Petition for Writ of Certiorari — Hampton v. Mississippi (No. 05-1277)

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The Fourteenth Amendment of _ the

Constitution of the United States secures all

persons against any state action which results in

either deprivation of life, liberty or property

without due process of law. It is well settled that

due process and the Sixth Amendment guarantee

a defendant charged with contempt the same

rights as those charged with other crimes. See

Holt et al v. Virginia, 381 U.S. 131, 85 S.Ct.

1375 (1965) citing In Re Oliver, 333 U.S. 257,

Willner v. Committee on Character and Fitness,

373 U.S. 96, Gideon v. Wainwright, 372 U.S.

335, In Re Murchison, 349 U.S. 133 and Tumey

v. Ohio, 273 U.S. 510.

Petitioner has been deprived by state action

without the due process of law required by the

United States Constitution and the Mississippi

State Constitution and statutes.

For the reasons set out above the Supreme

Court of the United States should grant

petitioner’s petition for writ of certiorari to the

Mississippi Supreme Court.

Respectfully submitted on this the

day of March, 2006.

a? , —

Vinda A. Hampton, Pro e

APPENDIX

IN THE SUPREME COURT OF MISSISSIPPI

No. 2004-KM-01089-SCT

IN RE: LINDA A. HAMPTON Petitioner ~

DATE OF JUDGEMENT: 9/3/2004

TRIAL JUDGE: HON. V. R. COTTON

COURT FROM WHICH APPEALED:

WINSTON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PROSE

ATTORNEY FOR APPELLEE: OFFICE OF

THE ATTORNEY GENERAL

BY: JOHN R. HENRY

DISTRICT ATTORNEY: DOUG EVANS

NATURE OF THE CASE: CRIMINAL —

MISDEMEANOR

DISPOSITION: - AFFIRMED — 01/05/2006

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

BEFORE SMITH, C.J., CARLSON AND

RANDOLPH, JJ.

SMITH, CHIEF JUSTICE, FOR THE COURT:

1. An attorney for the defendant in a civil case

failed to show up for a hearing in the matter and

was later found in criminal contempt of court for

failing to appear in the Circuit Court of Winston

County. She now appeals to this Court and

raises several issues regarding the contempt

conviction and sentence imposed by the circuit

court. Finding no reversible error by the learned

trial judge, we affirm.

FACTS AND PROCEDURAL HISTORY

42. This case had its genesis in Flake vy.

Coburn, 2003-AP-02602, an election contest

where attorney Linda A. Hampton was counsel

of record for the defendant. Before Flake

proceeded to trial, Hampton filed a petition for

writ of prohibition with this Court alleging that

the circuit court no longer retained jurisdiction

in the election matter. This Court entered an

10.

order denying Hampton’s petition, finding

jurisdiction was proper in the Circuit Court of

Winston County. Hampton subsequently filed a

motion for reconsideration of this Court’s order

which determined jurisdiction was proper in the

circuit court. The trial judge expressed concern

as to whether or not jurisdiction was proper in

the circuit court and asked this Court for a

clarification of jurisdiction. This Court then

issued an additional order reconfirming the

denial of Hampton’s petition for writ of

prohibition and explicitly recognized _ that

jurisdiction was proper in the circuit court.

43. After this Court determined that jurisdiction

was proper, the circuit judge issued a letter to

each attorney, informing them of what was to be

expected at the election hearing scheduled for

August 27, 2004. After the circuit court secured

a court reporter, the circuit court sent an

additional letter to each attorney. The second

letter requested the presence of both attorneys at

the courthouse on August 27 at 8:30 a.m. for a

planning conference. On August 27 at 9:06 a.m.

the trial judge, attorney for the plaintiff, and the

clerk of the circuit court were present in the

judge’s chambers; however, attorney Hampton

was not present at the conference, nor had

anyone heard from her.

11.

