Opinion
No. 93-M-00230-SCT.
November 30, 1995.
Erik Lowrey, Hattiesburg, for petitioner.
Frank W. Trapp, Phelps Dunbar, Jackson, Carlton W. Reeves, Jackson, Laura Gibbes, Lake Tindall Thackston, Jackson, for respondent.
En Banc.
The motions before this Court for consideration this day symbolize continuing matters which are of great concern to this Court. The motion(s), entitled "MOTION TO CORRECT FACTS CONTAINED IN THOMSON'S SWORN PETITION FOR EXTRAORDINARY WRIT, AND FOR STAY OF DEPOSITION AND ALL OTHER PROCEEDINGS AND RESPONDENT'S MOTION FOR SANCTIONS AND OTHER RELIEF" ("Motion for Sanctions"), represent(s) the response to an emergency petition filed with this Court, and arises out of the legal representation of John Christian Thomson by Carlton W. Reeves, an attorney with the Jackson, Mississippi, office of the law firm of Phelps Dunbar.
Upon due consideration, three of the six justices participating in the case would impose sanctions against some of Thomson's attorneys and three of the six justices participating in the case would not impose sanctions against any of Thomson's attorneys for filing a petition with this Court which contained erroneous facts about events alleged to have occurred at a hearing conducted before the Marion County Chancery Court. Therefore, this Court will impose no sanctions on Thomson's attorneys' actions before this Court. However, I write to express my discontent with discovery and motion practices which impede the fair and efficient administration of justice in this Court and in the trial courts of Mississippi.
I.
At the time the underlying action commenced in the lower court, John Christian Thomson ("Thomson") was facing twelve criminal indictments and was the defendant in twenty civil cases, having been accused of invading the privacy of the plaintiffs in the various cases by secretly videotaping them in a dressing room of a photography studio. Seventeen of those civil cases were pending in the Circuit Court of Forrest County, Mississippi, one civil case had been filed in the United States District Court, Southern District of Mississippi, and the remaining two civil cases were pending in the Forrest County Chancery Court, before the Honorable Sebe Dale, Jr., Chancellor. The two chancery court cases are the cases underlying the matter sub judice, and were styled as follows: (1) F. Marvin Morris, Guardian Ad Litem And Next Friend of A.J., A Minor; Mother of A.J., Individually, and Father of A.J., Individually v. John C. Thomson d/b/a Visual Arts Studio and Hattiesburg Coca-Cola Bottling Company, A Mississippi Corporation; and (2) Marvin Morris, Guardian Ad Litem of A.G., A Minor; Mrs. A.G., Mother of the Minor, Individually; and A.G.'s Grandmother, Individually v. Hattiesburg Coca-Cola Bottling Company, a Mississippi Corporation, John C. Thomson d/b/a Visual Arts Studio and John Doe. The Plaintiffs in the two chancery court cases had sought discovery, noticing the deposition of Thomson's wife for March 5, 1993. Thomson's lawyers resisted that discovery.
A.
Three motions were noticed to be heard on the morning of March 5, 1993, at the Marion County Chancery Court Annex Building, Columbia, Mississippi, before the Honorable Sebe Dale, Jr., Chancellor, by Laura Limerick Gibbes ("Gibbes"), Thomson's counsel: 1) a motion to certify an appeal from an order denying a stay of the trial proceedings pending resolution of criminal proceedings; and 2) a motion for a protective order which would relieve Thomson's wife from the obligation to give deposition testimony at the deposition that was scheduled for that morning, and which would prevent discovery from being further sought from her. Erik M. Lowrey ("Lowrey") was the attorney representing the Plaintiffs. Tom Royals ("Royals"), independent counsel representing Mary Beth Coker Thomson ("Mary Beth"), Thomson's wife, was also present.
The chancellor refused to grant Thomson's motion for an order granting an interlocutory appeal to this Court, and he ordered the prevailing party to prepare an appropriate order reflecting his ruling for presentation to the court. Gibbes also presented Thomson's motion for a protective order. In essence, Thomson's position, in that motion, was that he did not consent to Mary Beth giving testimony via the proposed deposition; therefore, pursuant to M.R.E. 601, since Thomson was a party to the litigation, Mary Beth was not competent to testify as a witness in the proceedings and discovery could not otherwise be sought from her. After argument from counsel for both sides, that motion was also denied by the chancellor, whereupon Gibbes presented the chancellor a previously prepared order which reflected the chancellor's denial of Thomson's motion for a protective order, and Gibbes requested that the chancellor sign it. However, the chancellor refused, stating that he would follow his usual procedure of allowing counsel on the prevailing side to prepare the order, and he would enter the order at that time.
We do not intimate herein, any opinion regarding the merits of Thomson's trial court motions or the chancellor's rulings on those motions.
Immediately after the chancellor denied Thomson's motion for a protective order, Gibbes made an ore tenus motion for the chancellor to stay his immediately preceding ruling which denied Thomson's motion for a protective order until such time as she could "take an emergency appeal to the Supreme Court" on the issue of spousal competency. Although previously prepared, the motion had not been filed with the court; however, upon her oral motion, Gibbes presented a written copy of the motion to the chancellor.
Lowrey, representing the Plaintiffs, argued that Thomson's motion to stay the chancellor's ruling was simply another tactic by Thomson's counsel to stall the taking of Mary Beth's deposition, and that the trial itself was scheduled to begin on April 14, one and one-half months away. After argument by Gibbes and comments by independent counsel representing Mary Beth, the chancellor denied Thomson's motion to stay his ruling.
At that point, Lowrey expressed concern that, although the chancellor had denied Thomson's motions which sought to prevent the scheduled deposition of Mary Beth, Thomson's lawyers would, nonetheless, seek to delay the proceedings. That concern is revealed by the following colloquy:
MR. LOWREY: Before we go further, the last time we did this before we got to lunch [sic] further in this hearing, this Court was hit with a writ of prohibition. Do we have lawyers up in Jackson again standing by to rush over to the Supreme Court here in about the next 30 minutes while we take lunch and we get another writ Ms. Gibbes. [sic]
MS. GIBBES: I'm simply asking the Court about a specific —
MR. LOWREY: I understand what you are asking. I'm asking a question of you as an attorney. Do we have another block of lawyers in Jackson waiting to run across the street to the Supreme Court and get a Supreme Court Judge to enjoin this chancellor from this deposition at 1:00 this afternoon or any other time of day. [sic]
MS. GIBBES: We are prepared to protect the rights of my client.
MR. LOWREY: So the answer I can assume is correct, yes.
Immediately following that exchange between Gibbes and Lowrey, Tom Royals, counsel for Mary Beth, revealed to the chancellor that he anticipated that no substantive deposition testimony would be forthcoming from Mary Beth. He stated that, "I don't mind being candid with the Court. I have all along contemplated taking the 5th Amendment [sic] in this case."
The motion hearings before the chancellor concluded that morning, March 5, 1993, shortly before 12:00, noon.
B.
After conclusion of the motion hearings in the Marion County Chancery Court Annex Building, Columbia Mississippi, Gibbes promptly telephoned Frank W. Trapp ("Trapp"), who was at another hearing in Mendenhall, and she also telephoned Carlton W. Reeves ("Reeves"), who was in the Jackson office of Phelps Dunbar. Gibbes confirmed with Trapp that emergency relief should be sought from the Supreme Court of Mississippi. Gibbes informed Reeves of the oral rulings of the chancellor, and then instructed Reeves to file documents with the Court which sought emergency relief regarding Mary Beth's deposition that was scheduled for 1:00 p.m., that afternoon. At some point, prior to filing a petition for emergency relief with the Court, Reeves telephoned a staff attorney with this Court, and advised that staff attorney that a petition for extraordinary relief would be filed immediately.
The deposition of Mary Beth began at 1:00 p.m., that day, March 5, 1993. According to the transcript of the deposition proceeding, six attorneys were present at the inception of the deposition — two attorneys representing Mary Beth, two attorneys representing the Plaintiffs in the cases, a Hattiesburg attorney representing Thomson, and an attorney representing one of the co-defendants. Gibbes, another of Thomson's attorneys, was not present for the commencement of Mary Beth's deposition.
