IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2022-CA-00834-COA
MICHAEL C. BAREFIELD APPELLANT
v.
ALLEN T. BAREFIELD, JULIA JOHNSON, AND APPELLEES SHARON BAREFIELD, INDIVIDUALLY AND ON BEHALF OF HERITAGE INVESTMENTS GROUP, INC.
DATE OF JUDGMENT: 07/21/2022 TRIAL JUDGE: HON. SANFORD R. STECKLER COURT FROM WHICH APPEALED: FORREST COUNTY CHANCERY COURT ATTORNEY FOR APPELLANT: WILLIAM H. JONES ATTORNEY FOR APPELLEES: RENEE M. PORTER NATURE OF THE CASE: CIVIL - TORTS-OTHER THAN PERSONAL INJURY & PROPERTY DAMAGE DISPOSITION: AFFIRMED - 12/12/2023 MOTION FOR REHEARING FILED:
BEFORE BARNES, C.J., McDONALD, LAWRENCE AND SMITH, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Allen Barefield, Julia Johnson, Sharon Barefield, and Michael Barefield were family
members and owners of Heritage Investments Group Inc., which was created to invest in real
estate. Allen, Julia, and Sharon, individually and on behalf of Heritage, filed suit against
Michael alleging that he failed to pay Heritage’s federal taxes and that he mismanaged,
misused, and misappropriated Heritage’s funds. The parties eventually agreed to settle and
resolve all issues between themselves by having Michael divest himself of all interest in
Heritage and property ownership and disburse any existing funds amongst the members. The
agreed order of settlement reserved one outstanding issue for the chancery court to decide—who was to pay an outstanding bill of Steven Dockens, a forensic accountant who
performed investigatory accounting services during the litigation. The court allowed briefing
on the issue and ultimately ordered Michael to pay the outstanding bill of the forensic
accountant. From that judgment, Michael appeals. Finding no error, we affirm.
FACTUAL BACKGROUND
¶2. Allen Barefield, Julia Johnson, Stone Barefield, and Michael Barefield were equal
shareholders of Heritage Investments Inc. In 2013, Stone Barefield died, and his wife
Sharon inherited his interest. Heritage was a Mississippi corporation, incorporated in 1992
and engaged in investing in real estate.
¶3. Initially, Heritage endorsed a person not related to them to oversee the “financial
records” of the business, but in 2008, Michael assumed “responsibility” for the financial
matters, including the payment of taxes. The state and federal taxes Heritage owed were not
paid, and the Secretary of State eventually dissolved Heritage. The family members reinstated
the business and changed the name to Heritage Investments Group Inc.
¶4. On January 30, 2020, Allen, Julia, and Sharon filed a complaint in the Forrest County
Chancery Court. The complaint alleged that Michael, who was responsible for the
corporation’s financial matters, had “misused and misappropriated” large sums of money for
his “personal use and for his personal business use outside of Heritage.” The complaint
requested an “accounting at the expense of the defendant” (Michael) for all expenditures so
any “improper payments” could be determined.
¶5. On March 11, 2020, Michael filed his answer to the complaint. He essentially denied
2 any improper use of business funds and asserted that he did not have “any obligation” to file
the state and federal taxes. Further, Michael denied the allegation that he assumed financial
responsibility for Heritage. Michael even went so far as to deny that the Secretary of State
dissolved the corporation for failure to pay taxes and that $63,932.36 was owed to the IRS.
¶6. On October 23, 2020, Allen, Julia, and Sharon filed a “Motion for Forensic Audit.”
The motion informed the court that the complaint alleged “financial wrong doing by the
defendant.” Further, the motion alleged that Michael had blamed others, including Larry
Johnson, for Heritage’s financial difficulties. The motion reaffirmed that the parties were
seeking the dissolution of Heritage, a determination of the “assets or debts” of Heritage, and
“what apportionment of shares and assets are due to each party” in the lawsuit. The motion
did not mention the name of any particular accountant who needed to be appointed or who
would be responsible for the payment of the forensic accountant’s services.
