In Re: Carlos Moore ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CA-00137-COA
IN RE: CARLOS MOORE APPELLANT
DATE OF JUDGMENT: 12/01/2017
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: LEFLORE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: CARLOS E. MOORE (PRO SE)
WILLIE T. ABSTON
ATTORNEYS FOR APPELLEE: HARRIS FREDERICK POWERS III
TOMMIE G. WILLIAMS
TOMMIE GREGORY WILLIAMS JR.
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 05/28/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE BARNES, C.J., TINDELL AND LAWRENCE, JJ.
TINDELL, J., FOR THE COURT:
¶1. On December 1, 2017, the Leflore County Circuit Court granted Greenwood Leflore
Hospital’s motion for sanctions against Carlos Moore after Moore failed to appear on his
client’s behalf at a bench trial held on September 5, 2017. Moore subsequently filed
unsuccessful motions for reconsideration and for an evidentiary hearing on the motion for
reconsideration. On January 26, 2018, Moore filed a petition for an interlocutory appeal, and
the Mississippi Supreme Court determined that Moore’s petition should be treated as a notice
of appeal. On appeal, Moore challenges the circuit court’s denial of his motion for
reconsideration and its failure to rule on his motion for an evidentiary hearing. Finding no
error, we affirm the circuit court’s denial of Moore’s motion.
FACTS AND PROCEDURAL HISTORY
¶2. On January 30, 2014, Moore filed a medical-negligence complaint against Greenwood
Leflore Hospital (“the Hospital”) in the circuit court on behalf of the plaintiff, Lue R.
Sanders.1 At some point over the next two years, Moore associated with the firm of “Brown,
Bass & Jeter, PLLC” as additional counsel. But the firm’s first appearance on the record
came on June 14, 2016, when Katrina Brown and Lillie Evans Bass filed a second amended
designation of experts on behalf of Sanders. Until that point, Moore had been the sole
attorney of record for Sanders, having executed and filed all pleadings and discovery
submissions. Moore also entered into the first agreed scheduling order on Sanders’s behalf.
¶3. On December 5, 2016, the circuit court entered an agreed order, setting trial for
September 5, 2017, which was signed by Brown and the Hospital’s counsel. The record does
not indicate that Moore ever objected to this agreed trial date, nor does it include any
evidence that Moore sought to withdraw as Sanders’s counsel in the nine months leading up
to trial. On August 18, 2017, Brown and Bass filed a motion to withdraw as counsel on
behalf of Brown, Bass & Jeter, PLLC, citing a conflict of interest. In the motion, Brown and
Bass advised the circuit court that the firm had no attorney-client agreement or any contract
with Sanders and that they were associated on the case through Moore. They also contended
that their withdrawal as Sanders’s counsel would not unreasonably delay the case or cause
prejudice to the parties because Moore would remain Sanders’s attorney of record. Moore
did not object to the withdrawal or file a response to the firm’s motion. The Hospital agreed
to the firm’s withdrawal in its response, and the circuit court granted the firm’s motion on
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Claims against Dr. Raymond P. Girnys and Delta Surgical Clinics were also filed
in this complaint, but these claims were dismissed on April 8, 2014.
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August 29, 2017, noting that Moore “shall remain attorney of record for [Sanders].”
¶4. On August 31, 2017, Moore filed a motion to continue the trial on behalf of Sanders
on the grounds that (1) Brown and the firm of Brown, Bass & Jeter, PLLC withdrew on
August 29, 2017, and (2) Moore had a scheduling conflict on September 5, 2017, and would
be out of state. Moore also filed a motion to withdraw as counsel, arguing that (1) he and
Sanders “reached an impasse on how to proceed with her case,” (2) Brown and the firm of
Brown, Bass & Jeter, PLLC withdrew on August 29, 2017, and (3) Moore would be out of
state on September 5, 2017, and had “not had time to adequately prepare for trial.” Moore
noticed both motions for a hearing for September 5, 2017, which was the scheduled trial date.
¶5. On September 5, 2017, all parties and their counsel appeared for trial, except for
Moore. Instead, Justin Smith appeared to argue Moore’s motions on behalf of Sanders.
Smith advised the circuit court that Moore could not be present for trial because he was
preparing for another trial in Tennessee for the following week. Smith also advised the
circuit court that if a continuance was not granted, Moore alternatively requested to withdraw
as Sanders’s counsel. At the hearing, the circuit court noted that the circumstances
surrounding Moore’s failure to appear were “highly irregular,” as the September 5th trial date
had been set for “quite a long time.” The circuit court also noted that Moore’s Tennessee
trial was set for the following week, which did not present a conflict for the then currently
set trial. But the circuit judge reluctantly granted a continuance, stating that he “hate[d] for
the client [(Sanders)] to suffer loss because of the neglect of the lawyer [(Moore)].”