Upon questioning at the deposition, Mary Beth revealed basic preliminary information concerning her personal background, such as her name, age, education, current address, and the fact that Thomson was her husband. Subsequently, at approximately 1:05 p.m., Gibbes arrived at the deposition hearing. Gibbes stated an objection for the record, the deposition continued, and later Gibbes stated another objection during the deposition. Mary Beth gave no substantive testimony, taking the Fifth Amendment for all questions other than the preliminary background questions, and the deposition was concluded at 1:17 p.m. At no time prior to the deposition, during the deposition, or at any other time on March 5, 1993, was opposing counsel informed that Gibbes had instructed an attorney with her law firm to file an emergency petition for extraordinary relief with the Supreme Court of Mississippi, seeking, among other things, a stay of Mary Beth's deposition.
C.
A little over an hour after Gibbes had given him the instructions to do so, and fourteen minutes after Mary Beth's deposition had concluded, Reeves, on behalf of Thomson, filed a petition for extraordinary relief with the Court at 1:31 p.m., March 5, 1993. That document was entitled "PETITION FOR EXTRAORDINARY WRIT, AND FOR STAY OF DEPOSITION AND ALL OTHER PROCEEDINGS" ("Petition"), and although the typewritten names of both Trapp and Reeves appear below the signature line, Reeves was the only attorney who signed the Petition, as well as the attached certificate of service.
Thomson's Petition requested, "pursuant to Miss.Sup.Ct.R. 8 and 21, . . . the issuance of an extraordinary writ, a stay of deposition and all other proceedings before the Honorable Sebe Dale, Jr., Chancellor of the Chancery Court of Forrest County, Mississippi." The Petition also made bald allegations that Thomson and Mary Beth would be injured irreparably if Mary Beth were compelled to testify. More importantly, Thomson's Petition alleged facts which, if true, would constitute an emergency situation necessitating immediate consideration by the Court. That language from the Petition follows:
3. In this petition, John [Thomson], on behalf of himself and his wife, seeks emergency interim relief from the Chancellor's order finding Mary Beth in contempt of court and ordering her arrest for refusing to testify against her husband in a deposition in some of the civil matters. In addition, he seeks a stay of the execution of order of contempt.
. . . . .
[4] e. Rather than testify against her husband, upon the advice of counsel, petitioner will assert her spousal privilege and lack of competency to be a witness when her deposition begins at approximately 1:00 p.m. today. Relying on the advice of counsel, petitioner will continue to assert her privilege even after the trial court orders her to answer certain questions. After continuing to refuse, the Court may hold petitioner in contempt, and order that she be arrested and placed in the custody of the Marion County Sheriff's Department.
5. The issue presented by this Petition is:
May a trial court hold a spouse in contempt of court for refusing to testify against her husband when both spouses have objected to such testimony?
6. The trial court erred in at least the following respects: (a) In overruling John's request for a Protective Order; (b) In overruling Mary Beth's objection to the taking of her deposition; (c) In overruling John's objection to the taking of Mary Beth's deposition; (d) In refusing to stay the deposition pending an appeal; and (e) In refusing to enter any order ruling on John's and Mary Beth's motions.
. . . . .
12. Mary Beth and John will be injured irreparably if Mary Beth is compelled to testify. No subsequent order of this Court on appeal can fully and effectively remedy such a violation. By contrast, however, plaintiffs will suffer no hardship from a stay of her deposition and these proceedings.
This Court, upon receiving information from Reeves that the situation represented an emergency, initiated inquiry into the status of Mary Beth's reported incarceration, and a panel of Justices of the Court was convened and prepared to consider the Petition. On the afternoon of March 5, 1993, this Court, following deliberations, entered an order denying the relief requested in Thomson's Petition. Subsequently, that afternoon, attorneys for Thomson and counsel for the Plaintiffs were notified by this Court of its ruling.
D.
The following day, Saturday, March 6, 1993, Lowrey and his co-counsel received, via mail, a copy of the Petition and notice from Phelps Dunbar informing them that the Petition had been filed the previous day. According to the documentation in this matter, thereafter, on Monday, March 8, 1993, Lowrey sent this Court a facsimile copy of his basic motion requesting sanctions, and followed with the filing of the Motion for Sanctions, sub judice.
As mentioned previously, the Motion for Sanctions was entitled "MOTION TO CORRECT FACTS CONTAINED IN THOMSON'S SWORN PETITION FOR EXTRAORDINARY WRIT, AND FOR STAY OF DEPOSITION AND ALL OTHER PROCEEDINGS AND RESPONDENT'S MOTION FOR SANCTIONS AND OTHER RELIEF." The basic purpose of the Motion for Sanctions was two-fold: 1) to request correction of the erroneous and unsupported "facts" presented in Thomson's Petition; and 2) to request sanctions. The Motion for Sanctions stated, inter alia:
COME NOW, A.G., A MINOR, ET AL, and A.J., A MINOR ET AL, by and through their respective attorneys of record, and files this their Motion to correct the record as to the "facts" presented to this Court by counsel for John Christian Thomson filed with this Court at 1:31 p.m. on 5 March, 1993 [sic] and also files Respondent's Motion for Sanctions and other relief, and for cause would show unto this Court the following facts:
1. That unknown to the Movants, a Petition for Extraordinary Writ, and for Stay of Deposition and All Other Proceedings, was filed before this Court at 1:31 p.m. on March 5, 1993; and
2. Upon receipt of the Petition, via mail, on March 6, 1993, Movants were first made aware of the stated "facts" contained in the sworn Petition before the Mississippi Supreme Court; and
3. That based upon the obligations imposed upon all counsel as officers of the Court and members of the Mississippi State Bar, Movants do hereby state that pertinent information in the Petition was simply untrue as herein set forth. . . .
. . . . .
6. The facts as set out in paragraph 3. of Thomson's Petition did not occur except in the minds of the attorneys filing the Petition. (See transcript of Motion hearings attached hereto as Ex. "A" as well as the transcript of the deposition of Mary Beth Coker Thomson, attached hereto as Ex. "B".) Movants did not make a Motion to hold Mary Beth in Contempt nor did she testify in Court, only in the deposition. Further, the Court did not order her arrested for refusing to testify against her husband, nor did she refuse to testify.
. . . . .
8. Upon the [lower] Court's ruling [on the morning of March 5, 1993], Ms. Laura Gibbs [sic], counsel for John Thomson, moved by Motion Ore Tenus for the [lower] Court to stay its ruling in order for John Thomson to seek an Interlocutory appeal which the [lower] Court denied.
9. Movants then asked Thomson's attorney whether or not she had associate counsel on standby to file an Emergency Writ with the Supreme Court. Ms. Laura Gibbs [sic] refused to admit or deny whether or not such action was planned.
. . . . .
12. The deposition took place from 1:00 to 1:17 on March 5, 1993. Upon conclusion of the deposition, Movants, with agreement of [Mary Beth's counsel], agreed to suspend the deposition until the Mississippi Supreme Court could rule on any emergency Writ which may have been filed by John C. Thomson. . . .
13. The Order referred to in the Petition which Movants were to draft for the Court were ordered to be done by the Court at approximately 11:30 a.m. on March 5, 1993. Movants did not return to their respective law offices in Hattiesburg until 3:00 on March 5, 1993. It is quite difficult, and some would submit, impossible, to draft an Order for a Court while the proceedings are ongoing.
14. At approximately 4:00 p.m. on March 5, 1993, Movants received a phone call from the Supreme Court clerk's office advising them that the Petition for Extraordinary Writ had been denied. This was the very first notice that the Movants had received on the filing of such a request.
15. Although this Court has denied the request based upon the alleged "facts" of the Petition, the responsibility still lies on counsel to notify the Court of the appropriate facts of a matter.
. . . . .
Movants request this Court for Sanctions including, but not limited to [sic] costs and attorneys' fees be [sic] awarded against the Petitioning party(s) pursuant to MSCR 36 and 38 [sic], and further, for this Court to grant such other and additional relief as equity and justice require.
(emphasis added).
E.
On March 9, 1993, this Court received a letter of apology which was typed on Phelps Dunbar letterhead with Reeves' typewritten name as the signatory party, but actually signed with Trapp's signature on behalf of Reeves ("Reeves' Letter"). That letter stated, inter alia, as follows:
On Friday, March 5, 1993, at approximately 1:40 p.m., I filed a Petition for Extraordinary Writ, and for Stay of Deposition and All Other Proceedings in the above styled matter. After receiving a telephone call from Laura Limerick Gibbes of our office regarding the denial of a Motion for Protective Order and the proceedings which had occurred in the Court below, I finalized the petition and prepared the documents for filing for the Petition for Extraordinary Writ.
Ms. Gibbes reported these matters to me late in the morning. I attempted to finalize and file the petition with this Court before Mary Beth Coker Thomson's deposition began at 1:00 p.m. During the haste to get these documents filed, I made an error in the petition. I realized this error on Monday, March 8, 1993.
