Gilbert S. Macvaugh III v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CA-01317-COA

GILBERT S. MACVAUGH III APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/10/2021
TRIAL JUDGE: HON. DEWEY KEY ARTHUR
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: WILLIAM CHARLES BELL
ATTORNEY FOR APPELLEE: DREW DOUGLAS GUYTON
NATURE OF THE CASE: CIVIL - OTHER
DISPOSITION: AFFIRMED - 10/24/2023
MOTION FOR REHEARING FILED:

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

2
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 substitute 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

3
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

1
Subsequent motions by Macvaugh and the State maintained that Macvaugh arrived
at the courthouse two hours late (after the hearing had concluded) and stayed in the
courthouse for the rest of the day.

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[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 pursuant 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

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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.

2
Rule 54(b) states:

When more than one claim for relief is presented in an action, whether as a
claim, counter-claim, cross-claim, or third-party claim, or when multiple
parties are involved, the court may direct the entry of a final judgment as to
one or more but fewer than all of the claims or parties only upon an expressed
determination that there is no just reason for delay and upon an expressed
direction for the entry of the judgment. . . .

M.R.C.P. 54(b).

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Macvaugh that the court would hear the contempt motion.”

STANDARD OF REVIEW

¶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. Walker v. Cellular S. Inc., 309 So. 3d 16, 27 (¶42) (Miss. Ct.

App. 2020) (citing Ill. Cent. Gulf R.R. Co. v. McLain, 174 So. 3d 1279, 1284 (¶12) (Miss.

2015)). The Court first determines whether the trial court applied the correct legal standard.

Smith v. Hickman, Goza & Spragins PLLC, 265 So. 3d 139, 143 (¶5) (Miss. 2019) (citing

Barrett v. Jones, Funderburg, Sessums, Peterson & Lee LLC, 27 So. 3d 363, 369-70 (¶22)

(Miss. 2009)). If the trial court applied the correct standard, this Court considers whether the

decision was one of several reasonable ones that could have been made. Id. at 370 (¶22).

“We will affirm a trial court’s decision unless we have a definite and firm conviction that the

court . . . committed a clear error of judgment in the conclusion it reached upon weighing of

relevant factors.” Walker, 309 So. 3d at 27 (¶42) (citing Jones v. Jones, 995 So. 2d 706, 711

(¶13) (Miss. 2008)).

DISCUSSION

I. Sanctions for Disregarding Subpoena

¶14. Macvaugh argues that the May 7, 2018 hearing on the amended motion for sanctions

was actually a contempt proceeding. His sole issue is that a contempt proceeding was held

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without a Rule 81 summons, and thus his constitutional right to due process by notice was

violated. But these proceedings did not rise to the level of contempt proceedings.3

Furthermore, the court used the correct legal standard to sanction Macvaugh for the failure

to obey a subpoena, which the trial court had the authority to do under Mississippi Rule of

Civil Procedure 45 and its inherent authority to control the proceedings before the court.

Thus, we affirm the trial court’s ruling.

¶15. A sanction is defined as both “[a] provision that gives force to a legal imperative by

either rewarding obedience or punishing disobedience” and “[a] penalty or coercive measure

that results from failure to comply with a law, rule, or order.” Sanction, Black’s Law

Dictionary 1608 (11th ed. 2019). Sanctions can be brought under various court rules such

as Mississippi Rules of Civil Procedure 11(b),4 37(e),5 and 45(f).6 The United States

