Ralph Arnold Smith, Jr v. Hickman, Goza & Spragins, PLLC
Ralph Arnold Smith, Jr v. Hickman, Goza & Spragins, PLLC
Opinion
¶1. This appeal is yet another part of the many civil and criminal cases arising out of the attempted murder of Lee Abraham, allegedly orchestrated by Dr. Arnold Smith. The trial court sanctioned Smith's attorney, William Bell, for violating its order sealing a portion of a document. Because the trial court did not abuse its discretion in sanctioning Bell, this Court affirms.
FACTS AND PROCEDURAL HISTORY
¶2. This appeal arises out of the civil case in LeFlore County between Lee Abraham and Dr. Arnold Smith. In March of 2014, during the course of discovery, Smith filed his Notice of Experts and the Expert Report of Michael Levine dated March 16, 2014 ("Expert Report") with the circuit clerk of LeFlore County, making these discovery documents part of the public record of the case. The Expert Report contained salacious allegations regarding Abraham. In an April 2014 hearing, the circuit court stated that "[a]ny discovery to be filed with the Court will be done only by court order. There will not be any discovery filed with the clerk of the Court unless it is authorized by the Court." The circuit court further ruled from the bench that it planned "to enter an order sealing all discovery documents that have been filed in the court record." In July 2014, the circuit court entered a written agreed order sealing paragraph B.7 of the Expert Report. Smith agreed to this order and did not appeal it. In August 2014, Smith submitted a second expert report by Levine ("Supplemental Expert Report"). The substance of the Supplemental Expert Report was much the same as the original Expert Report, expanding on it, but the organization and formatting was somewhat different. In December 2014, Smith filed the Supplemental Expert Report in a chancery court commitment proceeding, in support of his motion to exclude the Attorney General. Shortly thereafter, Abraham filed a Motion for Contempt in the circuit court based on the order sealing paragraph B.7. Abraham argued that filing the Supplemental Expert Report violated the court order, the Litigation Accountability Act, Rule 11, and/or Rule 37. In January 2015, Smith filed a complaint against Abraham with the Mississippi Bar and attached the Supplemental Expert Report. Abraham filed a Supplemental Motion for Contempt based on this action. At a hearing on the first contempt motion in January 2015, the circuit court stated that "you understand that filing a different document that says the same thing as the document that this Court sealed would still be a violation as far as I'm concerned of the order of this Court." The court further noted that "[i]f Mr. Levine went and rewrote the same document, just put another date on it and it was filed in another proceeding, then that still circumvents the order of this Court." At the same hearing, counsel for Smith noted that Rule 37 allows the court to sanction a party for not complying with discovery orders and stated "obviously your Honor has the discretion to enter sanctions if he wants to. I'm not suggesting you don't have the power to do that. But Rule 37 is certainly not the way to go ...." Counsel further stated "the Court certainly has discretion if the Court is inclined to sanction, and nobody would argue that you don't, but I think it's obvious that the filing was made in good faith for good cause." The court concluded that it wanted a summary of the Expert Report and the Supplemental Expert Report to determine if the sealed information had indeed been filed in other proceedings.
¶3. In October 2016, Abraham filed a Second Supplemental Motion for Contempt and Other Sanctions for additional public filings Smith made of the Supplemental Expert Report. After the January 2015 hearing, Smith publically filed the Supplemental Expert Report at least five times: twice in filings in the same case in the United States District Court for the Southern District of Mississippi, once in a separate case in the Southern District, and twice in filings to this Court. The circuit court held a hearing on the Second Supplemental Motion for Contempt and Other Sanctions. The court ultimately determined that sanctions against Smith's attorney, Bell, were warranted under Rule 37. It asked Abraham's attorneys to email a fee bill for the amount spent pursuing the claims regarding the published sealed document. After they did so, the court gave Smith/Bell an opportunity to file any objections to the fee bill. Smith filed a document that challenged the substance of the court's ruling, but hardly addressed the fees themselves. The court then ordered that Bell pay Abraham's attorneys a total of $28,328.40.
¶4. Bell appeal the sanction, arguing that 1) no Rule 37 order existed under which to award sanctions, 2) even if Rule 37 applied, it did not allow the court to order that sanctions be paid to lawyers, 3) the trial court should have struck the fee bill as "sham and false" pursuant to Rule 11, 4) the trial court failed to make findings of fact and conclusions of law under Rule 52(a), 5) the trial court should not have considered the fee bill submitted because it was emailed to the judge by a paralegal, which, Bell argues, amounts to the unauthorized practice of law, 6) no credible evidence supported the sanctions, 7) no evidence as to the reasonableness of the fees exists in the record, pursuant to Rule 1.5 of the Mississippi Rules of Professional Conduct, 8) parts of the record were unlawfully and illegally sealed, and 9) cumulative error and overall unfairness deprived Bell of due process.
ANALYSIS
1. Standard of Review
¶5. This Court reviews the imposition of sanctions for an abuse of discretion.
Barrett v. Jones, Funderburg, Sessums, Peterson & Lee, LLC
,
2. Whether Rule 37 applies.
¶6. Smith and Bell argue that no discovery order existed by which to use Rule 37 as authority to sanction Bell. Rule 37(b) provides for sanctions for the violation of "an order to provide or permit discovery[.]" Miss. R. Civ. P. 37(b). It states that "the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorneys' fees, caused by the failure ...."
