Factors for Sanctions

May 15, 2019 § Leave a comment

Dana and Kevin Wilson obtained a TRO against Kevin’s ex-wife, Becky, following a series of unfriendly encounters and confrontations. On the issue of whether to grant a permanent injunction, however, the court granted Becky’s motion for summary judgment. Becky then filed an application for attorney’s fees under MRCP 11 and 54(d), which the chancellor granted in part. Dana and Kevin appealed.

in Wilson v. Wilson, decided March 12, 2019, the COA affirmed and addressed the court’s awarding of sanctions and the factors that trial courts are supposed to consider in their award. Chief Judge Barnes wrote the opinion:

¶14. Becky filed an application for attorney’s fees under Rule 11 and Rule 54(d) of the Mississippi Rules of Civil Procedure. Whether to award monetary sanctions under the Litigation Accountability Act is left to the trial court’s discretion. In re Spencer, 985 So. 2d 330, 336-37 (¶19) (Miss. 2008) (citing Miss. Code Ann. § 11-55-7) (Rev. 2002)). This is also true for sanctions awarded under Rule 11. Id. at 337 (¶19) (citing M.R.C.P. 11(b)). In addressing whether to award monetary sanctions, the chancery court examined each of the following factors:

(a) The extent to which any effort was made to determine the validity of any action, claim or defense before it was asserted, and the time remaining within which the claim or defense could be filed;

(b) The extent of any effort made after the commencement of an action to reduce the number of claims being asserted or to dismiss claims that have been found not to be valid;

(c) The availability of facts to assist in determining the validity of an action, claim or defense;

(d) Whether or not the action was prosecuted or defended, in whole or in part, in bad faith or for improper purpose;

(e) Whether or not issues of fact, determinative of the validity of a party’s claim or defense, were reasonably in conflict;

(f) The extent to which the party prevailed with respect to the amount of and number of claims or defenses in controversy;

(g) The extent to which any action, claim or defense was asserted by an attorney or party in a good faith attempt to establish a new theory of law in the state, which purpose was made known to the court at the time of filing;

(h) The amount or conditions of any offer of judgment or settlement in relation to the amount or conditions of the ultimate relief granted by the court;

(i) The extent to which a reasonable effort was made to determine prior to the time of filing of an action or claim that all parties sued or joined were proper parties owing a legally defined duty to any party or parties asserting the claim or action;

(j) The extent of any effort made after the commencement of an action to reduce the number of parties in the action; and

(k) The period of time available to the attorney for the party asserting any defense before such defense was interposed.

Miss. Code Ann. § 11-55-7. The chancery court addressed every relevant factor set forth in section 11-55-7 and found: (1) the Wilsons failed to investigate the validity of their claims; (2) the Wilsons failed to make an effort to reduce the number of claims against Becky; (3) all facts were “readily available to the Wilsons”; (4) “the Wilsons prosecuted the actions for an improper purpose”; (5) there were no issues of fact reasonably in conflict; (6) the Wilsons did not prevail with respect to any claim, and they were not granted any relief or offer any settlement; (7) Becky did not owe a duty to the Wilsons to explain why she was on a public street; and (8) although the Wilsons dismissed Martha from the case, they did not make an effort to dismiss Becky. [Fn omitted] Therefore, finding that Becky had incurred expenses of $715.50 and attorney’s fees of $8,287.50 since January 4, 2018, the Wilsons were ordered to pay Becky $9,003, plus interest.

Dana and Kevin argued that the chancellor’s findings were not supported by evidence in the record, but the COA analyzed the proof and affirmed the trial court.

This is a pretty useful template for proof if you find yourself having to present a case for sanctions. But I have to add that most judges in my experience do not look favorably on sanctions. There has to be a strong reason to discourage people from pursuing their legal remedies.

Candor Toward the Tribunal

June 10, 2014 § Leave a comment

I am aware of two cases lately — neither in my court — in which lawyers filed pleadings with the court that were false and misleading, and then pursued those pleadings in an effort to reduce them to judgment.