3
Macvaugh argues that the trial court held him in contempt. He conflates the
procedural disciplinary prerogatives of the trial court. To clear any confusion, our analysis
addresses these disciplinary measures although they do not control this Court’s opinion. The
specially concurring judge believes our analysis here is dictum, but this issue’s resolution
requires more than a perfunctory conclusion.
4
“If any party files a motion or pleading which, in the opinion of the court, is
frivolous or is filed for the purpose of harassment or delay, the court may order such a party,
or his attorney, or both, to pay to the opposing party or parties the reasonable expenses
incurred by such other parties and by their attorneys, including reasonable attorneys’ fees.”
M.R.C.P. 11(b).
5
“[T]he court may impose upon any party or counsel such sanctions as may be just,
including the payment of reasonable expenses and attorneys’ fees, if any party or counsel (i)
fails without good cause to cooperate in the framing of an appropriate discovery plan by
agreement under Rule 26(c), or (ii) otherwise abuses the discovery process in seeking,
making or resisting discovery.” M.R.C.P. 37(e).
6
“[U]pon a showing that the subpoena power is being exercised in bad faith or in
such manner as unreasonably to annoy, embarrass, or oppress the party or the person upon

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Supreme Court has found that its district courts could impose sanctions based on “a court’s

inherent power to police itself.” Chambers v. NASCO Inc., 501 U.S. 32, 46 (1991). In

Chambers, a plaintiff “abused the judicial process” by placing properties at issue out of reach

of the court, attempting to hold unwarranted depositions, and proceeding with “a series of

meritless motions and pleadings and delaying actions.” Id. at 37-38. The district court

imposed sanctions in the form of attorney’s fees for the abusive conduct. Id. at 40. The

Supreme Court affirmed these sanctions:

Like the Court of Appeals, we find no abuse of discretion in resorting to the
inherent power in the circumstances of this case. . . . Much of the bad-faith
conduct by Chambers, however, was beyond the reach of the Rules; his entire
course of conduct throughout the lawsuit evidenced bad faith and an attempt
to perpetrate a fraud on the court, and the conduct sanctionable under the Rules
was intertwined within conduct that only the inherent power could address.

Id. at 50-51. While not binding on this Court, this opinion is instructive, as it illustrates that

sanctions may be used to “vindicat[e] judicial authority without resort to the more drastic

sanctions available for contempt of court and mak[ing] the prevailing party whole for

expenses caused by his opponent’s obstinacy.” Id. at 46; accord McPhail v. McPhail, 357

So. 3d 602, 614 (¶68) (Miss. 2023) (“As the Supreme Court has made clear, “[i]t is beyond

dispute that [this Court does] not hold a supervisory power over the [state] courts.” (quoting

Sanchez-Llamas v. Oregon, 548 U.S. 331, 345 (2006))).

¶16. Additionally, the Mississippi Supreme Court has held that “where there is no specific

whom the subpoena is served, the court in which the action is pending shall order that the
subpoena be quashed and may enter such further orders as justice may require to curb abuses
of the powers granted under this rule. To this end, the court may impose an appropriate
sanction.” M.R.C.P. 45(f).

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statutory authority for imposing sanctions, courts have an inherent power to protect the

integrity of their processes, and may impose sanctions in order to do so.” Est. of McLemore

v. McLemore, 63 So. 3d 468, 487 (¶53) (Miss. 2011) (citing In re Est. of Thomas, 28 So. 3d

627, 637 (¶34) (Miss. Ct. App. 2009)). The Mississippi Supreme Court has “recognized and

endorsed a trial judge’s duty to control the courtroom, using reasonable measures to

efficiently move matters along.” Donaldson v. Cotton, 336 So. 3d 1099, 1106 (¶17) (Miss.

2022) (internal quotation mark omitted) (quoting In re Blake, 912 So. 2d 907, 914 (¶16)

(Miss. 2005)); see also Aeroglide Corp. v. Whitehead, 433 So. 2d 952, 953 (Miss. 1983)

(“[A]ll courts possess the inherent authority to control the proceedings before them including

the conduct of the participants.”). Furthermore, trial courts have the “inherent authority to

impose sanctions upon those who abuse the judicial process.” Tricon Metals & Servs. Inc.

v. Topp, 537 So. 2d 1331, 1335 (Miss. 1989); see, e.g., Allison v. State, 436 So. 2d 792, 796

(Miss. 1983); Scott v. State, 310 So. 2d 703, 706 (Miss. 1975).

