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Smith v. Hickman, Goza & Spragins, PLLC

Supreme Court of Mississippi

January 17, 2019

RALPH ARNOLD SMITH, JR., NORTH CENTRAL MISSISSIPPI REGIONAL CANCER CENTER, INC. AND WILLIAM C. BELL
v.
HICKMAN, GOZA & SPRAGINS, PLLC AND CHAPMAN, LEWIS & SWAN, PLLC

          DATE OF JUDGMENT: 01/09/2017

          LEFLORE COUNTY CIRCUIT COURT HON. L. BRELAND HILBURN TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: LAWRENCE JOHN TUCKER, JR. JEFFREY JOHNSON TURNAGE RALPH EDWIN CHAPMAN H. SCOT SPRAGINS TIMOTHY HUTSON JONES

          ATTORNEY FOR APPELLANTS: WILLIAM CHARLES BELL

          ATTORNEYS FOR APPELLEES: H. SCOT SPRAGINS RALPH EDWIN CHAPMAN LAWRENCE JOHN TUCKER, JR.

          BEFORE KITCHENS, P.J., KING AND BEAM, JJ.

          KING, JUSTICE.

         ¶1. This appeal is yet another part of the many civil and criminal cases arising out of the attempted murder of Lee Abraham, allegedly orchestrated by Dr. Arnold Smith. The trial court sanctioned Smith's attorney, William Bell, for violating its order sealing a portion of a document. Because the trial court did not abuse its discretion in sanctioning Bell, this Court affirms.

         FACTS AND PROCEDURAL HISTORY

         ¶2. This appeal arises out of the civil case in LeFlore County between Lee Abraham and Dr. Arnold Smith. In March of 2014, during the course of discovery, Smith filed his Notice of Experts and the Expert Report of Michael Levine dated March 16, 2014 ("Expert Report") with the circuit clerk of LeFlore County, making these discovery documents part of the public record of the case. The Expert Report contained salacious allegations regarding Abraham. In an April 2014 hearing, the circuit court stated that "[a]ny discovery to be filed with the Court will be done only by court order. There will not be any discovery filed with the clerk of the Court unless it is authorized by the Court." The circuit court further ruled from the bench that it planned "to enter an order sealing all discovery documents that have been filed in the court record." In July 2014, the circuit court entered a written agreed order sealing paragraph B.7 of the Expert Report. Smith agreed to this order and did not appeal it. In August 2014, Smith submitted a second expert report by Levine ("Supplemental Expert Report"). The substance of the Supplemental Expert Report was much the same as the original Expert Report, expanding on it, but the organization and formatting was somewhat different. In December 2014, Smith filed the Supplemental Expert Report in a chancery court commitment proceeding, in support of his motion to exclude the Attorney General. Shortly thereafter, Abraham filed a Motion for Contempt in the circuit court based on the order sealing paragraph B.7. Abraham argued that filing the Supplemental Expert Report violated the court order, the Litigation Accountability Act, Rule 11, and/or Rule 37. In January 2015, Smith filed a complaint against Abraham with the Mississippi Bar and attached the Supplemental Expert Report. Abraham filed a Supplemental Motion for Contempt based on this action. At a hearing on the first contempt motion in January 2015, the circuit court stated that "you understand that filing a different document that says the same thing as the document that this Court sealed would still be a violation as far as I'm concerned of the order of this Court." The court further noted that "[i]f Mr. Levine went and rewrote the same document, just put another date on it and it was filed in another proceeding, then that still circumvents the order of this Court." At the same hearing, counsel for Smith noted that Rule 37 allows the court to sanction a party for not complying with discovery orders and stated "obviously your Honor has the discretion to enter sanctions if he wants to. I'm not suggesting you don't have the power to do that. But Rule 37 is certainly not the way to go . . . ." Counsel further stated "the Court certainly has discretion if the Court is inclined to sanction, and nobody would argue that you don't, but I think it's obvious that the filing was made in good faith for good cause." The court concluded that it wanted a summary of the Expert Report and the Supplemental Expert Report to determine if the sealed information had indeed been filed in other proceedings.

         ¶3. In October 2016, Abraham filed a Second Supplemental Motion for Contempt and Other Sanctions for additional public filings Smith made of the Supplemental Expert Report. After the January 2015 hearing, Smith publically filed the Supplemental Expert Report at least five times: twice in filings in the same case in the United States District Court for the Southern District of Mississippi, once in a separate case in the Southern District, and twice in filings to this Court. The circuit court held a hearing on the Second Supplemental Motion for Contempt and Other Sanctions. The court ultimately determined that sanctions against Smith's attorney, Bell, were warranted under Rule 37. It asked Abraham's attorneys to email a fee bill for the amount spent pursuing the claims regarding the published sealed document. After they did so, the court gave Smith/Bell an opportunity to file any objections to the fee bill. Smith filed a document that challenged the substance of the court's ruling, but hardly addressed the fees themselves. The court then ordered that Bell pay Abraham's attorneys a total of $28, 328.40.

         ¶4. Bell appeal the sanction, arguing that 1) no Rule 37 order existed under which to award sanctions, 2) even if Rule 37 applied, it did not allow the court to order that sanctions be paid to lawyers, 3) the trial court should have struck the fee bill as "sham and false" pursuant to Rule 11, 4) the trial court failed to make findings of fact and conclusions of law under Rule 52(a), 5) the trial court should not have considered the fee bill submitted because it was emailed to the judge by a paralegal, which, Bell argues, amounts to the unauthorized practice of law, 6) no credible evidence supported the sanctions, 7) no evidence as to the reasonableness of the fees exists in the record, pursuant to Rule 1.5 of the Mississippi Rules of Professional Conduct, 8) parts of the record were unlawfully and illegally sealed, and 9) cumulative error and overall unfairness deprived Bell of due process.

         ANALYSIS

         1. ...


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