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Conterez v. O'Donnell9/10/2002
Modified: September 18, 2002
JESSE G. CONTEREZ, PLAINTIFF-APPELLANT
v.
TERRY S. O'DONNELL, REAL PARTY IN INTEREST-APPELLEE
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.*fn1
The opinion of the court was delivered by: Opala, J.
__ P.3d __
ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. IV
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
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
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.
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) 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. The appeal from denial of sanctions was brought 17 January 2001.
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.
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.
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) give him the option either of taking an immedi
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