¶17. A stronger level of correction by the court would be a finding of contempt. Contempt

is defined as “[c]onduct that defies the authority or dignity of a court or legislature. Because

such conduct interferes with the administration of justice, it is punishable, usu[ally] by fine

or imprisonment.” Contempt, Black’s Law Dictionary 397 (11th ed. 2019). “To impose a

purely punitive, noncompensatory fine the offending party must be held in contempt.”

Cooper Tire & Rubber Co. v. McGill, 890 So. 2d 859, 867 (¶31) (Miss. 2004).

¶18. Contempt can be classified as either civil or criminal. Id. at 868 (¶35). “In classifying

a finding of contempt as civil or criminal, this Court focuses on the purpose for which the

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power was exercised.” Id. at (¶33) (citing Purvis v. Purvis, 657 So. 2d 794, 796 (Miss.

1994)). “The purpose of civil contempt is to compel compliance with the court’s orders,

admonitions, and instructions, while the purpose of criminal contempt is to punish.” Corr

v. State, 97 So. 3d 1211, 1214 (¶7) (Miss. 2012) (quoting Graves v. State, 66 So. 3d 148, 151

(¶¶11-12) (Miss. 2011)). “Civil contempt orders enforce a private party’s rights or compel

compliance with a court’s order.” Hanshaw v. Hanshaw, 55 So. 3d 143, 147 (¶13) (Miss.

2011) (citing Purvis, 657 So. 2d at 796). For civil contempt, “the contemnor pays any

resulting penalty to the injured party.” Id. “[A] civil contemnor “carries the keys to his

prison in his own pocket” through his ability to comply with the court’s orders and end his

remedial sanction. McPhail, 357 So. 3d at 611 (¶44) (citing Common Cause of Miss. v.

Smith, 548 So. 2d 412, 415 (Miss. 1989)). Conversely, penalties for criminal contempt “are

designed to punish the contemnor for disobedience of a court order; punishment is for past

offenses and does not terminate upon compliance with the court order.” Cooper Tire &

Rubber Co., 890 So. 2d at 868 (¶35) (quoting In re Williamson, 838 So. 2d 226, 237 (¶29)

(Miss. 2002)).

¶19. Criminal contempt can be further broken down into two forms: direct and

constructive. In re Williamson, 838 So. 2d at 237 (¶31). “Direct criminal contempt involves

words spoken or actions committed in the presence of the court that are calculated to

embarrass or prevent the orderly administration of justice.” Id. “The direct contemnor may

be summarily punished because no evidence other than the court’s own knowledge is

required as the conduct was committed in the presence of the court.” Purvis, 657 So. 2d at

11
797. “Punishment for direct contempt may be meted out instantly by the judge in whose

presence the offensive conduct was committed.” In re Williamson, 838 So. 2d at 237 (¶31).

Thus, a party guilty of direct criminal contempt for conduct occurring in the presence of the

court is not entitled to notice or a specific show-cause hearing. See In re Smith, 926 So. 2d

878, 889 (¶15) (Miss. 2006); In re Hampton, 919 So. 2d 949, 955 (¶17) (Miss. 2006).

¶20. On the other hand, “constructive criminal contempt punishes a party for noncompliant

conduct outside the court’s presence.” Hanshaw, 55 So. 3d at 147 (¶14) (citing Moulds v.

Bradley, 791 So. 2d 220, 225 (¶8) (Miss. 2001)). “In the case of constructive criminal

contempt, we have held that defendants must be provided with procedural due process

safeguards, including a specification of charges, notice, and a hearing.” In re Williamson,

838 So. 2d at 237 (¶31) (quoting Moulds, 791 So. 2d at 225 (¶8)). The United States

Supreme Court has reasoned that this is because “criminal contempt is a crime in the ordinary

sense[,] . . . and criminal penalties may not be imposed on someone who has not been

afforded the protections that the Constitution requires of such criminal proceedings.” Int’l

Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 826 (1994). Furthermore,

“[t]he contemnor must pay constructive criminal-contempt fines to the court, rather than to

an injured party.” Hanshaw, 55 So. 3d at 147 (¶14) (citing Common Cause of Miss. v. Smith,

548 So. 2d 412, 416 (Miss. 1989)).

¶21. The classification of the type of contempt is critical because the due process

protections vary based on the classification of the contempt. C.W. v. Lamar County, 250 So.