4. While on the record, the judge telephoned

and left messages with Hampton’s law office, on

Hampton’s cell phone and at Hampton’s

residence. In addition, a circuit court clerk

employee was sent to a funeral home owned by

Hampton’s husband. None of these attempts led

to communication with Hampton or knowledge

of her whereabouts. Further, the Winston

County Circuit Clerk, Kim Ming, revealed that

she spoke with Hampton during the two weeks

preceding the meeting, and Hampton informed

the circuit clerk that she may or may not attend

the planning conference scheduled for August

27. The judge determined that a recess was

appropriate until all efforts to contact Hampton

were exhausted. When the judge reconvened

the conference, Hampton was still unaccounted

for and never made an appearance.

95. The circuit court entered an order continuing

all proceedings until September 3, 2004. The

order also provided notice that Hampton’s

absence from the planning conference would

require explanation at that time. The order

commanded both attorneys to appear “without

fail at the appointed time” on September 3. In

addition, both Hampton and her client were

subpoenaed to appear at the September 3

hearing. Hampton subsequently filed a motion

to quash the subpoenas issued by the circuit

court. The judge denied the

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motion and once again commanded Hampton to

appear at the hearing.

"6. On September 3, Hampton appeared in the

Circuit Court of Winston County as ordered. At

the outset of the hearing, the judge proceeded

with the possible contempt issue regarding

Hampton’s absence from the prior hearing.

Hampton then expressly stated she was ready to

proceed on the contempt issue, and the judge

gave a brief recitation of the law regarding

contempt. With the permission of the court,

Hampton read aloud a prepared statement to

address her absence. First, Hampton revealed

her displeasure with the initial setting of the

election case on Confederate Memorial Day in

April of 2004. Moreover, Hampton recounted

the inconvenience of her arriving at the

courthouse and discovering that it was closed

for a holiday. Hampton submitted that her client

was under no obligation to appear because the

circuit court did not have jurisdiction. Hampton

opined that her client did not authorize her to

appear on his behalf, and she had _ no

authorization to do so. Hampton informed the

court that she was unable to develop further

testimony on this claim citing the attorney-client

privilege as a defense. Finally, Hampton

claimed that the circuit court’s order requiring

her presence was unclear.

13.

47. After Hampton completed the reading of her

statement, the court conducted a_ brief

examination of Hampton. Once the court’s

examination of Hampton was complete,

Hampton was allowed to present witnesses on

her behalf. Both of Hampton’s witnesses

testified that Hampton was present at the

courthouse and in anticipation of a hearing on

April 26. Further, both witnesses testified the

courthouse was closed on April 26, in

observance of Confederate Memorial Day.

48. Counsel for the plaintiff was permitted to

call the Winston County Circuit Clerk as a

witness. The clerk testified that the courthouse

was closed for Confederate Memorial Day and

notices of the court's closure were

conspicuously posted in advance of the

weekend.

9. The judge then gave a particular chronology

of the events that transpired in the case from

August 5, 2004, up until that point. Next, the

judge called the clerk of court back to the stand

and conducted his own examination. The clerk

testified that orders and letters issued by the

judge were faxed and mailed to counsel for both

parties. During her testimony, the clerk also

recounted her conversation with Hampton,

where Hampton stated that she “may or may

not” be at the August 27 hearing. The judge then

allowed

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Hampton the opportunity to cross-examine the

Clerk.

€10. The judge further allowed Hampton an

opportunity to develop any further reasons and

witnesses regarding the contempt _ issue.

Hampton asserted that the summons issued was

a summons under Rule 81 of the M.R.C.P.

whereby her client could appear, defend, or

receive a default judgment; contrary to a rule 4

summons. Thus, Hampton claims she informed

her client based on the directives of the

summons and failed to attend the hearing in

accordance with her client’s wishes.

411. Hampton called her husband, the owner of

the funeral home, to testify at the contempt

hearing. Hampton’s husband testified that due to

the emotional strain of a relative’s funeral,

Hampton did not attend the hearing on August

27.

4/12. Finally, the judge delivered his ruling on

the issue of Hampton’s contempt. The judge

concluded Hampton was aware that her

attendance on August 27 was mandatory.

Further, the judge determined that Hampton’s

failure to attend the hearing was willful,

deliberate and contumacious. Thus, the judge

found Hampton in direct criminal contempt of

court. Hampton was subsequently fined $100 for

her actions and sentenced her to serve a

term of three days in the Winston County Jail.

