IN THE SUPREME COURT OF MISSISSIPPI NO. 2018-CA-01242-SCT H.R. GARNER

v. DAV ID SMITH

DATE OF JUDGMENT: 08/15/2018 TRIAL JUDGE: HON. VICKI B. DANIELS TRIAL COURT ATTORNEYS: ELIZABETH PAIGE W ILLIAMS KURT STEVEN SAUL, JR. GORDON CHARLES SHAW , JR. H. R. GARNER LEIGH A. RUTHERFORD JERRY W ESLEY HISAW W ILLIS HANKS JOLLY, III MELISSA CAROLYN DABAR COURT FROM W HICH APPEALED: DESOTO COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: JERRY W ESLEY HISAW ATTORNEY FOR APPELLEE: GORDON CHARLES SHAW , JR. NATURE OF THE CASE: CIVIL - OTHER DISPOSITION: AFFIRMED - 06/27/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE KING, P.J., MAX WELL AND GRIFFIS, JJ.
MAX WELL, JUSTICE, FOR THE COURT: ¶1. A standing order in the Third Chancery Court District sets m otion day s in advance and assigns the particular judge who will p reside that day

. This practice is explicitly authorized by Unif orm Chancery Court Rule 1.06(C). Under this rule, j udges m ay hear all Mississippi Rule o f Civil Procedure 81(d) m atters—including contem pt p roceedings—on their assignedm otion 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 o rder. Yet G arner still claim ed t hat his opposing counsel was judge shopping by f iling a contem

pt petition against Garner’s client and issuing a Rule 81(d) s um m ons that noticed a hearing bef

ore a judg e w h o had not b een assigned the case. Although his opponent’s actions were a uthorized by Rule 1.06(C) and the D istrict’s standing order, Garner f iled what am ounted to a hopeless m otion to quash and f or sanctions against him

. ¶3. In a twist, the Honorable Vicki B. Daniels—the judge actually a ssigned the contem pt case—heard Garner’s m otion to quash a nd request f or s a nctions, w hich Garner continued to
pursue even though he was in f ront of his pref

erred judge. Af

t er reviewing the m o tion, Judge Daniels f ound what Garner’s opposing counsel had d one was a “com m on p ractice” and was
not im proper. This prom

pted G a r n e r ’s opposing counsel to urge Judge Daniels to instead sanction Garne r f

or f iling a hopeless and f

rivolous m otion, which s h e d id. J u dge Daniels sanctioned Garner and h is c lient $1,000 under Rule 11 and t he Litigation Accountability Act. ¶4. S e e ing no abuse of discretion in Judge Daniels a warding sanctions again s t G a r n e r , t h i s Court af f i rm s. B ackground Facts and Procedural History ¶5. This appeal stem s f rom a l e n g t

h y c h ancery c ourt battle in which Judge P ercy Ly nchard had already ordered Garner’s client, April Garner, to p ay $8,742.50 in sanctions and attorney s’ f

e es t o David S m ith. P er Judge Ly nchard’s order, April was required to pay at least $500 per m onth beginning June 1, 2018, with the entire am ount due within 180 day s.

2But June and t h e n m id-July passed w ithout April m a king any pay m ents. So David f

iled a petition to cite April f

or contem p t. Because the underly ing litigation had ended and was on appeal, David f

iled h is contem

p t petition as a new action. A lthough Judge L y nchard had presided over the underly i ng litigation, D avid’ s c o ntem pt petition was assigned to Judge Vicki Daniels. ¶6. Since Dav i d ’ s p e t i t i o n w a s f or contem

pt, he issued a M ississippi Rule of Civil Procedure 81(d) sum m ons. The sum m ons n oticed a July 25, 2018, 9 :00 a.m . h earing at the
Tate County Courthouse. B y standing order, that d ate and tim e had been r e s e r v ed f or hearings bef

ore J udge Ly

nchard, not Judge Daniels. A pril’s counsel, Garner, w as up s et about this. And he responded by f iling a m otio n t o d i s miss the petition, a r guing service

u n d e r t h e sum m ons was im proper. W hile t he standing order’s term s perm itted David t o proceed in this m an n e r , G a r ner insisted David v iolated Unif orm Chancery Court Rule 1.06(A) by setting a hearing bef ore Judge L y

nchard when the case was assign e d t o J udge Daniels. Though he lacked a legitim ate basis, Garner r e q u ested sanctions and attorney s’ f ees. ¶7. On July 1 9, 2018, G arner received an em a i l f r o m a court adm inistrator explaining, “[ i]t is f ine [ f o r David] to have the Rule 8 1 Sum m ons” returnable to Judge Ly nchard. But the adm inistrator explained Judge Ly nchard was not able to hear the m atter. Instead, the case would be continued f

or Judge D aniels t o hear it. C uriously , t h e n e x t d a y , Garner f iled a

m otion, t h i s t i me to quash the petition, bef ore Judge Daniels. In it, he argued David’s

sum m ons violated Rule 1 .06(A)’s prohibition against judge shopping, venue w as im proper,

