Opinion
NO. 2012 CA0100 NO. 2012 CA 0101
11-02-2012
ROBYN M. FLOWERS v. LOUISIANA CITIZENS PROPERTY INSURANCE CORPORATION BAC HOME LOANS SERVICING, L.P. v. ROBYN M. FLOWERS
DeVan Pardue Springfield, LA Attorney for Intervenor-Appellant, Randall Flowers John W. Waters, Jr. David E. Walle Kristin G. Moseley Jones New Orleans, LA Attorneys for Defendant-Appellee, Louisiana Citizens Property Ins. Corp. Nathan P. Fry Baton Rouge, LA Attorney for Plaintiff/Defendant-Appellee, Robyn M. Flowers Stephen W. Rider New Orleans, LA Attorney for Plaintiff-Appellee, BAC Home Loans Servicing, L.P.
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
21st Judicial District Court,
In and for the Parish of Livingston,
State of Louisiana
Trial Court No. 115297
Consolidated With
Trial Court No. 127123
Honorable Bruce C. Bennett, Judge Presiding
DeVan Pardue
Springfield, LA
Attorney for Intervenor-Appellant,
Randall Flowers
John W. Waters, Jr.
David E. Walle
Kristin G. Moseley Jones
New Orleans, LA
Attorneys for Defendant-Appellee,
Louisiana Citizens Property Ins. Corp.
Nathan P. Fry
Baton Rouge, LA
Attorney for Plaintiff/Defendant-Appellee,
Robyn M. Flowers
Stephen W. Rider
New Orleans, LA
Attorney for Plaintiff-Appellee,
BAC Home Loans Servicing, L.P.
BEFORE: WHIPPLE, McCLENDON, AND HIGGINBOTHAM, JJ.
HIGGINBOTHAM, J.
This matter arose out of a fire that completely destroyed a home originally owned by Robyn M. Flowers. Two cases involving Ms. Flowers' home were filed in the 21st Judicial District Court in Livingston Parish. The first lawsuit involved an insurance claim between Ms. Flowers and her homeowners' insurer, Louisiana Citizens Property Insurance Corporation, in Suit Number 115297 (hereafter referred to as "the insurance suit"). The second lawsuit was a foreclosure action between Ms. Flowers and her mortgage company, BAC Home Loan Servicing, L.P., in Suit Number 127123 (hereafter referred to as "the foreclosure suit"). After the fire, Ms. Flowers eventually donated the vacant land where her house once stood to her brother, Randall Flowers. The procedural history in this matter was further complicated when Mr. Flowers attempted to interject himself into the two lawsuits by filing pleadings in each suit seeking to intervene in and consolidate the suits, and, initially, to enjoin the foreclosure of the property in the foreclosure suit.
Ultimately, the district court decided to consolidate the two lawsuits, and then sustained Ms. Flowers' and her insurer's peremptory exceptions raising the objections of no cause and no right of action, dismissing Mr. Flowers' petition of intervention in the insurance suit, with prejudice. The district court also denied Ms. Flowers' motion for sanctions. Mr. Flowers appealed from the district court judgment dismissing his intervention. Ms. Flowers filed an answer to the appeal, seeking to reverse the district court's consolidation of the two cases, to reverse and amend the district court's denial of her motion for sanctions, and for an award of damages for frivolous appeal. The appeals were consolidated on the docket of this court.
A judgment regarding the district court's consolidation ruling was signed on September 20, 2011, and a judgment sustaining the exceptions and dismissing Mr. Flowers' intervention in the insurance suit was signed on September 13, 2011. Ms. Flowers filed a "final" motion to dismiss the insurance suit, and the district court signed an order to that effect on September 16, 2011. Thereafter, another judgment was signed on February 28, 2012, that memorialized the district court's ruling as to Ms. Flowers' exceptions and the denial of her motion for sanctions in the insurance suit.
On June 27, 2012, another panel of this court dismissed the appeal of the foreclosure suit (2012 CA 0101), struck Mr. Flowers' assignment of error relative to the foreclosure suit, and vacated the district court's consolidation of the two cases. Thereafter, on September 12, 2012, we granted Mr. Flowers' ex parte motion to dismiss his appeal in the insurance suit (2012 CA 0100), with prejudice. However, Ms. Flowers' timely answer to the appeal was not dismissed and, thus, is still pending. Two issues remain to be determined: (1) whether the district court erred in denying Ms. Flowers' motion for sanctions, and (2) whether Ms. Flowers is entitled to damages, attorney's fees, and costs associated with an alleged frivolous appeal.
