FILED

IN THE SUPREME COURT OF MISSISSIPPI

LUE R. SANDERS

VERSUS

DR. RAYl\'IOND P. GIRNYS; DELTA

SURGICAL CLINIC; GREENWOOD
LEFLORE HOSPITAL; and JOHN DOES 1-10 RESPONDENTS

PETITION FOR INTERLOCUTORY APPEAL

Petitioner by counsel, pursuant to M R.A.P. 5, petitions this Court for permission to appeal

an interlocuto1y order of the Circuit Court of Leflore County, Mississippi, and for other relief In

support of her Petitioner, Petitioner would show the following:

I. Petitioner is the Plaintiff to the case in the Circuit Court of Leflore County, Mississippi.

Petitioner"s motion for reconsideration or in the alternative, motion to stay payment was

denied on January 511\ 2018.

2. In this Petition, Petitioner seeks r~lief from this Court from an order of the Circuit Court

of Leflore County denying Petitioner's motion for reconsideration or in the alternative

motion to stay payment in the civi I matter asserting as a basis that Circuit Court of Leflore

County abused its authority by imposing sanctiops in the amount of $27,467.83 upon

Petitioner's counsel. Further, Petitioner asserts that the Circuit Court of Leflore County

abused its authority when Plaintiffs motion was denied without presentation of any oral

arguments. Petitioner will further state that she was not provided a copy of the defense's

response in opposition to the motion for reconsideration

3. Circuit Court of Leflore County unjustly enriched Respondents and caused substantial and

irreparable harm to Petitioner's ability to fully prosecute her case. The basis of

MOTIONli 201a 3L,o

 Respondents motion for sanctions were false and/or exaggerated claims that their time was

wasted preparing for a trial that did not occur. However, Respondents were aware of

Petitioner's desire for a request of trial continuance prior to September 51\ 2017 trial date.

Additionally, the fact that trial was continued, means a trial will be scheduled to commence

in the future. Therefore, any preparation for trial made by Respondents' and their counsel

was necessary and not a waste of time

Exhibits

4. A copy of Petitioner's Motion for Reconsideration or in the Alternative, A Motion to Stay

Payment of Sanctions is attached hereto as Exhibit'' A.''

5. A copy of the Leflore County Circuit Court Order dated January 5, 2018 is attached hereto

as Exhibit ''B.''

6. A copy of the Original Order granting Sanctions dated December 1, 2017 is attached hereto

as Exhibit ''C.''

Facts and Procedural History

7. The facts necessary to an understanding of the question of law determined by the order of

the Circuit Court as to which this appeal is sought are as follows:

a. Petitioner filed her medical malpractice Complaint on or about January 30, 2014

represented by Moore Law Group, PC and associated attorneys Katrina S. Brown

and Lillie Evans Bass.

b. The bench trial was set to commence at 9:00 a.m. on September 51\ 2017 via an

Agreed Order Re-Setting Case signed and executed by Katrina Brown on

November 30, 2016.

 c. Both Ms. Brown and Bass were granted permission to withdraw as counsel for

Petitioner (without conducting a hearing on Motion to Withdraw).

d. As a result, Petitioner requested a continuance of trial on September I "1, 2017,

because undersigned counsel was unable to be physically present for the

aforementioned trial date.

e. The Circuit Court of Leflore County granted the continuance but not without

advising Respondents that any motions for sanctions would be entertained relating

to attorney's fees and expert witness fees Hence, Respondents filed its Motion for

Sanctions.

f On December P1, 2017, Respondents motion was granted and sanctions were

imposed upon undersigned counsel for the total sum of $27,467.83.

g. On December 11 1'\ 2017, Petitioner filed her Motion for Reconsideration on the

grounds that if her counsel is forced to pay expenses prior to trial or the conclusion

of this case, it will hinder undersigned counsel's ability to fully prosecute

Petitioner's case and/or access the Court. See E'Chibit A.

h. On January 5, 2018, Plaintiff's motion for reconsideration was denied. See A:'Chibit

B.

1. The Order indicated that the defense filed their opposition to the motion, but

Petitioner never received a response from Respondents, in opposition or otherwise.