In both cases, the lawyers knew that the facts stated (and sworn to by the clients) were false.

Rule of Professional Conduct (RPC) 3.3 states:

(a) A lawyer shall not knowingly:

(1)  make a false statement of material fact or law to a tribunal;

(2)  fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client;

*  *  *

(4)  offer evidence that the lawyer knows to be false. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.

*  *  *

(c)  In an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse.

The comment to the rule makes it clear that the lawyer will be held responsible for pleadings filed with the court, although he is not required to have personal knowledge of their accuracy when filed. MRCP 11, which requires the attorney to sign every pleading filed, states that:

“The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay.”

The requirement is so serious that any pleading that does not comply may be stricken as sham, and the action may proceed as if it had never been filed. 

From the above, it should be obvious to even the greenest among us that there can be professional repercussions from playing fast and loose with this duty of candor.

Beyond the language of the rules, though, there is the lawyer’s relationship with the court to consider. Chancellors must rely on the honesty and good faith of lawyers who come before them in order to make correct decisions. When a lawyer stretches the truth, or conceals material facts, or presents information that is known to be untrue, that lawyer is inflicting grave injury on himself with the court. Once the judge has found an attorney to be untrustworthy, it may take years — if ever — for the lawyer to recover his lost standing with that judge. The penalties can include closer scrutiny, being required to prove and provide authority for even simple assertions, and skepticism toward the merit of that lawyer’s cases.

I have said before that your reputation with a judge is like a store of gold. If you spend it frugally and wisely, and only as truly needed, it will last you the length of your career. If you squander it, you may never gain it back.     

 

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.

THE HIGH PRICE OF A LITIGATION MISFIRE

March 19, 2012 § Leave a comment

Litigation Misfire. (noun): 1. Litigation that fails to ignite at the proper point  2. A case that blows up in one’s face.  3. Any case in which none or few of the positive points your client told you about her case ever materializes at trial.

We’ve all had our misfires. No need to catalog them here. Some misfires happen despite your best efforts and most professional approach to the case. Others are the direct result of a lawyer’s failure to do his homework. When the misfire falls in the latter category, it can dearly cost your client, or you, or both of you. The cost of a misfire can be a daunting thing.

In the COA case of McKnight v. Jenkins, decided March 13, 2012, the tab came to $23,969.17. Here is what Judge Lee’s opinion said, beginning at ¶ 14:

“The chancellor ordered Holly to pay $19,956.67 in Walter’s attorneys’ fees and $4,012.50 in GAL fees. The chancellor found Walter’s attorneys’ fees had been incurred for his defense of the abuse and contempt allegations. The chancellor found sanctions would be appropriate due to Holly’s unsubstantiated slander of the chancellor who had previously been involved in the case; however, the chancellor did not attribute a specific amount of his award as sanctions. In regard to the contempt action, “[a] chancellor is justified in awarding attorney’s fees that are incurred in pursuing a contempt motion.” Elliott v. Rogers, 775 So. 2d 1285, 1290 (¶25) (Miss. Ct. App. 2000). In regard to Walter’s defense of the abuse allegations, the chancellor relied upon Mississippi Code Annotated section 93-5-23 (Supp. 2011), which requires a party alleging child abuse to pay court costs and reasonable attorneys’ fees incurred by the defending party if the allegations are found to be without merit. The chancellor found, pursuant to McKee v. McKee, 418 So. 2d 764 (Miss. 1982), the attorneys’ fees incurred by Walter were reasonable and necessary. We can find no abuse of discretion by the chancellor in awarding Walter attorneys’ fees.

¶15. In regard to the GAL fees, the chancellor determined Holly’s unfounded abuse allegations were the reason he appointed a GAL; thus, the chancellor contended Holly should be responsible for the GAL’s fees. Section 93-5-23 also requires the party alleging child abuse to pay court costs in addition to attorneys’ fees. GAL fees have been considered court costs. Foster v. Foster, 788 So. 2d 779, 782 (¶8) (Miss. Ct. App. 2000). Thus, it was proper for the chancellor to order Holly to pay the GAL fees.”