Furthermore, the judge imposed sanctions

against Hampton for counsel opposite’s time,

the court reporter’s fee, and court cost.

DISCUSSION

I. NOTICE

£13. “This Court is not bound by the manifest

error rule when the appeal involves a conviction

of criminal contempt. Instead, this Court

proceeds ab initio to determine whether the

record proves the appellant guilty of contempt

beyond a reasonable doubt.” Purvis v. Purvis,

657 So. 2d 794; 797 (Miss. 1994). “The burden

of proof to establish that contempt has been

committed is on the party asserting that it has.

In a proceeding for criminal contempt, evidence

of guilt must be established beyond a reasonable

doubt.” Brame vy. State, 755 So. 2d 1090, 1093

(Miss. 2000) (citing Jn re Holmes, 355 So. 2d

677, 679 (Miss. 1978)).

“14. Hampton contends she was deprived of the

right to be informed of the nature and

accusations charged against her; specifically

neither the circuit court’s subpoena nor the order

served upon her gave notice of the contempt

charge. Hampton also argues, that the circuit

court’s failure to provide notice, denied her the

opportunity to obtain witnesses

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on her behalf and to retain assistance of counsel

for her defense at the contempt proceeding.

415. First, in considering Hampton’s appeal, it is

necessary to determine whether civil or criminal

contempt is at hand in this case. This Court has"

previously held:

If the primary purpose of the contempt order

is to enforce the rights of private party litigants

or enforce compliance with a court order, then

the contempt is civil. The contemnor may be

jailed or fined for civil contempt; however, the

contemnor musi be relieved of the penalty when

he performs the required act.

Cooper Tire & Rubber Co. v. McGill, 890

So. 2d 859, 868 (Miss. 2004) (citing Purvis v.

Purvis, 657 So. 2d at 796-97). Hence, civil

contempt is a compulsory measure used by

courts.

416. “Criminal contempt penalties, on the other

hand, 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.” McGill, 890

So. 2d at 868 (citing Common Cause of Miss. v.

Smith, 548 So. 2d 412, 415-16 (Miss. 1989)).

The circuit court imposed the contempt charge

on Hampton as punishment for failing to attend

the hearing at

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issue. Thus, $100 fine and three day jail

sentence was a punishment asserted by the court

in the case at bar. As _ such, the penalty

constitutes criminal, not civil, contempt.

417. Second, it is necessary to determine

whether criminal contempt is_ direct or

constructive. This Court has previously held

that:

Direct 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. Punishment for

direct contempt may be meted out instantly by

the judge in whose presence the offensive

conduct was committed . ... Unlike direct

contempt, constructive contempt involves

actions which are committed outside the

presence of the court... 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 226, 237-38

(Miss. 2002) (citing Moulds v. Bradley, 791 So.

2d 220, 224-25 (Miss. 2001).

{18. This Court generally applies the rule that a

party’s failure to appear in court at the appointed

time constitutes constructive = contempt.

Wyssbrod vy. Wittjen, 798 So. 2d 352 (Miss.

2001); Murrell v. State, 655 So.2d 881, 887

(Miss. 1995); Wolf'v. State, 260 So.

18.

2d 425, 433 (Miss. 1972). Thus, under the

general rule Hampton’s failure to avail herself

before the court on August 27 appears to

represent an instance of constructive criminal

contempt.

419. However, this rule is not without exception.

In Wyssbrod, an attorney contacted the court

administrator and informed the court that he

would not be present for the hearing as ordered

by the court. 798 So. 2d at 361. This Court

distinguished the attorney's conduct in

Wyssbrod “from instances where an attorney

merely fails to appear, which is generally held to

be constructive contempt.” Jd. Hence, the

attorney’s actions in Wyssbrod were classified

as direct criminal contempt, rather than

constructive criminal contempt.

20. Similarly, here Hampton spoke with the

Winston County Circuit Clerk, regarding her

appearance at the hearing set for August 27.

During the conversation Hampton informed the

clerk of court that “off the record, that she may

or may not be there.” Hampton also told that

clerk “she would probably be [t]here, but she

was not sure yet.” This communication clearly

indicates Hampton was aware of her obligation

to attend the hearing. Further, _ this

communication demonstrates Hampton's

intention to absent herself from the hearing.