Statement of the Current Status of the Case and why it should be stayed

8. The trial of this case has not been set. A decision by this Court in favor of Respondents

could result in the dismissal of Petition's claims with prejudice. The Circuit Cami action

should therefore be stayed pending this Court's decision on this appeal in order to avoid
 the expense of complying with the January 5th Order enforcing a $27,467.83 sanction upon

undersigned counsel.

Issues Presented

9. This Petition for Interlocutory Appeal is being filed within twenty-one days of the effective

date of the trial court's Order Denying Plaintiffs Motion for Reconsideration, which was

entered on January 51\ 2018. The question of law decided by the Circuit Court and to be

presented on appeal is:

a. Whether the Circuit Court of Leflore County erred in ruling that Plaintiffs motion

for reconsideration and/or in the alternative stay payment of sanctions be denied,

without Plaintiffs receipt of any opposing motion and memorandum of Defendants

and/or any oral argument.

Argument

IO. Petitioner's circuit court case will be irreparably harmed absent an interlocutory appeal.

I I. Pursuant to F.R.A.P. 5(a), ·'an appeal from an interlocutory order may be sought if a

substantial basis exists for a difference of opinion on a question of law."

12. Due to the fact that Petitioner was denied reconsideration and/or in the alternative stay of

the order to pay sanctions imposed upon her counsel, the instant motion is in compliance

with F.R.A.P. 5(A).

13. In order to satisfy the Order (dated January 51h, 2018) of the Circuit Court of Leflore

County, Petitioner's case in said circuit court will suffer tremendously. It is not within the

financial capability of Petitioner/counsel to satisfy the outrageous amount of the sanction

($27,467.83) and still be able to adequately prosecute her claims. See 1~:'Chihit A.
 l 4. So,?ford Products Corp. v. Freels, 495 So.2d 468 - Miss Supreme Court 1986 held," ... that

in exceptional circumstances appeals from interlocutory orders in circuit court are

warranted. (citing Kilgore v. Barnes. 490 So.2d 894 (Miss. l 986)) The survival and

detriment of Petitioner's circuit court case is contingent on the aforementioned sanctions

and the ability to satisfy the order imposing sanctions

15. ln her Motion for Reconsideration, Petitioner informs Respondents of the financial strain

that compliance with the sanctions will inflict upon undersigned counsel's ability to

prosecute her medical negligence case. If undersigned counsel pays the $27,467.83,

Petitioner's access to the circuit court will be hindered. The guideline for the granting of

such appeals from circuit court trials was stated to be in cases where the appeal may settle

an important principle of law in the case and may advance the ultimate determination

of the action. Kilgore v. Barnes, 490 So.2d 894 (Miss. 1986)

16. Clearly, a decision in favor of Petitioner on the issues presented would stay payment of

sanctions in the Circuit Court case, thereby " ... avoid[ing] exceptional expense to

[Petitioner]; [and]/or protect[ing] a party from substantial and irreparable injury." See Miss.

R. App. P. 5(a)( l )(2).

17. Petitioner's motion must be granted to avoid expense and undue delay. In particular, the

Petitioner may suffer irreparable harm personally if interlocutory review is not granted.

FOR THESE REASONS, Petitioner respectfully prays that this Court will grant the

following relief:

a. Enter an order staying the payment of sanctions for 30 days after the conclusion of

this case or any appeal.

b. Grant such other relief as the Court may deem appropriate in the circumstances.
 Respectfully submitted, this the ) ~ of January, 2018.

LUE R. SANDERS, Plaintiff

By: ~ (.Q"\~
Carlos E. Moore, MSB# 100685

OF COUNSEL:

TUCKERIMOORE GROUP, LLP

306 Branscome Drive
P. 0. Box 1487
Grenada, MS 38902-1487
662-227-9940 - phone
662-227-9941 - fax
Email: [email protected]

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that I have this date served via the electronic filing
system and/or mailed via U.S. Mail, postage pre-paid, a true and correct copy of the above and
foregoing to the following:

Tommie G. Williams, Jr., Esq.

Tommie Williams, Esq.
UPSHAW, WILLIAMS, BIGGERS
& BECKHAM, LLP
P. 0. Drawer 8230
Greenwood, MS 38935-8230
Attorneys for Respondents

The Honorable Ashley Hines

Leflore County Circuit Court
3 10 W Market Street
Greenwood, MS 38930

THIS, the J-5'-ra; of January, 2018.

