rick upon trial court declared Dewitt liable de- his vehicle was on 11 November 1995 when depositional appearance want of fault for by by Larry Dewitt a car owned rear-ended (1) discovery would and ruled that there be left the The latter vehicle [owner Dewitt]. or (2) hearing damages on on bench June the driver’s iden- scene of accident before hearing that Dewitt could not cross-examine The car’s owner tity could be ascertained. witnesses, object Payne’s to introduction of of the car’s license identified a check was testimony offered, or or exhibits otherwise tag. evidentiary process, and participate in the ¶ brought a Payne and his wife tort claim (3) Payne was entitled to costs and counsel Dewitt, alleging he was the vehi- against that upon application.4 fee willful, driver that wanton and cle’s and his ¶ beginning 25 hear- At the June Payne accident. actions caused the reckless ing, requested jury trial Dewitt’s counsel injury, loss consortium personal claimed damages oppor- as well as an on the issue of wife, damage property to his vehicle for his tunity to to cross-examine witnesses and sub- $8,281.20 damages. punitive and Dewitt court denied the mit evidence. (a) answered, any denying negligence and as request and struck Dewitt’s answer sanc- (b) damages, urging state a claim failure to discovery for his willful obstruction tions (c) alleging granted, upon which relief can by failing to earlier-scheduled two actions, attend to causation is unrelated Dewitt’s damages depositions. trying the issues After (d) parties asserting negligence of third jury participation De- and without (e) sans and Dewitt had no control over whom counsel, Payne trial court awarded witt’s proper party. he claiming that was not ($1,849.50 $35,906.56 for damages of actual appear for a failed to Because Dewitt wages, expenses, for lost $335.68 medical deposition” January “noticed $25,000 $9,021.38 damage, for property for judg- Payne for and default moved sanctions $2,500 loss pain suffering, for the wife’s and motion, According to numerous ment.3 his consortium) $38,- damages punitive deposi- attempts were made to take Dewitt’s par- to Dewitt’s counsel was allowed 706.56. tion, only appeared at Dewitt’s counsel Payne’s ticipate in a severed January response, for 31. In his the one set fee The trial quest for counsel and costs. argued quest for default Dewitt that $4,450.50 Payne fee counsel court awarded damages judgment and without evidence costs. $242.50 contrary to law and that the sanctions are April The trial court’s 9 premature. Appeals [COCA] 7 The Court Civil parties Payne’s mo- notified the that order (a) affirmed, non- pronouncing that Dewitt’s May on 15 tion sanctions would be heard compliance with the earlier two requests sanction of warranted the extreme ¶5 his judgment on and bars May The trial court ruled at hearing on Payne’s participation at the bench dam- healing motion for sanctions (a) Payne’s legal Payne’s requested included the court strike 4. The counsel-fee sanction motion to answer, (b) deny request any expenses presenting raise Dewitt’s his to his motions incident against introduce evi- defense the action legal fee relat- sanctions as well as costs (c) judg- proceeding, enter default dence in the deposition. ed his efforts to take Dewitt’s (d) damages, costs and attor- ment and award ney’s fee. (b) ages damages, nonjury the award counsel trial on the rests stat- supported by fee and costs stands the record. ute-authorized sanctions. Section 3287(B)(2) Discovery the Oklahoma

II patterned Code5—which is on the Federal Rules of Civil Procedure [FRCP]6—autho- THE TRIAL COURT’S DECLARATION spectrum rizes a broad sanctions abuse OF LIABILITY UPON DEFAULT discovery process.7 AND ITS ORDER DIRECTING COCA measured BENCH TRIAL ON DAMAGES IS- imposition of these sanctions the five- SUES FOR VIOLATION OF THE employed by factor test Court of JUSTI- Appeals ARE DISCOVERY PROCESS recently for the Tenth Circuit8 and FIED ON THIS RECORD in Ho- applied by another division of COCA ¶ The trial court’s declaration liability upon directing default and order pertinent provisions O.S.Supp.1996 Hockey League Metropoli-