The answer filed by Ms. Flowers is equivalent to an appeal on her part. Additionally, she may demand modification, revision, or reversal of a judgment that did not allow or consider relief she requested. See La. Code Civ. P. art. 2133. Filing an answer to the appeal is the proper method for requesting damages for frivolous appeal. State in Interest of Muse v. Ross, 26,554 (La. App. 2d Cir. 3/1/95), 651 So.2d 364, 366. Ms. Flowers' answer does not fall simply because Mr. Flowers' appeal was dismissed. See Voiron v. Voiron, 2003-2823 (La. App. 1st Cir. 12/17/04), 897 So.2d 697, 699; Muse, 651 So.2d at 366.
DISTRICT COURT SANCTIONS
When Ms. Flowers filed her exceptions regarding no cause and no right of action, she also sought sanctions against Mr. Flowers pursuant to La. Code Civ. P. art. 863. She argued that Mr. Flowers' purported intervention was legally insupportable since Mr. Flowers had absolutely no justiciable interest in the insured property at the time of the fire. At the hearing on the exceptions, the district court simply stated without further explanation, "Sanctions denied. I'm not going to issue sanctions." Ms. Flowers now argues that the trial court erred in refusing to consider any of the evidence on her motion for sanctions before denying the motion. The record reflects that no objection was made to the district court's abrupt ruling on the sanctions.
The district court has discretion to sanction under La. Code Civ. P. art. 863. McKoin v. Harper, 37,984 (La. App. 2d Cir. 12/10/03), 862 So.2d 410, 413. A district court's factual findings as a basis for awarding - or for that matter, not awarding - sanctions are reviewed under the manifestly erroneous or clearly wrong standard. See Sanchez v. Liberty Lloyds, 95-0956 (La. App. 1st Cir. 4/4/96), 672 So.2d 268, 271, writ denied, 96-1123 (La. 6/7/96), 674 So.2d 972; McKoin, 862 So.2d at 413-414. Although the district court gave no reasons for denying Ms. Flowers' request for sanctions, we cannot say such a final determination was clearly wrong. At the hearing on the exceptions of no cause and no right of action, Mr. Flowers' attorney was able to present some argument to explain Mr. Flowers' legal position in filing the various pleadings. Even Ms. Flowers' attorney acknowledged on the record that it seemed as if "there's been some clever lawyering[.]" The imposition of sanctions pursuant to Article 863 is sometimes warranted and necessary, but the threat of sanctions tends to chill the nature of the proceedings by limiting the adversarial nature of such and the diligent representation of clients by their attorneys. McKoin, 862 So.2d at 414. Considering the record before us, we find the district court was not manifestly in error for failing to impose sanctions against Mr. Flowers. Thus, we find this assignment of error without merit.
FRIVOLOUS APPEAL
The imposition of damages for a frivolous appeal is regulated by La. Code Civ. P. art. 2164. The law allows for damages for frivolous appeals where an appeal was taken solely for purposes of delay, or where counsel for the appellant did not sincerely believe in the merits of his position. Voiron v. Voiron, 2003-2823 (La. App. 1st Cir. 12/17/04), 897 So.2d 697, 699. Since Mr. Flowers moved ex parte to voluntarily dismiss his appeal involving his intervention in the insurance suit only after this court dismissed his appeal of the foreclosure suit and after Ms. Flowers filed her answer to the appeal seeking sanctions and damages for frivolous appeal, it is difficult for us to find that Mr. Flowers seriously believed in the merits of his position. Under these circumstances, we conclude, as did the court in State in Interest of Muse v. Ross, 26,554 (La. App. 2d Cir. 3/1/95), 651 So.2d 364, 366, that Mr. Flowers' appeal in the insurance suit was frivolous. Accordingly, Ms. Flowers is entitled to an award of $1,500.00 for attorney's fees as reasonable damages for frivolous appeal. See La. Code Civ. P. art. 2164. We find merit to this assignment of error.
Generally, when an appellee asks that a judgment be amended or modified in some respect as to the merits of the appeal, damages for frivolous appeal will not be allowed. See ANR Pipeline Co. v. Louisiana Tax Com'n, 2005-1142 (La. App. 1st Cir. 9/7/05), 923 So.2d 81, 100, writ denied, 2005-2372 (La. 3/17/06), 925 So,2d 547, cert. denied, 549 U.S. 822, 127 S.Ct. 157, 166 L.Ed.2d 38 (2006). However, in Ms. Flowers' answer, the only issues concerned sanctions at the district court level and damages for frivolous appeal. Ms. Flowers did not request that the judgment be amended or modified as to the merits (the ruling that sustained the exceptions of no cause and no right of action and dismissed Mr. Flowers' intervention) in any way. Thus, we will consider Ms. Flowers' request for frivolous appeal damages.
--------
DECREE
Judgment is hereby rendered in favor of Robyn M. Flowers and against Randall Flowers, awarding Robyn M. Flowers attorney's fees in the amount of $1,500.00 as damages for frivolous appeal. Additionally, each party is to bear their own costs of this appeal.
DAMAGES FOR FRIVOLOUS APPEAL AWARDED.