CARLOS E. MOORE, ESQ.

 .FILE copy
IN THE CIRCUIT COURT OF LE:FLORE COlJ.'JTY~ MISSISSIPPI

LUK R. SANDERS PLAI~Tlf'F

V. CAl:SE NO.: 2014-0006 CI

DR. RA YMOJ\--:0 P GIRNYS: DELTA

SURGICAL ciI~l(YGREE1'ffi,.OOD
LEFLORE HOSPITAL; AND JOHN
DOES 1-IO DEFENDANTS

MOTION f"OR RECONSIDERATION OR IN THE ALTERNA l'IVE. A MOTIO~ TO

STAY PAYMENT OF SANCTIONS

COl\1ES NOW, Plaintiff Lue R Sanders (hereinafter ·'Plaintiff'), by counsel, and files this

her ,'vfotionfor Reconsideration or in the Alternative, A lvfotwn to Stay Payment of.Sancttons, and

in support thereof. states as follows:

1 On or about January 30, 2014, P]aintiff filed her medical malpractice Complaint. Moore

Law Group, PC associated attorneys Katrina S Brown and Lillie Evans Bass in this matter.

On November 30, 20 J 7, an Agreed Order Re-Setting Case for Bench Trial was executed,

setting the bench trial to begin at 9:00 a.m. on September 5, 2017 and notably said Order

was signed by Katrina Brown and not Carlos E. Moore Nevertheless, On August 28, 2017

Ms. Brown and Ms. Bass were granted permission to withdraw as counsel for Plaintiff

(without notice or conducting of hearing on iVJotion to \Vithdraw).

2. Ms. Brown was lead counsel and designated as counsel to appear for the trial date of

September 5th, 20 l 7 Plaintiff and Moore l.aw Group requested a continuance of trial on

September I st_ 20 l 7 and requested to vvithdraw as counsel for Plaintiff Said requests were

made due to an impasse that both Plaintiff and undersigned counsel had reached, regarding

trial strate~,y. Additionally, the request was made because the undersigned counsel was

unable co be physic3.Jly present for the September 5th trial. Fl LED

DEC 112017
EXHIBJT
1 4 2017 1:u~~s.ST0CK~1~ c1ftcu1~CLERK
A JY:~ 1{~-f;< D.L
3. Plaintiff's request for continuance \.1;as reluctantly grnnted by this Honorable Court as not

to unduly prejudice the P!aintifr~ but Defondant.s were informed that any motions for

sanctions would be entertained as it relates to attorney's fees and expert witness fees.

Defendants complied, and as a result undersigned counsel has been ordered to reimburse
-· --- - - ------····- ----·---- - ·-- .

Defendants the total ~um of $27,467 83

4. Plaintiff hereby requests reconsideration of the Order filed December 1, 20 i7 on the

grounds that an award of such expenses would be unjust and hamper and hinder

undersigned counsel's effort to prosecute the instant medical malpractice case on behalf of

Plaintiff "ln determining an appropriate amount of attorney's foes .. the fee depends on

consideration of, in addition to the relative .financial ability of the parties, the skill and

standing of the attorney employed, the nature of the case and novelty and difficulty of the

questions at issue, as \vell as the degree of responsibility involved in the management of

the cause, the time and labor required, the usual anti customary charge in the

comnumity .. . " Walton v. Walton, 44 So.3d 1035 .. Miss: Court of Appeals 2010.

5. Pursuant to Rule 37(a)(S)(A)(iii), the Court is allowed to not sanction a party or counsel if

"other circumstances make an award of expenses unjust. There is a striking absence by this

attorney of any willful attempt to deceive or mislead this Court or opposing counsel. Both

parties were aware prior to trial that Plaintiff wished to continue the trial date of September

0-c While the court may find a case appropriate for the award of attorney's fees, the actual

mvard of attorney's tees is still dependent upon specific proof Romne_v v. Barbetta, 88l

So 2d 958_ 962(Miss.Ct.App.2004) Defendant have not proven that rhey have actually paid

experts any money or that said ,;:xperts lost business because of the trial being continued
 7. Further, as the case vvas not dismissed and will be reset for trial, defense counsels'

preparation for trial was not unnecessary

8. In Walton. the court affirmed a party's Liability for attorney's fees pursuant to Rule l l and

th_~n-~~Il_~ phtin_ e_f!"or_in a chancellor's actual award. In re Spence,~ 985 So.2d 3_30, 339