5. The conduct. National 3237(B)(2) Club, Inc., 639, 642, Hockey are: tan 427 U.S. (1976); S.Ct. 49 L.Ed.2d 747 Societe BY IN SANCTION COURT WHICH AC- Participations Internationale Pour et Industrielles party TION IS PENDING. If a ... fails Commerciales, Rogers, S.A. obey provide permit discovery 357 U.S. an order 1087, 1096, obey party ... or if a S.Ct. L.Ed.2d 1255 fails order entered title, under subsection F of Section 3226 of this may pending the court in which the action is 8.See, 261, e.g., Thompson, Jones v. 996 F.2d 264 regard to make such orders in the failure as (10th Cir.1993); Reynolds, v. Ehrenhaus 965 just. may are ing: Such include the orders follow- 916, (10th Cir.1992). F.2d 920-21 Supreme provide Two seminal U.S. Court cases regarding a. An order that the matters insight originally into how FRCP 37 any desig- was fash the which order was made or other Elliott, 409, Hovey v. 167 17 be S.Ct. nated facts shall be taken to established for ioned'— 841, (1897) purposes Packing the of 42 L.Ed. 215 the action in accordance with Hammond order, Arkansas, 349-54, 322, party obtaining the the claim of the Co. v. 212 U.S. 29 S.Ct. refusing 370, 379-81, b. An order to allow the disobedi- Hovey 53 L.Ed. 530 In the party support designated oppose ent or to refusing right party Court held that a the to defenses, prohibiting or or merits, claims him hearing, defend an action on the a absent from evidence, introducing designated in matters process. denied the defendant due In Ham striking pleadings parts c. An order out or mond, substantially Hovey. the Court modified thereof, staying proceedings or further until There, judgment the Court a affirmed that struck obeyed, dismissing the order is or the or action party’s judgment a answer and entered default thereof, proceedings any part rendering or or a books, produce papers for its failure to and wit judgment by against par- the disobedient default distinguishing nesses ain state antitrust suit. In ty. Hovey, process the due Court noted that had by been in that denied case the court’s refusal provided In lieu of or in addition to the orders case, party. post-FRCP hear the In a 37 Societe paragraph, require this in court shall Internationale, 7, 212, supra note at 78 357 U.S. party failing obey or order the attor- 1096, process S.Ct. at the Court held that due ney advising pay or him both to the reasonable prevents the harshest of sanctions where the expenses, including attorney’s fees, by caused party comply to be sanctioned is unable with a failure, unless the court that the finds fail- discovery court’s order. In Link v. Wabash Rail substantially justified ure was or that other 626, 1386, road 370 U.S. 82 8 S.Ct. L.Ed.2d expenses make of circumstances an award un- (1962) Hockey 734 League, supra and National * * n * just. 7, granted note the Court district courts consid added). (emphasis impose erable discretion to the extreme sanction of dismissal or default where there has been 3237(B)(2) Discovery 6. Section of Oklahoma flagrant, disregard discovery bad faith of duties. parallels precisely Code of terms FRCP 37 in Link, upheld In tire Court a dismissal for an describing range per- of sanctions a court is attorney’s pretrial appear failure to aat confer 3237(B)(2) employ. mitted Because is virtu- pro ence where a 37, the record reveals course of ally jurisprudence identical to FRCP federal Id., 633, neglect. tracted 370 U.S. at 82 S.Ct. is instructive. Hockey League up 1390. In National the Court provided judgment 7. The held the district court’s default under sanctions the federal rule and equivalent designed respondent’s respond its FRCP Oklahoma are as tool to failure evidence, compel production compensate timely adequately interrogatories. Supra ad- 7, unnecessary 643, expense versaries and deter mis- note 427 U.S. at S.Ct. 2781. fault, willfulness, by tels, or bad Kampar Corp.9 These factors are: is occasioned Inc. v. prius imposi (1) faith.12 The correctness nisi noncompliance quantum prejudice (or § 3237 to be adversary party, tion of sanctions under is moving) has caused the (2) judicial abuse-of-discretion standard.13 gauged with the extent of interference (or dismissal) (4) (3) proper is a litigant, Whether default culpability process, question is a that calls for a fact- party ad sanction court warned the whether decision, making specific inquiry.14 In lead to dis noncompliance could vance that (5) discretion, broad, is effi court’s while not judgment, and trial or default missal be both fair15 unbridled. The sanction must cacy of lesser sanctions.10 (or particular claim de and related to counterpart, Like its federal fense) discovery order.16 at issue to sanction a the trial court 3237 allows ¶ 10 We hold that on this record claim or party by dismissal its disobedient declaration judgment.11 the nisi These draconian a default —for par punitive damages17 well only both actual and penalties applied when should —as directing nonjury discovery as the order ty’s comply with a order failure to Internationale, supra 12. note APP See Societe OK CIV 964 P.2d 935. 1096; Stores, Way Kwik U.S. at 78 S.Ct. at Caldwell, 1987) (Colo. Ehrenhaas, Jones, 264; supra Inc. v. 745 P.2d note 8 (when imposing judgment, a court should at8 920-21. note disobedience, finding make a of willful bad first disregard discovery consisting flagrant 3237(B)(c), supra faith O.S.Supp.1996 § See Third, Fourth, Fifth, Sixth, culpable consisting gross Second, obligations, fault 5. The Nesseth, Binyon Kan.App.2d negligence); implemented have firm Ninth and Tenth Circuits (1981), 638 P.2d 231 Kan. judge propriety which to standards affirmed (default (1982) judgment as a 646 P.2d 1043 imposing litigation-ending See Bambu sanctions. (2nd Inc., Sales, cooperate Trading refusal to Inc. v. F.3d sanction for Ozak Cir.1995); may City Philadelphia, 47 F.3d severe sanction which court Harris the most 1311, (3d Cir.1995); tempered by impose Fed. use be careful 1330 n. 18 Mutual Sav. and its must Associates, judicial v. & Inc. 872 that its and Loan Ass'n Richards exercise of discretion ensure Conner, 88, Cir.1989); (4th merited). v. 20 imposition 92 F.D.I.C. F.2d 1376, Cir.1994); (5th Beil v. Lake F.3d 1380-81 546, Co., Engineering Mfg. 15 F.3d 552 wood & Inc., 22, Products, 1978 OK 13. Moor v. Babbitt Indus., (6th Cir.1994); Henry v. Gill Inc. 983 971; 969, Kampar, supra note P.2d also 9 575 see Cir.l993); 943, (9th Thompson, v. 948 Jones F.2d 7, 935; Hockey League, supra note at National 261, 1993). (10th the F.2d 264 Cir. But 996 First, cf. 642, 96 S.Ct. at 2780. 427 U.S. at Seventh, Circuits, Eighth and Eleventh set do have an articulated of standards which not Moor, supra note 13 at 972. impos that district courts must consider before litigation-ending ing sanctions. Damiani v. 3237(B), supra O.S.Supp.1996 § 12 note 15. See F,2d 12, (1st Hosp., Cir. Island 704 16 Rhode Consultants, 5; v. Seminar Inc. Sino Mesnik, (7th 1983); Professional v. 63 F.3d 1445 Stafford Council, Technology Exch. Inc. 727 American Cir.1995); Dynamics v. Avionic Co. General Rubin, 1470, (9th Cir.1984); In re 769 1474 F.2d 1992); (8th v. Corp., 957 F.2d Cir. Malautea 555 611, Cir.1985). (9th F.2d 615 Co., Ltd., (11th 987 F.2d 1536 Motor Suzuki cert, 1993), denied, 863, 510 114 S.Ct. U.S. Cir. 181, (1993) (a Ireland, Compagnie Corp. three-factor test v. 126 L.Ed.2d 140 Ltd. 16. Insurance of Guinee, are applied; in other cases the factors not 456 102 is mentioned; see, but de U.S. des Bauxites (1982); e.g., Blythe v. East BankAtlantic Ehren 72 L.Ed.2d 492 S.Ct. Inc., (11th Webber, (10th 12 F.3d 1045 Reynolds, man Paine 920-21 965 F.2d haus Cir.1994); Seminar, Devaney 1992); American v. Continental Ins. Cir. Professional 1993)). (11th Cir. These tests 989 F.2d compet designed important the are to reconcile preserving judicial ing policies discretion and of correctly liability trial court's declaration The efficiency litigating a case on with that of its only liability the harm but also not for included analysis in-depth an federal merits. For damages provisions governed the punitive approach imposition Federal courts’ of circuit 9.1, O.S.Supp.1995 which are: 23of sanctions, Golinsky, Jodi The Second Rule see obligation of an In action for the breach A. Imposition Litigation-Ending Sanc Circuits's of contract, jury, arising in addition Discovery not from Comply With Or For Failures To tions may, subject provi- damages, 37(B)(2) to the to actual Rule and Dismiss ders: Should Defaults B, Dice?, C and in D and limitations subsections By sions Be a Roll The als Determined Of section, damages sake give Brooklyn this of L.Rev. 585 damages18 process, prius meets the criteria established nisi liability declaration of ap- jurisprudence. extant Dewitt refused to quantum established a determined pear at deposi- “noticed” and court-ordered nonjury hearing damages at a permis- is a spanning period a five-month tions time. sible and fit sanction for Dewitt’s act of through He was warned his counsel escaping compulsion. testimonial he appear default would follow if failed to deposition.

