Macvaugh v. State

385 So.3d 443

Gilbert S. MACVAUGH III, Appellant

v.STATE of Mississippi, Appellee

NO. 2021-CA-01317-COA

Court of Appeals of Mississippi.

10/24/2023

Rehearing Denied February 27, 2024

RANKIN COUNTY CIRCUIT COURT, HON. DEWEY KEY ARTHUR, JUDGE

ATTORNEY FOR APPELLANT: WILLIAM CHARLES BELL

ATTORNEY FOR APPELLEE: DREW DOUGLAS GUYTON, Jackson

BEFORE WESTBROOKS, P.J., McDONALD AND McCARTY, JJ.

WESTBROOKS, P.J., FOR THE COURT:

¶1. Dr. Gilbert Macvaugh III appeals from the trial court’s order for sanctions and attorney’s fees after he failed to submit an expert witness report he was hired by the State to produce. Macvaugh claims that the order for sanctions was actually a contempt proceeding and that he did not receive the adequate due process protection of notice. Our review of the record indicates that the proceedings did not rise to the level of a contempt proceeding. The trial court was acting within its inherent power to control its courtroom when it ordered Macvaugh to reimburse the funds paid to him for the report he failed to produce and to pay attorney’s fees to the State. Accordingly, we affirm the trial court’s order.

FACTS AND PROCEDURAL HISTORY

¶2. This case stems from an unusual set of facts that involves both the State and a post-conviction relief (PCR) petitioner jointly requesting a trial court to require an expert witness to perform the job he was hired by the State to do. Petitioner Devin Bennett filed a PCR motion in 2008. In 2013, the State filed a motion for a mental evaluation of Bennett. In August 2014, the trial court ordered a mental evaluation to be performed, and in August 2015, the trial court ordered Macvaugh to evaluate Bennett.

¶3. Macvaugh examined Bennett in November 2015. Per the court’s order, the report was due thirty days later. Macvaugh filed several motions to extend the time to submit his report because he allegedly had not received materials from another doctor who had also evaluated Bennett. As of May 1, 2017, Macvaugh confirmed he had received all the information he needed for his evaluation. At that time, the parties agreed that his report was due at the end of May 2017. Upon receiving this confirmation from Macvaugh, on June 8, 2017, the trial court issued an order extending the due date to June 28, 2017. The rest of the delays described below are solely attributable to Macvaugh.

A The First Hearing - Motion to Compel (Nov. 13, 2017)

¶4. On June 28, 2017, Macvaugh informed the State’s attorney that he had injured himself. A new agreed due date was set for July 7, 2017. This deadline passed with no communication from Macvaugh. On July 10, 2017, Macvaugh texted the State’s attorney to say he had been camping and had no cellular service. He assured the State’s attorney that he would send the report when he arrived home later that day, but he never sent it. On July 26, 2017, the State filed a sealed motion to compel after it made several additional attempts to communicate with Macvaugh with no response. The State issued a subpoena for Macvaugh to attend the motion-to-compel hearing set for November 13, 2017. The transcript for this hearing is not included in the record on appeal. Subsequently, on November 17, 2017, an agreed order was filed, stating that the report was due no later than November 14, 2017.

B. The Second Hearing - Motion for Sanctions (March 5, 2018)

¶5. On November 30, 2017, the State filed its initial motion for sanctions and to substitute an expert after Macvaugh still had not produced his report in accordance with the agreed order. The record on appeal does not include a transcript of the March 5, 2018 hearing on this motion. But the State’s March 9, 2018 amended motion for sanctions (and to substitute expert) notes that Macvaugh arrived to this hearing thirty minutes late and only provided a seven-page summary of the report. According to the State, the seven-page summary indicated that the full report would be furnished after Macvaugh was paid for his services.

C. The Third Hearing - Amended Motion for Sanctions (May 7, 2018)

¶6. On March 9, 2018, the State amended its motion for sanctions and to substi- tute the expert and included proof that the State had already paid Macvaugh $19,187.50 for his work but was not provided the report. The State’s amended motion asked the trial court to "issue a show cause order for Dr. Macvaugh, hold Dr. Macvaugh in contempt of court and impose appropriate sanctions including attorney’s fees along with reimbursing the State $19,187.50 and any other relief this Court deems necessary." Petitioner Bennett, through his attorney, issued two subpoenas for Macvaugh’s appearance at the hearing scheduled for May 7, 2018. One subpoena directed Macvaugh to appear and show cause why sanctions should not issue for his failure to comply with the court’s November 17, 2017 order, signifying that the hearing would also be a show cause hearing for Macvaugh. Another subpoena required Macvaugh to bring all his "files, notes and full report of your evaluation of Devin Bennett" to the same hearing, This second subpoena specifically stated that it was "intended to direct you to bring your full report." (Emphasis added).