{Miss 2008), ln that case, the Mississippi Supreme Coun found plain error in the award of

fees in excess of the proot: vacated the judgment regarding the precise vaJue of the award,

and remanded for a factual finding of the amount of reasonable attorney's tees. Defendants

should not be unjustly enriched

9. Lastly, undersigned counsel should have been given the oppo1tunity to present arguments

on his behalf prior the court's ruling and hereby requests an evidentiary hearing on review

of sanctions

1O. Undersigned counsel humbly requests that he only be required to pay reasonable expenses

that were actual1y needlessly incurred, if any. As previously mentioned, if Plaintiffs

counsel is forced to pa.y expenses prior to trial, or the end of this case will hinder Plaintiff's

access to Court or to fully prosecute her case Thus, counsel for Plaintiff re.quests a stay

and that he be allowed to pay said sanction thirty (30) days after the conclusion of the this

case or any appeal

l l. Based upon the foregoing, Plaintiff's motion should be granted.

WHEREFORE, PREMISES CONSIDERED, Plaintiff respectfolly requests that this

Honorable Court grant counsel for Plaintiff relief from the Order of the Court requiring Carlos

Moore to pay sanctions er e-..:penses of the Defendants related to !\tr Moore's failure to appear for

trial or motion hearing on September 5th, 20 l 7 Additionally, given the simplicity of this motion,
Plaintiff respectfully request to be excused from filing a separate memorandum of laws Finally.

Plaintiff prays for all general re!jef this Honorable Court deems to be fair and just

Respectfully submitted, this the ~day of December, 2017.

LUE R. SANDERS, Plaintiff

By:
Carlos E. Moore, MSB# 100685

OF COUNSEL:

TUCKER!~IOORE GROUP, LLP

306 Branscome Drive
P O Box 1487
Grenada. MS 3 8902-148 7
662-227-9940- phone
662-227-9941 - fax
Email: [email protected]

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that T have this date served via the electronic filing
system and/or mailed via US . .Ylail, postage pre-paid, a true and correct copy of the above and
foregoing to the following:

Tommie G. Williams, Jr, Esq.

Tommie Williams, Esq
UPSHAW. WILLIAMS, BIGGERS
& BECKHAM. ILP
P. 0 Drawer 8230
Greenwood, MS 38935-8230
Attoniey for Defendants

THIS, the ~ Y of December. 2017

Fl LED
DEC 112017
E~~:~~~:t
BYtf/1
C~ CLERK
D.C
 IN THE CIRCUIT COURT OF LEFLORE COUNTY, MISSISSIPPI

LUE R. SANDERS PLAINTIFF

V. CAUSE NO. 2014-0006 CI

DR. RAYMOND P GIRNYS; DELTA DEFENDANTS

SURGICAL CLINIC; GREENWOOD
LEFLORE HOSPITAL; AND JOHN
DOES 1-10

ORDER

TIDS CAUSE came before the Court on Plaintiff's Motion for Reconsideration or in the

Alternative, a Motion to Stay Payment of Sanctions. After due consideration of said motion and

opposing party's response thereto, this Court finds the motion is not well taken and shall be denied.

IT IS, THEREFORE, ORDERED AND ADJUDGED that Plaintiff's Motion for

Reconsideration or in the Alternative, A Motion to Stay Payment of Sanctions shall be and is

hereby DENIED.

SO ORDERED AND ADJUDGED this the 4th da

FILED
'JAN 05 2018
ELMUS, STOCK~l~Cil\CU:T O.ERI(
BY~oa . ] { ~ ~ n.c

f EXHIBIT
6
II -..:::..___ RECEIVEO;o 82018
 IN THE cmcUIT COURT OF LEFLORE COUNTY, MISSISSIPPI

LUE R. SANDERS PLAINTIFF

V. CAUSE NO. 2014-0006 Cl

DR. RAYMOND P GmNYS; DELTA DEFENDANTS

. . SURGICAL-CLINIC; GREENWOOD.
LEFLORE HOSPITAL; AND JOHN
DOES 1-10

ORDER

TIDS CAUSE came before the Court on the Defendant Greenwood Leflore Hospital's

Motion for Sanctions. After due consideration of said motion and opposing party's response

thereto, this Court has made the following determinations.