3d 1248, 1258 (¶38) (Miss. 2018). “[Constructive] criminal-contempt defendants are entitled

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to notice under Mississippi Rule of Civil Procedure 81(d), which requires service of

process.” Id. at 1257-58 (quoting In re McDonald, 98 So. 3d 1040, 1045 (¶11) (Miss. 2012);

accord M.R.C.P 81(d)(2). As stated above, direct criminal contempt is excepted from this

rule. Because it occurs directly in front of the trial court and involves “words spoken or

actions committed in the presence of the court[,] . . . punishment for direct contempt may be

meted out instantly by the judge in whose presence the offensive conduct was committed.”

Cooper Tire & Rubber Co. 890 So. 2d at 868 (¶35). “One accused of criminal contempt is

entitled to the same protections as any criminal defendant.” Graves v. State, 66 So. 3d 148,

152 (¶15) (Miss. 2011). These protections include the right to “notice . . . and . . . to be

informed of the nature and cause of the accusation, of his rights to be heard, to counsel, to

call witnesses, to an unbiased judge, to a jury trial, and against self-incrimination, and that

he is presumed innocent until proven guilty beyond reasonable doubt.” Dennis v. Dennis,

824 So. 2d 604, 609 (¶11) (Miss. 2002) (citing Young v. United States ex rel. Vuitton et Fils

S.A., 481 U.S. 787, 798-99 (1987)).

¶22. Conversely, our courts have been inconsistent regarding whether civil contempt

proceedings require Rule 81 summons. See Hanshaw v. Hanshaw, 55 So. 3d 143, 146 (¶10)

(Miss. 2011) (reversing a civil contempt proceeding after lack of Rule 81 notice, among other

errors); Corr v. State, 97 So. 3d 1211, 1216 (¶12) (Miss. 2012) (applying Rule 81

requirement specifically to criminal contempt cases); Zebert v. Guardianship of Baker, 129

So. 3d 972, 980 (¶21) (Miss. Ct. App. 2014) (applying Corr to find that failure to issue

plaintiff a Rule 81 summons moot because contempt was civil in nature, not criminal). The

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United States Supreme Court has reasoned that “[b]ecause civil contempt sanctions are

viewed as nonpunitive and avoidable, fewer procedural protections for such sanctions have

been required.” Bagwell, 512 U.S. at 831. Like in Zebert, Corr specifically applies Rule 81

summons to criminal contempt cases to the exclusion of civil contempt matters. Zebert, 129

So. 3d at 980 (¶21).

¶23. Regardless, in the present case the trial court’s requirement that Macvaugh reimburse

the funds paid to him for the undelivered report failed to rise to the level of a contempt

proceeding. It instead fell under the “inherent power to protect the integrity of their

processes.” Est. of McLemore, 63 So. 3d at 487 (¶53). Macvaugh received and ignored

multiple subpoenas from the trial court that required him to appear and bring a copy of his

full report. He did not comply with multiple scheduling orders and disregarded the court’s

demand to appear and show cause why sanctions should not be imposed. Macvaugh’s

bizzare behavior and numerous delays in producing his report had, according to the trial

court, “single-handedly held up a death penalty PCR for almost three years.” Given these

facts, the trial court was well within its authority to sanction Macvaugh by requiring him to

disgorge the funds paid to him for the service he did not provide to allow the State to retain

another expert to evaluate Bennett so that the case could move toward its conclusion.