the court-ordered His testimoni- Ill al evidence was to the nisi essential determination for the harm in- THE SANCTION OF BARRING CROSS- by Payne. pres- curred Dewitt’s counsel was EXAMINATION AND OTHER hearing ent sanctions offered TRUTH-TESTING AT DEVICES explanation justification or no for his client’s THE POST-DEFAULT NONJURY record, this absence. On the trial court was HEARING ON DAMAGES IS CON- clearly justified inferring that Dewitt TRARY TO THE ORDERLY PRO- sought protect revealing himself from CESS OF ASSESSING DAMAGES ownership circumstances of the of the vehi- cle, presence his at the wheel when the acci- ¶ 12 In the assessment of dam happened dent as as well his motives ages following entry judgment, of default a hit-and-run behavior. statutory right defaulting party has to a ¶ According to the course of the on the of unliquidated com- extent dama upon application orderly mon law ges.19 Encompassed O.S.1991 688.20 example by way punishing sessment of a default ... was not defendant upon following based the serious- jury upon considered function of the and stood factors: public arising ness of the hazard from footing a different from trial of issues fact. misconduct; profitability the defendant's therefore, measuring damages by jury, defendant; the misconduct to the the duration practice would seem to be a matter of rather it; any misconduct and concealment of Sneiders, right."). Henry than See also degree of the defendant’s awareness of (9th Cir.1974), denied, F.2d cert. excessiveness; hazard and of its the attitude (1974)(after S.Ct. L.Ed.2d 57 upon discovery conduct the defendant judgment a default has been entered under FRCP hazard; of the misconduct case aof 37(b)(2), party right jury has no trial under corporation defendant which is a or other enti- 55(b)(2), either FRCP which authorizes a district ty, the employees number and level of involved evidentiary hearing to hold an court to determine misconduct; causing concealing damages, the amount of or to the Seventh- financial condition the defendant. protection); Mogin, Amendment see Paul also Category jury B. I. the Where finds clear Juries, WhyJudges, Not Should Set Punitive Dam convincing and evidence that the defendant (1998). ages, 65 U. of 179 Ch.L.Rev. guilty disregard has been of reckless the others, rights recklessly or an insurer has of Todd, disregarded fairly duty its 19. State ex rel. to deal and Oklahoma Bar v. act in Ass’n 1992 insured, 81, 260, (a good jury, sepa- faith with its the in a OK 833 P.2d 266 default admits the damages); proceeding jury rate right recovery, conducted after the has to not but the amount of finding Scott, 113, made such and 445, awarded actual dam- v. 1991 OK 820 P.2d Reed ages, may exemplary damages 448; Atchison, award in an Lambert, Ry. T. & S.F. Co. v. 1912 greater amount not to of: exceed 6, 654, 656; City OK 121 P. Guthrie T.W. v. of (emphasis supplied). Co., 774, Harvey (1897). Lumber 5 Okl. 50 P. 84 damages Punitive are allowable when is there Walters, 20, See also v. Graves CIV 1975 OK APP disregard evidence of and reckless wanton of 702, 534 P.2d 704. rights another's from which and in- malice evil Keuchel, may tent be inferred. Graham v. 1993 § The of 12 terms O.S.1991 688 are: 6, (citing 847 OK P.2d 363 Mitchell v. Ford Co., 42, 45). Motor Credit 1984 OK P.2d 688 account, taking proof If the of an or of a Oppressive may intent also be inferred from fact, damages, or the assessment be neces- of "complete consequences,” indifference to "con- sary pronounce judg- to enable the court to scious disregard safety or reckless of the of oth- answer, upon a ment failure to or a deci- after ers,” Graham, "gross negligence.” or supra at may, sion an issue law the court with the of of Mitchell, 8); (quoting 363 from at 45-46 n. default, party assent of the account, not in take Brown, Sunray DX Co. Oil v. 1970 OK proof, damages; hear the or assess P.2d assent, may, or with the like refer the same to Lines, commissioner, 18. See F.Supp. Pierre v. Air a may Eastern referee or master or di- (D.N.J.1957) ("At law common the as- rect the same be ascertained or assessed by depriving § opportunity proceeding fair is to a vices right this within inquest plain- opportunity both the him the to cross-examine wit- post-default at which of exhibits, participate nesses, object testimony can and the defendant tiff proceedings by cross-examining witnesses hearing. participate at the The otherwise to their be- introducing evidence on own and nisi should have left trial the court declaration, imposed as a A half.21 default punitive damages quantum actual and of of 3237(B)(2) sanction, beyond cannot extend stripping without defendant basic fo- saddling with for the the defendant Payne’s the truth of devices test rensic imposition puni- harm occasioned and evidence. damages. court must leave to tive The trial ¶ any post-remand stage If meaningful inquiry quantum actual a testimony proceeding want Dewitt’s stripping the punitive damages without meaningful as a should be a barrier to found party of basic