Oliver v. Bankfirst et al
Filing
72
ORDER ruling on Skinner's claims against Oliver; granting 64 Motion for Sanctions; finding as moot 65 Motion for Order on Bench Trial; denying 68 Motion for Permanent Injunction. Oliver is sanctioned $250. A final judgment will issue this day. Signed by District Judge Carlton W. Reeves on 2/22/2013. (AC)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF MISSISSIPPI
EASTERN DIVISION
WILLIAM H. OLIVER
VS.
PLAINTIFF/COUNTER-DEFENDANT
CIVIL ACTION NO.: 4:09-cv-29-CWR-LRA
BILL SKINNER
DEFENDANT/COUNTER-PLAINTIFF
ORDER
This Court held a bench trial in this case on October 27, 2011. The Plaintiff/CounterDefendant and counsel for Defendant/Counter-Plaintiff announced ready, proceeded to trial,
presented evidence, and finally rested. Having considered the evidence and applicable law, the
Court now issues its Findings of Fact and Conclusions of Law.
Also before the Court are three post-trial motions. They too will be resolved below.
I.
Factual and Procedural History
William Oliver, a citizen of Ohio, filed a pro se Complaint in this Court on March 5,
2009, naming as Defendants BankFirst and Bill Skinner. [Docket No. 1]. At the heart of this
case is Oliver’s disappointment resulting from the loss, through a foreclosure sale, of some 138
acres of land he owned in Noxubee County, Mississippi. See [Docket No. 13]. The land was
subject to a deed of trust to Merchant Farmers Bank, predecessor in interest and title to BankFirst
Financial Services. Id. On February 1, 2008, Circle L Properties (“Circle L”) purchased the
property at a public foreclosure auction. Id. The sale was judicially confirmed by decree of the
Chancery Court of Noxubee County. [Docket No. 13-3]. See also Ex. D-2. Oliver did not
appeal this decision.
After the foreclosure sale, Oliver refused repeated requests to remove his livestock and
farming equipment from the property. See Ex. D-1, at 00028-29. As a result, Circle L filed suit
in the Circuit Court of Noxubee County. The court concluded that despite having been “notified
both in writing and verbally that he should remove all livestock and farming equipment . . .
[Oliver] failed or refused to remove his property.” Circle L Properties, LLC v. Oliver, Cause
No. 2008-151, slip op. at 2 (Noxubee Cir. Ct. Dec. 15, 2008). The court rejected Oliver’s
request to stay the matter because, although Oliver had filed a petition for bankruptcy in the
United States Bankruptcy Court of the Northern District of Ohio, the petition was initiated after
Circle L secured title to the property. Id. The court gave Oliver 15 days to remove his livestock
and farming equipment or they would be declared abandoned, at which time Circle L could “take
all steps necessary to have the livestock transported to the Macon Stockyard for sale to the
highest bidder.” Id. Specifically, after Circle L recouped its expenses, any remaining balance
would be placed in the registry of the Circuit Clerk of Noxubee County and made available for
return to Oliver. Id. See Miss. Code Ann. § 69-13-1, et seq. Oliver did not appeal this decision.
Subsequently, Oliver removed the equipment, but did not remove the livestock. Circle L
then sold the cattle to the Macon Stockyard, recouped its expenses, and caused the remaining
balance from the sale to be deposited in the registry of the Circuit Clerk. (T.68-70). At the time
of the trial before the undersigned, the funds remained in the circuit court registry. Id. at 70.
On January 26, 2009, Oliver filed a criminal complaint against Skinner with the Noxubee
County Sheriff’s Department. Id. at 29-30. See also D-1, at 00055. In it, he complained that
Skinner had stolen his cows and taken them to the stockyard. (T.30). The record is not clear if
this matter was eventually heard by the Noxubee Justice Court, which has jurisdiction over
misdemeanors, see Miss. Code Ann. § 99-33-1(2) (providing concurrent jurisdiction with the
circuit court over misdemeanor criminal charges) or the Circuit Court, see id. § 9-7-81
(providing general jurisdiction “to hear and determine all prosecutions in the name of the state
2
for treason, felonies, crimes, and misdemeanors[.]”). The proceeding, however, appears to have
ended with a ruling favorable to Skinner. (T.33).