The Petition [sic] on page 3 at ¶ 3, states the following:
In this petition, John, on behalf of himself and his wife, seeks emergency relief from the Chancellor's order finding Mary Beth in contempt of court and ordering her arrest for refusing to testify against her husband in a deposition in some of the civil matters. In addition, he seeks a stay of the execution of order of civil contempt.
This did not occur in the trial court below. . . . The trial judge did not find Mary Beth in contempt of court. He did not order her arrest for refusing to testify against her husband in the depositions.
. . . . .
This Court has now denied our petition. Nevertheless, I want to bring this error to the Court's attention. In no way were we attempting to deceive this Court.
. . . I apologize to this Court, the trial court and all interested parties for the error.
F.
Thereafter, on March 18, 1993, Trapp, Reeves and Gibbes, on behalf of Thomson, filed a response to the Motion for Sanctions. That document was entitled "RESPONSE TO MOTION TO CORRECT FACTS CONTAINED IN THOMSON'S SWORN PETITION FOR EXTRAORDINARY WRIT, AND FOR STAY OF DEPOSITION AND ALL OTHER PROCEEDINGS AND RESPONDENT'S MOTION FOR SANCTIONS AND OTHER RELIEF" ("Response").
The Response reiterated the events leading up to, and including, the motions argued before Chancellor Sebe Dale, Jr., on the morning of March 5, 1993, in Columbia, Mississippi, and the manner in which the Petition was generated and filed with this Court, stating, inter alia, that:
6. [T]he oral rulings of the [lower] Court were relayed by Ms. Gibbes to Carlton Reeves in her firm's Jackson office. Mr. Reeves then finalized a Petition for Extraordinary Writ, and for Stay of Deposition and All Other Proceedings in order to try to file it with the Mississippi Supreme Court before the deposition commenced at 1:00 p.m.
. . . . .
7. Concurrent with the taking of the deposition of Mrs. Thomson, the Petition for Extraordinary Writ, and for Stay of Deposition and All Other Proceedings was filed with this Court. . . .
The Petition was not filed concurrent "with the taking of the deposition" of Mary Beth. As plainly reflected in Exhibit "E" to the Response itself, which was filed and signed by Trapp, Reeves and Gibbes, Mary Beth's deposition commenced at 1:00 p.m. and was recessed at 1:17 p.m., March 5, 1993. As admitted in Reeves' Letter which is attached as Exhibit "G" to the Response filed and signed by Trapp, Reeves and Gibbes, "[o]n Friday, March 5, 1993, at approximately 1:40 p.m., I [Reeves] filed a Petition for Extraordinary Writ, and for Stay of Deposition and All Other Proceedings. . . ." Consequently, the emergency relief requested by the Petition could not have been granted by this Court, as far as the 1:00 p.m., March 5, 1993, deposition of Mary Beth was concerned. A fortiori, the tardiness of the request rendered it procedurally frivolous.
8. On the morning of Monday, March 8, 1993, counsel for Mr. Thomson noted that, in the rush to get the Petition filed, an error had been made in the Statement of Facts. Counsel then wrote a letter [Reeves' Letter] to the Mississippi Supreme Court Clerk calling attention to the error and requesting that the error be corrected. . . . Copies of counsel's letter were faxed, hand delivered and/or mailed to the Mississippi Supreme Court Clerk, the three Supreme Court Justices that had considered the Petition, Judge Dale, and all counsel of record.
. . . . .
10. . . . Accordingly, counsel for Defendant John Thomson is in agreement that a correction of the record should be made. . . . However, to the extent that Respondents' Motion for Sanctions may be premised upon factual errors that existed in the original Petition for Extraordinary Writ, counsel would respectfully submit that such an award is not warranted. The error was corrected by defense counsel as soon as possible. In addition, the error, while a grievous one, did not affect the legal merits of the competency issue raised in the Petition. Finally, counsel would note that the Petition for Extraordinary Writ was denied in full by this Court, thereby establishing that Respondents suffered no prejudice as a result of the error that was contained in the Petition.
(emphasis added).
In the Response, counsel for Thomson argued that the legal merits to the spousal competency issue precluded characterizing the filing of the Petition as frivolous. Thomson's counsel requested "an oral hearing of this matter pursuant to Miss.Sup.Ct.R. 2(b)," and contended that the sanctions sought were inappropriate because entitlement to sanctions was governed by Miss.Sup.Ct.R. 36 and 38, and that the Motion for Sanctions had failed to demonstrate satisfaction of the criteria of those rules.
G.
By letter dated April 21, 1993, Trapp notified this Court that the two underlying chancery court cases had been resolved by settlement between the parties. Trapp intimated that, since the underlying cases had been settled, the Motion for Sanctions was a nullity, stating that:
While we are in agreement with the Respondent's motion to correct facts, the above settlements, I believe, render that motion moot. I and no one from this firm were involved in the settlement negotiations with Plaintiffs' counsel; however, their Motion for Sanctions is not addressed in the release or other settlement documents, thus remain for consideration.
Lowrey, one of the attorneys for Plaintiffs, upon receipt of a copy of Trapp's April 21, 1993, letter, responded by letter dated April 26, 1993. There, Lowrey stated:
That the underlying matters did settle and the law firm of Phelps Dunbar was not involved in the settlement.
. . . It was the understanding of all counsel attending the hearing that we were settling all matters with the exception of the above styled Motion in the Mississippi Supreme Court. . . . The first draft of the releases included attorneys which was objected to by the Plaintiffs and the same was removed from the final version.
It was for these reasons that no notice was given to dismiss the Motion pending before the Mississippi Supreme Court. We do not wish to dismiss the Motion nor do we believe that the matter is moot.
H.
Subsequently, this Court notified Thomson's counsel that their request for an oral hearing on the matter had been granted, and the hearing date was set for 9:30 a.m., June 7, 1994. That notice informed those attorneys that, at the scheduled oral hearing, in addition to the matters set out in the Motion for Sanctions, this Court desired that those attorneys address the following: 1) whether counsel for Petitioner provided all other parties with reasonable notice of filing the Petition for Extraordinary Writ and for Stay of Deposition and All Other Proceedings with this Court; 2) whether the facts and matters presented to and acted upon by this Court in the Petition were correct and appropriate; 3) whether the letter dated April 21, 1993, from Frank W. Trapp to this Court accurately informed this Court as to the status of the Motion for Sanctions, in light of the settlement of cases underlying this appeal; and 4) whether sanctions should be imposed against Carlton W. Reeves, Laura L. Gibbes, Frank W. Trapp, and the law firm of Phelps Dunbar.
The oral hearing was held on June 7, 1994, as scheduled. Among others, Trapp, Reeves, Gibbes, and Lowrey were present at the hearing. In addition to representing himself personally, Trapp stated that he was also representing the Phelps Dunbar law firm. Trapp, Gibbes and Reeves responded to questions from Justices of this Court at the oral hearing. Additionally, they were afforded opportunity to comment on the matter or otherwise explain the circumstances surrounding their actions, after which the oral hearing concluded that same day, June 7, 1994.
II.
Upon due consideration of the record in this matter, the Petition, the Motion for Sanctions, the Response, and the revelations from the June 7, 1994, oral hearing, I would find that only the conduct and actions of Reeves before this Court warrant sanctions.
Although not affecting the disposition of this matter, two points should be illuminated at the forefront. First, at the time of Mary Beth's deposition, 1:00 p.m., March 5, 1993, and the filing of the Petition at 1:31 p.m., March 5, 1993, Gibbes, counsel for a Defendant, and Lowrey, counsel for the Plaintiffs, both possessed knowledge that Mary Beth would not, in all probability, offer any substantive testimony at the scheduled deposition. At the motion hearings before the chancellor on the morning of March 5, 1993, Mary Beth's lawyer announced to the chancellor that he had planned all along to have Mary Beth take the Fifth Amendment. Both Gibbes and Lowrey were present in the courtroom at that time.
Second, it is quite apparent from the information before us that defense counsel for Thomson attempted to utilize procedural devices to either impede completion of discovery on a timely basis or to hinder ultimate resolution of the controversy between the litigants. From the record, I note several pre-trial appeals and motions for protective orders or to stay proceedings.
Apparently, the consternation between these attorneys involved the possibility of a negative inference that the attorneys, both Plaintiffs' and Defendants', believed could be gained if Mary Beth refused to answer questions posed to her while she was under oath at the deposition. Ostensibly, according to that rationale, the refusal of Mary Beth, a witness, to answer such questions on the basis of the Fifth Amendment, would result in a negative inference attributed to Thomson, a party to litigation.