forensic devices to inquest judge may damages, into plaintiffs evidence. test the truth plaintiff-encountered anew address that defi- ¶ 13 The trial court’s bar of De ciency appropriate an sanction fashion participation post-default in the dam witt’s disadvantage clear prevent a forensic ages inquest statutorily-granted robs him plaintiff. protection rights strips him of the law’s against an unwarranted amount IV process. due Obstacles that violation of impede full unreasonably disclosure THE NISI PRIUS COUNSEL-FEE process.22 to due truth are anathema AND COST ALLOWANCE IS AWARD by stripping crippling 14 The of Dewitt BY THE SUPPORTED RECORD truth-testing de- process him of due basic Payne fee was awarded a counsel contrary orderly process to the vices (based $4,450.60 on 38.7 hours the rate assessing damages. set We hence aside hour) per costs $115 $242.50. order encroaches on De- concomitant that spent truth-testing de- hours time the motions ability to basic included witt’s use ordered, (1987); Zampini, jury. jury 576 A.2d 1197 it shall be on or v. If Bashforth (R.I.1990); Huffman, day which action is set for 225 Tenn. after the Adkisson v. (1971); trial. 469 S.W.2d 368 Northeast Wholesale Inc., Lumber, Lumber, (emphasis supplied). S.W.2d v. Leader Inc. By Through Synergetics (Tex.App.1989); litigant's discovery-related does A misconduct Indus., Co., Ranching Inc. v. Marathon Lancer Ltd., rule, not, justify general a windfall to the as 1985); (Utah Midwest Devel 701 P.2d 1106 connection, party. opposite in this St. Louis See opers Corp., 121 Wis.2d Goma Zumwalt, 71, 159, S.F.R. 1912 OK & Co. generally, (Wis.App.1984). See An N.W.2d 554 jurisdictions which hold 641. For other P. not., Defaulting Right To Notice and Defendant's defaulting party right participate has the Hearing Amount Dam As To Determination proceedings Of and introduce affirmative evi ages, 15 A.L.R.3d 586 mitigation own behalf in of dam dence its ages, P Co. v. Valta Constr. see J & Constr. (Ala. 1984); Dungan Superior v. 284, 295, 452 So.2d 857 Mississippi, v. 410 22. In Chambers U.S. 289, County, Ariz.App. In For Pinal 20 Court and 1038, 1046, (1973), 297 35 L.Ed.2d the 93 S.Ct. (1973); Tyson’s Kohlenberger,Inc. v. 512 P.2d 52 Court noted: Inc., 584, Foods, 256 Ark. 510 S.W.2d 555 right than a The is more cross-examination (1974); Corp. v. Seaboard Harbour Tower Dev. procedure. implicit It is desirable rule of trial (Fla.App.1965); Equip. 405 179 Pitt So.2d confrontation, right and the Colbert, (1904); constitutional 341, v. 47 S.E. 948 120 Ga. man 'accuracy helps the of the truth-deter- Hicks, 308, assure Ind.App. 395 N.E.2d v. 182 Stewart Evans, mining process.’ 400 U.S. 27, Dutton v. Ludwick, (1979); Ill.App.2d Greer v. 100 308 210, 74, 89, 220, Fountain, 27 L.Ed.2d 213 91 S.Ct. (1968); v. N.E.2d 4 Howard 749 241 States, 123, (1970); v. United 391 Bruton (Ky.App.1988); Bissanti De S.W.2d 690 135-137, 1620, 476 20 L.Ed.2d 88 S.Ct. Mass.App.Ct. Group McClay, sign/Build v. is, indeed, (1968). funda- 469, (1992); 'an essential and It Lindsey v. Drs. 590 N.E.2d 1169 Allred, 312, Keenan, requirement for kind fair trial the mental & 118 Mont. Andrews goal.’ Franklin, country's (1946); which is this constitutional Gallegos v. 89 N.M. P.2d Texas, 400, 405, 118, 85 S.Ct. (N.M.App.1976); Napolitano Pointer v. 380 U.S. 547 P.2d 1160 Branks, L.Ed.2d 128 A.D.2d 513 N.Y.S.2d 185 sanctions, judgment, for and counsel sent a demonstration abused discretion.27 partic- fees. Dewitt’s counsel was to According allowed teachings to the of State ex rel. ipate Payne’s quest on an for v. City City, lawyers Burk Oklahoma are attorney’s fee. obligated provide to the trial court with necessary data to document per- the work ¶ urges Dewitt counsel-fee is award together formed with the method used position upon excessive. His rests the fol- arrive at a counsel-fee allowance.28 (1) lowing principal The notions. basis of (negligent injury award is 12 O.S.1991 ¶ Payne’s Attached nisi property), showing but was there no of the attorney’s motion for fee is a detailed list spent property-damage time on issue. spent prosecution the hours in the (2) Payne’s The request first 30 items of fee litigation, beginning with the initial confer litiga- occurred before commencement ence to (3) discuss the automobile accident and Payne’s usually tion. charges counsel damage property Payne sought claim. a hourly individuals rate an between and $95 (based $5,962.50 counsel-fee $115, on 47.7 hours testimony but was there that a reason- $125) an hourly rate of community rate costs able for the is $100 client, record, our only On review of we Payne $242.50. is not but also friend. (4) hold that the trial court’s testimony There reduced was that 20-25 counsel-fee hours Payne claim, allowance to pursuing would be and allowance for sufficient for costs supportive Gauged with rests presented by even issues evidence. (5) applicable review, the case. is standards excessive time attributed the amount sanctions, only to the motions for awarded is which were not excessive. pages long