Dissatisfied with the actions of the state courts, Oliver filed this suit against BankFirst
and Bill Skinner, who was Circle L’s agent and assistant manager, and who had appeared at the
auction on behalf of Circle L. [Docket No. 1]; T.53-56. The case was originally assigned to the
Honorable Tom S. Lee.
After being served, BankFirst filed a motion to dismiss and alternatively a motion for
more definite statement. [Docket No. 8]. Skinner filed a motion to dismiss, see [Docket No.
12], but he also filed an answer and asserted counter-claims against Oliver. In their motions, the
defendants advanced several grounds for dismissal, including lack of subject matter jurisdiction
pursuant to the Rooker-Feldman Doctrine.1
Skinner’s counter-claims alleged that Oliver’s Complaint was frivolous and constituted
fraud and harassment. [Docket No. 10]. Additionally, he asserted that the lawsuit violated the
Litigation Accountability Act (hereinafter “LAA”), see Miss. Code Ann. § 11-55-5. He also
asserted that Oliver was liable for defamation, abuse of process, and malicious prosecution, and
that Skinner should be awarded sanctions.
Oliver never responded to the Defendants’ dispositive motions.
Judge Lee entered
judgment dismissing the claims against BankFirst and Bill Skinner without prejudice. [Docket
Nos. 14 and 15].
Oliver appealed to the United States Court of Appeals for the Fifth Circuit, which
dismissed the appeal, concluding that it lacked jurisdiction because “Bill Skinner’s counter-claim
1
See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of Appeals v.
Feldman, 460 U.S. 462 (1983).
3
against Oliver remains pending in district court.” [Docket No. 29]. When the case was returned
to this Court, it was reassigned to the undersigned. [Docket No. 33].
Skinner filed an Amended Counter-claim on February 11, 2011. In it, he contended that
Oliver’s appeal to the Fifth Circuit provided an additional basis for relief under the LAA, and
that he had incurred additional fees and expenses defending against Oliver’s frivolous claims in
the trial and appellate courts. [Docket No. 36].
The parties engaged in discovery on the Amended Counter-claim. Subsequently, Skinner
filed a motion for summary judgment, on which this Court deferred ruling and set the matter for
trial. See Text-Only Order of August 25, 2011. In conferences leading up to the trial and
including the pre-trial conference, however, Oliver continued to assert claims and advance issues
which were disposed of through Judge Lee’s order. As a result, the Court “remind[ed] the pro se
Plaintiff again that the only claims that will be tried are those counterclaims which have been
brought by the Defendant/Counter-Claimant [Skinner] against the pro se Plaintiff.” Id.
On October 27, 2011, a bench trial was held on Skinner’s counter-claims.
II.
The Trial
The issues presented to the Court concerned whether Oliver was liable to Skinner for
abuse of process, defamation, malicious prosecution, violation of the Litigation Accountability
Act, and sanctions under Rule 11 of the Federal Rules of Civil Procedure. See Pre-Trial Order,
Docket No. 57, at 1-2; see also Opening Statement of Counsel for Skinner, T.21. During the
trial, Skinner called three witnesses to support his claims: Deputy John Clanton, Bill Skinner,
and Lucien Gwinn, III. Oliver testified in his defense. He was his only witness.
A.
Skinner’s Case-In-Chief
4
Deputy Clanton had investigated Oliver’s criminal complaint accusing Skinner of
stealing his cows and taking them to the Macon Stockyard.2 See Ex. D-2, at 00055; T.28.
Clanton testified that during his investigation, Oliver told him that “Bill [Skinner] had stole his
cows, them was his cows.” (T.32). When presented with the criminal complaint, the Judge
hearing the matter “made a decision on it.” Id. at 33.3
Skinner testified that Oliver accused him of stealing cows from his property even though
Skinner acted within the realm of the previous state court order empowering him to sell Oliver’s
cows and place in the circuit clerk’s registry the proceeds less his expenses incurred. Id. at 53,
60, 65, 95. He pointed to the judicial foreclosure proceedings as evidence that Circle L had not
stolen any of Oliver’s property. Id. at 57. Skinner also explained that he had to hire counsel to
defend against the claims in the instant Complaint. Id. at 59. Furthermore, in explaining the toll
Oliver’s criminal and civil complaints had on him, he said:
Well, puts you kind of under stress and puts you – you know, hurts your
credibility. And it just – you know, folks find out about it, they just – might think
you’re stealing stuff. But that wasn’t the case of this.