¶7. During discovery, Smith filed discovery responses with the clerk of court. In response, the trial court ordered a portion of those discovery responses sealed, and required that the parties seek permission of the court before publicly filing discovery documents. The parties agreed to the order sealing the one paragraph of the document and neither party appealed that order. The order sealing a portion of the Expert Report is a Rule 26(d) order, issued in the course of discovery to protect Abraham from embarrassment from the salacious allegations.
¶8. The United States Court of Appeals for the Fifth Circuit has held that under the Federal Rules of Civil Procedure, Rule 37(b) sanctions may be imposed for the violation of Rule 26 protective orders.
Smith & Fuller, P.A. v. Cooper Tire & Rubber Co.
,
¶9. Even if Rule 37 did not apply, "[a] court has the inherent power to impose sanctions in order to protect the integrity of the judicial process."
Barrett
,
¶10. Bell also argues that the trial court had no jurisdiction to "control" his filings in other courts. While this may be true, Bell could have made his filings without making the sealed information public. For example, he could have filed the document under seal in the other courts. In
Barnes
, Barnes filed a motion to compel in Mississippi and publicized documents subject to a sealing order issued by a Georgia court.
Barnes
,
3. Whether ordering sanctions be paid to the attorneys is appropriate.
¶11. Rule 37 provides that a sanctioned party may be ordered to "pay the reasonable expenses,
including attorney's fees
, caused by the failure ...." Miss. R. Civ. P. 37(b)(2) (emphasis added). Nothing in Rule 37 mandates that the expenses be paid only to the party and not to the attorney who incurred fees. Indeed, this Court has stated that the rules, including Rule 37(b), allow a court to "order the payment of money to a party
or an attorney
."
Barrett
,
4. Whether the fee bill should have been struck pursuant to Rule 11.
¶12. Smith and Bell argue that the fee bill should be struck as "sham and false" under Rule 11 because it is not signed. Rule 11 applies only to pleadings and motions. Miss. R. Civ. P. 11 ("Every pleading or motion of a party represented by an attorney shall be signed by at least one attorney of record .... If a pleading or motion is not signed or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false, and the action may proceed as though the pleading or motion had not been served."). The fee bill is clearly not a pleading or motion. See Miss. R. Civ. P. 7. It was essentially an exhibit in support of the motion for contempt and sanctions. This issue is without merit.
5. Whether the trial court erred by failing to make Rule 52(a) findings.
¶13. Rule 52(a) provides that, "[i]n all actions tried upon the facts without a jury[,]" the court shall make findings of fact and conclusions of law. Miss. R. Civ. P. 52(a). Bell did indeed request that the trial court make Rule 52(a) findings of fact and conclusions of law. This Court need not address whether a finding of sanctions is an action tried upon the facts without a jury, because, even if it is, the trial court did not err in this case.
¶14. A trial court is under no obligation under Rule 52(a) to make particularized findings of fact and conclusions of law; generalized findings of fact and conclusions of law, while not as helpful to appellate review, comply with the mandate of Rule 52(a) even when a party requests particularized findings.
Century 21 Deep S. Props., Ltd. v. Corson
,
6. Whether a paralegal engaged in the unauthorized practice of law .
¶15. Bell argues that the paralegal's email transmitting the fee bill to the judge amounted to the unauthorized practice of law; therefore, he argues, the fee bill should be stricken. Mississippi Code Section 73-3-55 criminalizes unlicensed law practice.
7. Whether credible evidence supported the sanctions.
¶16. Bell argues that, because Abraham did not introduce evidence pursuant to the Rules of Evidence, no evidence exists to support the sanctions. Abraham did, however, provide voluminous exhibits to show what Bell had filed in other venues. "Documents which are made exhibits to motions are properly before the court for its consideration."
Norton v. Norton
,
8. Reasonableness under Rule 1.5
¶17. Bell claims that the sanctions cannot stand because the court failed to make an explicit reasonableness determination under Rule 1.5 of the Mississippi Rules of Professional Conduct. Bell does not, however, claim that the fees are actually unreasonable. The Court of Appeals has held that, "in the case of an award for the purpose of sanctions, the recipient party need not show the
McKee
factors ... since the nature of such an award is punitive in nature against the payor ...."
Martin v. Martin
,
9. Whether the record was sealed unlawfully.
¶18. Smith agreed to the order sealing the portion of the Expert Report and did not timely appeal that order; he therefore waived this issue. Even if it had not been not waived, Bell cites inapplicable cases. He primarily relies on a case regarding the closure of criminal trials to the press.
Gannett River States Pub. Co. v. Hand
,
10. Whether cumulative error deprived Bell of due process .
¶19. Finding no error in the trial court's decision, no cumulative error warrants reversing the sanctions.
CONCLUSION
¶20. Because the trial court had the authority to sanction Bell and award attorneys'
fees as a sanction, this Court affirms the award of sanctions against Bell.
¶21. AFFIRMED.
WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR. COLEMAN, J., NOT PARTICIPATING.
See
Ross v. Univ. of Tulsa
,
The Barrett Court cited Rules 11(b), 37(b), 41(b), and 60(b). Rule 11 states that the court may order a party "to pay the opposing party or parties the reasonable expenses incurred by such other parties and by their attorneys, including reasonable attorneys' fees." Miss. R. Civ. P. 11(b). Rules 41(b) and 60(b) deal with non-monetary sanctions.
Reference
- Full Case Name
- Ralph Arnold SMITH, Jr., North Central Mississippi Regional Cancer Center, Inc. and William C. Bell v. HICKMAN, GOZA & SPRAGINS, PLLC and Chapman, Lewis & Swan, PLLC
- Cited By
- 4 cases
- Status
- Published