one-and-a-half and contained no authority citation of other than a statute. V provides 18 Section 3237 that expenses” (including “reasonable counsel PAYNE’S APPEAL- AND fees) obey be awarded for failure discov CERTIORARI-RELATED ery order unless court finds that FEE COUNSEL appear deposition failure to for the was “sub ¶20 stantially justified.”23 The Because Dewitt’s burden of estab misbehavior lishing justification litigation began substantial caused the satellite par that with ty being sanctions, recovery sanctioned.24 successive Permissible motions for we direct he upon legal expenses counsel-fee allowance must be set bear all of the reason supported by presented ably Payne evidence in an defending incurred against adversary proceeding25 appeal in which the facts in prosecuting quest computation upon which Upon the trial court certiorari.29 remand the trial court shall, rests its determination are set forth in adversary proceeding upon due high degree record with specificity.26 A parties, notice to the set the amount of coun counsel-fee will not be award disturbed ab- sel-fee Payne legal award be allowed 3237(B), Burk, 23. O.S.Supp.1996 supra 663; See 12 note 27. v.Wise Controls, Inc., Johnson 1989 OK CIV APP 8,¶ 784 P.2d Advisory 24. The Committee Note to 1970 Amend- 37(b)(2) explains ments to FRCP that Rule Lawyers present must to the trial court de- places the party burden on the disobedient showing performed tailed time records the work expenses. Baker, Hyde avoid See & Drath together with evidence of reasonable value of (9th Cir.1994). F.3d types legal different work based local stan- Burk, ¶ 20, 663; supra dards. 25 at at Oliver's, ¶¶ 8-9, City 25. State City, supra ex rel Burk v. note 25 Oklahoma at 295. of ¶ 115, 20, 659, 663; 1979 OK 598 P.2d Oliver’s Center, Sports Inc. v. Nat’l Standard Ins. Collections, Smith, 29. Credit Inc. v. Professional ¶ 120, 8, 1980 OK 615 P.2d 307, 311; Baptist 1997 OK 933 P.2d Medical Oklahoma, Aguirre, Center Inc. v. OK of Burk, ¶ 26. See note 25 at at 663. 930 P.2d ¶ HARGRAVE, SUMMERS, C.J., on appeal on and both expenses incurred HODGES, V.C.J., LAVENDER and certiorari.30 concur; BOUDREAU, JJ., VI ¶ JJ., WATT, in and concur KAUGER part. in