21. After a thorough review of the record, we

find that this instance is also distinguishable

19.

from instances where an attorney merely fails to

appear, and Hampton’s actions classified as

direct criminal contempt. Thus, to be classified

as an act of direct criminal contempt under the

Wyssbrod exception, criminal contempt cases

should be analyzed on a case by case basis to

determine if the attorney’s actions constituted

something more that merely failing to appear.

Id.

22. Since Hampton’s failure to attend the

hearing was an act of direct criminal contempt,

“(t]he 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 797 (citing Lamar

v. State, 607 So. 2d 129, 130 (Miss. 1992)).

Therefore, Hampton was not entitled to notice ~

nor was she entitled to a hearing on_ the

contempt matter.

423. Nevertheless, the circuit court issued an

order commanding Hampton to appear on

September 3 in order to explain her absence.

The circuit court did in fact provide Hampton

with notice and an opportunity to show cause as

to why she was absent from the August 27

hearing. At the September 3 show cause hearing

the judge asked Hampton if she was ready on

the contempt issue, Hampton replied “Yes, |

am.” Hampton was then allowed several

opportunities to present a reasonable

20.

excuse for her absence from the hearing a week

prior. Hampton was also permitted to call and

examine a number of witnesses to demonstrate

her absence was for good cause. At the

conclusion of the show cause hearing, the circuit

court stated:

I have sought to have a full and

complete hearing on this matter. I have

allowed you to call witnesses, the court

has called witnesses, and you've had a

right to full-boar [sic] — cross-

examination, and I have attempted to

apply all of the facts, and applicable law

here today. And the court finds, Ms.

Hampton, that you are in direct criminal

contempt of the court for your willful,

deliberate non-appearance before the

court on last Friday at 9:00 o'clock,

while the court was sitting, while the

court was In session.

Hampton disputes the authenticity of

the record and claims that “many of the

actual statements in court have been deleted

or altered in the transcript of the

proceedings.” However this Court’s review

is limited to what appears in the record.

Pulphus vy. State, 782 So. 2d 1220,

1224 (Miss. 2001). “We have on many

occasions held that we must decide each

case by the facts shown in the record, not

assertions in the brief, however sincere

counsel may be in those assertions.” Mason

v. State, 440 So. 2d 318, 319 (Miss. 1983).

Further, “[f]acts asserted to exist must and

ought to be definitely proved and placed

before us by a record, certified by law;

otherwise, we cannot know them.” /d. at

319; Phillips v. State, 421 So. 2d 476 (Miss.

1982); Branch v. State, 347 So. 2d 957

(Miss. 1977); Robinson vy. State, 345 So. 2d

1044 (Miss. 1977); Shelton v. Kindred, 279

So. 2d 642 (Miss. 1973); Alexander v.

Hancock, 174 Miss. 482, 164 So. 772

(1935).

q24. Therefore, contrary to Hampton's

contentions, the circuit court provided Hampton

with adequate notice of the subsequent contempt

hearing on September 3. While neither notice

nor a hearing was required in this matter, the

circuit court provided Hampton with ample

she did), a week to retain counsel, a fair hearing

to determine whether her absence was for good

cause, and a number of opportunities to

explain her failure to attend the August 27

hearing. Thus, this issue is without merits.

Il. CIRCUIT JUDGE’S ROLE

425. Hampton maintains the circuit court judge

should not have acted as the trier of fact in the

case at bar. However, as previously determined,

this case involves acts of direct criminal

contempt, and ‘[t]his Court has held that direct

criminal contempt may be handled by the sitting

judge instantly.” Terry v. State, 718 So. 2d

1097, 1104 (Miss. 1998). Therefore, it was

proper for the judge to summarily punish

Hampton after determining that her absence was

willful and not for good cause. Thus, this issue

is without merit. |

26. Additionally, Hampton did not object

to the circuit judge hearing the contempt charge,

and further she did not move for his recusal in

this matter. This Court has consistently held that

failing to object to a trial judge’s appearance in

a case will result in a waiver. Tubwell v. Grant,

760 So. 2d 687, 689 (Miss. 2000). Hence,

Hampton’s failure to object results in a waiver.