¶7. The transcript of this hearing reflected the hearing’s unusual nature. First of all, Macvaugh failed to appear.¹ Second, at the hearing, both the State’s attorney and the petitioner’s attorney argued their points in solidarity, supporting one another’s contentions regarding their attempts to obtain the report from Macvaugh. Next, the attorneys both agreed that Macvaugh was served with a subpoena and a copy of the motion for the hearing. The attorneys also agreed that the petitioner served the subpoena for the May 7, 2018 hearing. Finally, although the hearing started at noon, it was not until 12:16 p.m. that Macvaugh’s office manager finally emailed the full report to the State’s attorney, the court administrator, and the petitioner’s attorney. At that point, however, all the attorneys were in the courtroom, and none of them received the report until after the hearing ended.

¶8. On May 14, 2018, the trial court issued an order granting the motion to substitute a new expert witness and sanctioned Macvaugh for his "repeated failure to comply with [the court’s] orders." Under its inherent authority, the trial court required Macvaugh to disgorge to the State $19,187.50, "which [was] to reimburse the State for payment made to [Macvaugh] in this matter." The disgorgement was "subject to reduction of an amount equivalent to reasonable compensation for the summary report … supported by proof of actual cost associated with work necessary to produce the summary report." The court also awarded attorney’s fees to the State in the amount of $1,790.75 for time "which the State has incurred related to efforts that were required to obtain Dr. Macvaugh’s compliance."

¶9. On August 6, 2018, Petitioner Bennett filed a motion to cite Macvaugh in direct civil contempt, but in December 2018, he withdrew that motion as moot.

D. The Fourth Hearing - Macvaugh’s Motion to Set Aside Sanctions (Nov. 10, 2021)

¶10. On September 26, 2018, Macvaugh’s new attorney William Bell filed his initial motion to set aside the May 14, 2018 sanctions order, arguing that Macvaugh was actually held in contempt of court. Through Bell, Macvaugh argued that his "contempt proceeding" required a separate petition for contempt and a summons pur- suant to Mississippi Rule of Civil Procedure 81. Macvaugh argued that because there was no Rule 81 summons to provide proper notice, the May 14, 2018 sanctions order that stemmed from the May 2018 hearing should be void ab initio. He alternatively argued that the subpoenas issued to Macvaugh for the May 7, 2018 hearing were invalid because no witness or mileage fees were tendered to Macvaugh at the time of the service. In October 2018, Macvaugh filed an amended motion to set aside the sanctions order, which was simply amended to include with his initial assertion an argument under Mississippi Rule of Criminal Procedure 32 (governing contempt).

¶11. On March 25, 2021, approximately two-and-a-half years later, Macvaugh filed a motion to set a hearing for the amended motion to set aside sanctions. The hearing to set aside the May 14, 2018 sanctions order took place on November 10, 2021. The trial court was not convinced by Macvaugh’s arguments that he should have received a Rule 81 summons. The court denied his motion to set aside the sanctions. The trial court found that "Macvaugh was served with numerous subpoenas … to appear, subpoena duces tecum, and he just blew them off." The trial court continued, "Then later when he did appear in court, he admitted that he had intentionally withheld some of the items that he … was told to bring." The trial court noted that "this court has to have some ability to move cases forward, and Dr. Macvaugh’s actions single-handedly held up a death penalty PCR for almost three years." An order denying Macvaugh’s amended motion to set aside the judgment was immediately issued the same day as the hearing.

¶12. Despite this denial, on November 10, 2021, the trial court provided Macvaugh a Rule 54(b) certification² so that he could appeal his issue. Macvaugh’s timely notice of appeal listed both the original May 14, 2018 order and the November 10, 2021 order denying his motion to set aside the judgment. On appeal, Macvaugh’s sole issue is "whether a trial court can enter a contempt and sanctions judgment without a summons, and without notice to Dr. Macvaugh that the court would hear the contempt motion."

STANDARD OF REVIEW

[1–4] ¶13. A "trial court has considerable discretion in the imposition of sanctions." Cunningham v. Mitchell, 549 So. 2d 955, 958 (Miss. 1989) (quoting White v. White, 509 So. 2d 205, 209 (1987); Kilpatrick v. Miss. Baptist Med. Ctr., 461 So. 2d 765, 767 (Miss. 1984)). The Court of Appeals utilizes an abuse of discretion standard when reviewing a trial court’s grant or denial of sanctions....