We do not comment on the merits of the underlying cases, the purported spousal competency issue or the availability or impact of a negative inference, nor do I comment on the rulings of the chancellor at the March 5, 1993, motion hearings. At issue, for this Court's consideration, is the conduct and actions of the attorneys.
III.
On June 15, 1987, by "Order Adopting the Mississippi Supreme Court Rules," former Chief Justice Harry G. Walker, on behalf of the Supreme Court of Mississippi, declared that adoption of the Mississippi Supreme Court Rules ("Rules") should promote "the fair and efficient administration of justice." That Order also stated that the Mississippi Supreme Court Rules shall "govern all proceedings in the Supreme Court of Mississippi and within the lower courts of this state to the extent provided in said Rules," and that the comments to those Rules "shall be used by all courts as authoritative guides to the correct interpretation" of the Rules.
Today, I write to emphasize and remind attorneys of the spirit and purpose of the Rules, as well as the purpose of the requirement of attorneys' compliance with rules — "the fair and efficient administration of justice." That same purpose is expressed in the Comment to Miss.Sup.Ct.R. 2, which states, inter alia:
Perpetuating the spirit underlying the former rules of the Mississippi Supreme Court, the present rules will be construed to facilitate the just and efficient disposition of causes brought before the Court. Accordingly, compliance with even the most technical requirements of rules is encouraged.
. . . .
Rule 2(b) states the Court's inherit disciplinary authority over parties and officers of the court.
(emphasis added).
This Court considers penalties and sanctions against attorneys. Our authority and jurisdiction to assess penalties or impose sanctions against attorneys arises from varied sources, embracing specific rules as well as broad declarations. Illustrative, and not by way of limitation, of the specific rules pronouncing this Court's authority to assess penalties or sanction attorneys, are Miss.Sup. Ct.R. 1, 2, 28, 34, 36, 38, and 46, as well as Miss. Code Ann. § 73-3-301 (1989).
More specifically, the language of Miss. Sup.Ct.R. 2(b) makes it clear that attorneys are subject to sanction, stating as follows:
The Court may, after reasonable notice and opportunity to show cause to the contrary, and after hearing, if requested, impose such sanctions as may be appropriate on any party, court reporter, trial court clerk, or attorney who fails to comply with these rules or any order issued pursuant to these rules.
(emphasis added). And, according to Miss. Sup.Ct.R. 46(d):
Every petition, motion, brief, or other paper filed by a party represented by an attorney shall be signed by at least one attorney of record in the attorney's individual name, whose address shall be stated. The Court may, after reasonable notice and an opportunity to show cause to the contrary, and after hearing, if requested, take any appropriate disciplinary action against any attorney who practices before it for conduct unbecoming a member of the bar, or for failure to comply with these rules or any order of this Court, or for filing a frivolous petition, motion, brief or other paper.
(emphasis added).
* * * * * *
After careful review and consideration, I would find that the imposition of sanctions against Carlton W. Reeves would be appropriate under, but not necessarily limited by, Miss.Sup.Ct.R. 2(b) and 46(d).
IV.
It was admitted at the oral hearing that the chancellor did not find Mary Beth in contempt; that the chancellor did not order Mary Beth incarcerated for refusing to answer questions; and that the plaintiffs' attorneys had not made a motion to hold Mary Beth in contempt for refusing to answer the deposition questions.
It is also clear that these attorneys were sparring, not necessarily over substantive testimony to be gained in Mary Beth's deposition, but over procedural or tactical advantage. As related by Lowrey at the oral hearing:
We filed this suit [chancery court cases] in December 1991, and we were set for trial in April, 1993. . . .
. . . .
. . . [T]he reason why I was requesting whether or not Mrs. Gibbes and Trapp and Phelps Dunbar were going to file a motion in the Supreme Court was because that had been the normal course of events. For some reason or another, we seem to be able to get to the Supreme Court, but we could not get to trial. . . .
. . . .
. . . I did not care what Mary Beth Thomson said. [Mary Beth's attorney] had told us time and again that she was going to take the 5th amendment [sic]. That was fine for us, as long as we could put her on a horse that she had to ride and she could not change at the time of trial.
At the oral hearing, Trapp revealed, as was later reiterated and confirmed by Gibbes, their motive for opposing Mary Beth's deposition, stating as follows:
She just took the fifth. And Mr. Erik [Lowrey] recognized that he didn't care about that because the Court would be able to take certain assumptions from that. Now that would be an issue I would take — I would take issue with that, but I would probably have lost that also. But it's because you have her testimony. Even though it is not factual in nature, he gets to ask any question, and then he would ask when she takes the fifth that you take an adverse inference. That's more powerful than the answer.
It follows from Trapp's rationale that, if Mary Beth were forced to appear at a deposition, she would take the Fifth Amendment and refuse to give substantive factual testimony. But, nonetheless, an adverse inference might still be used to harm Thomson's case. However, if Mary Beth was never forced to give deposition testimony, under the umbrella of spousal incompetency, then she could possibly avoid taking the Fifth Amendment, and no adverse inference could arise therefrom.
A. CARLTON W. REEVES ("REEVES")
According to Reeves, Gibbes telephoned him on the morning of March 5, 1993; related the chancellor's oral rulings emanating from the motion hearings; and instructed him to finalize and file the Petition. At the oral hearing on the Motion for Sanctions ("oral hearing"), Reeves admitted that the Petition contained wholly erroneous facts, and he admitted his culpability for it, stating, "I made the mistake of allowing that pleading to be filed as written in Paragraph 3."
Reeves stated that he had tried to get the Petition filed before 1:00 p.m., the time at which the deposition was scheduled to commence. However, by the express language of the Petition, the deposition had already begun, and the chancellor had found Mary Beth in contempt and ordered her incarcerated for refusing to answer questions. Therefore, if Reeves had actually filed the Petition before 1:00 p.m., it would, nonetheless, have been a misrepresentation of facts concerning the deposition and the chancellor's alleged actions. As it occurred, however, Reeves did not actually file the Petition until 1:31 p.m., March 5, 1993. Since the deposition had concluded earlier, at 1:17 p.m., the requested stay of the deposition was procedurally frivolous, and the alleged finding of contempt and order of incarceration by the chancellor constituted patent misrepresentations. The deposition had concluded earlier than the time at which Reeves filed the Petition. Therefore, since Mary Beth had not been found in contempt and no order of incarceration existed, the requested "emergency interim relief from the Chancellor's order finding Mary Beth in contempt of court and ordering her arrest for refusing to testify against her husband in a deposition" ("Paragraph 3."), and the requested "stay of the execution of order of contempt," were frivolous — nullities without any hope of success. See Roussel v. Hutton, 638 So.2d 1305, 1317-18 (Miss. 1994); Bean v. Broussard, 587 So.2d 908, 911-12 (Miss. 1991); Tricon Metals Services, Inc. v. Topp, 537 So.2d 1331, 1336 (Miss. 1989).
The language of Paragraph 3 contained erroneous facts. Those erroneous facts were a material element of the Petition; it alleged that the Petition represented an "emergency," and for that reason it should be considered by a panel of Justices of the Supreme Court of Mississippi, immediately upon filing. Without that "emergency" feature, it cannot be said, unequivocally, that the Petition would have otherwise been considered an "emergency" matter subject to immediate consideration by this Court. However, Reeves' explanation that it was simply negligence in copying from a prior motion is accepted.
When asked why he did not "fax" a copy of the Petition when he filed it, Reeves admitted fault once again. He revealed that he had previously discussed the "notice" requirements with Gibbes, and the decision made that "proof of service could be by mail." However, he characterized his actions as amounting to negligence, stating, "Judge, that was just — that was just negligence on my part. . . . [I]t was not any deliberate attempt on my part." This we accept without further comment.
The Petition explicitly stated that it was being filed "pursuant to Miss.Sup.Ct.R. 8 and 21." According to the language of Miss.Sup. Ct.R. 8, "reasonable notice" shall be given to all parties.
At the oral hearing, Reeves admitted that he had called a staff attorney with this Court prior to filing the Petition, advising that staff attorney that a request for emergency relief was forthcoming, and, as a consequence, Reeves requested that a panel of Justices of this Court be prepared to consider the requested relief at 1:00 p.m., March 5, 1993. Yet, Reeves testified that he "mailed" notice of the Petition to opposing counsel, deeming such as "reasonable notice" despite the fact that he had requested "emergency relief," including a stay of the planned 1:00 p.m. deposition. That notion is astounding.
