Opinion
23-432 23-431 23-213
04-03-2024
IN RE: Bruce Carlton ANDERSON
Paul J. Politz, Samantha P. Griffin, Taylor, Wellons, Politz & Duhe LLC, 1555 Poydras Street, Suite 2000, New Orleans, Louisiana 70112, (504) 525-9888, COUNSEL FOR APPELLANT: Disability Rights Louisiana and Melanie Bray Pierre F. Gremillion, 3500 N. Hullen Street, Metairie, Louisiana 70002, (504) 495-3165, COUNSEL FOR CURATOR/APPELLEE: Carey Wayne Walker, Sr. Maria A. Losavio, Losavio Law Office, LLC, 1821 MacArthur Drive, Post Office Box 12420, Alexandria, Louisiana 71315-2420, (318) 767-9033, COUNSEL FOR: Bruce Carlton Anderson
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 268,928-A, HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
Paul J. Politz, Samantha P. Griffin, Taylor, Wellons, Politz & Duhe LLC, 1555 Poydras Street, Suite 2000, New Orleans, Louisiana 70112, (504) 525-9888, COUNSEL FOR APPELLANT: Disability Rights Louisiana and Melanie Bray
Pierre F. Gremillion, 3500 N. Hullen Street, Metairie, Louisiana 70002, (504) 495-3165, COUNSEL FOR CURATOR/APPELLEE: Carey Wayne Walker, Sr.
Maria A. Losavio, Losavio Law Office, LLC, 1821 MacArthur Drive, Post Office Box 12420, Alexandria, Louisiana 71315-2420, (318) 767-9033, COUNSEL FOR: Bruce Carlton Anderson
Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Guy E.
Bradberry, Judges. PERRY, Judge.
1Melanie Bray ("Ms. Bray") and the legal organization of Disability Rights Louisiana ("DRLA") (hereinafter collectively referred to as "Appellants") suspensively appeal a trial court judgment ordering their disqualification and awarding sanctions against them in the amount of $7,000. For the following reasons, we affirm in part and reverse in part.
FACTUAL AND PROCEDURAL BACKGROUND
On December 1, 2022, the trial court signed a judgment which ordered the full permanent interdiction of Bruce Carlton Anderson ("Mr. Anderson") and appointed his maternal uncle, Carey Wayne Walker, Sr. ("Mr. Walker"), as curator. On December 16, 2022, Mr. Walker filed a Motion to Disqualify Counsel of Record and Request for Sanctions, alleging Appellants "do not have legally valid consent to represent Mr. Anderson, a known developmentally and cognitively disabled person, in accordance with [La.R.S.] 28:454.3." Mr. Walker sought sanctions under La.Code Civ.P. art. 863, alleging Appellants "caused extensive delay and costs" in the interdiction litigation.
Prior to the judgment of disqualification and sanctions at issue herein, Appellants represented Mr. Anderson in interdiction proceedings instituted by Mr. Walker. For more procedural background and facts about the interdiction proceedings, see the companion opinion also issued on this day in the appeal of the judgment of interdiction, appearing under docket number 23-431.
Mr. Walker’s request for disqualification of and sanctions against Appellants was heard on March 13, 2023. The trial court granted Mr. Walker’s motion to disqualify counsel and ordered Appellants to pay $7,000 as sanctions.
On April 13, 2023, Appellants sought a supervisory writ and an appeal of the judgment now before this court. This court granted Appellant’s writ. Mr. Anderson’s appeal of the judgment of interdiction dated December 1, 2022, was consolidated with Appellant’s appeal of the present judgment of disqualification and sanctions dated March 16, 2023, and this case was remanded with instructions for the trial court to appoint new counsel for Mr. Anderson in connection with the appeal of the judgment of interdiction. In Re: Bruce Carlton Anderson, 23–213 (La.App. 3 Cir. 5/9/23) (unpublished writ opinion).
2 APPELLANTS’ ASSIGNMENTS OF ERROR
Appellants are now before this court asserting three assignments of error:
1. The trial court erred in disqualifying retained counsel for the defendant in an interdiction proceeding where Louisiana Code of Civil Procedure Article 4544 permits the defendant to retain his own counsel or mandates that the court appoint counsel.
2. The trial court erred in disqualifying retained counsel for the defendant in an interdiction pursuant to Louisiana Revised Statute[s] 28:454.3 where Louisiana Code of Civil Procedure [A]rticle[s] 684(B) and 4554 provide that an interdicted person maintains procedural capacity for purposes of modifying or terminating the judgment of interdiction.