part and dissent SUMMARY J., KAUGER, joins, WATT, with whom J. ¶ liability 21 The court’s declaration trial part: part, dissenting in in concurring and order direct-

upon default its defendant’s ¶ pronouncement by 1 I in concur nonjury damages trial meets the ing II, I, IV, majority today regard to Parts with criteria. law’s V, opinion. and of the I dissent to Part VI ¶22 to an even- plaintiff The is entitled majority’s opinion for the reasons III of the rele- to elicit evidence opportunity handed forth set below. punitive damages and and vant to actual ¶ majority paragraph 12 declares: The equal opportunity in default an defendant by adversary’s proof cross-examina- his test declaration, imposed as a A default by The sanction its order tion. trial court’s 3237(B)(2) sanction, be- cannot extend due preventing and other cross-examination saddling liability with yond the defendant post-de- process truth-testing devices at imposition and for for the harm occasioned con- hearing damages issues fault bench punitive damages. The trial court must orderly process. law’s travenes the meaningful inquiry quantum leave ato damages without punitive and actual ¶ fee and costs 23 The allowance of counsel party in fo- stripping the default basic Payne’s by the supported stands record. rensic to test the truth devices plea certiorari-related coun- appeal- and plaintiffs evidence. granted; trial is court sel-fee award post- in disagree. set fee’s amount authorized to I adversary hearing upon due notice