Copies of papers filed with this Court may normally be served upon opposing counsel either by personal service or by mail. Miss. Sup.Ct.R. 25. However, prudence and common sense dictate that responsible attorneys recognize that, in certain situations, notice received after the fact is no notice at all. In a purported "emergency" situation, reasonable notice necessarily connotes meaningful notice, and if the only means to achieve meaningful notice is through personal service, then service by mail is no substitute.
Unless specifically provided for to the contrary by the Mississippi Supreme Court Rules, "reasonable notice" in a purported "emergency" situation entails either telephonic notice, notice in person, or notice by transmission of a facsimile ("fax"), before the filing of the document requesting emergency relief, or at the very least, no later than "at the time" of filing of such document.
Reeves failed to fulfill basic requirements of careful drafting and preparation of pleadings and other documents to be filed with this Court, and compliance with the directive that our Rules, including those governing "notice," must be "construed to facilitate the just and efficient disposition of causes brought before the Court." Miss.Sup.Ct.R. 2.
Reeves drafted and signed the Petition which contained untrue statements, and filed it with this Court. He now admits that it was an error for the Petition to be filed containing the language of Paragraph 3. As a result, the filing of the Petition constituted negligent misrepresentation of material facts. Furthermore, Reeves did not comply with the mandate that notice be given to opposing counsel in a manner that provides "reasonable notice" under the circumstances presented.
Upon a hearing on the matter, Reeves was unable to show cause why he should not be sanctioned for his actions. See Crawford v. Wall, 593 So.2d 1014 (Miss. 1992); Russell v. Lewis Grocer Co., 559 So.2d 1052 (Miss. 1990). Accordingly, I would impose sanctions upon Reeves in the amount of $300.00.
V.
The Court is deeply concerned with unwarranted, so-called "emergency" petitions and motions filed with this Court which, in most instances, either result in suspension of trial proceedings or actually deter the commencement of the trial because of filing such petitions or motions during the discovery stage of the litigation. Such abuse of the judicial process has greatly contributed to the backlog of cases before this Court.
Abuse of the judicial process also arises from the failure of attorneys to fulfill their concurrent duties. The practice of law is a profession, and practicing attorneys are officers of the court. They are charged with faithfully performing the duties incumbent upon those participating in the profession. But, there exists not a singular duty which attorneys must fulfill; there are many. Attorneys not only owe a duty to their clients, they also owe a concurrent duty to this Court, the trial courts, and other attorneys. As officers of the court, attorneys may not claim "zealous representation of a client" as absolution for failure to properly discharge all duties imposed upon that lawyer. Consequently, attorneys must not neglect any one of those duties for the sake of another, but must balance all those duties with professional dignity.
This is but one opinion. However, a clear message is conveyed herein to practicing attorneys in Mississippi regarding this Court's attitude concerning the promotion of the fair and efficient administration of justice. Justice delayed is often justice denied; therefore, rules governing the procedures for litigation should be construed in favor of achieving a resolution of litigation between parties. Failure to comply with this Court's Rules, by filing a frivolous motion, instituting an unwarranted procedure or by displaying conduct unbecoming a member of the bar, whether during the discovery stage, in pre-trial motions, or at trial, may impede or interfere with the disposition of litigation and the fair and efficient administration of justice. This Court will not tolerate such actions, and neither should the trial courts of Mississippi.
That part of the "MOTION TO CORRECT FACTS CONTAINED IN THOMSON'S SWORN PETITION FOR EXTRAORDINARY WRIT, AND FOR STAY OF DEPOSITION AND ALL OTHER PROCEEDINGS AND RESPONDENT'S MOTION FOR SANCTIONS AND OTHER RELIEF" requesting that the facts of Paragraph 3 of the Petition be corrected is hereby granted. That part of the "MOTION TO CORRECT FACTS CONTAINED IN THOMSON'S SWORN PETITION FOR EXTRAORDINARY WRIT, AND FOR STAY OF DEPOSITION AND ALL OTHER PROCEEDINGS AND RESPONDENT'S MOTION FOR SANCTIONS AND OTHER RELIEF" requesting sanctions (for actions before this Court) and other relief is denied.
HAWKINS, C.J., and McRAE, J., Concur.
HAWKINS, C.J., writes separately and is joined by DAN M. LEE, P.J.
McRAE, J., writes separately and is joined by DAN M. LEE, P.J.
SMITH, J., writes separately and is joined by PRATHER, P.J., and JAMES L. ROBERTS, Jr., J.
SULLIVAN, PITTMAN and BANKS, JJ., not participating.
All of the attorneys in this case are highly qualified and respected practicing attorneys, and there should be nothing about either the majority or dissenting opinion which would suggest otherwise. Sanctions are in order, however, as pointed out in Presiding Justice Lee's opinion, and which I join for the following reasons:
(1) It never occurred to Ms. Gibbes to give opposing counsel any meaningful notice that she was filing a petition for emergency relief with this Court. Professional courtesy was, at best, minimal, and she showed little concern for the rights of opposing counsel.
(2) Reeves, a former law clerk with this Court, used this knowledge to contact a staff attorney rather than the Clerk of this Court that an emergency petition would be filed. I quickly add that there is nothing indicating that he endeavored in any way to "ear-wig" the staff attorney.
(3) Attorneys with any kind of extensive law practice are painfully aware of the terrible burden under which this Court labors in endeavoring to process the mountainous volume of cases, motions and administrative matters, and the depressing backlog of cases needing decision and disposition. Certainly this leading law firm had to be especially aware, and most especially Reeves had to be cognizant of this. This makes it imperative, if any attorney has any consideration whatever for the members of this Court, that he or she carefully consider whether this Court's time should be diverted on some petition for emergency relief, in the first place. This is not an ordinary court pleading. And, if such a petition is to be filed, above all the attorney is under a duty to make doubly sure it is accurate. The petition filed in this case was of dubious necessity, and slipshod accuracy, evincing to me, at least, a minimal concern for the workload under which the members of this Court labor, and the strain upon our time. If such a petition was indeed thought necessary, counsel was doubly obligated to be certain it was absolutely accurate. Again, concern for this Court was ignored.
(4) Finally, when counsel learned the issue was moot, they were under an obligation to immediately transmit this information to the Court, rather than letting three members of this Court have to take time examining the petition. Three Justices' time was needlessly consumed considering a petition on a moot issue.
The practice of law is a profession. Lawyers, as officers of the Court, and Judges have a mutual obligation each to the other to be considerate of their respective professional positions. This is the valuable lesson contained in this case. I am confident that all involved will take it in this spirit, and we can move on.
DAN M. LEE, P.J., joins this opinion.
Although I have strong concerns about the gamesmanship indulged in by Laura Gibbes, Carlton Reeves, Frank Trapp and the Phelps Dunbar law firm, I reluctantly join the order of the Court. I would sanction all four severely. The emergency relief sought from this Court was frivolous and a sham. The three lawyers involved all had agreed to the decision to file for emergency relief; discussing it in advance of filing the motion. Their statement that the judge had ordered the wife to be jailed if she did not testify was completely false and was fabricated only to gain the relief they sought. They made further false representations when the case was settled, suggesting that everything now was moot when they knew, to the contrary, that the plaintiffs' attorney had stated that everything was settled with the exception of two motions for sanctions which had been filed. None of the opinions even mention this second misrepresentation.
The defense simply did not want Mary Beth Coker Thomson, who married Thomson after the incidents complained of in the underlying criminal and civil cases, to be questioned by the plaintiffs. The plaintiffs, however, had merely made the statement that Mary Beth was Thomson's wife and refused to allow her to testify. However, at other times, statements were made that if she testified, she would take the fifth amendment. At no time prior to the deposition was any actual evidence of the Thomsons' current marital status submitted by the Phelps Dunbar firm. There was only the verbal statement of Thomson's defense attorneys. Plaintiffs' attorneys said that they wanted to see which horse Mary Beth would ride; that is, whether she would invoke the fifth amendment or refuse to testify because of her marriage to Thomson. They had to make her choose one or the other. Failing to do so, they could say she was not going to be a witness for deposition purposes, but later, have her show up as a witness at trial and have nothing to complain about. The defendants had the burden to prove that Mary Beth was married to Thomson and that the spousal privilege had been invoked. Without the deposition, nothing had been proven. The emergency relief sought without that statement, therefore, was frivolous since there was no showing whatsoever of irreparable harm. The burden was on Gibbes, Reeves, and Trapp to show that this was a legitimate motion. They apologized for making the false statement which was the sole basis for the emergency relief sought. However, even after requesting a hearing, they have failed to give any other underlying reason for the emergency relief they had sought. Caught with their hands in the cookie jar, they have no place to hide. Therefore, having failed to give any other reason for seeking relief, the three attorneys, as well as their firm, should be sanctioned for filing a frivolous motion.