¶6. On September 7, 2017, the Hospital filed a motion for sanctions against Moore, asking
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the circuit court to dismiss Sanders’s case with prejudice or, alternatively, for an award of
monetary sanctions against Moore. The Hospital alleged in its motion that Moore had not
been in Tennessee preparing for another trial on September 5, as Smith had advised the
circuit court. Instead, the Hospital argued that Moore failed to appear for trial in order to
attend a speaking engagement at Jarvis Christian College in Texas, and the Hospital attached
excerpts to its motion from Moore and Jarvis Christian College’s Facebook pages to support
its assertions. The Hospital further argued that it had incurred costs and expenses in
preparation for the September 5 trial, which were wasted due to Moore’s absence.
¶7. On December 1, 2017, the circuit court denied the Hospital’s request to dismiss
Sanders’s case but granted its request for sanctions against Moore. The circuit court ordered
Moore to pay $27,467.83 to the Hospital for the costs and fees associated with the September
5th trial. Moore filed a motion for reconsideration on December 11, 2017, and he filed a
motion for an evidentiary hearing on December 20, 2017. On January 4, 2018, the circuit
court denied Moore’s motion for reconsideration but did not address Moore’s motion for an
evidentiary hearing.
¶8. On January 26, 2018, Moore filed a petition for an interlocutory appeal from the
circuit court’s order denying his motion for reconsideration. The Mississippi Supreme Court
ultimately found that Moore’s petition should be treated as a notice of appeal, stating that
“the Sanctions Order is final and directly appealable . . . [b]ecause the sanctions were levied
against [Moore] alone, and not the plaintiff, and the issue of sanctions has no bearing on the
merits of the underlying case.” On appeal before this Court, Moore presents the following
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issues: (1) whether the circuit court erred by failing to rule on his motion for an evidentiary
hearing; (2) whether the circuit court erred by imposing sanctions on Moore; (3) whether the
amount of the sanctions was reasonable; and (4) whether the circuit court erred in denying
Moore’s motion for reconsideration.
STANDARD OF REVIEW
¶9. We apply an abuse of discretion standard when reviewing the circuit court’s grant or
denial of sanctions. Illinois Cent. Gulf R.R. Co. v. McLain, 174 So. 3d 1279, 1284 (¶12)
(Miss. 2015). We also employ an abuse-of discretion standard when we review the circuit
court’s denial of a motion for reconsideration. Rowser v. Fisher, 281 So. 3d 317, 319 (¶9)
(Miss. Ct. App. 2017).
ANALYSIS
I. Whether the circuit court erred when it failed to rule on Moore’s
motion for an evidentiary hearing.
¶10. Moore first argues that the circuit court erred when it granted the Hospital’s motion
for sanctions but failed to address Moore’s motion for an evidentiary hearing on the matter.
Moore further argues that because the circuit court never ruled upon the motion, the issue of
sanctions was ultimately left unresolved. As such, Moore seems to suggest that the
Mississippi Supreme Court wrongfully determined that the circuit court’s “Sanctions Order”
on January 5, 2018, constituted a final, appealable judgment.
¶11. In support of his assertions, Moore cites to the case of Wilton Acquisitions Corp. v.
First Methodist Church of Biloxi, 85 So. 3d 319 (Miss. Ct. App. 2012). In Wilton, the
defendant filed a motion to dismiss the plaintiff’s case and a motion for sanctions after the
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plaintiff repeatedly failed to appear for depositions. Id. at 322 (¶6). The chancellor granted
the defendant’s motions, but he expressly held the issue of attorney’s fees and costs under
advisement until the defendant could submit further information on the matter to assist the
chancellor in his assessment. Id. at (¶7). In denying the plaintiff’s motion to reconsider, the
chancellor stated “that [the] judgment shall be final pursuant to [Rule] 54(b) as to all claims
in the matter with the exception of the amount of expenses and attorney's fees to be
awarded.” Id. We dismissed the appeal, finding “that the chancellor’s order was not a final,
appealable order because it left [the defendant’s] claim for attorney’s fees pending.” Id. at
324 (¶12). We further found that the chancellor “abused his discretion by improperly
certifying his order of dismissal as a Rule 54(b) judgment[,]” and therefore the case could
not be brought before this Court for appellate review. Id.
¶12. Moore argues that this Court’s holding in Wilton applies to his case because the circuit
court denied his motion to reconsider without ruling on his motion for an evidentiary hearing.
We disagree. In Wilton, the chancellor ruled upon all of the parties’ claims except for the
defendant’s claim for attorney’s fees. Id. (emphasis added). Therefore, this Court found that
the chancellor had not properly disposed of all claims, and his order was not a final,
appealable judgment. Id. Here, the circuit court assessed sanctions against Moore, not
Sanders, the plaintiff. As the Mississippi Supreme Court noted in its May 17, 2018 order,
“the sanctions were levied against the plaintiff’s counsel [Moore] alone, and not the plaintiff,
and the issue of sanctions has no bearing on the merits of the underlying case. . . .”