remand ¶3 majority, § by As stated parties. Discovery court to allows the trial Code party ... a default a disobedient sanction upon previously granted 24 On certiorari supports in case judgment. record this petition, Civil the Court of the defendant’s taken the trial court because the action vacated; trial opinion is court’s Appeals’ failure refusal and the defendant’s absolute upon its declaration of any kind at all. comply with damages directing upon order bench stand; the sanctions issues are allowed to ¶4 appropriately counsel at- Defendant’s cross-examination, objection barring to testi- protect his tempted to client’s interest exhibits, any mony participation other seeking participate further leave post-default in the bench proceeding and to examine and cross-exam- aside; punitive dam- are set actual plaintiffs’ The record this ine witnesses. reversed; the nisi ages are awards that the trial court denied case reflects attorney’s fee and allowance award to utilize its “full request it intended because affirmed; appeal- certiorari- are costs granted under 12 array powers O.S. attorney’s stands awarded to related fee 3237(B).” plaintiff, in an amount to be determined its adversary hearing; 5 If statutes as enacted post-remand these sanction effect, any they Legislature proceedings to are have is remanded further cause utilized. properly today’s must be enforced when pronouncement. with be consistent premandate pressed for that relief. Payne’s appeal motion answer also seeks brief costs, Rules, any 1.14(a), Supreme appellate incurred Court costs. These Rule Oklahoma if process, may appellate App.l. or certiorari taxed O.S.Supp. Ch. upon post-decisional stage of this a later cause sup- 6 Because the record this case court, ports the sanctions entered the trial

I affirm would its decision toto. OK

George Bryan WHITEHEAD, Appellant, WHITEHEAD, Appellee.

Minnie Amelia

No. 90313.

Supreme Court of Oklahoma.

Nov.

As Corrected Dec.

Case Details

Case Name: Payne v. Dewitt

Court Name: Supreme Court of Oklahoma

Date Published: Nov 23, 1999

Citation: 995 P.2d 1088

Docket Number: 89796

Court Abbreviation: Okla.