3. The trial court erred in disqualifying and sanctioning retained counsel $7,000 based on the filing of meritorious pleadings (including three supervisory writs that were granted by this Court) in violation of Louisiana Code of Civil Procedure Article 863.
APPELLANTS’ ARGUMENTS
Appellants allege Mr. Anderson was presumed to have capacity until the judg- ment of interdiction was entered, they were properly retained to challenge the interdiction proceedings filed by Mr. Walker against Mr. Anderson, and the trial court’s judgment of disqualification improperly deprived Mr. Anderson of his right to counsel. Appellants argue the trial court’s judgment of disqualification violates La.Code Civ.P. art. 4544, which requires appointment of an attorney to represent a defendant in interdiction proceedings if no attorney is retained by a defendant, Appellants further argue the trial court’s judgment of disqualification is contrary to 3La.Code Civ.P. arts. 684(B) and 4554, which provide that an interdicted person maintains procedural capacity for purposes of modifying or terminating the judgment of interdiction.
According to La.Code Civ.P, art. 4544(A):
If the defendant makes no timely appearance through an attorney, the petitioner shall apply for an order appointing an attorney to represent the defendant. Pursuant to such a motion, or on its own motion, the court shall appoint an attorney to represent the defendant, If the defendant either retains his own attorney, or intelligently and voluntarily waives the assistance of an attorney, the court shall discharge the court-appointed attorney, The court-appointed attorney shall represent the defendant until discharged by the court.
Louisiana Code of Civil Procedure Article 684(B) provides, ''Except as provided in Articles 4431, 4554, and 4566, the curator is the proper plaintiff to sue to enforce a right of an interdict."
According to La.Code Civ.P. art. 4554:
On motion of the court of any person, including the interdict, the court may modify or terminate its Judgment when the court finds, by a preponderance of the evidence, that the terms of that judgment are currently either excessive or insufficient or that the ability of the interdict to care for his person has so changed as to warrant modification or termination. Except for good cause, the court shall follow substantially the same procedures that apply to an original petition for interdiction before it modifies or terminates an interdiction judgment.
Additionally, Appellants contend the trial court wrongly imposed sanctions for purportedly delaying Mr. Anderson’s interdiction and increasing costs in these proceedings. Appellants deny causing needless delay, but, instead, insist they were advocating for Mr. Anderson to ensure that Mr. Walker followed the proper procedures in these interdiction proceedings. Appellants point to supervisory writs which this court granted as evidence of their effectual advocacy for Mr. Anderson.
APPELLEE’S POSITION
Mr. Walker alleges Appellants did not have legally valid consent to represent Mr. Anderson, a known developmentally and cognitively disabled person, because the requirements of La.R.S. 28:454.3(C) were not followed. Thus, Mr. Walker contends the trial court’s judgment of disqualification should be affirmed.
Under La.R.S. 28:454.3(C), before a person with a developmental disability can be deemed to have given legally adequate consent for decisions concerning matters that have important legal consequences, the following conditions must be met:
(1) The person has not been placed under a judgment of interdiction or continuing tutorship that restricts the right of the person to make the decision in question.
(2) The person has capacity to consent and has been informed of the purposes, consequences, and risks of the decision being made and the benefits of any alternative decision.
(3) The person understands that his withholding or withdrawing of consent shall not prejudice future provision of care and services to him.
(4) The person is giving such consent voluntarily and free from coercion and undue influence.
4Mr. Walker also contends the trial court correctly sanctioned Appellants un- der La.Code Civ.P. art. 863 for harassing, causing unnecessary delay, or needlessly increasing the costs of this litigation. According to Mr. Walker, his legal fees and costs exceed $20,000.
LAW AND DISCUSSION
Disqualification of Counsel
[1–3] "A motion to disqualify counsel requires the court to balance several important factors: (1) the right of a party to retain counsel of his choice; and (2) the substantial hardship which might result from disqualification as against the public perception of and the public trust in the judicial system." Keith v. Keith, 48,919, p. 10 (La.App. 2 Cir. 5/15/14), 140 So.3d 1202, 1209. "The burden of proving disqualification of an attorney rests on the party making the challenge." Id. "Disqualification issues must be decided on a case-by-case basis." Id.
[4] In his motion to disqualify counsel, Mr. Walker’s arguments before the trial court focused on an alleged conflict of interest between Appellants and Leading Healthcare of Louisiana of Pineville ("Leading Healthcare"). The record reflects Mr. Anderson’s court-appointed curator ad hoc, Joseph Kutch, recognized that someone on the support staff of Leading Healthcare initially contacted Appellants, not Mr. Anderson. Additionally, Mr. Walker fought to initiate a negligence claim 5against Leading Healthcare on Mr. Anderson’s behalf, whereas Appellants seemingly advocated against Mr. Anderson’s interests by arguing:
Mr. Anderson lived in an apartment with twenty-four-hour care provided by Leading Healthcare.