¶7. At some point, Steven Dockens was retained as the forensic accountant. The record
on appeal is not clear as to who actually retained Dockens. The record offers mere glimpses
and speculation through emails and correspondence between the parties. There is no written
court order appointing Dockens. There is no transcript of a hearing where the court approved
the appointment of Dockens. The parties offer different arguments and point to various
unofficial court records as proof of their respective positions. Since this is the only issue on
appeal, additional facts will be discussed in our analysis below.1
1 The court apparently held a hearing on December 8, 2020, on the motion to appoint a forensic accountant, with the court actually appointing Christy Pickering. Both parties admit this fact in their briefs, but the transcript for that hearing is not included in the record on appeal. Emails between the parties indicated that Christy Pickering could not perform
3 ¶8. On February 21, 2021, Michael filed a motion for permission to file a “third party
complaint” against Larry Johnson (Julia’s husband) alleging his business actions were the
cause of Heritage’s financial difficulties. During a June 11, 2021 hearing on Michael’s
motion to file the complaint against Larry, a transcript was made. Larry later filed a motion
to dismiss that complaint and attached a small portion of that transcript. During arguments
at the June 11, 2021 hearing, the parties discussed the issue of whether extra costs for the
forensic accountant would be incurred if the third-party complaint was allowed. Michael
stated, “[S]he said they were going to pay it and we would settle up later on who owed what.
I’ve never refused to pay anything, your Honor.” The third-party complaint and Larry’s
motion to dismiss were added by the parties as a supplement to the record on appeal in this
case.2
¶9. Prior to trial, the parties reached a settlement agreement on all issues except who was
to pay for Dockens’s services. An agreed settlement order was presented to the court, and
the court entered that order on June 22, 2022. The “Agreed Settlement Order” specifically
stated, “The court finds that the parties have agreed that the issue of responsibility for
payments to Steven Dockens, CPA, for the Forensic Accounting shall be submitted to the
court for decision.”
the services and that she recommended Dockens be appointed. 2 The entire transcript of the June 11, 2021 hearing was not part of the record on appeal. The small portion of the transcript included was attached to the motion to dismiss in support of Larry’s argument that Michael failed to file the third-party complaint within ten days as ordered by the court. The portion of the transcript detailing the argument against granting Michael permission to file due to increased expert costs was a mere coincidence.
4 ¶10. Further, on June 22, 2022, the court held a telephonic conference with the parties to
discuss the settlement agreement. At that conference, Michael requested thirty days to file
a brief on his objections to paying the forensic accountant fees. The court agreed and
allowed thirty days for the parties to file briefs before the court decided the issue of who
would be responsible for the payment of the fees. During the conference, the court clarified
that the payment of the expert’s fees was the only remaining issue and that the parties had
agreed to submit the payment issue to the court for determination. Finally, during the
conference, the parties submitted “into evidence” the written report of Steven Dockens for
the court’s consideration in ruling on this issue.
¶11. Michael filed his “brief” opposing the payment of Dockens’s expert fees on June 30,
2022. He argued that Dockens was “retained” by Allen, Julia, and Sharon, and as such, he
should not be responsible for paying the fees owed. As proof of his argument, Michael
pointed to the lack of a written order appointing Dockens. Michael claimed Dockens was
a privately retained accounting expert of Allen, Julia, and Sharon.
¶12. Allen, Julia, and Sharon addressed the payment of Dockens’s fees by filing a
“memorandum” and alleging Dockens was a court-appointed expert. The memorandum
alleged that the court held a telephonic hearing due to the pandemic. Attached to the
memorandum, among other documents, was a proposed unsigned order drafted by Allen,
Julia, and Sharon’s attorney and sent to Michael for his signature. Michael did not sign the
proposed order, but it contains his handwritten notes and proposed corrections. Allen, Julia,
and Sharon also attached an email chain purportedly indicating that the court did indeed
5 appoint an accountant, but Michael claimed it was Christy Pickering and not Dockens.
¶13. On July 21, 2022, the Court entered a written order specifically stating that it “indeed
order[ed] a forensic accounting in this matter and said accounting was ultimately undertaken
and effectuated by Steven Dockens, CPA.” The court indicated that Dockens’s written report
had been filed with the court and “entered into evidence without objection.” The court found
that Dockens’s fees of $8,548.45 were reasonable and that his services were helpful in
resolving the issues before the court. Finally, the court ordered Michael to pay Dockens’s
expert fees of $8,548.45. The court indicated that since Julia previously paid the fees,
Michael was to reimburse her. From that order, Michael appeals.
