Davis v. Wieland

557 S.W.3d 340
Missouri Court of Appeals·Decided June 12, 2018·No. WD 81032·Published·Cited by 17 cases

Opinion

Karen King Mitchell, Presiding Judge

This case arises from the second entry of a judgment for sanctions against attorneys Patrick Michael Davis, Mandee Rowen Pingel, and their firm, Davis | Pingel & Associates (collectively "Attorneys") in a child custody modification case where Attorneys represented the mother. Attorneys raise four points on appeal: (1) the trial court erred in entering a judgment for sanctions of $75,000 because Attorneys did not act in bad faith and were not afforded the procedural protections provided by Rule 55.03; (2) the trial court erred in granting Father's motion for sanctions and entering a judgment for $25,000 in favor of Father because Attorneys did not engage in sanctionable conduct, Father failed to comply with the procedural protections required by law, and there was no evidence that Father incurred any additional attorney's fees as a result of Attorneys' conduct; (3) the trial court erred in entering a sanctions judgment for a total of $100,000 because the penalty was punitive in nature and the trial court failed to provide Attorneys with the procedural protections required by Rule 36.01 for a finding of criminal contempt; and (4) the trial court erred in granting Father's motion for sanctions in violation of both the Missouri and United States Constitutions, Rule 55.03, and Judicial Canons 2A and 3B because the trial court relied on improper evidence, and Attorneys were deprived of both notice and a hearing at the time the evidence was received. Finding no error, we affirm.

Background1

This case is before us for the second time. In Francis v. Wieland , 512 S.W.3d 71, 74-75 (Mo. App. W.D. 2017) ("

*344Francis v. Wieland " -the first appeal), Mother appealed the underlying modification judgment, and Attorneys appealed the entry of a $75,000 sanctions judgment against them. We affirmed the modification judgment, but we reversed and remanded the sanctions judgment solely "[b]ecause the circuit court indicated before trial began that a hearing would be held to consider Father's sanctions motion, but [the court] did not conduct that hearing"; thus, "as a matter of fundamental fairness," we reversed the sanctions judgment and remanded for "a limited hearing."2 Id. at 86.

In the original judgment, the trial court granted Father's motion for sanctions, which was based primarily on Attorneys' contacts with Father's expert Dr. Lori Schwartz, the psychologist who had conducted Mother's independent psychiatric evaluation. Id. at 75-76. "One element of that contact was a 44[-]page letter from [Attorneys] to Dr. Schwartz, suggesting that the expert amend her evaluation due to 125 alleged ambiguities and factual inaccuracies." Id. at 76. The letter accused Dr. Schwartz of being "incorrect" and "unfair," and it repeatedly emphasized Attorneys' connection with Dr. Schwartz's colleagues "in an apparent attempt to pressure Dr. Schwartz to change her report and therefore, her testimony." The letter specifically identified Dr. Gerald Gentry, a colleague of Dr. Schwartz, "while giving information as to how Dr. Schwartz's interview and testing process was not like that of the other experts."3

The court's original sanctions judgment also criticized Attorneys' contact with Dr. Aileen Utley, another psychologist and expert witness for Father who "had conducted the child's independent psychiatric evaluation." Id. The original sanctions judgment further identified "additional litigation actions purportedly undertaken in 'bad faith,' " such as the submission of a 260-page request for findings of fact and conclusions of law, containing 2,265 proposed findings, many of which were based on evidence not introduced at trial, included either incomplete sentences or irrelevant information, or were simply left blank. Id. The original sanctions judgment also noted further "abusive" and "bad faith" conduct, such as (1) falsely representing to the court that "multiple ethical complaints had been filed against Dr. Utley"; (2) attempting to serve 34 pages of interrogatories and a request for production of 74 items on the guardian ad litem and then suggesting that, "if the Guardian would not be required to answer the questions, that the minor child, who was 9 years of age at the time, should be compelled to"; (3) directly violating a court order that depositions not be scheduled for Saturdays without prior agreement from all parties by independently scheduling the deposition of Mother's expert for a Saturday without prior notice or agreement and then refusing to reschedule; and (4) engaging in an unreasonably lengthy deposition of Father (two full days, with ten hours of questioning), causing Father to file a Motion to Terminate the deposition.

After identifying the sanctionable conduct, the trial court listed the following legal bases for granting sanctions: (1)

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Davis v. Wieland, 557 S.W.3d 340 (Mo. Ct. App. 2018).

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