Il. CIRCUIT JUDGE’S IMPARTIALITY

927. Hampton alleges that the circuit court judge

was partial, biased, and engaged in ex parte

communications with counsel opposite.

However, as previously mentioned, Hampton

did not object to the judge hearing the contempt

matter, nor did she move for the

23.

judge to recuse himself. Therefore, Hampton’s

failure to object to the circuit judge’s

appearance in this case results in a waiver of this

argument. Jd. Thus, this issue is without merit.

Nonetheless, we will consider Hampton’s claims

of partiality, bias, and ex parte communications.

4728. First, Hampton argues that she was denied

an impartial tribunal and trier of fact when the

judge announced that he “had contempt” for her.

However, there is no evidence present in the

record that the judge ever stated he “had

contempt” for Hampton.

The judge actually stated that he “felt contempt

for [Hampton’s] non-appearance.” This

comment differs significantly from Hampton’s

contention. Hampton’s decision to

‘Once again Hampton attributes such a statement

to an altered transcript. However, as previously

alluded to “|clases cited establish that our

consideration of a case on appeal will be

confined strictly to the record, both in terms of

facts occurring prior to trial and to facts

occurring since trial.” Phillips, 421 So. 2d at

478.

24.

absent herself from the hearing caused a great

inconvenience to several individuals. Moreover,

it would be hard to find anyone who was

inconvenienced by Hampton’s absence, who did

not feel contempt for her actions. In any case,

feeling contempt for Hampton’s actions is very

much different from feeling contempt for

Hampton as a person. Hence, there is no

evidence that Hampton was denied the right to

an impartial tribunal.

429. Next, Hampton insists that the judge should

have held counsel opposite in contempt, and

failure to do so demonstrates the judge’s bias.

The judge determined that there was no proof

that counsel opposite was in contempt of court.

Further, unlike Hampton, counsel opposite was

present at both the August 27 and September 3

hearings, in accordance with the circuit court’s

orders. Therefore, after a detailed review of the

record, we agree with the ruling of the circuit

court judge. Thus, we conclude that the judge’s

actions were not biased.

430. Finally, Hampton argues the judge made

several improper ex parte communications in the

case at bar. After a diligent review of the record,

we fail to find any evidence of improper contact

in the case at bar. We also note that counsel

opposite and the circuit court judge were in

contact outside the presence of Hampton;

however, this contact occurred on

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August 27 due to Hampton’s absence from the

hearing. Hence, improper communications did

not take place.

431. Therefore, the circuit court judge was

impartial, unbiased, and did not engage in any

improper ex parte contact. Thus, this issue 1s

without merit.

IV. FINE AND SANCTIONS

432. Hampton maintains the circuit court judge

imposed excessive fines, by ordering her to pay

attorney fees, witness fees, and court reporter

fees. Nonetheless, Hampton failed to object to

- the fine and the sanctions imposed upon her by

the judge. Before an issue may be assigned and

argued in this Court, it must first be presented to

the trial court. Read v. State, 430 So. 2d 832,

838 (Miss. 1983). Hampton failed to object and

argue this issue in the circuit court. Thus, this

issue is procedurally barred. Id. Nevertheless,

we will consider this issue on the merits.

433. The circuit court judge imposed Hampton’s

punishment in accordance with the appropriate

statute. Miss. Code Ann.-§ 9-1-17 (Rev. 2002).

The judge decreed “that [Hampton] pay a fine of

$100.00, as allowed, as authorized by statute,

and that [Hampton] serve a term of three days in

the Winston County Jail.” The pertinent part of

§ 9-1-17 requires that “the fine shall not exceed

One

26.

Hundred Dollars ($100.00) for each offense, nor

shall the imprisonment continue longer than

thirty (30) days.” Therefore, the punishment

levied against Hampton was within the confines

of the applicable statute.

434. Hampton, asserts she should not have been

ordered to pay attorney fees, witness fees and

court reporter fees. Moreover, Hampton

advances that her fine should have been limited

to the statutory limit of $100.

