Davis v. Wieland
| Decision Date | 12 June 2018 |
| Docket Number | WD 81032 |
| Citation | 557 S.W.3d 340 |
| Parties | Patrick M. DAVIS, Mandee Rowen Pingel and Davis | Pingel & Associates, Appellants, v. Daniel WIELAND, Respondent. |
| Court | Missouri Court of Appeals |
Alan S. Mandel and Michael J. Sudekum, St. Louis, MO, and Patrick M. Davis and Mandee Rowen Pingel, Kansas City, MO, Attorneys for Appellants.
Alexandra Hutchings, Liberty, MO, Attorney for Respondent.
Before Division Two: Karen King Mitchell, Presiding Judge, and Alok Ahuja and Edward R. Ardini, Jr., Judges
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.
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) (), 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) Rule 56.01(b)(4), governing discovery and contact with expert witnesses; (2) Rule 4-3.4 of the Missouri Rules of Professional Conduct, precluding lawyers from "unlawfully obstruct[ing] another party’s access to evidence[;] ... falsify[ing] evidence, counsel[ing] or assist[ing] a witness to testify falsely, or offer[ing] an inducement to a witness that is prohibited by law[; and] request[ing] a person other than a client to refrain from voluntarily giving relevant information to another party"; (3) § 575.270.1, defining the criminal offense of witness tampering; and (4) the inherent power of the court to sanction a party that has acted in bad faith. The court then entered judgment, finding that Attorneys had "violated the Rules of Professional Conduct, Rule 4-3.4, regarding contact with opposing parties' expert witnesses and Rule 56.01 of the Missouri Rules of Civil Procedure"; that their "behavior ... in the above cause[ ] ha[d] been in bad faith, ... abusive to the Court, opposing counsel and their own client, as well as a threat to the legal process, the legal profession, and the community at large." The court ordered sanctions in the amount of $75,000, payable to Father. Following entry of the sanctions judgment, Attorneys "filed a motion for reconsideration of the sanctions judgment, including a request that the court disqualify itself for bias." Francis , 512 S.W.3d at 76. The motion for reconsideration was 415 pages long and "specified that [Attorneys] were precluded at trial from presenting the testimony of Dr. Gentry relating to their letter to Dr. Schwartz." Id. at 86. After the motion was denied, Attorneys appealed.
In Francis v. Wieland , among other things, Mother challenged the court’s denial of Attorneys' request that the court disqualify itself for bias,4 and Attorneys raised three challenges to the court’s sanctions judgment. Id. at 81-86. More specifically, Attorneys argued that (1) 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; (2) the trial court erred in granting sanctions pursuant to its inherent authority because there was no evidence of bad faith; and (3) the trial court erred in entering a sanctions judgment 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.
We rejected Mother’s challenge to the court’s refusal to disqualify itself for bias because none "of the cited instances of purportedly prejudicial conduct r[o]se to a level requiring recusal." Id. at 83. We declined to reach any of "the specific legal and factual issues raised in [Attorneys'] points," but noted that the trial court initially indicated, in response to the sanctions motion, that it would grant a hearing if requested:
I'm a little concerned about the allegations made in the motion for sanctions.... So I'm not going to deny it and I'm not going to grant it at this point in time. But at some point in time if somebody wants to bring this up again, we will have a hearing after I receive all of the evidence in this case, and if sanctions need to be imposed, they'll be imposed.
Id. at 75 n.2, 86 n.17. Accordingly, we reversed the sanctions judgment "solely as to the lack of a hearing on the sanctions motion." Id. at 86. In doing so, we issued specific directions on remand regarding the nature and scope of the hearing to be held:
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