¶24. Moreover, the trial court’s order strongly indicates that the reimbursement falls short

of a contempt proceeding. The order’s option for Macvaugh to reduce the amount disgorged

by providing itemization of his completed work allowed Macvaugh an opportunity to

eliminate the ordered disgorgement. But instead of reducing or eliminating the disgorgement

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amount by showing he had earned his fees, Macvaugh requested a Rule 54(b) certification

and appealed.7 The reimbursement ordered was neither punitive nor compensatory. The

order merely required that Macvaugh pay back the funds that the State had paid to him for

a report he failed to produce so that the State could hire a new expert and continue on with

the case or show that he earned the funds. The ordered reimbursement was a “reasonable

measure” used to “control the courtroom” and “efficiently move matters along[.]”

Donaldson, 336 So. 3d at 1106 (¶17). As such, and given the unusual circumstances of this

case, this disgorgement order fell under the trial court’s “inherent discretionary powers” to

keep the trial court operational. Id. Because no contempt proceeding took place, the May

7, 2018 hearing did not require a separate contempt petition and Rule 81 summons as

Macvaugh asserts.

¶25. In addition to its inherent powers, the trial court has authority under Mississippi Rule

of Civil Procedure 45 to issue sanctions. A person who has received a subpoena must

respond or face consequences: “Failure by any person without adequate excuse to obey a

subpoena served upon him may be deemed a contempt of the court . . . .” M.R.C.P. 45(g).

This Court has noted that Rule 45(g) applies to non-parties and provides the “means by

7
Because the ruling was certified under Rule 54(b) and Macvaugh appealed, he has
lost his opportunity to reduce the amount he must disgorge to the State because the trial
court’s use of Rule 54(b) certifies the ruling as a final judgment. M.R.C.P. 54(b); see Cox
v. Howard, Weil, Labouisse, Friedrichs Inc., 512 So. 2d 897, 899 (Miss. 1987); Ind.
Lumbermen’s Mut. Ins. Co. v. Curtis Mathes Mfg. Co., 456 So. 2d 750, 752 (Miss. 1984)
(“When a trial judge makes an expressed determination that there is no just reason for delay
and enters a final judgment, that judgment is released for appellate consideration.”).
Therefore, in this case, the trial court has no further jurisdiction to take into consideration
evidence that would reduce the amount Macvaugh was ordered to disgorge.

15
which a

trial court is afforded the authority to sanction a non-party to a pending case.” State Farm

Mut. Auto. Ins. Co. v. Jones, 37 So. 3d 87, 91 (¶10) (Miss. Ct. App. 2009).

¶26. The language of Rule 45(g) specifically says that failure to obey a subpoena “may be

deemed a contempt of the court from which the subpoena issued.” M.R.C.P. 45(g) (emphasis

added). The use of the permissive “may” logically means the court is not required to find

contempt when one has disobeyed a subpoena but, instead, may opt for other alternatives in

the court’s discretion. Our courts “can employ . . . common sense regarding the time, trouble

and effort involved in defending such proceedings, including most certainly reasonable and

necessary out-of-court pretrial and trial preparation efforts.” Tricon Metals & Servs., 537 So.

2d at 1337. “Trial judges are afforded considerable discretion in managing the pre-trial

discovery process in their courts, including the entry of scheduling orders setting out various

deadlines to assure orderly pre-trial preparation resulting in timely disposition of the cases.”

Bowie v. Montfort Jones Memorial Hosp., 861 So. 2d 1037, 1042 (¶14) (Miss. 2003).

Further, “trial judges also have a right to expect compliance with their orders, and when

parties and/or attorneys fail to adhere to the provisions of these orders, they should be

prepared to do so at their own peril.” Id. This discretion could reasonably include a trial

court’s requiring an expert witness who disobeyed a subpoena to disgorge funds that were

paid to him for work not performed.

¶27. Macvaugh argues that his subpoenas for the May 7, 2018 hearing were invalid

because no witness fee was paid to him as required under Rule 45(c). Rule 45(c) states in

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pertinent part:

Except when excused by the court upon a showing of indigence, the party
causing the subpoena to issue shall tender to a non-party witness at the time of
service the fee for one day’s attendance plus mileage allowed by law.