435. Hampton was fined within the statutory

limits when the judge imposed the punitive $100

fine due to her absence. After the judge reported

what Hampton’s punishment would entail, he

subsequently bifurcated the hearing and then

entertained testimony regarding sanctions on

account of the harm Hampton’s absence caused.

Additionally, the judge noted on the record that

the statute does not specifically state whether

the court can deal with contempt and sanctions

together.

436. Nevertheless, this Court has held that “[a]n

award of attorney’s fees in a contempt case is

proper.” Newell v. Hinton, 556 So. 2d 1037,

1043 (Miss. 1990) (citing Stauffer v. Stauffer,

379 So. 2d 922, 924 (Miss. 1980)). “[T]he

award of fees is largely entrusted to the sound

discretion of the chancellor.” Newell, 556 So. 2d

at 1043 (citing Cheatham v. Cheatham, 537 So.

2d 435, 440 (Miss. 1988)).

4/37. The circuit court expressly decreed that

a7.

Hampton's actions were willful, deliberate and

contumacious. Thus, the judge’s award of fees

in this matter was certainly proper as Moses v.

Moses, 879 So. 2d 1036, 1041 (Miss. 2004),

states “[i]n order to award attorney’s fees in a

contempt matter, the trial court must first

consider if there was a willful violation of the

court’s order.”

438. The judge astutely bifurcated the hearing

- and considered sanctions subsequent to his

ruling in the contempt hearing. Hence, the fine

and sanctions ordered by the judge were proper.

This issue is without merit. :

V. PROCEDURE

439. Hampton claims the circuit court

erroneously violated her due process rights

when the court found her in contempt rather

than simply- dismissing her motion for summary

judgment. Hampton relies on this Court’s

decision in Sanford v. Jackson Mall Shopping

Ctr. Co., 516 So. 2d 227 (Miss. 1987). Hampton

alleges that Sanford creates a procedure where

an attorney failing to attend a hearing involving

his or her own motion for summary judgment

merely results in a dismissal of the motion. We

find that Hampton incorrectly interpreted this

Court’s holding in Sanford. The relevant issue

in Sanford deals predominantly with the

procedure for granting motions for summary

28.

judgment, and its relationship with genuine

issues of material fact. 7d. at 230. This Court

expressly stated in Sanford, “[wle do not

address the issue as to whether or not dismissal

is a proper sanction for failure to appear at a

hearing on a motion for summary judgment.” Id.

This Court notes Sanford is the lone authority

Hampton relies upon under this issue.

440. Hampton’s misinterpretation of Sanford

caused her to incorrectly conclude that her

failure to attend a hearing she was required to

attend would merely result in dismissal of her

motion for summary judgment. Hampton’s

options to cancel or delay the hearing on August

27 were many. For example, Hampton could

have filed either a motion to dismiss or she

could have filed a motion to continue the motion

for summary judgment. At the very least,

Hampton could have contacted the circuit court

on the day of the hearing. However, Hampton

chose to completely disappear on August 27.

This was not the judgment and decision of

seasoned attorney with fifteen plus years

experience.

41. Hampton’s due process rights were

preserved, as the circuit court judge afforded

Hampton the notice and a_— meaningful

opportunity to be heard before finding her in

contempt. Therefore, the circuit court judge

appropriately found Hampton in contempt of

29.

court due to Hampton’s misinterpretation of

Sanford on this issue. Thus, this issue is without

merit.

VI. SEIZURE WITHOUT PROBABLE

CAUSE

442. Hampton claims she was deprived of her

right to be secure in her person against

unreasonable seizures without probable cause

when the circuit court prosecuted, convicted,

fined and sentenced her to jail without probable

cause. Additionally, Hampton contends the

circuit court failed to issue an order demanding

her to appear at the August 27 hearing.

143. As the State correctly points out, Hampton

was never arrested nor. searched, thus

Hampton’s contentions of an _ unreasonable

seizure under the Fourth Amendment are

without merit. Furthermore, Hampton failed to

present this claim in the circuit court; therefore,

it is procedurally barred and deemed waived.

Read, 430 So. 2d at 838. Nevertheless, we will

address the merits of this issue.

