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Garner v. Smith

Supreme Court of Mississippi

June 27, 2019

H.R. GARNER
v.
DAVID SMITH

          DATE OF JUDGMENT: 08/15/2018

          DESOTO COUNTY CHANCERY COURT HON. VICKI B. DANIELS TRIAL JUDGE.

          TRIAL COURT ATTORNEYS: ELIZABETH PAIGE WILLIAMS KURT STEVEN SAUL, JR. GORDON CHARLES SHAW, JR. H. R. GARNER LEIGH A. RUTHERFORD JERRY WESLEY HISAW WILLIS HANKS JOLLY, III MELISSA CAROLYN DABAR

          ATTORNEY FOR APPELLANT: JERRY WESLEY HISAW

          ATTORNEY FOR APPELLEE: GORDON CHARLES SHAW, JR.

          BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

          MAXWELL, JUSTICE.

         ¶1. A standing order in the Third Chancery Court District sets motion days in advance and assigns the particular judge who will preside that day. This practice is explicitly authorized by Uniform Chancery Court Rule 1.06(C). Under this rule, judges may hear all Mississippi Rule of Civil Procedure 81(d) matters-including contempt proceedings-on their assigned motion day, even in cases not assigned to that particular judge.

         ¶2. H. R. Garner, a practitioner in the Third Chancery Court District, knew the directives of this standing order. Yet Garner still claimed that his opposing counsel was judge shopping by filing a contempt petition against Garner's client and issuing a Rule 81(d) summons that noticed a hearing before a judge who had not been assigned the case. Although his opponent's actions were authorized by Rule 1.06(C) and the District's standing order, Garner filed what amounted to a hopeless motion to quash and for sanctions against him.

         ¶3. In a twist, the Honorable Vicki B. Daniels-the judge actually assigned the contempt case-heard Garner's motion to quash and request for sanctions, which Garner continued to pursue even though he was in front of his preferred judge. After reviewing the motion, Judge Daniels found what Garner's opposing counsel had done was a "common practice" and was not improper. This prompted Garner's opposing counsel to urge Judge Daniels to instead sanction Garner for filing a hopeless and frivolous motion, which she did. Judge Daniels sanctioned Garner and his client $1, 000 under Rule 11 and the Litigation Accountability Act.

         ¶4. Seeing no abuse of discretion in Judge Daniels awarding sanctions against Garner, this Court affirms.

         Background Facts and Procedural History

         ¶5. This appeal stems from a lengthy chancery court battle in which Judge Percy Lynchard had already ordered Garner's client, April Garner, to pay $8, 742.50 in sanctions and attorneys' fees to David Smith. Per Judge Lynchard's order, April was required to pay at least $500 per month beginning June 1, 2018, with the entire amount due within 180 days. But June and then mid-July passed without April making any payments. So David filed a petition to cite April for contempt. Because the underlying litigation had ended and was on appeal, David filed his contempt petition as a new action. Although Judge Lynchard had presided over the underlying litigation, David's contempt petition was assigned to Judge Vicki Daniels.

         ¶6. Since David's petition was for contempt, he issued a Mississippi Rule of Civil Procedure 81(d) summons. The summons noticed a July 25, 2018, 9:00 a.m. hearing at the Tate County Courthouse. By standing order, that date and time had been reserved for hearings before Judge Lynchard, not Judge Daniels. April's counsel, Garner, was upset about this. And he responded by filing a motion to dismiss the petition, arguing service under the summons was improper. While the standing order's terms permitted David to proceed in this manner, Garner insisted David violated Uniform Chancery Court Rule 1.06(A) by ...


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