Joseph Kutch served as curator ad hoc until March 2021, when Mr. Walker's petition for limited interdiction was granted, and he was appointed as Mr. Anderson's preliminary curator for the limited purpose of filing a personal injury lawsuit on behalf of Mr. Anderson.
[Mr. Walker] is asserting that a soon to prescribe right to file a personal injury lawsuit is a substantial harm to Mr. Anderson’s property. [Mr. Walker] has not shown that such a right is within the meaning of "property," and regardless, [Mr. Walker] has not shown that "substantial harm" to Mr. Anderson’s property exists.
This argument appears in Appellants’ peremptory exception of no cause of action filed in February 2021, in response to Mr. Walker's petition for limited interdiction. At that time, Mr. Walker sought to be appointed as Mr. Anderson's preliminary curator for the limited purpose of filing a personal injury lawsuit against Leading Healthcare before Mr. Anderson’s negligence claim prescribed in March 2021.
Before the trial court, Mr. Walker argued for disqualification because Appellants’ interests actually opposed Mr. Anderson’s interests—Appellants’ actions, or lack thereof, could have led to the prescription of Mr. Anderson’s negligence claim against Leading Healthcare.
Notwithstanding the history of Appellants’ representation of Mr. Anderson, our review of the decision to disqualify Appellants from representing Mr. Anderson centers less on procedural strategies and more on the timing of Appellants’ disqualification. While Appellants are correct that Mr. Anderson is entitled to representation to oppose Mr. Walker’s motion for interdiction, the record reflects Mr. Anderson has had representation throughout these proceedings. Even after Appellants’ disqualification by the trial court, this court ordered new counsel to be appointed to represent Mr. Anderson in his appeal of the judgment of interdiction. See In Re: Anderson, 23-213 (La.App. 3 Cir. 5/9/23) (unpublished writ opinion).
In addition, a judgment placing Mr. Anderson under full permanent interdiction was granted by the trial court in December 2022 has been affirmed by this court in the companion opinion also issued on this day. See In Re: Anderson, 23-431 (La.App. 3 Cir, 4/3/24), 389 So.3d 129. Consequently, Mr. Walker, as curator, is the proper party to act on behalf of Mr. Anderson. See 6La.Code Civ.P. art. 684. Thus, the questions surrounding the correctness of the trial court’s judgment of. Appellants’ disqualification are now moot. Sanctions
[5] Appellants argue that the trial court erred in awarding sanctions under La.Code Civ.P. art. 863. We agree.
[6, 7] Louisiana Code of Civil Procedure Article 863(B)(1) allows the imposition of sanctions if a finding is made that the pleading is "being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation." See also La.Code Civ.P. art. 863(D). But, "[t]he imposition of sanctions is ‘used only in exceptional circumstances, and when there is even the slightest justification for the assertion of a legal right, sanctions are not warranted.’ " Capdeville v. Winn Dixie Store 07-1425, p. 5 (La.App. 3 Cir. 4/9/08), 981 So.2d 121, 125 (quoting Curole v. Avondale Indus., Inc., 01-1808, p. 5 (La.App. 4 Cir. 10/17/01), 798 So.2d 319, 322). "A trial court’s decision to award sanctions under La.Code Civ.P. art. 863 is reviewed for manifest error." Boudreaux v. Boudreaux, 22-804, p. 19 (La.App. 3 Cir. 7/5/23), 368 So.3d 754, 765.
In its ruling on the imposition of a sanction against Appellants, the trial court stated:
[S]o the Court will disqualify Disability Rights Louisiana, along with Melanie Bray. And because of this - this has - this litigation has been protracted. And after [the Coroner for Rapides Parish, Jonathan Hunter ("Dr. Hunter")] testified, it was clear to me, it was clear [Mr. Anderson] could not have hired an attorney, and I don’t know how clear he could have gotten. So, and I just think things have still gone on, despite even his testimony.
So the Court issues Sanctions in the amount of Seven Thousand Dollars ($7,000.00).
On appeal, Appellants deny filing any pleadings in this matter for an improper purpose. They contend several pleadings filed in this matter, including three 7exceptions and three writ applications, were either granted by the trial court, rendered moot by Mr. Walker’s filing of an amended petition, or granted by this court. Prior to their disqualification, Appellants filed three writ applications with this court on behalf of Mr. Anderson, seeking supervisory review of different trial court rulings. An examination of the substance and timing of Appellants’ writs is worth discussing.