I further disagree with the statement that Erik Lowery should have talked to the defense counsel. Wrung through the wringer as he was, it probably was best to wait a few days to talk and then, to communicate through correspondence.
Further, and more importantly, after the motion for sanctions was filed, settlement was reached in this case. The Phelps Dunbar firm notified this Court of the settlement and indicated that the motion for sanctions was now moot. Settlement, however, was reached with the specific condition that the plaintiffs would proceed with the motion for sanctions to see how this Court would rule.
Unfortunately, attorneys in small firms outside of Jackson, as well as sole practitioners, appear to be judged by one standard, whereas those practicing with the larger Jackson firms receive greater deference. I cannot agree with this dual standard. The majority, therefore, appears to simply opt out by choosing to make Reeves, the low man on the totem pole, the fall guy and to sanction only him. In fact, all three had agreed to file the motion at issue. All should be sanctioned. Their conduct regarding notice and more importantly, the misrepresentations in the motion for emergency relief as well as with regard to the mootness of the motion for sanctions, was egregious. Since they were all in this together, it is wrong to single out Reeves.
While the firm is a corporation, but for the fact of the individual attorneys, it is not licenced to practice law. However, the actions of the attorneys are the actions of the firm. When an individual attorney is sanctioned, then his firm also should be sanctioned. To do anything less extends special privileges to a corporate entity. It is important to note that our sanctions only go to what occurred in this Court, not what occurred in a lower court. Thus, while I agree with the imposition of sanctions, I feel that more serious sanctions should have been applied. Further, sanctions should extend to compensating the plaintiffs' attorneys for their time spent in opposing the motions and bringing the matter before this Court.
DAN M. LEE, P.J., joins this opinion.
Some members of this Court find misconduct on the part of three Phelps Dunbar attorneys and would impose sanctions due to these attorneys' filing with this Court an emergency petition for extraordinary relief, a petition which might have been more appropriately entitled "haste makes waste" petition, as it plainly shows what can happen when attorneys get in a hurry during the heat of zealous advocacy in litigation.
I am concerned with the label of misconduct attached by several of the Court's members to these three attorneys. The controversy at issue was nothing more than a simple misstatement in the language of paragraph three of the petition which was immediately corrected thereafter in paragraph 4(e). Eric Lowery, one of the respondent's attorneys, complained before Chancellor Dale as well as this Court claiming, ". . . [w]e seem to be able to get to the Supreme Court, but we could not get to trial." Some of the Court's members, in reaction to Lowery's complaints about lawyers in Jackson being on standby to rush to the Court, claim that Thomson's petition is frivolous and further express concerns with unwarranted, so-called emergency petitions . . . which have in most instances, either resulted in suspension of trial proceedings or deterred the commencement of trial . . . failure to comply with our rules by filing a frivolous motion . . . instituting an unwarranted procedure . . . or by displaying conduct unbecoming a member of the bar. In fact, the record reveals only one single previous interlocutory appeal by Thomson's attorneys and that was for a stay in proceedings. This Court denied Thomson's first requested stay. An interlocutory appeal prior to the one by Thomson's attorneys was filed by the Attorney General of Mississippi and the District Attorney Glen White, who desired to have this Court allow the criminal matters concluded prior to any trial proceedings on the civil cases. These facts were admitted by Lowery at the hearing before this Court. It appears some of our members are incorrectly crediting the Phelps Dunbar attorneys with these other proceedings.
I am compelled to disagree with the other members finding of negligence by Frank Trapp, Laura Gibbes and Carlton W. Reeves. Additionally, they express displeasure with the lawyers' failure to give reasonable notice, improper conduct and repugnant gamesmanship, posturing between lawyers, and to express its discontent with the discovery and motion practices of attorneys which impedes the fair and efficient administration of justice in this Court and in the trial courts. While I agree that all of those situations, if true, would warrant this Court in finding misconduct by the three attorneys and imposing sanctions thereupon, I do not find those described situations existing within the facts of this case, thus they are inappropriate. Some would find all three lawyers guilty of misconduct as above cited and imposes sanctions accordingly. I cannot accept this reasoning nor am I willing to sanction these attorneys under the facts of this case, which constitute nothing more than a simple mistake by Reeves in his drafting of the language in paragraph three of Thomson's petition filed with this Court. There is a striking absence by these attorneys of any wilful attempt to deceive or mislead this Court, the lower court, or opposing counsel.
This case had as its genesis twenty civil cases filed against Thomson, seventeen of which were pending in the Circuit Court of Forrest County, Mississippi, one in the United States District Court, Southern District of Mississippi, and the remaining two pending in the Forrest County Chancery Court. There also were twelve criminal cases against Thomson, filed in the Circuit Court of Forrest County. These three attorneys were not facing a simple case, but rather multiple cases with complex issues. There were simultaneous discovery deadlines and trial settings so close together in time as to be almost impossible to adequately prepare for trial.
The chancellor refused to grant Thomson's motion for a protective order on spousal privilege and lack of competency, in complete disregard of M.R.E. 601. He also refused to grant an interlocutory appeal to this Court, and refused to sign orders prepared in advance by Gibbes in contemplation of an adverse ruling. These facts alone dispel any notion that the actions of these attorneys in representing their client Thomson, involved the filing of a frivolous issue before this Court.
Other Court members ignore Trapp's concerns that "adverse inference" can be drawn from the defendant's refusal to testify in a civil case and then used against him at trial. Morgan v. United States Fidelity Guaranty Co., 222 So.2d 820, 828 (Miss. 1969). It is clear that Lowery intended to force Thomson to claim privilege against his wife being compelled to give a deposition, whereupon she would be required to plead the fifth amendment in response to questions posed. Lowery would have then proceeded to use "adverse inference" against Thomson.
Mary Beth Thomson was never competent to testify as a witness in the proceedings against her husband, discovery could not otherwise be sought from her and Thomson's motion was not frivolous under M.R.E. 601, which provides:
Every person is competent to be a witness except as restricted by the following:
(a) In all instances where one spouse is a party litigant the other spouse shall not be competent as a witness without the consent of both, except as provided in Rule 601(a)(1) of Rule 601(a)(2):
(1) Husbands and wives may be introduced by each other in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them;
(2) Either spouse is a competent witness and may be compelled to testify against the other in any criminal prosecution of either husband or wife for a criminal act against any child, for contributing to the neglect or delinquency of a child, or desertion or nonsupport of children under the age of sixteen (16) years, or abandonment of children.
Additionally, Miss. Code Ann. § 13-1-5, governing competency of husband and wife as witnesses provides:
Husbands and wives may be introduced by each other as witnesses in all cases, civil or criminal, and shall be competent witnesses in their own behalf, as against each other, in all controversies between them. A criminal prosecution of either husband or wife for contributing to the neglect or delinquency of a child or desertion or nonsupport of children under the age of sixteen (16) years or abandonment of children shall be deemed controversies between husband and wife for the purpose of this section. But in all other instances where either of them is a party litigant the other shall not be competent as a witness and shall not be required to answer interrogatories or to make discovery of any matters involved in any such other instances without the consent of both.
It is certain that the chancellor understood the clear meaning of Rule 601 as well as Miss. Code Ann. § 13-1-5 (Supp. 1992). An examination of the chancellor's opinion is revealing indeed. The chancellor stated in his ruling:
I recognize what the rule says as to competency, 601, and it appears to be very clear on its face. At the same time, I'm inclined to be or make an effort to be practical because I think the law is intended to be practical. While rules of law are made frequently without contemplation of all the circumstances that may arise subsequent to the promulgation of that rule, and I won't cite instances of that but I'm sure all of you can recognize instances of that kind of thing, including recent instances where rules have been promulgated by the Supreme Court or the trial courts, and circumstances pretty soon arose that were obviously not contemplated when the rules was promulgated.
I believe it would be indeed an anomaly and an impractical thing for the rule on competency of witnesses to state blankly and apply in every circumstance that a wife may not be a witness against her husband with respect to things that occurred and transpired prior to the time they became husband and wife. I just simply cannot believe that's the intent of the rule despite the language of the rule. (emphasis added).
It would be the position of this Court that Mary Beth Coker Thomson is subject to rules of relevancy and all of that sort of thing, but to respond with respect to events.