{|44. The circuit court issued two separate orders

pertinent to the issue at hand. First, an order

was issued on August 9, 2004, to set a time and

place for hearing all motions. In this order the

circuit judge designated three

30.

possible dates for the hearing, one of those three

dates was August 27, 2004.

945. Next, the circuit judge entered a subsequent

order on August 13, 2004, which expressly

confirmed that the hearing to dispose of all

motions and to dispose of all other relevant

matters was set for August 27, 2004. Further, to

clear up any confusion, the circuit judge sent a

letter to both attorneys on August 23, 2004. This

letter requested the presence of both attorneys

on the morning of August 27.

946. Although the orders did not contain the

distinct language “Hampton is commanded to

appear” the fact remains that attorneys for both

parties must attend a hearing ordered by a court.

This Court adopts the State’s view that an order

setting a time, date, and place for a hearing in a

cause is of itself notice to the attorneys to

appear. An attorney may not pick and choose

which court orders to obey. In the case at bar,

Hampton’s counsel opposite was present and

accounted for on the morning of August 27.

However, Hampton could not be_ located.

Moreover, Hampton did not present a

reasonable explanation for her absence. Thus,

Hampton should have attended the August 27

hearing in accordance with the circuit court’s

orders.

947. Hampton also seeks relief under the

doctrine of clean hands. However, “[t]he clean

hands doctrine prevents a complaining

3%.

party from obtaining equitable relief in court

when he is guilty of willtul misconduct in the

transaction at issue.” Bailey v. Bailey, 724 So.

2d 335, 337 (Miss. 1998) (citing Calcote v.

Calcote, 583 So. 2d 197, 199-200 (Miss. 1991)).

Because Hampton’s absence was an act of

wilful misconduct, the clean hands doctrine does

not apply. Thus, this issue is without merit.

Vil. FINDINGS AND EVIDENCE

448. Hampton argues the circuit judge failed to

set out material facts of her contempt of court in

his judgment of conviction. Additionally, she

avers the evidence submitted at the contempt

hearing was insufficient to sustain a conviction

of criminal contempt.

449. Hampton relies on Ex parte Redmond, 156

Miss. 582, 126 So. 485, 488 (1930), and

maintains that the judgment should be clear and

explicit in its order to constitute res judicata, and

warrant an appellate court in_ affirming,

reversing, annulling, or modifying the order. In

Redmond, the trial judge found attorney

Redmond in criminal contempt. The judgment

in Redmond, in combination with a meager

record, merely recited that the court found

Redmond guilty of contempt, when or how was

left to conjecture and speculation. Id. at 488-89.

In the case at bar, the circuit judge judiciously

preserved a very thorough

32.

and complete record, and this record is more

than sufficient to support the circuit court’s

finding of contempt. See Miss. Ass’n of

Educators v. Trs. of Jackson Mun. Separate

Sch. Dist., 510 So. 2d 123, 126 (Miss. 1987). In

addition, the judgment of conviction clearly and

explicitly enumerated the judge’s basis for

finding Hampton in contempt.

q50. After the August 27 hearing the circuit

judge ordered Hampton to appear and explain

her absence from the August 27 hearing. The

circuit judge allowed Hampton numerous

opportunities to explain her absence. Hampton

was also allowed to call witnesses. However, the

judge was unconvinced that her absence in this

matter was reasonable. The judge determined

that Hampton was in direct contempt-of court

for her willful, malicious and contumacious

absence.

451. Hampton, provided the clerk of court with a

forecast of her absence when she stated “she

may or may not attend” the hearing. Moreover,

the court was diligent and tireless in its efforts to

contact Hampton on August 27 with no avail.

Finally, the judge gave Hampton every

opportunity to explain her absence and vindicate

the situation. We are in agreement with the

circuit court. Hampton’s actions were willful,

intentional, malicious, contumacious, and they

should not have been excused. The

33:

record fully supports the finding of the circuit

court. Therefore, we find that Hampton is guilty

of criminal contempt beyond a_ reasonable

doubt. Thus, this issue is without merit.

