DRINKING YOUR OWN TOXIC COCKTAIL

January 28, 2013 § Leave a comment

When you pursue litigation that you know is not meritorious, and you learn in discovery that you have no possible hope of prevailing, and you file an improper motion for recusal with false allegations against the court, you have concocted a toxic cocktail that, when consumed, will burn a deep hole in your pocketbook by way of sanctions. Need proof?

Consider the case of Sullivan and Stubbs v. Maddox, decided by the COA on January 22, 2013.

Sullivan, represented by his attorney, Stubbs (both collectively referred to as “Sullivan” in the COA opinion), filed suit in 2005 to confirm and quiet title to some property, based on a claim of adverse possession. His suit was prompted by the Maddoxes’ claim to the same property. When he initiated the suit, he obtained an injunction to keep the Maddoxes off of the property.

The suit apparently languished for years.

In April, 2011, the Maddoxes filed a motion for summary judgment taking the position that title to the property was vested in the United States, and that neither Sullivan nor Maddox had any claim to it by adverse possession because federal law prohibits adverse possession against the federal government.

Five days later Sullivan filed a motion asking the chancellor to recuse himself. The Maddoxes responded that the motion was untimely filed and was fatally defective for failure to include an affidavit setting forth the factual basis, both as set out in UCCR 1.11.

On May 3, 2011, the parties appeared before the court for a hearing on both motions, and the recusal motion was taken up first. Sullivan took the position that the chancellor should recuse because one of the Maddoxes’ attorneys had represented the judge’s court administrator’s husband in a criminal matter. The judge acknowledged the fact, as well as that Stubbs had represented the court administrator in a divorce action. He rejected both bases as causes to recuse, because neither would cause a reasonable person, knowing the pertinent facts, to doubt the court’s impartiality. The judge also found that the recusal motion failed to comply with UCCR 1.11 for the reasons assigned by the Maddoxes. 

In the course of presenting the motion, Stubbs attempted to make a proffer alleging an unreported campaign contribution to the chancellor. The charge had not been included in the motion to recuse, and there was no affidavit to support it.

The court went on to hear the motion for summary judgment. In his ruling, the judge granted summary judgment in favor of the Maddoxes. He stated in his opinion that Stubbs had disclosed to the court that he had warned Sullivan before he filed the suit that it was a weak case, that there was no government survey or patent out of the US to support his claim, and that there was no color of title. The judge also found that the unsubstantiated accusation against him was made as a threat by counsel, and he set a hearing date for possible sanctions.

The Maddoxes filed a motion for sanctions under MRCP 11 and the Litigation Accountability Act. Based on all of the proceedings to that point, as well as the record made on the motion, the chancellor assessed sanctions against Sullivan and Stubbs jointly, in the amount of $42,922.91. As the COA opinion, by Judge Carlton, stated at ¶11:

In sanctioning Sullivan and Stubbs, the chancellor specifically found that the following actions demonstrated frivolous pleadings had been filed and frivolous arguments had been made for the purposes of harassment and delay, without substantial justification, and with disrespect for the integrity of the court: (1) Stubbs’s admission that before commencement of the action he had advised Sullivan of the weakness of his claim to confirm and quiet title; (2) Sullivan and Stubbs’s failure to abandon the claim after their expert witness testified in his deposition that the United States had issued no patent for the subject property; (3) Sullivan and Stubbs’s failure to make any effort to determine the validity of the claim before raising it; and (4) the filing of an improper motion for recusal and false allegations against the court. The chancellor held that these various actions constituted a willful violation of Rule 11 and the Litigation Accountability Act, as well as Rule 8.2(a) of the Rules of Professional Conduct (prohibiting a lawyer from making a statement that he knows to be false or making a statement with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge).

The COA affirmed the chancellor on all points.

The serious lesson to take from this case is that Rule 11 and the Litigation Accountability Act have bite. So do the Rules of Professional Conduct. MRCP 11 specifically states that an attorney’s signature on a pleading (and that includes not only initial complaints, but also all motions) “” … constitutes a certificate that … to the best of the attorney’s knowledge, information and belief there is good ground to support it, and it is not interposed for delay,” and goes on to provide for sanctions for its enforcement.

When in the course of a hearing you recklessly throw out unsubstantiated charges against the court, you are giving the judge no alterntive but to sanction you. To do otherwise the chancellor would be derelict in her duty to preserve the dignity and respect of the court, as provided in UCCR 1.01.

When you learn in the course of a lawsuit that it is not meritorious, and that there is no hope of prevailing, counsel your client to dismiss it. If your client will not cooperate, file a motion to withdraw, and do not put it off, because the judge can deny your motion if it would delay the trial, and you would then be at risk for sharing your client’s sanctions, if the court assesses them.

Don’t put yourself in a position where you have to drink that toxic cocktail that you yourself concocted.

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