*
*
*
Well it’s really not good for that word to get out on anybody. . . . It has cost me a
lot of time and a lot of just discomfort. I mean a lot of discomfort. And just like
today I need to be home working, trying to get my crop out. Instead, I’m down
here in federal court trying to solve this matter. And I just want to get it behind
me. Causes a lot of stress and strain on me.4
Id. at 57, 58, 71. Skinner added that Macon is not a large town – “everybody knows everybody,”
he said – and that one would not want members of the community to hear such accusations. Id.
2
Deputy Clanton also was the officer who received Oliver’s Complaint. See Ex. D-2, at 00055.
When asked specifically if the matter was terminated in favor of Skinner, Deputy Clanton simply
responded that the “[j]udge made a decision on it.” (T.33). Presumably, the judge ruled in favor of Skinner.
4
Skinner added, “I just don’t like to have any kind of lawsuit, you know, hanging over me.” (T.71). This
testimony is either mistaken or reflects a lack of understanding of the purpose of our trial. No lawsuit had been
“hanging over” Skinner since August 20, 2009, more than two years before our trial. [Docket No. 15]. Our trial, of
course, was solely on Skinner’s counter-claims against Oliver. It was his choice to spend his time in federal court
pursuing his counter-claims instead of working his crop.
3
5
at 58. He testified that his wife, children, banker, and lawyer knew about Oliver’s assertions.5
Id.
To conclude his testimony, Skinner spoke about the fees his attorneys had charged to
represent him in this case since March 5, 2009. Id. at 59-60. He claimed that the fees totaling
approximately $32,000 were reasonable and necessary.6 Id. Skinner said he had not incurred
any legal fees prior to the filing of the instant civil action. Id. at 61.
The third and final witness called to testify in Skinner’s case-in-chief was Lucien “Sam”
Gwin, III, one of Skinner’s attorneys. Gwin explained that his firm was charging Skinner $250
per hour to represent him in the instant case and that the amount was reasonable and necessary.
Id. at 101-02. He also provided testimony regarding the work the firm had done on Skinner’s
behalf in this court and on appeal. Id. at 103-04. The charges Gwin testified to resulted from
this case only, without regard to his representation of Circle L. Id. at 111.
Skinner rested, id. at 112, and then Oliver “testified.”7
B.
Findings as to Oliver
5
Neither his wife, children, nor his banker testified at the trial. In fact, no one from the community
testified that they heard Oliver’s allegations. Skinner’s further assertion that Oliver’s charges “kind of hurts your
credit” was unsupported by any evidence. (T.58).
6
As will become clear, Skinner did not prove any claims that would entitle him to attorney’s fees. It
therefore is not necessary for the Court to consider his request for attorney’s fees.
Even if he had, the evidence supporting the request is deficient. First, the testimony did not distinguish the
hours spent defending against Oliver’s claims (for which fees would be more easily justified) versus those spent
advancing Skinner’s counter-claims (which, on this record, are not justified). In the Court’s view, the early
dismissal of Oliver’s claims means the time spent prosecuting Skinner’s counter-claims would likely predominate.
(In that vein, recall that $0 of the fee amount testified to at our trial concerned Skinner’s defense prior to that in the
instant civil action.) Second, the affidavit in support of fees that was described at trial, see T.111, did not make it
into the Court’s exhibits. Exhibit D-3 is an affidavit by attorney Timothy Gowan regarding the sale of the property,
not the affidavit of Gwin regarding fees described in the transcript. It is not clear what happened, but counsel may
have submitted the wrong document to the courtroom deputy. As a result, it is impossible to determine whether the
evidence accords with the Johnson factors. See Worldcom, Inc. v. Automated Communications, Inc., 75 F. Supp. 2d
526, 530 (S.D. Miss. 1999) (applying Johnson factors to case proceeding in diversity). Third, the Court would
likely not grant a motion for attorney’s fees based solely upon the testimony of the billing attorney and his client;
corroborative evidence from other attorneys would be helpful to find an appropriate billing rate. See Alexander v.
City of Jackson, Miss., No. 3:04-cv-614, 2011 WL 1059293, at *6 (S.D. Miss. March 21, 2011) (“The requested
market rate may be supported by affidavits of attorneys who practice in the locality in question.”).
7
Because Oliver was acting as his own attorney, the Court allowed him to take the witness stand and offer
his testimony in a narrative form. Counsel for Skinner cross-examined him.