Mr. Walker’s Petition for Interdiction was filed on September 10, 2020, and supplemental and amended petitions were filed on January 7, 2021 and February 3, 2021. On March 4, 2021, Mr. Walker was granted a preliminary limited interdiction, authorizing him to pursue negligence claims on Mr. Anderson’s behalf against Leading Healthcare. The judgment also declared, "[t]he preliminary limited interdiction terminates 30 days after the judge signs it …" and ordered Dr. Hunter to evaluate Mr. Anderson within thirty days and report his findings to the trial court.
Over a year later, in September 2022, Mr. Walker filed a motion to extend the preliminary limited interdiction, and that motion was granted the same day. Appellants filed a motion to vacate the order on the ground that the extension request had been filed untimely under La.Civ.Code art. 397. The trial court denied the motion to vacate, and Appellants filed a writ application with this court on October 24, 2022. We granted Appellants’ writ, vacating the trial court’s order which extended the preliminary limited interdiction order signed March 4, 2021, because it terminated thirty days after it was signed. See In Re: Anderson, 22-685 (La.App. 3 Cir. 11/10/22) (unpublished writ opinion).
Under La.Civ.Code art. 397, a preliminary interdiction granted following an adversarial hearing may be extended for a period not to exceed thirty days
On October 11, 2022, Mr. Walker filed a motion seeking to have a hearing scheduled on his motion for full permanent interdiction of Mr. Anderson and seeking 8to have counsel for Mr. Anderson appear at the permanent interdiction hearing to testify and produce documents reflecting the communications of counsel which involved Mr. Anderson. Mr. Walker’s motion was granted ex parte by the trial court, and the permanent interdiction hearing was scheduled for October 17, 2022. On October 13, 2022, Appellants filed a motion to set aside the order which scheduled the hearing and compelled counsel for Mr. Anderson to appear and produce documents. Appellants filed an emergency writ application, which we granted, vacating the hearing set for October 17, 2022. See In Re: Anderson, 22-655 (La.App. 3 Cir. 10/14/22) (unpublished writ opinion).
As a result, the hearing on Mr. Walker’s request for full, permanent interdiction was rescheduled for November 14, 2022.
Appellants also filed a writ application seeking review of the trial court’s order compelling counsel for Mr. Anderson to appear at the permanent interdiction hearing and produce documents relating to the representation of Mr. Anderson. Appellants argued the trial court erred when it failed to hold a hearing mandated by La. Code Evid. art. 508. In his opposition, Mr. Walker declared that he was agreeable to striking and vacating that portion of the trial court’s order which required Mr. Anderson’s counsel to appear at the permanent interdiction hearing and to produce documents relating to representation. Thus, we granted Appellants’ writ, reversing that portion of the trial court’s order. See In Re: Anderson, 22-723 (La.App. 3 Cir. 11/10/22) (unpublished writ opinion).
We find no evidence that Appellants filed pleadings for any improper purpose, so as to harass, delay, and increase costs herein. Appellants raised valid contentions to ensure proper procedures were followed in the interdiction proceedings against Mr. Anderson, as clearly evidenced by the above-mentioned writs to this court. We, 9therefore, find the trial court manifestly erred in granting Mr. Walker’s request for sanctions pursuant to La.Code Civ.P. art. 863.
We additionally find that the trial court failed to comply with the mandate of La. Code Civ.P. art. 863(G) to "describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed." The trial court neither described the conduct which it determined to constitute a violation of La.Code Civ.P. art. 863 nor explained the basis for the sanction. The trial court’s opinion that "this litigation has been protracted" does not justify its imposition of sanctions. For these rea- sons, we reverse the trial court’s award of sanctions in the amount of $7,000 against Appellants.
The record reflects a delay from when Dr Hunter was ordered to evaluate Mr. Anderson, March 4, 2021, to when Dr. Hunter ultimately submitted his report to the trial court, October 5, 2022. This delay appears attributable to Dr. Hunter not being immediately served with the trial court’s order as well as to limitations imposed due to the COVID-19 pandemic which hindered Dr. Hunter’s ability to evaluate Mr. Anderson.
DECREE
We affirm the part of the trial court’s judgment dated March 16, 2023, granting Carey Wayne Walker, Sr.’s motion to disqualify counsel of record; however, we reverse the part of the judgment that granted sanctions against Melanie Bray and Disability Rights Louisiana. Costs of this appeal are divided equally between Appellee, Carey Wayne Walker, Sr., and Appellants, Melanie Bray and Disability Rights Louisiana.
AFFIRMED IN PART; REVERSED IN PART.