(Emphasis added). The circuit court’s order denying Moore’s motion for reconsideration
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fully adjudicated the issue of sanctions against Moore alone but did not affect Sanders’s
claims. Therefore, Moore could readily appeal his assessment of sanctions while Sanders’s
medical-negligence claims still remained active in the circuit court.
¶13. Second, Moore offers no authority that states the circuit court was required to hold an
evidentiary hearing when determining the amount of attorney’s fees that it sanctioned against
Moore. In fact, Mississippi Code Annotated section 9-1-41 (Rev. 1990) states:
In any action in which a court is authorized to award reasonable attorneys’
fees, the court shall not require the party seeking such fees to put on proof as
to the reasonableness of the amount sought, but shall make the award based on
the information already before it and the court's own opinion based on
experience and observation.
¶14. Here, the circuit court took information submitted by the Hospital regarding the fees
and costs it incurred by continuing Sanders’s trial due to Moore’s absence. The circuit court
then used that information to assess what it considered to be reasonable attorney’s fees
against Moore as sanctions. Such actions are within the sound discretion of the circuit court.
Webster v. Miss. Dep’t of Wildlife, Fisheries & Parks, 257 So. 3d 277, 284 (¶31) (Miss.
2018). Furthermore, this Court finds no authority requiring the circuit court to hold an
evidentiary hearing when determining sanctions based upon an attorney’s alleged
misconduct, and Moore offers this Court no such support. Therefore, we find that the circuit
court did not abuse its discretion by ruling on Moore’s motion for reconsideration without
ruling on his motion for evidentiary hearing.
II. Whether the circuit court erred by imposing sanctions on Moore.
¶15. Next, Moore challenges the circuit court’s assessment of sanctions against him.
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“Mississippi law clearly supports a [circuit] court’s power to sanction an attorney or party
for violation of court orders, and, more specifically, for failure to appear as ordered by the
court. Wyssbrod v. Wittjen, 798 So. 2d 352, 359 (¶23) (Miss. 2001) (citing to Alviers v. City
of Bay St. Louis, 576 So. 2d 1256 (Miss.1991)). In his challenge, Moore asks the following
questions: (1) what was the sanctionable offense that he committed, and (2) was the sanction
of attorney’s fees and witness expenses appropriate to the transgressions?
¶16. Moore’s first question can be readily answered by looking at the record and the circuit
court’s order granting sanctions. The record reflects that since the filing of the complaint,
Moore has been Sanders’s primary counsel of record. Although Brown signed the agreed
scheduling order setting Sanders’s trial for September 5, 2017, Moore had nine months to
object to the trial date or to inform the circuit court of his scheduling conflict. But he made
no action until days before Sanders’s trial and after Sanders’s associated counsel had already
withdrawn. Further, Moore was not blind to the circuit court’s order allowing Brown, Bass
& Jeter, PLLC to withdraw contingent upon Moore remaining as Sanders’s primary counsel
of record. Moore made no objection to the withdrawal of counsel, thereby allowing the
circuit court, and presumably his client, to assume that he would proceed to trial as scheduled
on behalf of Sanders. Moore then moved to continue Sanders’s trial and to withdraw as
Sanders’s counsel, at the final hour, after the Hospital had already incurred attorney’s fees
and expert costs in preparation for trial. As the circuit court stated, Moore’s conduct was
“highly irregular” because the trial date had been set for “quite some time.” But the circuit
court allowed for a continuance in order to not punish Sanders for Moore’s neglect, as
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Sanders was present and ready for trial.
¶17. “Attorneys are officers of the court and the court has inherent authority to sanction
them in proper cases.” Bean v. Broussard, 587 So. 2d 908, 911 (Miss. 1991). Although
Moore claims that he is “unable to pinpoint actions [that] he committed” that would require
sanctions, the record clearly offers evidence to the contrary. Moore was aware that he was
Sanders’s only counsel of record and failed to object to or appear at her trial which was
scheduled nine months prior. We will not disturb the circuit court’s assessment of sanctions
unless the circuit court was manifestly wrong or clearly abused its discretion. Microtek Med.
Inc. v. 3M Co., 942 So. 2d 122, 130 (¶24) (Miss. 2006), abrogated on other grounds by
Upchurch Plumbing Inc. v. Greenwood Util. Comm’n, 964 So. 2d 1100, 1116-17 (¶¶41-44)
(Miss. 2007). Here we find no such abuse of discretion on the part of the circuit court.