Was the pleading filed before this Court frivolous? The three Phelps Dunbar attorneys argue that the pleading was not frivolous because the trial court expressly recognized that his ruling was not consistent with the clear language of the rule. I agree with that analysis. Both Rule 601 and § 13-1-5 are expressly clear on this issue of competency and privilege.
A review of the rule and the statute reveals no ambiguity in the wording of either. There can be but one conclusion; a wife cannot be compelled to be a witness against her husband unless her testimony falls into one of the exceptions. The factual situation in the case at bar does not qualify as an exception. Justice McRae attempts to distinguish this factual situation because the Thomson's were only married after the civil and criminal incidents occurred. Yet, in Simpson v. State, 497 So.2d 424 (Miss. 1986), Simpson was accused of murder, and shortly after the shooting, married Katie James, the only eye witness to the shooting. This Court, in reversing on impermissible prosecutorial comment, made no distinction between acts of the defendant which had occurred prior to marriage and those which had occurred during the marriage. The Simpson Court did not hold that Simpson's wife was competent to testify to matters which occurred before their marriage. Returning to the case at bar, as in Simpson, Mary Beth Thomson was an eyewitness to certain factual allegations which occurred prior to her marriage to Thomson. Because she was Thomson's wife, Mary Beth could not be required to testify against Thomson, when he claimed privilege.
Equally important regarding the question of whether or not the petition involved issues that were frivolous is the contention of the Phelps Dunbar attorneys that Special Circuit Judge, Walter O'Barr, in one of the civil proceedings filed against Thomson in the Circuit Court of Forrest County, when presented with this same competency issue of spousal testimony, found that Mary Beth Thomson was incompetent as a witness in a civil proceeding in which her husband was a defendant. Judge O'Barr properly following Rule 601 and § 13-1-5 stated:
Mary Beth Coker Thomson may not be deposed in this matter, may not be required to participate in discovery, and may not be called as a witness in this matter unless both she and her husband agree.
Judge O'Barr then granted a motion for a protective order of the same kind sought by Thomson in this case from Chancellor Dale.
It is from the prior pleadings filed in the circuit court proceeding before Judge O'Barr, that the Phelps Dunbar attorneys maintain that Reeves extracted the incorrect language which had been inserted into paragraph three of the petition for relief. Reeves had received word of the chancellor's denial of their requested relief from Gibbes at 11:50 a.m. on March 5th. Reeves then had to prepare his pleadings and drive from the Phelps Dunbar offices on Lakeland Drive in Flowood, Rankin County, Mississippi to file his pleadings with this Court by 1:00 p.m. In Reeve's haste to meet the 1:00 p.m. filing deadline in this Court, utilizing language from a prior draft of a pleading concerning Thomson's planned deposition in the circuit court proceedings filed and heard before Judge O'Barr, Reeves stated in paragraph three of the petition that Mary Beth Thomson was found in contempt and jailed. This statement, although in fact not true, was certainly entered in haste by mistake as the three attorneys claimed in writing and during the responses to questions by this Court at the show cause hearing. An examination of paragraph 4(e) in the petition clearly reveals the true concerns of the three attorneys. Paragraph 4(e) states:
Rather than testify against her husband, upon the advice of counsel, petitioner will assert her spousal privilege and lack of competency to be a witness when her deposition begins at approximately 1:00 p.m. today. Relying on the advice of counsel, petitioner will continue to assert her privilege even after the trial court orders her to answer certain questions. After continuing to refuse, the Court may hold petitioner in contempt, and order that she be arrested and placed in the custody of the Marion County Sheriff's Department. (emphasis added).
The inconsistency between the two paragraphs clearly shows no deliberate attempt to mislead this Court, but rather a simple, albeit negligent, mistake in drafting the language of the petition.
Frank Trapp, as supervising attorney of Gibbes and Reeves, on behalf of all three attorneys admitted the mistake, explained it satisfactorily and profusely apologized to this Court both by letter within one working day of his discovery of the mistake, and in person at the hearing conducted by a panel of this Court. At the hearing Trapp stated:
We made a mistake. We made an honest mistake, but it is a mistake, nevertheless . . .
. . . [T]he error is there. I take responsibility for it . . .
. . . [I]t is a false fact, but it was not done intentionally . . .
. . . [W]e made an error because we left something in there that shouldn't have been in there.
Frank Trapp was in chancery court in Mendenhall, Mississippi involved in other litigation on March 5th and was privy only to a single phone call from Gibbes concerning the chancellor's denial of Thomson's motions. Trapp, as supervising attorney simply explained to this Court and accepted complete responsibility for what was irrefutably a simple mistake by Reeves in filing inconsistent language in two separate paragraphs within the pleadings. At this Court's hearing Trapp exhibited the qualities of a gentleman in his willingness to assume responsibility for the actions of two young attorneys. More importantly, he reflected honesty, integrity and genuine character becoming to a member of the bar and officer of the Court. This writer would have expected no less from any lead attorney facing this same situation before the Court.
Carlton Reeves, at the Court's show cause hearing, also explained the drafting error he made in paragraph three of the petition. Reeves stated:
. . . and in our discussions about what could possibly happen, we left in the quote in Paragraph 3 that she was held in contempt and she was ordered to jail. In Paragraph 4, I believe, of that same petition, we note that — I think it is Paragraph 4.E., we talk about what could possibly happen prior to the one o'clock deposition. There are inconsistencies there and I take credit for those inconsistencies because Mr. Trapp was in Mendenhall, Mrs. Gibbes was in Marion County, and I was in Jackson prepared to do whatever we had to do to protect Mr. Thomson's rights.
And what about Laura Gibbes? Other Court members believe that she was not truthful, engaged in repugnant gamesmanship, and filed for relief before this Court on a frivolous issue which amounted to posturing between lawyers. An examination of the record on these findings clearly shows that the facts do not support such a position. I contend that the facts support Gibbes.
The transcript of the hearing before Chancellor Dale on the morning of March 5, 1991 reveals that in response to Eric Lowery's question as to whether or not at the conclusion of the hearing he could expect to have lawyers in Jackson standing by to rush over to the Supreme Court and get another writ, we find the following:
Ms. Gibbes: We are prepared to protect the rights of my client.
Mr. Lowery: So the answer I can assume is correct, yes. (emphasis added). If so Judge, I am certainly against her getting any order signed whatsoever. I'm tired of being lead piped.
The Court: I will follow my usual procedure that the order will be prepared by the prevailing counsel on the prevailing side and I directed them to prepare an appropriate order. When they do so, I will enter it. It better not be Frank Trapp [additional counsel for Thomson] that appears up there at the Supreme Court looking for an emergency today who couldn't be here and can't take the place and the things that he signs and so forth. (emphasis added)
At this Court's hearing, Gibbes, referring to events at the conclusion of the hearing on the morning of March 5th, stated:
Your Honor, I think when you look at the complete record in this case, the motion filed in this Court indicates that Mr. Lowery immediately following that hearing stated to me that he was going to give me a ten-minute head start to go and file my writ with the Supreme Court. (emphasis added).
The opinions of other members of this Court claim that Gibbes' response to Lowery that she would protect her client's rights was untruthful or somehow misleading to Lowery and the trial court. The record however, does not support that either Lowery or Chancellor Dale were mislead by this response of Gibbes. Admittedly, a better practice would have been for Gibbes in response to Lowery's question, to have simply replied, "yes." However, Gibbe's response clearly does not reflect untruthfulness on her part as the majority maintains. In plain English, both Lowery and the chancellor, by their responses, admit that they knew that relief was going to be immediately sought by the Phelps Dunbar attorneys before this Court. As the chancellor stated, "It better not be Frank Trapp . . ." And finally, as if there ever was any doubt that the attorneys would file for relief before this Court, we note Lowery's offer to give Gibbes a ten-minute head start to go and file the writ with the Court, and if the Court did not rule prior to 1:00 p.m., that the deposition would begin. This colloquy eliminates any question of a misunderstanding by Lowery as to what Gibbes intended to do in order to protect her client's rights.
Mary Beth Thomson's deposition commenced at 1:00 p.m., as scheduled. When the deposition was suspended at 1:17 p.m., the following statements were made by plaintiff's counsel:
By Mr. Phelps: We're going to conclude the deposition at this time, reserve the right to reconvene the deposition after ruling by the Supreme Court on the Petition that we have been advised is going to be filed by counsel for John Thomson.
By Mr. Lowery: At which time, then, Tom, we'll — based on the ruling of the Supreme Court, if they say continue, then we'll come back to the Court. . . .
