
    In the Matter of the EXTENSION OF the BOUNDARIES OF the CITY OF COLUMBUS, Mississippi. Kenneth R. ROBINSON, Walter J. Cunningham, Ralph Edward Hall, J.B. Wilkins, Arnette Neil Beard, and Ed Markham v. CITY OF COLUMBUS, Mississippi.
    No. 91-CA-00783-SCT.
    Supreme Court of Mississippi.
    March 23, 1995.
   ORDER

This matter came before this Court, sitting en banc, on January 12, 1995, upon Appel-lee’s, City of Columbus, Mississippi, Motion for damages and sanctions pursuant to Rules 38 and 41, Appellee’s Motion Requesting Immediate Decision, and on the Court’s own motion, pursuant to Mississippi Supreme Court Rule 46(d), Show Cause Order entered herein.

This Court, after thorough consideration and being fully advised in the premises, finds the Motion of the Appellee’s, City of Columbus, Mississippi, and/or its attorneys’, Rule 41 Motion and Rule 38 Motion for Damages for Frivolous Appeal against the Appellants, Kenneth R. Robinson, et al., for filing an alleged frivolous Petition for Rehearing is not well taken and should, therefore, be denied.

Further, this Court finds that Appellee’s, City of Columbus, Mississippi, Motion Requesting Immediate Decision should be dismissed as moot as Appellants’ Petition for Rehearing was denied November 10, 1994.

Further, this Court finds that the filing of Appellee’s, City of Columbus, Mississippi, and/or its attorneys’, Rules 38 and 41 Motions may themselves be subject to frivolousness. Therefore, pursuant to Mississippi Supreme Court Rule 46(d), a Show Cause Order was entered ordering Appellees, City of Columbus, Mississippi, and/or its attorneys, to show cause why the filing of said Motions for damages and sanctions under Rules 38 and 41 against Appellants are not themselves frivolous, and, therefore, subject to sanctions.

This Court strongly cautions counsel for Appellees, City of Columbus, Mississippi, against filing motions for damages for frivolous appeals as the failure of such motions may result in sanctions and damages being imposed against them.

However, after careful and thorough consideration, this Court finds merit in the Response(s) to the Show Cause Order and, therefore, finds no reason or cause to impose damages and/or sanctions against Appellee, City of Columbus, Mississippi, and/or its attorneys, for the filing of Appellee’s Rule 41 Motion and Rule 38 Motion for Damages for Frivolous Appeal against the Appellants.

THEREFORE, IT IS ORDERED that the Motion of the Appellee’s, City of Columbus, Mississippi, and/or its attorneys’, Rule 41 Motion and Rule 38 Motion for Damages for Frivolous Appeal against the Appellants, Kenneth R. Robinson, et ah, for filing an alleged frivolous Petition for Rehearing be, and the same hereby, is denied.

IT IS FURTHER ORDERED that Appel-lee’s, City of Columbus, Mississippi, Motion Requesting Immediate Decision be, and the same hereby is, dismissed as moot.

IT IS FURTHER ORDERED that this Court finds merit in the Response(s) received to the Show Cause Order, entered on the Court’s own motion and pursuant to Mississippi Supreme Court Rule 46(d), and therefore, finds no reason or cause to impose damages and/or sanctions against Appellee, City of Columbus, Mississippi, and/or its attorneys, for the filing of Appellee’s Rule 41 Motion and Rule 38 Motion for Damages for Frivolous Appeal against the Appellants.

SO ORDERED.

/s/ Dan M. Lee DAN M. LEE, Presiding Justice,

for the Court

SULLIVAN, PITTMAN, BANKS, McRAE and JAMES L. ROBERTS, Jr., JJ., concur.

HAWKINS, C.J., specially concurs with separate written opinion joined by DAN M. LEE, P.J., and SULLIVAN, PITTMAN and McRAE, JJ.

PRATHER, P.J., concurs with separate written opinion joined by SMITH, J.

PRATHER, Presiding Justice,

concurring:

I concur in the results reached in the Court’s order, but I disagree with the Court’s statement that the City’s response to Appellant’s Petition for Rehearing “may be subject to frivolousness.” My reasons are the following:

On June 23, 1994, this Court unanimously approved this annexation ease. The City was responsible for providing services to the newly annexed area and services cost money. The City acquires its money from the assessment of taxes, and the tax year begins on July 1, of each year. When the appellants filed their petition for rehearing of this Court’s unanimous opinion on June 30, 1994, this filing delayed the Court’s mandate issuance until after the July 1st deadline, the cutoff date for assessing ad valorem taxed in the newly annexed area. The effect of new filing cost the City one year’s taxes in the newly annexed area while providing services as required by law.

For this reason, the City filed a Rule 41 motion and a Rule 38 motion. The Rule 41 motion requested this Court to order the effective date of its mandate nunc pro tunc to June 23, 1994, to allow the City to collect 1994-1995 taxes to offset cost for services provided. There is nothing frivolous about this motion. A legitimate question was raised about the City’s obligation in providing services and making tax collections to recoup costs of those services.

Neither is the Rule 41 motion frivolous, as the Appellant’s petition for rehearing asserted no miscomprehension of fact or law by this Court. This is evidenced by the fact that this Court denied the petition for rehearing on December 1, 1994.

In sum, my position is that the City and its attorney raised relevant and pertinent issues and the pleadings were responsive to the legitimate concerns of their client. I disagree that the City’s responses “may” be frivolous, but concur to the dismissal of all motions pending.

SMITH, J., joins this opinion.

HAWKINS, Chief Justice,

specially concurring:

I can agree with the majority’s order not to impose any monetary sanctions against the City’s attorneys in this case, but I am compelled to observe that the motion to cite the objectors and their attorney for sanctions for filing a petition for rehearing in this case was patently frivolous.

This was a serious and complex case, and the objectors had every right to oppose the annexation of their property into the City. They had every right to file a petition for rehearing from the adverse decision we rendered on appeal. Indeed, counsel would have been subject to malpractice not to have filed it.

The attorneys for the City may very well have thought the petition for rehearing should be denied, but there was absolutely no reason for them to conclude that the petition was so devoid of merit as to justify sanctions against the objectors and their attorney for filing the petition. Moreover, the City’s counsel have cited no authority which supports their filing of this motion.

There unfortunately are eases in which this Court should call a party or his attorney to account for filing a frivolous pleading; generally we are capable of recognizing those instances on our own. Counsel owes a duty to this Court, however, and as a minimum courtesy to opposing counsel, never to file a motion to sanction the opposition for frivolous pleading except where clearly meritorious. More appropriately, it should generally be filed after ruling on the pleading.

The motion to sanction in this case has all the earmarks of being filed to harass and intimidate the opposing party from asserting his rights. Moreover, it showed no consideration whatever for this Court, the staff and Justices whose preciously limited time has had to be diverted from more deserving matters. Finally, it was self-defeating, because it required consideration and delayed disposition of the petition for rehearing. In sum, it was inexcusable.

I can agree that no monetary sanctions are necessary in this case. This is counsel’s first instance of filing such a motion with this Court. Also, opposing counsel, showing far more courtesy than has been extended to him, has not asked for attorney’s fees for responding to it. A warning, therefore, is sufficient in my view.

DAN M. LEE, P.J., and SULLIVAN, PITTMAN and McRAE, JJ., join this opinion.  