You can add to the ouch factor in this case the fact that Holly was unemployed at the time she was assessed these fees and costs. It matters not what her ability to pay is when the fees are assessed for contempt.

It goes without saying, or should, that you need to investigate the claims that your client brings to you, no matter how tempting that cash retainer looks. MRCP 11(a) specifically says that when the attorney signs the pleading as required:

The signature of an attorney constitutes a certificate that the attorney has read the pleading or motion; that to the best of the attorney’s knowledge, information and belief there is good ground to support it; and that it is not interposed for delay.

Those words are there for a reason. They impose an important and serious duty on you as an officer of the court not to burden the courts, opposing parties and counsel with frivolous or unfounded matters, to limit your pleadings only to those that genuinely state a cause of action, and to do your homework before you ever set the wheels of the courts in motion.

The payback for not complying with MRCP 11(a) is set out in MRCP 11(b). It’s interesting reading, and I won’t spoil the surprise for you by repeating it here, but you really should read it for yourself and not hear it for the first time from the bench. On March 15, 2012, the Mississippi Supreme Court upheld 11(b) sanctions in a case out of Rankin County, In Re Guardianship of B.A.D., which reversed and remanded on other grounds. You should read that case for its exposition of what it is like to face the wrath of a chancellor.

Don’t overlook Rule 2.1 of the Rules of Professional conduct, which requires you to act as an advisor to your client. As I have said here many times, you are not a mere clerk-typist for your client. Nor are you merely your client’s robotic alter ego. You are an independent professional whose highest duty is to advise. As a wise man once said, “About half the practice of a decent lawyer consists of telling would-be clients that they are damned fools and should stop.”

MCA § 93-5-23 states “If, after investigation by the Department of Human Services or final disposition by the youth court or family court allegations of abuse are found to be without foundation, the chancery court shall order the alleging party to pay all court costs and reasonable attorney’s fees incurred by the defending party in response to such allegations.” The chancellor in McKnight could possibly have relied on that section, since he found the allegations to have been without foundation. I have taken the position that all of the elements of the statute have to be present in order to require the imposition of sanctions; i.e., there must be an investigation by DHS or final disposition by a youth court or family court, with a finding that the charges are without foundation. I refused to impose the statutory sanctions in a case where DHS found that the charges could not be substantiated because, by the time they investigated, the bruises on the child were too faded to make a clear finding. The fact that there were bruises convinced me that the charges were not “without foundation” within the meaning of the law, and DHS did not say they were without foundation. To me, sanctions should be carefully limited to appropriate cases so as to avoid a chilling effect on family members, neighbors, doctors, school officials and others who are in a position to report and perhaps put a stop to child abuse.

The Litigation Accountability Act, MCA 11-55-1, et seq. is something else to watch out for. It provides a cause of action against an attorney or party for meritless action, claim or defense, or for unwarranted delay or for “unnecessary proceedings.”

A caveat … the fact that I personally set a high threshhold for sanctions should not lead you to relax your standards. Professionalism demands it. And as a practical matter, your judge may see sanctions differently. I once saw a judge pop a lawyer, not her client, with a $1,500 sanction for failure to answer interrogatories after being ordered to do so. And I myself even assessed more than $20,000 in a case that had been tried by my predecessor, and which was reversed and remanded on a finding of no jurisdiction; the case law is clear that to pursue a case where there is no jurisdiction after you were put on notice is sanctionable, even where the chancellor allowed you to proceed to final judgment.

In my opinion, all sanctions should be judiciously weighed and never lightly imposed. Some lawyers seem to add requests for sanctions to almost every pleading they file, although those requests are, wisely, seldom presented for adjudication. Seems to me that the old saw, “what goes around comes around,” has particularly apt application to this subject.

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