¶18. We also find that the circuit court’s assessment of attorney’s fees against Moore to be
appropriate to the sanction. Moore is correct that the circuit court “must issue sanctions
appropriate to the transgression.” City of Jackson v. Rhaly, 95 So. 3d 602, 606 (¶10) (Miss.
2012). But after Moore’s failure to appear at trial, the Hospital moved to dismiss Sanders’s
case entirely, and the circuit court declined to impose such a harsh sanction upon Sanders for
her counsel’s neglect. See SW 98/99 LLC v. Pike County, 242 So. 3d 847, 853 (¶21) (Miss.
2018). Instead, the circuit court took the Hospital’s submitted documentation of costs and
expenditures for trial and used it to assess attorney’s fees and expert fees against Moore. The
Mississippi Supreme Court has held that “[w]hen counsel’s carelessness causes his opponent
to expend time and money needlessly, it is not an abuse of discretion for the court to require
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offending counsel to pay for his mistake, especially where . . . out-of-town travel was
involved.” Glover v. Jackson State Univ., 755 So. 2d 395, 401 (¶19) (Miss. 2000) (citing
Vicksburg Refining Inc. v. Energy Res. Ltd., 512 So. 2d 901 (Miss.1987)). Here, the circuit
court acknowledged that the parties and court staff had traveled and incurred expenses in
order to accommodate the scheduled trial date. Because Moore, not Sanders, committed the
sanctionable offense, we find nothing inappropriate with the circuit court’s assessment of
attorney’s fees and expert fees against Moore as a sanction in this matter. Accordingly, we
find Moore’s argument to be without merit.
III. Whether the amount of sanctions awarded was reasonable.
¶19. Moore also challenges the reasonableness of the amount of sanctions against him.
Moore correctly argues that the circuit court’s award of attorney’s fees must be both
reasonable and supported by credible evidence. Ford Motor Co. v. Tennin, 960 So. 2d 379,
390 (¶38) (Miss. 2007). But Moore seems to contend that the amount of attorney’s fees
awarded in this case was not reasonable simply because he was not allowed to examine and
question the amount of the costs and expenses that the Hospital submitted before the circuit
court assessed sanctions against him. It is not up to Moore to determine whether his own
sanctions are reasonable, however. The reasonableness of an award of attorney’s fees is left
within the sound discretion of the circuit court. Id. Again, the circuit court considered
verified applications and submissions from the Hospital regarding its costs and expenditures
for attorney’s fees and expert witness fees and costs before making its assessment of
appropriate sanctions. The circuit court then issued its three-page order, detailing the
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circumstances and evidence used to support its award of sanctions.
¶20. Upon review, we find nothing manifestly wrong with the circuit court’s actions here.
We further find that the circuit court’s calculation and assessment of sanctions were
reasonable and based upon credible evidence. Therefore, we find Moore’s third assignment
of error to be without merit.
IV. Whether the circuit court erred in denying Moore’s motion for
reconsideration.
¶21. Finally, Moore argues that the circuit court abused its discretion when it denied his
motion for reconsideration on the foregoing matter. “A motion for reconsideration is to be
treated by the [circuit] court as a post-trial motion under [Mississippi Rule of Civil
Procedure] 59(e).” Brooks v. Roberts, 882 So. 2d 229, 233 (¶15) (Miss. 2004) (citing Boyles
v. Schlumberger Tech. Corp., 792 So. 2d 262, 265 (Miss.2001)). To succeed, Moore must
show: “(i) an intervening change in controlling law, (ii) availability of new evidence not
previously available, or (iii) need to correct a clear error of law or to prevent manifest
injustice.” Id. (citing Bang v. Pittman, 749 So. 2d 47, 52-53 (Miss.1999)).
¶22. Moore fails to demonstrate any of these factors in his brief. Rather, this fourth
assignment of error simply re-asserts his first three points of contention: (1) that he was
wrongfully denied an evidentiary hearing, (2) that he committed no sanctionable action or
if so, the sanction was not appropriate for his transgression, and (3) that the amount of
sanctions was not reasonable or supported by credible evidence. We find no merit to these
aforementioned assertions, and we likewise find that Moore fails to meet the burden under
Rule 59(e). We therefore find no error in the circuit court’s denial of Moore’s motion for
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reconsideration.
CONCLUSION
¶23. After thoroughly reviewing the record, we find that the circuit court’s denial of
Moore’s motion for reconsideration constituted a final, appealable judgment that warrants
review by this Court. Further, we find that the circuit court did not abuse its discretion in its
calculation and assessment of sanctions against Moore. We find that the amount of sanctions
assessed against Moore was both reasonable and appropriate under circumstances of this
case. Finally, we find no error in the circuit court’s denial of Moore’s motion for
reconsideration, and we therefore affirm the circuit court’s judgment.
¶24. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ.,
CONCUR.
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