Opinion
NO. 2021 CA 1564
06-03-2022
Jolene FLEMING and Crishelle Barrio v. SPINNAKER INSURANCE COMPANY and Rochelle Cochran
Michael L. Barras, Lafayette, Louisiana, Attorney for Plaintiff-Appellee, Spinnaker Insurance Company Kevin D. Thompson, Ivan J. Thompson, Houma, Louisiana, and Sean P. Brady, Dennis O. Durocher, Jr., New Orleans, Louisiana, Attorneys for Defendants-Appellants Kevin and Ivan Thompson
Michael L. Barras, Lafayette, Louisiana, Attorney for Plaintiff-Appellee, Spinnaker Insurance Company
Kevin D. Thompson, Ivan J. Thompson, Houma, Louisiana, and Sean P. Brady, Dennis O. Durocher, Jr., New Orleans, Louisiana, Attorneys for Defendants-Appellants Kevin and Ivan Thompson
BEFORE: McDONALD, LANIER, AND WOLFE, JJ.
McDONALD, J.
This is an appeal from a district court judgment assessing $10,000.00 in sanctions against the attorneys for the plaintiffs after a motion for summary judgment in favor of the defendants was granted. After review, we reverse.
FACTS AND PROCEDURAL HISTORY
In February of 2019, Kevin Pitre was trimming a tree in the yard of the home he rented when a branch fell and allegedly struck a vehicle occupied by Jolene Fleming and Crishelle Barrio (the plaintiffs) that was traveling north on LA 24 in Terrebonne Parish. Rochelle Cochran was Mr. Pitre's landlord, and Spinnaker Insurance Company (Spinnaker) was Ms. Cochran's property insurer. Plaintiffs’ counsel, Kevin and Ivan Thompson (collectively the Thompsons), received a copy of the police report from the accident, which identified Mr. Pitre as the person who trimmed the tree and Spinnaker as the insurer of the property.
On August 23, 2019, the Thompsons, representing the plaintiffs, filed suit against Ms. Cochran and Spinnaker, alleging Ms. Cochran acted negligently by causing and allowing tree repairs on the property, without proper safety procedures, violating the ordinances and laws of the Parish and State, and any other acts of negligence which might be shown at trial, including having a defective condition on the property.
On March 3, 2020, the defendants filed a motion for summary judgment. The defendants maintained that Ms. Cochran had no knowledge of the tree trimming, had no control over it, and had no responsibility for it. The district court set a May 1, 2020 hearing date for the motion for summary judgment.
Plaintiffs requested a continuance to conduct additional discovery, and the district court continued the hearing to May 29, 2020. On that date the defendants asked for a continuance and the hearing was continued without date. The hearing was later set for August 14, 2020.
A deposition date had been set for the Pitres, but they did not appear or were not served. A second deposition date was set for August 11, 2020, but only Mrs. Pitre appeared, as her husband was under quarantine, apparently due to COVID-19.
On the day after Mrs. Pitre's deposition, August 12, 2020, the plaintiffs moved to continue the August 14, 2020 summary judgment hearing, indicating in the motion that the defendants had no objection to the continuance. The motion noted that Kevin Thompson was a candidate for election for judge of the district court division to which the case had been allotted and was opposing the judge who was presiding over the case. The district court granted the continuance and reset the hearing for November 13, 2020, after the election.
Thereafter, counsel for defendants spoke to Kevin Thompson and told him they opposed the continuance. A hearing followed, at which time counsel for defendants stated they had not agreed to a continuance. The hearing concluded with the matter continued to September 11, 2020. The matter was submitted on briefs. On September 30, 2020, the district court granted the summary judgment.
On April 20, 2021, Spinnaker filed a motion for sanctions against the Thompsons. At the conclusion of a hearing on July 9, 2021, the district court granted the motion for sanctions and ordered the Thompsons to pay Spinnaker $10,000.00 pursuant to La. C.C.P. art. 863 and court costs. The judgment was signed on August 10, 2021. The Thompsons filed a motion for new trial, which was denied.
The Thompsons appealed the judgment ordering them to pay sanctions. On appeal, they assert that the district court manifestly erred and abused its discretion in sanctioning them $10,000.00.
DISCUSSION
At the time the judgment was signed, La. C.C.P. art 863 provided:
Louisiana Code of Civil Procedure article 863 was later amended by La. Acts 2021, No. 68, § 1, effective January 1, 2022.
A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose physical address for service of process shall be stated. A party who is not represented by an attorney shall sign his pleading and state his physical address for service of process. If mail is not received at the physical address for service of process, a designated mailing address shall also be provided.
B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following:
(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.
(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonffivolous argument for the extension, modification, or reversal of existing law.
(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.
(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief
.....
C. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
D. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
.....
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.
In its motion for sanctions, Spinnaker maintained that it was entitled to sanctions including reasonable attorney fees and costs, as the litigation was baseless and was perpetuated through the filing of numerous baseless pleadings and discovery documents.
At the hearing, the district court stated in part:
But I do agree at some point at the very beginning, y'all didn't know if it was frivolous or not. You've got to discover, I get that. At some point you have to do that. On the other hand, at some point after discovery and after time you've got to find out do you have a case or not or do you think you might have a
case. If you might have a case, throw that against that summary judgment motion, throw what you got, all right, and if it's a genuine issue and you make it, make it stick, you're going to have a trial. But in this case, although the plaintiff had several opportunities, didn't do anything, zero, nada, nothing, and it necessitated defending the case and briefing the case and court appearances following discovery that led to nowhere for the plaintiffs, all right.
I am of the opinion that I have absolutely the authority to sanction in this case and I have the authority to sanction what they're asking for, almost $26,000. I really do believe that. The law bears it out. Frivolous lawsuits, although they may not begin "frivolous," at some point you've got to find out after discovery, hey, we don't have a case, and in this case y'all had the opportunity to get out with a little bit of money in your pocket. But that's neither here nor there. So I'm going to award sanctions, but I'm not going to award what they're asking for because at some point it was a defensible case, legitimate case, perhaps, and so work had to be done regardless. So I am going to award $10,000 in attorney's fees plus all costs in this case ....
After review, we find that the district court manifestly erred in awarding sanctions against the Thompsons. The district court noted that at some point this was a defensible case.
Louisiana Code of Civil Procedure article 863 does not empower a trial court to impose sanctions on lawyers simply because a particular argument or ground for relief is subsequently found to be unjustified. The failure to prevail does not of itself trigger an award of sanctions. First American Bank & Trust v. First Guaranty Bank, 615 So.2d 1060, 1063 (La. App. 1st Cir. 1993). The article is intended to be used only in exceptional circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Tubbs v. Tubbs, 96-2095 (La. App. 1 Cir. 9/19/97), 700 So.2d 941, 945. Thus, as there was the slightest justification for the assertion of a legal right in this case, we find that the district court was clearly wrong in imposing sanctions under La. C.C.P. art. 863. See Tubbs, 700 So.2d at 945.
CONCLUSION
For the foregoing reasons, the district court judgment granting the motion for sanctions and ordering Kevin and Ivan Thompson to pay Spinnaker Insurance Company $10,000.00 and court costs is reversed. Costs of this appeal are assessed against Spinnaker Insurance Company.