STANDARD OF REVIEW
¶14. “We will not disturb the findings of a chancellor unless they are manifestly wrong,
clearly erroneous, or emanate from the application of an improper legal standard.” Nichols
v. Funderburk, 883 So. 2d 554, 556 (¶7) (Miss. 2004); Young v. O’Beirne, 147 So. 3d 877,
884 (¶20) (Miss. Ct. App. 2014). “[F]or questions of law, the standard of review is de novo.”
McNeil v. Hester, 753 So. 2d 1057, 1063 (¶21) (Miss. 2000). The chancellor’s
“interpretation and application of the law is reviewed under a de novo standard.” Id. (citing
Tucker v. Prisock, 791 So. 2d 190, 192 (¶10) (Miss. 2001); In re Carney, 758 So. 2d 1017,
1019 (¶8) (Miss. 2000)). This Court reviews the decision to impose monetary sanctions
against a party for abuse of discretion. See In re Spencer, 985 So. 2d 330, 336-37 (¶19)
(Miss. 2008). “In the absence of a definite and firm conviction that the court below
committed a clear error of judgment in the conclusion it reached upon weighing of relevant
6 factors, the judgment of the court's imposition of sanctions will be affirmed.” Wyssbrod v.
Wittjen, 798 So. 2d 352, 357 (¶17) (Miss. 2001).
ANALYSIS
¶15. Michael argues that the chancellor erred in ordering him to pay the full accountant
fees of $8,548.45. First, he alleges that the accountant was not a court-ordered expert but
rather an expert “retained” by the Appellees. As such, he contends, the Appellees should be
responsible for their own costs of litigation. Michael points to the absence of any written
order appointing Dockens in the record as evidence that the chancellor never actually
appointed him, and Michael asserts that finding he was appointed after the fact was error.
Further, he argues if Dockens was retained by the Appellees, then the chancellor erred by
ordering Michael to pay his fees because he did not find any exceptional circumstances, as
required by Mississippi Supreme Court precedent.
¶16. Allen, Julia, and Sharon counter that the court appointed Dockens. They point to a
proposed order that was never entered, but upon which Michael handwrote corrections. The
order is proof the court actually ordered the appointment of a forensic accountant. However,
Michael argues that the order appointed Christy Pickering, a forensic accountant from
another accounting firm. Emails attached to Allen, Julia, and Sharon’s memorandum
indicate Christy could not perform the work, so she recommended Dockens. Thus, the
questions in this appeal are whether a chancellor has the authority to appoint a “court expert”
to investigate the issues before the court, and whether the court can order the parties to pay
this expert. The other question raised is if Dockens was not a court-appointed expert but was
7 retained by a party, did the chancellor have the authority to order one party to pay the expert
fees of another party? Two rules provide guidance with the answers to these questions.3
¶17. Mississippi Rule of Evidence 706 deals with court-appointed expert witnesses. The
rule allows the court to appoint an expert witness “on a party’s motion or on its own.” The
rule states that “the court may appoint any expert that the parties agree on and any of its own
choosing.” However, as applicable in this case, the rule also states that “the court may only
appoint someone who consents to act.” Finally, the rule affirms that “the expert is entitled
to a reasonable compensation, as set by the court,” and shall be paid “by the parties in the
proportion and at the time that the court directs—and the compensation is then charged like
other costs.”
¶18. Further, Mississippi Rule of Civil Procedure 54(e) provides for assessments of costs
to the prevailing party. Rule 54(e) of the Mississippi Rules of Civil Procedure is patterned
after former Federal Rule 54(d), and states in part: “Except when express provision
therefor[e] is made in a statute, costs shall be allowed as of course to the prevailing party
unless the court otherwise directs[.]” Further, the comment to Rule 54 states, “Absent a
special statute or rule, or an exceptional exercise of judicial discretion, such items as
attorney’s fees, travel expenditures, and investigatory expenses will not qualify either as
statutory fees or reimbursable costs. These expenses must be borne by the litigants.”
3 The chancery court did not cite either rule or any caselaw as precedent in its order determining that Michael should pay Dockens’s entire fee. However, the chancery court did indicate in a post hoc order that Dockens was a court-appointed expert. That would lead to the inescapable conclusion that the issue in this case should be resolved pursuant to Rule 706 of the Mississippi Rules of Evidence.