Considering the above mentioned statements, how could some other Court members possibly claim that Gibbes misled counsel opposite and never gave notice of intent to file a petition before this Court? It is clear that the two attorneys, Lowery and Phelps, unequivocally knew a petition with this Court would be filed and were awaiting a decision.
Justice Lee attempts to totally rewrite Miss.Sup.Ct.R. 8, which only requires "reasonable notice" be given to all parties. Notice was given orally in "plain English" and understood by all involved well in advance of the filing of the petition with this Court. However, notice by mail was clearly furnished to all participants by Reeves when the petition was filed. The petition was denied at once by a three judge panel of this Court without requiring a response of Lowery as allowed by the rules. The three judge panel of this Court, based upon the "facts" within the petition, saw no need whatsoever to require a response from Lowery. Notice was given to all parties and counsel by the Supreme Court Clerk at 4:00 p.m. on March 5, 1991.
The petition was filed pursuant to Rules 8 and 21 of the Mississippi Supreme Court Rules. Rule 8, providing the procedure for seeking a stay in this Court, requires that "[r]easonable notice of the motion [for stay] be given to all parties." Miss.Sup.Ct.R. 8(c). Rule 21(a) provides:
Application for a writ of mandamus or prohibition directed to a judge or judges shall be made by filing a petition with the clerk of this Court with proof of service on the judge or judges and on all parties to the action in the trial court.
Miss.Sup.Ct.R. 21.
Reeves gave notice by mail as to the filing of the petition upon the trial court and counsel opposite on March 5, 1991. My research has failed to produce a single case in which this Court has addressed the timeliness of service of pleadings under Rule 8 or Rule 21. Reeves sufficiently provided reasonable notice under the unusual facts of this case.
However, after Justice Lee's pronouncement, the Bar should forever be forewarned that notice in person, telephonic notice, or a facsimile ("fax"), might henceforth be required by some members of this Court in order to adequately satisfy the "reasonable notice" requirements of Rule 8 and failure to comply might result in the imposition of sanctions against the attorney violating this new pronouncement of the majority.
The previous paragraph raises the remaining question of what prejudice and costs, if any, did Lowery suffer? The answer is a resounding "none whatsoever." On March 5, 1991, a three judge panel of this Court, consisting of Presiding Justice Dan Lee, Justice Chuck McRae, and the author of this opinion, had already routinely addressed other various motions when informed by a staff attorney that a forthcoming petition for relief would be filed shortly after a lunch break, but before 1:00 p.m. because the complained about deposition was scheduled at the same time. The deposition of Mary Beth Thomson was suspended at 1:17 p.m. Reeves did not file his petition before this Court until 1:31 p.m. Justice Lee makes much ado about this fact yet Reeves, in response to this Court's questions at the Court's hearing, stated that he did not know that the deposition had been suspended when he filed for relief before this Court. This is unrefuted in the record before this Court. Considering Reeves' time constraints under these circumstances, his statement is both reasonable and believable. More importantly, this Court denied Thomson's requested relief, based on the "facts" within the petition, without requiring a response by Lowery. This procedure is exactly what the rule allows the Court to do if it so chooses. There was absolutely no need for Lowery to file for sanctions.
On Monday, March 5, 1991, Frank Trapp promptly sent a letter of apology to this Court, when he first learned of the mistake in paragraph three of the petition filed by Reeves. Trapp had also attempted to talk with Lowery and apologize, but Lowery refused to talk with Trapp. This fact was supported by the telephone records of the Phelps Dunbar law firm which were introduced at this Court's show cause hearing. Lowery argued that in spite of the acknowledgment to this Court of the mistake in paragraph three of the pleadings by Trapp, he nevertheless had a responsibility to correct the record and did so by filing a motion to correct and for sanctions. It is clear that Lowery suffered no prejudice, attorneys fees or cost in this matter.
In conclusion, both Lowery, Phelps, and the Phelps Dunbar attorneys agree that paragraph three of the petition contained a misstatement of the procedural posture of the case and that the record should be corrected to eliminate that misstatement. The deposition was already concluded when the panel of this Court considered the petition, a quick status check with the lower court by a staff attorney revealed that Mary Beth Thomson was not held in contempt nor jailed by the chancellor. This fact was made known to the three judge panel. The order of the three judge panel of this Court denying relief to Thomson stated that the request was denied based upon the alleged "facts" of the petition. This Court should grant Lowery's motion to correct.
Regarding the imposition of sanctions under our rules, some of this Court's members have erroneously suggested that the petition's requested relief was frivolous, that Thomson's attorneys acted unreasonably in serving notice of the petition by mail rather than personal service, telephonic transmission, or by facsimile, "fax"; used improper conduct and repugnant gamesmanship; and were guilty of posturing between lawyers. I disagree and believe that a dangerous precedent would be set by this Court if such a position had actually become a majority opinion.
Other writers chastise the three Phelps Dunbar attorneys for the negligent misrepresentation of material facts contained in paragraph three of the petition and completely ignore the accurate, true concerns of the Phelps Dunbar attorneys as stated in paragraph 4(e) of the petition. May I again suggest that if this Court were to adopt such imposing standards under the facts of this case we would be setting a very dangerous precedent. Mistakes such as this can and do occur in practically every zealously pursued trial advocacy proceeding. Case in point being the oral argument before this Court in the case sub judice. What do those Court members with opposite views propose this Court do about the misstatement of a material fact by Lowery during the show cause hearing before this Court? Lowery told this Court that the deposition of Mary Beth Thomson was terminated: . . . "This Court could not have stopped the deposition which had already taken place. We were on the road back to Hattiesburg. It was over . . ." In fact, as pointed out by Trapp, the hearing was only suspended at 1:17 p.m., not terminated. This was certainly not a deliberate falsehood by Lowery, but rather a simple mistake. Do we sanction Lowery? How absurd, of course not.
Additionally, Trapp pointed to the factual error of Lowery who told this court's three judge panel that, "at lunchtime on March 5th, 1993, Tom Royals said there was going to be a pleading filed with the Supreme Court." "But, if you look at his motion for sanctions, he said Mr. Royals didn't know about it and had not been told to anticipate it, or words to that effect, if you look at it." Trapp, was not advocating sanctions upon Lowery but rather was simply using these clearly material misstatements of facts by Lowery as an example to show what attorneys sometimes say or do during the "heat of advocacy." As Trapp so ably put it, "It doesn't excuse them, but it is just part of what goes on with the human element we bring to it." The old adage "what is good for the goose, is good for the gander" could very easily have applied in this case. Yet, it is noted with interest that the other members of this Court with opposing views did not propose to apply their pronouncements evenhandedly within this case.
Therein we find the danger in imposing such a strict, over-interpretation of our rules under the facts of this case. Such an opinion would open the flood gates to a barrage of requests for sanctions due to some supposed egregious conduct or statements made by opposing attorneys during the heat of zealous trial advocacy.
No grounds for sanctions against these attorneys exist under Rule 36 or Rule 38, as the petition is not an appeal. Lowery only cited these two rules which are directed to matters which are before this Court on direct appeal of final orders of the trial court or on interlocutory appeal by permission of this Court. Lowery failed to cite other authority for the imposition of sanctions.
However, the Thomson attorneys asked for a hearing under Rule 2(b) and this Court complied with that request. The only possible means of considering sanctions at all is through Rule 46(d), which allows sanctions, sua sponte. What rules of the Court have been violated by these attorneys? None. The only other aspect of the rule that the other Court members can claim the attorneys have violated is "conduct unbecoming a member of the bar." This is where they stretch their opinions dramatically. These other opinions escape the confines of "conduct unbecoming" under Rule 46(d) and promptly scatters findings of violations of Rule 8(c), Rule 36 and Rule 38, none of which are supported by this record.
The trial court ruled on the competency issue in a manner without a doubt completely contrary to the plain language of M.R.E. 601(A), and to Miss. Code Ann. § 13-1-5 (Supp. 1992), and to another trial court's ruling in the same county, involving the same parties, same attorneys, and the same issue of privilege and competency in a similar civil case in which Thomson was also a defendant. Other Court members conveniently ignore these facts. In fact, Justice Lee admits that he avoids addressing this issue, the very underlying cause of the situation we now address. We do a disservice to the Bar by failing to address the root cause of this conflict because a similar erroneous ruling clearly is capable of being repeated by our trial courts unless guidance is furnished on this issue by this Court. This is especially true when both Rule 601 and § 13-1-5 are so abundantly definite on this issue.
PRATHER, P.J., and JAMES L. ROBERTS, Jr., J., join this opinion.