CONCLUSION

52. For these reasons, we affirm the judgment

of the Circuit Court of Winston County.

q53. CONVICTION OF CRIMINAL

CONTEMPT AND SENTENCE OF THREE

(3) DAYS IN THE WINSTON COUNTY JAIL;

PAY “A. FINE: OF SIGCR: . FAY

RESTITUTION IN THE SUM OF $1,500.00 IN

ATTORNEY’S” FEES TO GARY STREET

GOODWIN, ESQ.; AND PAY RESTITUTION

IN THE SUM OF $283.75 TO THE COURT

REPORTER,MIKE SEGURA AND PAY

COURT COSTS OF $425.00, AFFIRMED.

WALLER, P.J., EASLEY, CARLSON,

DICKINSON AND RANDOLPH, JJ.,

CONCUR. COBB, P.J., AND GRAVES, J.,

CONCUR IN RESULT ONLY. DIAZ, J., NOT

PARTICIPATING.

Serial: 123467

IN THE SUPREME COURT OF MISSISSIPPI

No. 1004-KM-01089

34.

LINDA A. HAMPTON Appellant

STATE OF MISSISSIPPI Appellee

ORDER

This matter came before a panel of this

Court consisting of Cobb, P.J., Carlson and

Randolph,JJ., on Appellant’s Notification of

Material Inaccuracies Contained Within the

Transcript, which is in the nature of a motion to

correct the record; filed by Linda A. Hampton.

M.R.A.P. 10(b)(5) provides the proper method

of correcting alleged inaccuracies contained in

the transcript. Rule 10(b)(5) also requires that

these methods be carried out prior to the record

being filed. In this matter, the record was filed

with the Clerk of this Court on January 13,

2005. Hampton did not file the instant notice

until April 8, 2005. After due consideration, the

panel finds that Hampton’s notice of

inaccuracies should be dismissed as untimely.

IT IS THEREFORE ORDERED that the

Appellant’s Notification of Material

Inaccuracies Contained Within the Transcript,

which is in the nature of a motion to correct the

record, filed by Linda A. Hampton is hereby

dismissed.

SO ORDERED, on this the 11'" day of May,

2005.

s/George C. Carlson, Jr.

GEORGE C. CARLSON, JR., JUSTICE

aD.

M.R.A.P. 10 (b)(5) Attorney's Examination and

Proposed Corrections. For fourteen (14) days

after service of the clerk's notice of completion

under Rule 1 1(d)(2), the appellant shall have the

use of the record for examination. On or before

the expiration of that period, appellant's counsel

shall deliver or mail the record to one firm or

attorney representing the appellee, and shall

append to the record (i) a written statement of

any proposed corrections to the record, (ii) a

certificate that the attorney has carefully

examined the record and that with the proposed

corrections, if any, it is correct and complete,

and (ili) a certificate of service. Counsel for the

appellee shall examine the record and return it to

the trial court clerk within fourteen (14) days

after service, and shall append to the record (1) a

written statement of any proposed corrections to

the record, (11) a certificate that the attorney has

carefully examined the record and that with the

proposed corrections, if any, it is correct and

complete, and (iii) a certificate of service.

Corrections as to which counsel for all parties

agree in writing shall be deemed made by

stipulation. If the parties propose corrections to

the record but do not agree on the corrections,

the trial court clerk shall forthwith deliver the

record with proposed corrections to

36.

the trial judge. The trial judge shall promptly

determine which corrections, if any, are proper,

enter an order under Rule 10(e), and return the

record to the court reporter or the trial court

clerk who shall within seven (7) days make

corrections directed by the order.

(e) Correction or Modification of the Record.

If any difference arises as to whether the record

truly discloses what occurred in the trial court,

the difference shall be submitted to and settled

by that court and the record made to conform to

the truth. If anything material to either party is

omitted from the record by error or accident or

is misstated in the record, the parties by

stipulation, or the trial court, either before or

after the record is transmitted to the Supreme

Court or the Court of Appeals, or either

appellate court on proper motion or of Its own

initiative, may order that the omission or

misstatement be corrected, and, if necessary,

that a supplemental record be filed. Such order

shall state the date by which the correction or

supplemental record must be filed and _ shall

designate the party or parties who shall pay the

cost thereof. Any document submitted to either

appellate court for inclusion in the record must

be certified by the clerk of the trial court. All