8 ¶19. In re Estate of Hart, 20 So. 3d 748, 756-57 (¶26) (Miss. Ct. App. 2009), involved Jim
Koerber, a certified public accountant who was appointed as an expert by the chancery court
to gather documentation relating to Hart’s assets and make a report of his findings to the
court regarding certain transactions. A dispute arose as to who was to pay for the
accountant’s court-mandated work. Id. The trial court ordered the appellants to pay all of
the costs. Id. On appeal, the Court of Appeals relied on Mississippi Rule of Evidence 706(b)
stating, “compensation [for the court-appointed expert] shall be paid by the parties in such
proportion and at such time as the court directs, and thereafter charged in like manner as
other costs.” Id. at (¶27) (quoting MRE 706(b)). “The assessment of court costs is within
a chancellor’s sound discretion; however, as a general rule, the costs of court should be
assessed against the losing party.” Id. (citing Leaf River Forest Prods. Inc. v. Rowell, 819
So. 2d 1281, 1285 (¶15) (Miss. Ct. App. 2002)). Further, this Court noted that the Appellants
filed a motion to have an independent auditor appointed by the chancery court. Id. The
Appellants in that case stated in the motion that it was “requested that the auditor be
compensated pursuant to Rule 706.” Id. This Court reasoned that the Appellants were
certainly aware that the chancery court “had the authority to direct them to pay the expenses”
of the court-appointed expert. Id. The Court concluded that “the chancellor did not err in
ordering the Appellants to pay all the incurred charges by the court-appointed auditor.” Id.
Rule 706 and In re Hart seem clear—the chancellor had the authority to appoint a forensic
accounting expert and determine who was to pay the costs associated with such an
appointment.
9 ¶20. Here, Michael relies on Allred v. Fairchild, 916 So. 2d 529, 530 (Miss. 2005), in
support of his argument that the chancellor erred in ordering him to pay the entire fee of
Dockens. In Allred, a suit was brought against Fairchild for enforcement of commission
agreements in oil wells Allred alleged existed between him and Fairchild. Id. at (¶¶1-2).
Allred alleged Fairchild owed him ten-percent commission in a certain oil well’s production.
Id. at (¶2). After the first trial, the chancellor held Allred was not entitled to any relief;
Allred appealed. Id. at (¶3). The supreme court reversed and remanded. Id. at (¶4). After
a second trial, the chancellor determined and awarded Allred damages in the approximate
amount of $6,000,000.00 dollars. Id. Allred filed a motion for costs and asked the court to
award him reimbursement for $79,858.39 in “fees” paid to an oil and gas accountant he
retained in the case. Id. The chancellor denied the costs finding “no exceptional
circumstances” which would justify “Allred’s recovery of the fees paid.” Id. at 530-31 (¶5).
Allred appealed the denial of his accountant fees. Id. at 531 (¶5).
¶21. The supreme court ultimately determined that Fairchild’s actions in denying Allred
the commissions were “riddled with fraud and deception.” Id. at 532 (¶11). Further, the
court determined that Fairchild abused the “confidential relationship” between him and
Allred, and the chancellor erred in not finding exceptional circumstances under the
Mississippi Rules of Civil Procedure. Id. at 532, 534 (¶¶11, 16). The supreme court found
the $79,585.35 fee for the accountant was reasonable and ordered Fairchild to pay Allred’s
costs. Id. at 534 (¶16).
¶22. Michael attempts to use Allred offensively to vitiate the order requiring him to pay the
10 forensic accountant’s fees. Michael asserts that the chancellor never found “exceptional
circumstances” that must be found according to the comment to Rule 54(e) and the Allred
case. Michael’s attempt is misguided. First, the chancellor clearly considered Dockens to
be a court-appointed expert, not an expert retained by a party as in Allred. The chancellor’s
order states as much. Second, Allred’s award of expert fees occurred after a trial with a
clearly “prevailing party.” Third, there is no indication that the chancellor ordered Michael
to pay Dockens’s fee under Rule 54. Again, the chancellor’s written order indicated that the
court ordered a forensic accounting which would place the authority to pay the expert under
Mississippi Rule of Evidence 706, not Mississippi Rule of Civil Procedure 54. Finally,
Michael asks this Court to reverse the chancellor under a case that interpreted Rule 54. For
that to work, he asks this Court to declare that no particular party was “prevailing” in the
settlement and that there are no exceptional circumstances that would justify the exercise of
judicial discretion in the payment of the costs.4 To do as Michael has requested would entail
this Court making a factual determination on two fronts: who prevailed, and are there
exceptional circumstances? But to do so would broaden this Court’s function beyond that
which is permitted. Indeed, “this Court is required to respect the findings of fact made by
a chancellor supported by credible evidence and not manifestly wrong.” Rogers v. Morin,
791 So. 2d 815, 826 (¶39) (Miss. 2001) (quoting Newsom v. Newsom, 557 So. 2d 511, 514
4 Michael apparently claims that all parties to the settlement received disbursements for their respective ownership interests in the properties. Therefore, as the argument goes, no one prevailed as required under Mississippi Rule of Civil Procedure 54. However, without the lawsuit filed by Allen, Julia, and Sharon, which, in part, requested a forensic accounting and without the findings of the forensic accounting, it would be exceedingly suspect whether such disbursement could have occurred.