6
Oliver has some experience with the legal system.
He has served as his own
representative in a number of lawsuits, including in the bankruptcy court in Ohio and in the state
and federal courts here in Mississippi. Id. at 124-37. He has filed appeals in the United States
Courts of Appeals for the Fifth and Sixth Circuits and sought review by the United States
Supreme Court. Id.
Despite his contacts with the courts, Oliver does not have a complete grasp of the law and
how it intersects with and applies to the facts of his case. It is clear to this Court that Oliver
believes that an automatic stay was in place because of his bankruptcy case. “[W]hoever started
it,” he said, “BankFirst and all, they didn’t have a right to do it because of the automatic stay.”
Id. at 154. In response to a question from the Court asking if Oliver thought that a violation of
the automatic stay had occurred, thereby authorizing this suit against Skinner and BankFirst, he
said, “[d]efinitely, because of the automatic stay. And when they went -- taken that action, they
didn’t have a right to do it.” Id. at 155; see also id. at 129 (BankFirst “started this whole
action”). The following colloquy between defense counsel and Oliver sheds more light on his
views:
Q.
A.
Q.
A.
Q.
A.
Q.
A.
Q.
Do you feel like the chancery court was wrong in ordering the sale of your
land?
Yes I do.
Do you feel like the circuit court was wrong in ordering the sale of what
were your cows?
Yes, I do.
You told them that, didn’t you?
Oh, I told them. Right. I send them a copy of the -- the automatic stay.
Yeah. Let me ask you something. What bankruptcy court ordered or
directed an automatic stay that applied to the sale of the land or you
removing your cows off of that land? Which cause of action applied to
that? I want to ask you that.
When I first -- you’re familiar with chapter 13. Right?
Mr. Oliver, you always go back and ask me if I’m familiar with chapter
13. I’m asking you a question, and that question is which one of those
7
A.
bankruptcy causes of action applied to any action that resulted in you
losing your land or you losing your cows[?]
All of them.
Id. at 140-41. In Oliver’s mind, Skinner had no right to sue him. Instead, he said, Skinner
“should be suing BankFirst . . . for selling him some stolen land.” Id. at 118.
Although the evidence clearly establishes that Skinner only acted in his capacity of agent
and officer of Circle L, Oliver explained:
I didn’t know nothing about no Circle L. Only thing I knew it was Mr. Skinner
was totally involved. That’s the reason I couldn’t put it on somebody else. . . .
Like I say, I didn’t know nothing about no Circle L, but only thing I know that –
that was dealing with it was Mr. Skinner. I didn’t want [to] try to make a
statement on somebody that I didn’t know nothing about.
Id. at 132. In other words, Oliver named Skinner as a defendant because he was the person
acting on behalf of Circle L.
III.
The Claims
Oliver invoked this Court’s diversity jurisdiction pursuant to Title 28, Section 1332 of the
United States Code. As a result, the applicable substantive law is that of the forum state,
Mississippi. Capital City Ins. Co. v. Hurst, 632 F.3d 898, 902 (5th Cir. 2011). State law is
determined by looking to the decisions of the state’s highest court. St. Paul Fire & Marine Ins.
Co. v. Convalescent Servs., Inc., 193 F.3d 340, 342 (5th Cir. 1999).
A.
Malicious Prosecution
In Miles v. Paul Moak of Ridgeland, Inc., No. 2011-CA-407-COA, 2012 WL 4075169
(Miss. Ct. App. Sept. 18, 2012), the Mississippi Court of Appeals recited that a malicious
prosecution claim requires the plaintiff to prove six elements:
(1) the institution of a proceeding; (2) by, or at the insistence of the defendant; (3)
the termination of such proceeding in the plaintiff’s favor; (4) malice in instituting
the proceedings; (5) want of probable cause for the proceeding; and (6) the
suffering of the injury or damage as a result of the prosecution.
8
Id. at *2 (citation omitted). “Failure to prove any element by a preponderance of the evidence is
fatal to the plaintiff’s claim.” Id. (citation omitted).
“Malice refers to the defendant’s objective in bringing the criminal proceeding.” Id. at *4
(citation omitted). “[T]he term ‘malice’ in the law of malicious prosecution is used in an
artificial and legal sense and applied to prosecution instituted primarily for some purpose other
than that of bringing an offender to justice.” Trilogy Communications, Inc. v. Times Fiber
Communications, Inc., 47 F. Supp. 2d 774, 780 (S.D. Miss. 1998) (citations omitted).