The pertinent facts are as follows:

1. This is a medical malpractice case;

2. On January 30, 2014, the complaint in this case was filed on behalf of the Plaintiff by

Attorney Carlos Moore;

3. Subsequently, the law firm of Brown Bass & Jeter, PLCC, and its attorneys Katrina S.

Brown and Lilli Evans Bass were associated by the law firm of Moore Law Group

(currently kwon as Tucker Moore Group) in this case. The Plaintiff has never signed

any type ofretainer or attorney-client agreement with Brown Bass & Jeter, PLCC,

Katrina S. Brown, or Lilli Evans Bass;

4. On November 30, 2017, an Agreed Order Re-Setting Case for Bench Trial was signed

setting this case for a bench trial to begin at 9:00 a.m. of September 5, 2017;

5. On August 18, 2017, _Katrina S. Brown and Lilli Evans Bass filed a Motion to Withdraw

as Counsel for the Plaintiff based on a conflict of interest. According to that motion,

"Brown Bass & Jeter's withdrawal as counsel in this matter will not unreasonably delaY. ~
\\ \ \\'i
\)~"'
EXHIBIT ~'c.C'c.\~'c.\l
C1
 the case or prejudice the parties in any manner, as Carlos Moore of the law firm Tucker

Moore Group is still and will remain attorney of record for the Plaintiff;"

6. On August 28, 2017, after receiving no objection from the Defendant or Attorney

Moore, an order granting the motion to withdraw was signed;

7. On Friday, September 1, 2017, one business day prior to the trial, Attorney Moore, filed

a Motion to Withdraw as Counsel and Assert Lien, Motion to Continue Trial, and a

Notice of Hearing in which he noticed his motions for a hearing the morning of trial;

8. Monday, September 4, 2017, was the Labor Day Holiday and was observed as a State

Holiday;

9. Although the documents were not filed until September 1, 2017, the Court received a

faxed copy of the documents August 31, 2017.

10. In the Motion to Withdraw, Attorney Moore claims that he reached an impasse with his

client on how to proceed, that he would be out of state on September 5, 2017, and that

he did not have adequate time to prepare for trial;

11. In the Motion to Continue, Attorney Moore claims that he had a scheduling conflict and

would be out of state on September 5, 2017. Attorney Moore never stated the nature of

his conflict. However, the Defendant has presented evidence that Attorney Moore had a

speaking engagement in Texas on that day;

12. In his Motion to Continue, Attorney Moore further claims that he has a previous

obligation for a trial commencing on September 12, 2017, in Shelby County, Tennessee.

That trial was set to begin a week after the trial in this case and the order scheduling that

trial was not entered until July 24, 2017, approximately seven months after this case was

set for trial;

2
 13. At 9:00 a.m. on September 5, 2017, the Court, the Defendant, and the Defendant's

attorney were present in the Leflore County Courthouse and were ready to proceed with

the trial of this matter. The Plaintiff was also in attendance;

14. Attorney Moore failed to appear and sent Justin Smith to argue his Motion to Continue;

15. After due consideration of the evidence presented at the hearing, the Court reluctantly

granted the continuance, and asked the Defendant to submit a cost bill for his attendance

and his witnesses for their unnecessary trial preparation;

16. In preparing for the September 5, 2017 trial the Defendant incurred attorney fees in the

amount of$13,747.50; and

17. In preparing for the September 5, 2017 trial the Defendant incurred expert witness fees

in the amount of$13,720.33.

The Court finds that the costs of the attorney fees and expert witness fees submitted by

the Defendant are reasonable and that Attorney Carlos Moore shall be responsible for

paying those fees based on his failure to attend the trial and motion hearing on September 5,

2017.

IT IS, THEREFORE, ORDERED AND ADJUDGED that Attorney Carlos Moore

shall be and is hereby ordered to reimburse the Defendant for the reasonable attorney fees

and expert witness fees incurred by Attorney Moore's failure to attend the trial set on

September 5, 2017. The total amount to be reimbursed is $27,467.83. This Amount shall

be paid within thirty days.

SO ORDERED AND ADJUDGED this the

FILED
DEC o12017