11 (Miss. 1990)).
¶23. Finally, assuming for purposes of argument only that the chancery court made its
ruling under Mississippi Rule of Civil Procedure 54, instead of Mississippi Rule of Evidence
706 as Michael asserts through his cite of the Allred case, the chancery court noted in its
written order that the forensic accounting report of Dockens was entered into evidence. That
report indicated that in 2008 Michael “solely assumed responsibility of the financial records
and all financial accounts of Heritage.” Further, the report listed many financial irregularities
and difficulties since that date. The report stated Michael “directly benefitted from the use
of $68,670.00 of cash from Heritage” most of which were withdrawals or payments “on his
behalf.” The report also listed that the shareholders incurred approximately $59,880.00 in
fees, interest, and penalties from delinquent property taxes not paid by Michael.
Additionally, the shareholders incurred $46,548.00 in losses from the sale of certain
properties by Michael, and they incurred $78,653.00 in lost rental income. The court found
in its order that the sums Michael paid to Allen, Julia, and Sharon “closely approximate[] the
sums set forth in the forensic accounting report.” The court continued that Michael
“admitted that he ‘borrowed’ funds from the family business.” Those findings of fact
substantiate that the chancellor found Allen, Julia, and Sharon were the “prevailing” parties
and that exceptional circumstances existed justifying the ordering of Michael to pay costs
according to Rule 54.
¶24. Michael argues the chancellor was manifestly wrong in making those findings of facts.
But as mothers frequently tell their children, “you cannot have your cake and eat it too.”
12 Michael argues the chancellor did not make any factual findings amounting to exceptional
circumstances, but if he did, then they were factually wrong. Since there is substantial proof
in the record to support the factual findings of the chancellor, we decline to second-guess the
chancery court’s findings. Cox v. Upchurch, 301 So. 3d 69, 73 (¶13) (Miss. Ct. App. 2020)
(“If there is substantial evidence in the record to support fact-findings, no matter what
contrary evidence there may also be, the appellate court will uphold the chancellor.” (quoting
Belding v. Belding, 736 So. 2d 425, 427 (¶5) (Miss. Ct. App. 1999))). Nor will we substitute
our judgment on those facts in a way different from the chancellor when he is the trier of
fact, not this Court. See id. (“This Court does not re-evaluate the evidence, re-test the
credibility of witnesses, nor otherwise act as a second fact-finder.” (quoting Belding, at 427
(¶5))). We find this issue is without merit.
CONCLUSION
¶25. In summary, the chancery court prepared an order that, under the circumstances,
appointed Dockens as an expert, making him a court-appointed expert. The appellate courts
of this State trust chancellors to make factual determinations based on the evidence and law
before them and rule on complex litigation every day. There is no reason not to believe a
chancellor who writes that “the court did indeed order a forensic accounting.” Under
Mississippi Rule of Evidence 706, the court had the authority and discretion to order the
payment of the court-appointed expert’s fees. We find no abuse of that discretion when the
court ordered Michael to pay those fees since the court found his actions necessitated the
lawsuit and the need for an accountant. Further, even if Michael is correct and the court
13 ordered the expert fees to be paid under Mississippi Rule of Civil Procedure 54, the court’s
findings of facts sufficiently met the requirements under the Rule by ordering costs in the
“exceptional exercise of judicial discretion.”
¶26. AFFIRMED.
BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, SMITH AND EMFINGER, JJ., CONCUR. McCARTY, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.