It
therefore “does not refer to mean or evil intent as a layman might ordinarily think.” Id.; see
Alradai v. Riverhills Bank, No. 5:06-cv-66, 2007 WL 2001647, at *3 (S. D. Miss. July 5, 2007);
Brabham v. O’Reilly Auto., Inc., 438 F. Supp. 2d 680, 682 (N.D. Miss. 2006); Nassar v.
Concordia Rod and Gun Club, Inc., 682 So. 2d 1035, 1042 (Miss. 1996); George v. W.W.D.
Automobiles, Inc., 937 So. 2d 958, 962 (Miss. Ct. App. 2006). In short, malice is a term of art
that “refers to the defendant’s objective, not his attitude.” Strong v. Nicholson, 580 So. 2d 1288,
1293 (Miss. 1991).
“The [Mississippi] supreme court has pronounced that malicious prosecution actions
must be ‘managed with great caution.’” Funderburk v. Johnson, 935 So. 2d 1084, 1097 (Miss.
Ct. App. 2006) (citation omitted). That is because “the threat of a malicious prosecution suit
may deter citizens from attempting to bring wrongdoers to justice, necessitating a cautious
approach to these suits.” Id.
Here, Skinner has failed to prove by a preponderance of the evidence that Oliver acted
with malice in filing the criminal complaint with the Noxubee County Sheriff’s Department, or
that Skinner has suffered damages as a result of that filing. While Oliver’s real and personal
property was sold in accordance with the law, Oliver, though misguided, was sincere in his belief
9
that the courts were wrong in ordering the sale of his land and his cattle, and that Skinner had no
authority to carry out or comply with the circuit court order. (T.138-40). Oliver named Skinner
only because Skinner was the face of Circle L, and took care not to file his complaint against
“somebody that [he] didn’t know nothing about.” Id. at 133. Oliver was incorrect, but his
actions do not show that he acted with malice.
See Funderburk, 935 So. 2d at 1097-98
(affirming directed verdict for insufficient evidence of malice); Hudson v. Palmer, 977 So. 2d
369, 381-82 (Miss. Ct. App. 2007) (affirming summary judgment on malicious prosecution claim
where undisputed evidence showed that incident report was filed without malice and solely to
stop plaintiff’s harassment).8 Nor was there sufficient evidence of any damages suffered by
Skinner that were caused by Oliver’s criminal complaint.
As a result, Skinner’s malicious prosecution claim fails.
B.
Abuse of Process
An abuse of process claim requires the plaintiff to “prove the following elements by a
preponderance of the evidence: (1) the defendant made an illegal use of process, (2) the
defendant had an ulterior motive for exercising such illegal use of process, and (3) damage
resulted from the perverted use of process.” Miles, 2012 WL 4075169, at *4 (citation omitted).
An action for abuse of process differs from an action for malicious prosecution in
that the latter is concerned with maliciously causing process to issue, while the
former is concerned with the improper use of process after it has been issued. The
crucial element of abuse of process is the intent to abuse the privileges of the legal
system.
Id. (quotation marks, citations, and brackets omitted) (affirming summary judgment where the
plaintiff “fail[ed] to show any perversion or unauthorized use of any legal process”). The cause
8
To the extent Skinner’s claim of malicious prosecution is rooted in Oliver’s filing of the instant civil
action, such a claim would fail for the same reasons. “In a civil suit, a plaintiff is always seeking his own ends. For
this reason, more latitude is generally permitted respecting motivation in the bringing of civil suits for purposes of
the malice issue in malicious prosecution cases.” Trilogy, 47 F. Supp. 2d at 781 (quotation marks and citations
omitted). Skinner has not proven that Oliver acted with malice in bringing this lawsuit.
10
of action has also been described as “the malicious perversion of a regularly issued civil or
criminal process, for a purpose and to obtain a result not lawfully warranted or properly
attainable thereby.” Cent. Healthcare Servs., P.A. v. Citizens Bank of Philadelphia, 12 So. 3d
1159, 1167 (Miss. Ct. App. 2009) (citation omitted).
Skinner’s abuse of process claim cannot succeed on the evidence presented. First, as
explained above, Skinner has not proven that Oliver intended to abuse the privileges of the legal
system or displayed malicious perversion of the legal system to achieve an improper purpose.