3and service of process was insuf

f icient. ¶8. On July 2 3, 2018, J u d g e D a niels h eard Garner’s m otion to quash. At that hearing,
Garner argu e d D a v i d im p roperly served April a nd violated Rule 1.06(A). Garner was f am iliar with the special order that had b een signed on S e p t e mb e r 1 3, 2017, by Judge Ly nchard, the s enior chancellor f or the District. B ut h e argued the order am ounted to an invalid “local rule,” because it had never been approved by this Court. And even s o, Garner argued it did not apply to R ule 81(d)(2) m atters. In Garner’s view, the sum m ons should have been m ade returnable to Judge Daniels who had been assigned the contem pt petition. ¶9. Judge Daniels disagre e d

. S h e f o u n d J u d g e L y

n c h a r d ’ s standing order sim ply im p lem ented w hat is expressly authorized by Rule 1.06(C)—it set m otion practice day s and judicial assignm ent in advance and stated that a Rule 81(d) s um m o ns m ay be m ade returnable

to any chancellor. Judge Daniels em phasized that wh a t D avid did here was “a com m on practice” and that “he [ was] not try ing to pull a f ast o ne.” A s she put it, David had not “done
any thing im proper.” Because David’s sum m ons com plied w ith these rules, Judge Daniels denied the m otion to quash. ¶10. At this point, D avid m a de a verbal m otion f o r s anctions against April and Garner f or f iling a f rivolous m otion. A nd Judge Daniels sanctioned t he two under Mississippi Rule of Civil Procedure 11 and the Litigation Accountability Act of 1988 (Act). She assessed $1,000
i n a ttorney s’ f

ees and expenses against A pril a nd Garner. But Judge Daniels event u a l l y released April f

rom these sanctions. Garner now appeals the sanctions award t o this Court.

Discussion

4¶11. This Court reviews a trial judge’s sanctions awards f or ab u s e o f d i s c r etion. In re Spencer , 985 So. 2d 330, 336- 3 7 (Miss. 2008). Absent a clear error of j udgm ent, the trial court’s decision will be af f irm ed. Id.
I. Motion to Quash ¶12. G a r n e r ’ s a r g u me n t i s t w o f o l d and i nvolves the special order s igned by Judge Ly nchard. First, he argues Rule 81(d)(2) m atters in the Third Chancery Court District m ay only be heard by

the judge t o whom the case is assigned. And theref o re David’s sum m ons returnable bef

ore J udge Ly

nchard violated Rule 1.06(A) because he was a ttem p ting to judge

s h o p. 1 His second attack hinges on his belief t hat the standing order signed by J u d g e Ly nchard is really a local rule. And because this Court never approved it, G arner argues the order violates Rule 1.06(C). 2 Af ter review, both argum ents are baseless.

1 U n if o rm C h an cery

C o u rt R u le 1 .0 6 ( A ) states,
In m u lti-j u d g e d ist r i c t s an d c o u r ts, all civ il cases sh all b e assig n ed im m e d iately o n th e f

ilin g o f th e co m

p lain t b y s u ch m e th o d w h i ch sh all in su re th at th e assig n m en t sh all b e ran d o m , th at n o d iscern ab le p attern o f assig n m en t ex ists, an d th a t n o p erso n sh all k n o w to w h o m th e case w ill b e assig n ed u n til it h as b een assig n ed

. If an atto rn ey o r p a r ty sh all attem

p t to m an i p u l a te o r d ef eat th e p u rp o se o f

th is ru le, th e case sh all b e reassig n e d to th e j u d g e w h o w o u ld h a v e o th erw ise receiv ed th e assig n m e n t

. If th e j u d g e w h o w o u ld h av e receiv e d th e case u n d er an assig n m en t in co m p l ian ce w ith th is ru le can n o t b e d e t e r mi n e d , a n ew assig n m en t in co m p l ian ce w i th th e ru l e sh all b e m ad e, ex clu d in g th e j u d g e to w h o m it w as in co rrectly assig n ed

. S an ctio n s, in clu d in g co sts an d atto rn ey ’s f

e es, m ay b e im

p o s ed b y th at j u d g e o n reassig n m en t. S u ch sa n c t i o n s m a y also in clu d e su sp en sio n f ro m p ractice i n th e co u rt im p o s in g th em f o r n o t m o re th an 3 0 d ay s an d ref e r ral to th e B ar f

o r f u rth e r d iscip lin e.