M.R.C.P. 45(c). Our Court has previously found that when a lay witness did not receive this

payment, “the subpoena had not been properly served by law.” East v. East, 775 So. 2d 741,

747 (¶17) (Miss. Ct. App. 2000). But according to the advisory committee notes to the rules,

Rule 45(c) is complementary to Mississippi Code Annotated sections 25-7-47 to -59 (Rev.

2018) (statutes governing witness fees). Pertinent to this case, section 25-7-53 states that “in

any case, civil or criminal, . . . a witness who does not appear in court when called . . . [shall

not] be entitled to receive compensation.” Miss. Code Ann. § 25-7-53. Although this statute

seems to apply to witness attendance fees (not the mandated attendance-plus-mileage

required under Rule 45(c)), there is no reason not to apply that same logic here. Macvaugh

did not appear at the May 7, 2018 hearing on the State’s motion to substitute the expert

witness and for sanctions even though he was ordered to appear and “show cause . . . why

sanctions should not issue for failure to comply with” a court order. An expert who arguably

was not acting in good faith or at a minimum was incredibly dilatory is not entitled to any

fees under Rule 45(c).

¶28. Furthermore, the Rule also notes that “[w]hen the subpoena is issued on behalf of the

State of Mississippi or an officer or agency thereof, fees and mileage need not be tendered

in advance.” M.R.C.P. 45(c). In response to this portion of the Rule, Macvaugh points out

that it was the petitioner’s attorney and not the State who actually issued the summons to

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attend the hearing on the State’s motion to substitute the expert and for sanctions. But in this

case, in a very unusual set of circumstances, both the State and the petitioner were working

in tandem in an attempt to bring Macvaugh and his final report before the trial court so that

the case could proceed. The motion and the notice of hearing were filed by the State, while

the petitioner issued and served the subpoenas. Furthermore, there are no cases to suggest

that the technical defect of failing to pay an expert witness—an expert who is employed by

one of the parties and is already getting paid for time and travel—should interfere because

the subpoena witness fee was not paid. Under these very limited circumstances when the

State is working with its opposing party to serve a subpoena on an expert who has already

been paid for his time and travel costs, the failure to pay the witness fee for a subpoena under

Rule 45 does not invalidate the subpoena. Accordingly, we find no abuse of discretion in the

trial court’s decision to utilize both its inherent powers and its authority under Rule 45

regarding subpoenas to impose sanctions based on the valid subpoenas issued and served by

the petitioner under these facts.

II. Attorney’s Fees

¶29. In addition to disgorging the fees paid to him by the State, Macvaugh was ordered to

pay the State attorney’s fees in the amount of $1,790.75. This amount reflected the 27.25

hours (at a rate of $65.00 per hour) between July 12, 2017, and May 7, 2018, which the State

spent in an attempt to retrieve the report from Macvaugh.

¶30. The Supreme Court has stated that “where a party’s intentional misconduct causes the

opposing party to expend time and money needlessly, then attorney’s fees and expenses

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should be awarded to the wronged party.” McLemore, 63 So. 3d at 487 (¶53) (citing Selleck,

517 So. 2d at 560). This premise has been applied in cases specifically where a party was

required to pursue a failure to respond to a subpoena. See Flechas v. Pitts, 138 So. 3d 907,

913 (¶15) (Miss. 2014). Regardless, it almost goes without saying that “attorneys and parties

must without fail obey orders of a court of competent jurisdiction, or risk the consequences.”

Hawthorne v. Miss. State Hosp., No. 2022-WC-00040-COA, 2023 WL 3190920, at *4 (¶27)

(Miss. Ct. App. May 2, 2023) (citing Stuckey v. The Provident Bank, 912 So. 2d 859, 869 n.5

(Miss. 2005) (holding that those involved in a case “should not complain about the

consequences when they consciously fail to adhere to our trial judges’ orders”)).