Although Oliver is wrong about whether the bankruptcies he filed prevented other court actions
from proceeding, he honestly held that view and has argued it here in seeking the return of his
property. Skinner’s subjective belief that Oliver had an ulterior motive does not make it so. See
id. In addition, Skinner failed to prove by a preponderance of the evidence that he suffered
damages which resulted from a perverted use of process.
Abuse of process has not been established.
C.
Defamation
Skinner alleges that because Oliver accused him of theft and since that charge was
“baseless and without any merit,” see Answer, Affirmative Defenses and Counter-Claim of Bill
Skinner [Docket No. 10], Oliver is liable to him for defamation. At trial, the sole witness to
testify about what Oliver said was Deputy Clanton, who had approached Oliver to discuss his
criminal complaint. During the course of that investigation, Oliver told Deputy Clanton that
“Bill had stole his cows, them was his cows.” (T.32).
To establish a defamation claim, the plaintiff must prove four elements by a
preponderance of the evidence: “(1) a false and defamatory statement concerning the plaintiff,
(2) an unprivileged publication to a third party, (3) fault amounting to at least negligence on the
11
part of the publisher, and (4) either actionability irrespective of special harm or existence of
special harm caused by the publication.” Richard v. Supervalu, Inc., 974 So. 2d 944, 949 (Miss.
Ct. App. 2008) (citing Armistead v. Minor, 815 So. 2d 1189, 1193 (Miss. 2002)).
“A communication may be privileged if it is made in good faith in the prosecution of any
inquiry regarding a crime which has been committed, and for the purpose of detecting and
bringing to punishment the criminal.”
Id. at 950 (quotation marks, citation, and brackets
omitted). Put differently,
[a] communication made in good faith and on a subject matter in which the person
making it has an interest, or in reference to which he has a duty, is privileged if
made to a person or persons having a corresponding interest or duty, even though
it contains matter which without this privilege would be slanderous, provided the
statement is made without malice and in good faith.
McGinty v. Acuity Specialty Prods. Group, Inc., No. 3:07-cv-715, 2009 WL 161827, at *3 (S.D.
Miss. Jan. 22, 2009) (quoting Smith v. White, 799 So. 2d 83, 86 (Miss. 2001)).
Succinctly stated, “a qualified privilege shields statements made to law enforcement
officers concerning a suspected crime.” Howell v. Operations Mgt. Intern., Inc., 77 F. App’x
248, at *2 (5th Cir. 2003) (citing Downtown Grill, Inc. v. Connell, 721 So. 2d 1113, 1119-21
(Miss. 1998)). “Statements within the scope of [this] qualified privilege[] cannot give rise to
defamation liability unless the speaker acts with malice, and the plaintiff has the burden of
overcoming a presumption that the statements were made in good faith.” Id. (citations omitted).
As the law enforcement officer charged with investigating Oliver’s criminal complaint,
Deputy Clanton certainly had a duty to inquire of and obtain information from Oliver regarding
the scope of that criminal complaint. Similarly, as the complainant who believed that his
12
property had been stolen, Oliver had a duty to respond to questions asked of him by law
enforcement officers.9
Accordingly, the focus shifts to whether Skinner has overcome the presumption that
Oliver’s statement to law enforcement was made in good faith. He has not. And as before, the
Court finds that Skinner has not proven that Oliver acted with malice in telling Deputy Clanton
what he believed to be true.10
For these reasons, defamation has not been established.
D.
Litigation Accountability Act
Skinner brought a separate cause of action against Oliver for what he contends were
violations of the Litigation Accountability Act, Miss. Code Ann. § 11-55-5. But the Mississippi
Supreme Court has held that the Litigation Accountability Act does not provide a separate cause
of action. Rose v. Tullos, 994 So. 2d 734, 738 (Miss. 2008). Accordingly, this claim is
unavailing.
E.
Sanctions
In his closing argument, counsel for Skinner requested damages and/or sanctions against
Oliver in the amount of $25,000 plus reasonable attorney’s fees. (T.162). Counsel’s main
argument was that Oliver had wrongfully and unnecessarily prolonged this litigation against
Skinner. Id. at 161-62. Skinner, for example, “had to hire lawyers. He had to take off of work.