2 U n if o rm C h an cery

C o u rt R u le 1 .0 6 ( C ) states,
In d i st r i c t s w h ere m o t io n d ay s are set in ad v an ce w ith j u d g es sp ecif i cally assig n ed , p relim i n ary p ro ced u ral m atters a n d t h o se en u m erated u n d er 5A. W ho May Hear Rule 81(

d) Summonses ¶13. Unif

orm Chancery Court Rule 1.06(A) g en e r a l l y p r o h i b i t s a t t o r ney s f rom judge shopping. But Judge Daniels f ound David’s actions were above b oard and p erm i tted under this rule. Indeed, there is a n enum erated e x ception i n Rule 1 .06(C) f o r districts—like the Third C hancery Court D istrict—that set m otion day s i n advance, with specif ically assigned judges. In these districts, parties m ay have both prelim inary procedural m atters “and those

m atters enum erated under M.R.C.P. 81(d)(1) and (2)

. . .” heard b y the judge a s signed such duties—even if the underly i ng case is not assigned to that judge. UCCR 1.06(C). ¶14. Despite citing Rule 1.06(C), which applies to both Rule 81(d)(1) and (2) sum m ons, Garner claim ed Judge Ly

nchard’s standing o rder was m ore restrictive, a pply ing only to Rule 81(d)(1) m atters. But this assertion is s im ply wrong. The standing order by its express term s applies to all “81(d)” sum m ons e s. So Rule 81(d)(2) 3 s um m o nses f or contem

pt are clearly

M .R .C .P

. 8 1 (d )(1 ) an d (2 ) m ay b e su b m itted to th e j u d g e a ssig n e d su ch d u ties, n o tw ith stan d in g th e f

act th at th e case h as b een assig n ed to an o th er j u d g e. F u rth erm o re, b y lo cal ru l e ap p ro v ed b y t h e S u p rem e C o u rt, th e trial co u rt m ay m ak e sp ecial p ro v isio n s acco m m o d atin g lo cal n eed s o f eco n o m y an d ef f icien cy w h ich m ig h t

o th erw ise b e at v arian ce w ith th is ru le.

3 M ississip p i R u le o f

C iv il P ro ced u re 8 1 (d )(2 ) states,
T h e f o llo w in g actio n s an d m atters sh all b e triab le 7 d a y s af t er co m p letio n o f serv ice o f p ro cess in an y m an n er o th e r th a n b y p u b licatio n o r 3 0 d ay s af ter th e f irst p u b licatio n w h ere p ro c ess is b y p u b licatio n , to w it: rem o v a l o f d isab ilities o f m i n o rity ; tem

p o rary relief in d iv o rce, sep arate m ain ten an ce, ch ild cu sto d y , o r c h ild su p p o r

t m atters; m o d if

icatio n o r e n f

o rcem en t o f cu sto d y , s u

p p o rt, a n d alim o n y j u d g m e n ts; co n tem p t ; an d e s tate m atters an d w ard s ’ b u sin ess in w h ich n o tice is req u ired b u t th e tim e f o r n o tice is n o t p rescrib ed b y s tatu te o r b y su b p a rag rap h (1 ) ab o v e. M .R .C

. P . 8 1 (d ) ( 2 ) (em

p h a sis ad d ed ). 6covered b y the standing order. Theref o re, Garner’s m otion t o quash—prem ised o n alleged judge shopping—was wholly unf ounded and without justif ication.
B. The Special Order Need Not Be Approved as a Local Rule ¶15. There is also no m erit to Garner’s argum ent that by not obtaining approval f rom this
Court the standing order lacked t eeth. W hile Garner is correct that som e standing orders do require this Court’s approval, this order is not one of them

. The ty pe of local rule requiring this C ourt’s appro v a l a r e those t hat conf lict with or vary f

r om Rule 1.06. The rule itself

s p e l ls this out: “Furtherm ore, by local rule approved by t he Suprem e Court, the trial court

m ay m ake special provisions a ccom m odating local n eeds of econom y and ef f iciency which

m ight o therwise be at variance with this rule .” UCCR 1.06(C) (em phasis a d ded). However, this orde r

— a s J u d ge Daniels correctly interpreted it—is nothing m ore than an order im p lem enting Rule 1.06(C). The order sets out the m otion day s f or e ach of the chancellors in the district and states that “all [ R]ule 81(d) Sum m o ns shall be m ade returnable to a Rule 81(d) Sum m o ns R e t u r n Date bef ore any chancellor.” The order m akes no distinction b e t w e e n 8 1(d)(1) and ( 2) m atters. And it contains no “special p rovisions” that v a r y f r o m Rule 1.06. Thus, it need not be approved by this Court. For these re asons, David’s Rule 81(d ) s u m mo n s noticing a hearing o n his contem pt petition bef

ore Judge Ly

nchard was clearly perm issible under the rules.
II. Sanctions ¶16. As discussed, Garner’s m otion to quash and f or sanctions had zero chance of success when it was f

iled.