¶31. In accordance with our rule that “courts must expect compliance with their orders, our

law recognizes any violation of an order comes at great risk.” Id. at (¶30). Further, “[a]

court has the inherent power to impose sanctions in order to protect the integrity of the

judicial process.” Id. (quoting Barrett v. Jones, Funderburg, Sessums, Peterson & Lee LLC,

27 So. 3d 363, 370 (¶25) (Miss. 2009)). “[W]here there is no specific authority for imposing

sanctions, courts have an inherent power to protect the integrity of their processes, and may

impose sanctions in order to do so.” Id. (citing Wyssbrod v. Wittjen, 798 So. 2d 352, 368

(¶58) (Miss. 2001)); see also Ladner v. Ladner, 436 So. 2d 1366, 1370 (Miss. 1983) (holding

that sanctions may be imposed “even without a prior court order”).

¶32. In the present case, there should have been no need for the State to exert 27.25 hours

(in addition to the time spent by the petitioner) to get a report that it had already paid

Macvaugh to produce and that was due three years earlier. Because of the repeated delays

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perpetuated by Macvaugh that required the State and the court to expend time to rectify, it

was well within the trial court’s discretion to sanction the expert by requiring payment of the

State’s attorney’s fees in the amount of $1,790.75. Accordingly, we affirm the trial court’s

order requiring Macvaugh to pay the State’s attorney’s fees.

CONCLUSION

¶33. In this case, the trial court applied the correct legal standards to “control the

courtroom” and “efficiently move matters along[.]” Donaldson, 336 So. 3d at 1106 (¶17).

The disgorgement order in this case was one of several reasonable decisions the court could

have made and was a properly authorized sanction. See Smith, 265 So. 3d at 143 (¶5). The

May 7, 2018 hearing did not rise to the level of contempt proceedings. Thus, no separate

contempt petition or Rule 81 summons was required in this case. The trial court had the

authority and discretion to order a disgorgement of funds paid to Macvaugh for the report he

failed to timely provide. The court also had the authority and discretion to award attorney’s

fees for the time the State spent attempting to retrieve the reimbursement. The trial court did

not abuse that discretion. Accordingly, this Court affirms the award of sanctions and the

award of attorney’s fees against Macvaugh.

¶34. AFFIRMED.

CARLTON, P.J., AND McCARTY, J., CONCUR. BARNES, C.J., SPECIALLY
CONCURS WITH SEPARATE WRITTEN OPINION JOINED BY WILSON, P.J.,
McCARTY AND SMITH, JJ.; McDONALD, J., JOINS IN PART. McDONALD AND
SMITH, JJ., CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE
WRITTEN OPINION. WILSON, P.J., AND LAWRENCE, J., CONCUR IN RESULT
ONLY WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. EMFINGER, J., NOT
PARTICIPATING.

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BARNES, C.J., SPECIALLY CONCURRING:

¶35. I concur with the majority’s ruling to affirm the court’s award of sanctions and

attorney’s fees. However, because “these proceedings did not rise to the level of contempt

proceedings,” as acknowledged by the majority, I find that the discussion distinguishing civil

and criminal contempt proceedings and the requirement for a Rule 81 summons is dicta and

should not be considered controlling precedent. See Methodist Healthcare-Olive Branch

Hosp. v. McNutt, 323 So. 3d 1051, 1061 n.4 (Miss. 2021) (noting that a case’s

“pronouncement was a dictum because it was not necessary to the court’s decision” and,

therefore, “has no precedential value whatsoever”); C.W. v. Lamar County, 250 So. 3d 1248,

1254 (¶19) (Miss. 2018) (“It is axiomatic that statements which are unnecessary to a court’s

ruling are dicta.” (citing McKibben v. City of Jackson, 193 So. 2d 741, 744 (Miss. 1967))).

While there may be a case in which this Court may be asked to make such a distinction, this

is not that case.

WILSON, P.J., McCARTY AND SMITH, JJ., JOIN THIS OPINION.
McDONALD, J., JOINS THIS OPINION IN PART.

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