9
There was no conclusive testimony at trial about how or in which court the criminal complaint was
presented, nor about how the case was resolved. All we know is that the “judge made a decision on it.” (T.33). It is
not clear whether the court held a trial or if the prosecutor moved to have the criminal complaint dismissed. There
certainly was no testimony that Oliver took additional steps after filing the criminal complaint to make sure that the
case was prosecuted. See, e.g., Benjamin v. Hooper Electronic Supply Co., Inc., 568 So. 2d 1182, 1186-92 (Miss.
1990) (describing, in “a senseless prosecution initiated by Cash in a reckless manner,” the various actions taken by
complainant to make sure that police carried forward its investigation).
10
To the extent Skinner is complaining about testimony or matters presented at a previous trial – for
example, statements made during Skinner’s action seeking removal of cows from Circle L’s newly-acquired
property, which may have been overheard by Deputy Clanton, the bailiff at that trial – the claim fails because
statements made during judicial proceedings are absolutely privileged. Central Healthcare, 12 So. 3d at 1168;
Prewitt v. Phillips, 25 So. 3d 397, 399 (Miss. Ct. App. 2009).
13
He’s got a crop to put in the ground today. He’s got issues of time that he has taken away from
him being able to take care of himself and take care of his family. He’s been damaged.” Id. at
162.
The argument is not borne out by the evidence. Skinner presented no evidence at trial
that Oliver’s complaint to the Sheriff’s Department resulted in any actual costs or injury to
Skinner, and Oliver’s claims in this court were dismissed almost immediately. See [Docket No.
15]. The vast majority of the time and money expended in this civil action – that is, the injuries
allegedly caused by this suit being prolonged – have stemmed from Skinner’s counter-claims
against Oliver. Skinner is not entitled to take a case to trial, lose on his claims, and then seek
sanctions from his opponent on the theory that his opponent unnecessarily prolonged the
litigation. The request for sanctions in that amount and on those grounds is not well-taken and
will be denied.
IV.
Post-Trial Motions
Unfortunately, that is not the end of the story. Before the Court are three post-trial
motions: Skinner’s motion for sanctions [Docket No. 64], Oliver’s motion for an order on the
bench trial [Docket No. 65], and Skinner’s motion for a permanent injunction and restraining
order [Docket No. 68]. Each will be taken in turn.
Perhaps of greater importance, though, is the issue of how Oliver and Skinner expect to
move forward with their various grievances against each other after today. The Court will take
that up last.
A.
Sanctions
After trial, Oliver moved the Court to reinstate his claims against defendants BankFirst
and Skinner so that he could pursue his theory of wrongful foreclosure. [Docket No. 62].
14
Skinner responded in opposition [Docket No. 63] and simultaneously moved for sanctions,
arguing that Oliver’s contentions were frivolous and filed for purposes of harassment and delay
[Docket No. 64].
The Court agrees. Toward the end of the trial, the undersigned repeatedly explained to
Oliver that his claims were dismissed and would not be reinstated unless the Fifth Circuit
ordered them reinstated:
The remaining issues that were present are those claims brought by Mr.
Skinner. Once those remaining issues have all been decided, if either party is not
satisfied of the ruling of the court, I would imagine the Fifth Circuit will then take
up any appeal.
But as it stands now on October the 27th, 2011, you have no claim against
Mr. Skinner or BankFirst in this. And the court is not going to entertain any
claims, because I have no authority to entertain the claims that you think that you
have, the hurt that they may have caused you or you believe they have caused
you, the damages that you believe you may have suffered. This court does not
have the authority to hear those claims.
The only authority that I have is to hear the claims that have brought -been brought by Mr. Skinner. You have refused to hear that. You have refused to
understand that. And it’s very tragic that you have.
(T.167). Oliver’s motion to reinstate frivolously and willfully disregarded the Court’s repeated
admonitions.
Skinner was forced to incur needless expense in opposing the motion for
reinstatement, and the Court’s time was wasted in ruling on an issue it and its colleague have
collectively ruled upon multiple times.
Skinner’s motion for Rule 11 sanctions will be granted. Oliver will be sanctioned $250,
payable to Skinner’s law firm (Gwin, Lewis & Punches), for presenting a frivolous motion for
reinstatement which disregarded prior Court rulings and needlessly increased the cost of this
litigation.
B.
Resolving the Bench Trial
15
This Order has resolved all claims heard at our bench trial. Accordingly, Oliver’s motion
seeking an order on the bench trial is denied as moot.
C.