7¶17. The Litigation Accountability Act of 1988 grants t rial cou r t s a u t h o r i t y to sanction

attorney s a nd parties f

or f ilings m ade without s ubstantial justif ication or otherwise intended

to harass or delay

. S

ee M iss. Code Ann. § 11-55-5(1) (Rev. 2012). An action or f iling m ade without substantial justi f i c a t i o n i s one that “is f

rivolous, g roundless in f

act or in law, or vexatious, as determ ined by the c ourt.” Miss. Code Ann. § 11-55-3(a) (Rev. 2012). Rule 11 likewise authorizes trial judges who f ind a m otion or pleading i s either f rivolous or f

iled to harass or delay to s anction the sponsoring party , their attorney , or both. See M .R.C.P. 11; see also McNeese v. McNeese , 1 29 S o. 3d 125, 130-31 (Miss. 2013); Leaf R iver F orest Prods.,
Inc. v. Deakle , 661 So. 2d 188, 196-97 (Miss. 1995). ¶18. This Court uses the sam e test under Rule 11

— t o d e c i d e i f f ilings a re f

rivolous—as it does when assessing f

ilings under the Litigation Accountability Act of 1988. S ullivan v. Maddox , 1 22 So. 3d 75, 8 5 (Miss. 2013). “A claim is f rivolous when ‘ objectively s peaking, the pleader or m ovant has no hope of success.’” Id. (quoting Deakle , 661 So. 2d at 195). ¶19. Rule 1.06(C) authorized David’s Rule 81(d) sum m ons. And Garner knew the Third Chancery Court District sets m otion d ay s in advance with assigned judges. He a l so adm itted that assigned c hancellors could hear at least some Rule 81(d) m atters, regardless of whether the c ase had been assigned to them

. But Garner s till proceeded to c laim David “willf ull[ y ]” f ailed t o f ollow Rule 1.06—even though the rule and the standing o rder allows judges to hear all Rule 81(d) m atters brought b e f ore them on a mo t i o n d a y . Because Judge Ly nchard’s order m erely im

plem ented Rule 1.06(C), Garner’s m otion to quash and request f or sanctions

a g a i n s t David had no h ope of success. And Judge Daniels did not abuse her discretion b y

8sanctioning April and Garner.

III. Mississippi Rule of Appellate Procedure 38 ¶20. In his brief

, David argues that Garner’s appeal i s f r i v olous. He asks this Court to award him dam a ges and costs f o r responding to t he app e a l

. U n d e r M ississippi Rule of Appellate Procedure 38, this Court shall award dam ages and c osts to the appellee if the Court determ ines an appeal is f

rivolous. See M.R.A.P. 38. T his C o urt applies the s am e frivolousf iling test to appeals as it does f or Rule 11 or Litigation A ccountability Act o f 1988 m atters. See In re Estate of Cole v. Cole , 256 So. 3d 1156, 1160 (Miss. 2018). Here, Garner is not challenging the chancellor’s ruling on the m otion to quash, which would have had no hope of s uccess. Instead, he is asking t his Court to review the chancellor’s discretionary decision

to award sanctions. B ecause of this distinction, we disagree that the appeal is f rivolous, and we decline to award dam ages and appeal costs to David.
Conclusion ¶21. Rule 1.06 m akes no distinction between Rule 81(d)(1) a nd (2) m atter s . And Judge Ly nchard’s s p e c i a l o rder m erely im plem ents Rule 1.06(C). David’s R ule 81(d) sum m ons

was p roper, and Jud g e L y nchard was authorized to hear David’s contem p t petition. Theref ore, Judge Daniels did not abuse her discretion by sanctioning A pril and Garner f or pursuing a m otion that had no chance of success. ¶22. AFFIRMED.
R A N D O L P H , C . J . , K

I T C H E N S A N D K

I NG, P .JJ., COLEMAN, BEAM, I S H E E AND GRIFFIS, JJ., CONCUR. CHAMBERLIN, J., NOT PARTICIPATING.

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