Injunctive Relief and Restraining Order
Skinner’s most recent motion alleges that after the close of our trial, Oliver continued to
seek Skinner’s arrest and also continued to defame Skinner. [Docket No. 68]. The sole piece of
evidence supporting Skinner’s motion is a July 13, 2012, letter purportedly from Oliver to the
Macon Beacon, a newspaper in Noxubee County, Mississippi, in which Oliver wrote, “BILL
SKINER STOLE WILLIAM OLVERS COWS AND BULLDOZER AND CLEARING
BLADES.” [Docket No. 68-2]. Oliver did not respond to the motion.
To obtain permanent injunctive relief, a plaintiff must demonstrate: (1) that it has
suffered an irreparable injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that, considering the
balance of hardships between the plaintiff and defendant, a remedy in equity is
warranted; and (4) that the public interest would not be disserved by a permanent
injunction. A permanent injunction is generally only granted where, as here, a
full trial on the merits has occurred.
ITT Educ. Servs., Inc. v. Arce, 533 F.3d 342, 347 (5th Cir. 2008) (quotation marks and citation
omitted). Each factor will be discussed in turn.
First, the Court is not persuaded that Skinner has made a sufficient showing of irreparable
injury, either to his reputation or at all. The law requires that “[a] plaintiff must allege ‘specific
facts’ to support a finding of irreparable injury.” Id. (citation omitted). The only specific fact
supporting injury here is Oliver’s letter to the newspaper. And there is no evidence that a
reasonable person reading it would believe that a letter typed in all-caps and full of misspellings
– indeed, a letter where the author has misspelled both his own name and the name of the person
he is writing about – is credible, such that it has actually damaged Skinner. For purposes of
injunctive relief, Oliver’s letter alone, without more, does not suffice to show irreparable injury.
16
Second, Skinner has an adequate remedy at law for defamation: monetary damages. His
failure to prove up his defamation and other claims in our bench trial says nothing about what he
may prove at a later trial on Oliver’s letter to the newspaper.
Third, the balance of hardships does not tip in Skinner’s favor.
Fourth, the public interest is better served by a cautious approach to injunctive relief in
defamation cases. That is because “prior restraints on speech and publication are the most
serious and the least tolerable infringement on First Amendment rights,” Tory v. Cochran, 544
U.S. 734, 738 (2005) (quotation marks, citations, and brackets omitted).
Last, but not least, while Skinner’s request for a permanent injunction has appropriately
come after a trial on the merits, issuance of such an injunction is usually predicated upon the
movant succeeding on his claims at trial. That has not happened here.
The motion for permanent injunctive relief is denied.
D.
Moving Forward
Since a final judgment will issue today, the parties will be entitled to appeal to the Fifth
Circuit. Oliver’s $250 sanction is stayed pending appeal. That is, it does not have to be paid
unless the sanction is affirmed on appeal. If neither party appeals, the sanction shall be paid by
June 1, 2013.
Oliver and Skinner are urged to consider whether continued litigation is the most
productive and cost-effective means of resolving their dispute. Each party has lengthened these
proceedings in different ways. But no one has achieved the result he wanted. The benefits from
continuing to litigate are uncertain, but the costs are clear: more time in court and more money
spent either on attorneys, or perhaps on sanctions.
17
Oliver especially should proceed with caution. This Order plainly puts him on notice that
he no longer has a claim against BankFirst or Skinner regarding the loss of his land and cattle, as
difficult as those events may have been. Further attempts to pursue BankFirst or Skinner for
those losses, except via this one appeal to the Fifth Circuit, may lead Skinner to sue him again
for defamation (or for any other cause of action), leading to a possible judgment against him, and
could lead to additional sanctions from the Court for frivolous filings.11
V.
Conclusion
After considering the evidence presented at trial, the parties’ arguments, and the
applicable law, Skinner’s causes of action against Oliver, based on events that occurred before
trial, are hereby dismissed with prejudice. Skinner’s motion for sanctions is granted and Oliver
is sanctioned $250 for frivolous filing in violation of Rule 11. Oliver’s motion for a ruling is
moot and Skinner’s motion for injunctive relief is denied. A separate final judgment shall issue
this day.
SO ORDERED, this the 22nd day of February, 2013.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
11
The Court will emphasize that it is not attempting to prevent either party from appealing. Once the
appeal has concluded, however, that should be the end of the matter.
18
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?