Janice M. Hornot VS Leonard Cardenas, III
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2010 CA 1569 JANICE M HORNOT VERSUS LEONARD CARDENAS III Judgment Rendered March 25 2011 Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number 534 772 Honorable William A Morvant Presiding E3K3E3KMM3 Counsel for PlaintiffAppellant John P Aydell Jr Baton Rouge LA Janice M Hornot Leonard Cardenas III Counsel Pro Se Baton Rouge LA Nathan P Fry Baton Rouge LA Counsel for Defendant Appellee Leonard Cardenas III BEFORE PARRO GUIDRY AND HUGHES JJ G UIDRY J Janice Hornot appeals from a judgment of the trial court ordering her to pay 00 000 15 in sanctions plus all courts costs and judicial interest from July 1 2009 to her former attorney Leonard Cardenas III For the reasons that follow we affirm FACTS AND PROCEDURAL HISTORY Janice Hornot an attorney was injured in an automobile accident in March 1996 In approximately October 2001 Ms Hornot contacted Mr Cardenas and asked him to represent her in connection with that accident Despite acknowledging many obstacles in her case Mr Cardenas agreed to represent Ms Hornot and the parties subsequently agreed to a contingency fee of 17 5 Thereafter Ms Hornot reluctantly agreed to mediation of her claim whereupon a settlement of 95 was reached However after the mediation Ms Hornot 00 000 refused to execute the receipt and release for settlement and the settlement funds remained in Mr Cardenas client trust account On July 25 2005 Ms Hornot filed a claim against Mr Cardenas in the Nineteenth Judicial District Court for alleged actions andor omissions designed to cause her emotional and mental distress and anguish for fraudulent acts and for return of documents pleadings papers deposition transcripts and funds in his possession relating in any manner to the case in which Mr Cardenas had represented Ms Hornot Mr Cardenas filed a reconventional demand alleging that he was entitled to attorney fees and outofpocket expenses in connection s with his representation of Ms Hornot in the underlying personal injury action and that he was entitled to general and special damages for Ms Hornot intentional s infliction of emotional distress and defamation of him Following a trial the court rendered judgment in favor of Mr Cardenas and against Ms Hornot finding that Ms Hornot did not come remotely close to 2 carrying her burden of proof as to any one of the allegations contained in her petition Additionally the trial court held that Mr Cardenas proved his claim for defamation against Ms Hornot and awarded him 20 The trial court also 00 000 imposed La C art 863 sanctions against Ms Hornot in the amount of P 00 000 10 finding the mere signing and filing of the pleading in this matter constituted a blatant violation of the provisions of that article Ms Hornot appealed the trial court judgment and in Hornot v Cardenas 071489 La App s 1st Cir 6 unpublished opinion 986 So 2d 258 table writ denied 08 08 20 2131 La 9 992 So 2d 996 cert denied 08 26 S U 129 S Ct 1584 173 L Ed 2d 676 2009 this court affirmed the portion of the trial court s judgment awarding Mr Cardenas damages for defamation However after finding that Ms Hornot was not afforded a hearing before sanctions were imposed as required by Article 863 this court vacated the award of Article 863 sanctions E and remanded the matter to the trial court for a full evidentiary hearing on that sole issue Following a hearing on remand the trial court found that Ms Hornot filing s of the suit against Mr Cardenas was a pure and blatant Article 863 violation In a judgment signed on March 5 2010 the trial court ordered Ms Hornot to pay 00 000 5 1 in sanctions to Mr Cardenas plus all court costs and judicial interest on the sanctions award from date of judicial demand July 1 2009 until said judgment is paid Ms Hornot now appeals this judgment DISCUSSION To impose sanctions a trial court must find that one of the affinnative duties imposed by La C art 863 has been violated Stroscher v Stroscher 01 2769 P p 8 La App 1 st Cir 2 845 So 2d 518 526 03 14 K At all pertinent times Louisiana Code of Civil Procedure article 863 provided in pertinent part 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 that to the best of his knowledge information and belief formed after reasonable inquiry it is well grounded in fact that it is warranted by existing law or a good faith argument for the extension modification or reversal of existing law and that it is not interposed for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation D 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 or parties the amount of the reasonable expenses incurred because of the filing of the pleading including a reasonable attorney fee s Article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law subjective good faith will not satisfy this duty of reasonable inquiry The article does not empower a trial court to impose sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified failure to prevail does not trigger an award of sanctions Article 863 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 A trial court determination regarding the imposition s of sanctions is subject to the manifest error or clearly wrong standard of review Stroscher 01 2769 at p 8 845 So 2d at 526 In its oral reasons for finding that Article 863 was violated the trial court found that Ms Hornot both at the original trial and at the sanctions hearing acknowledged true facts contrary to the allegations made in her petition Particularly it found that Ms Homot conceded that Mr Cardenas himself never accused her of committing insurance fraud that she admitted at trial that Mr Cardenas did not commit fraud that Ms Hornot knew about the insurance fraud Cl allegation prior to the mediation but participated in the mediation and agreed to settle her action that she refused to accept the settlement funds despite Mr Cardenas repeated requests that she collect her funds and that she admitted Mr Cardenas returned her case file to her Further though Ms Hornot attempted to argue for the first time at the sanctions hearing that Mr Cardenas had fabricated the insurance fraud allegation at the mediation to coerce her to settle her personal injury action the trial court found that such allegation was clearly contrary to Ms s Hornot prior trial testimony the testimony presented at the sanction hearing and the documentary evidence contained in the record Accordingly after reviewing the testimony and documentary evidence presented both at the original trial and at the sanctions hearing and after reviewing the Fourth Circuit opinion in Hornot v Cardenas 061341 La App 4th Cir s 07 3 10 968 So 2d 789 the trial court found There is absolutely nothing in this record either at the trial or at the hearing today to show that Ms Hornot made any not even a vague attempt to comply with the provisions of Article 863 before filing suit And the fact that she filed a similar suit in Orleans Parish which was dismissed and scathing comments by the Fourth Circuit two years prior to filing this one to me only adds and compounds the problem that this was a pure and blatant Article 863 violation This is the precise type of conduct that A 863 seeks to avoid rticle From our review of the record in its entirety we find that the record clearly supports the finding that the allegations made by Ms Hornot in her petition were not well grounded in fact Ms Hornot admitted facts directly in conflict with those asserted in her petition and to the extent that she asserted Mr Cardenas coerced her to settle her personal injury claim with threats of criminal and disciplinary consequences related to the alleged insurance fraud issue her testimony was contradicted by Mr Cardenas testimony The trial court had the opportunity to assess the credibility of the witnesses and its findings regarding their credibility demands great deference See Rosell v ESCO 549 So 2d 840 844 La 1989 R Accordingly we find no error in the trial court determination that Ms Hornot s violated Article 863 by filing the action against Mr Cardenas in the Nineteenth Judicial District Court Once the trial court finds a violation of Article 863 and imposes sanctions the determination of the type and the amount of the sanction is reviewed on or appeal utilizing the abuse of discretion standard Stroscher 01 2769 at p 8 845 So 2d at 526 In the instant case the trial court awarded 15 in sanctions to Mr 00 000 Cardenas Ms Hornot asserts that the trial court abused its discretion in awarding any sanctions to Mr Cardenas because he was represented by a member of his own law firm and therefore is precluded from recovering attorney fees citing s Ables v Ungarino Eckert LLC 060366 La App 1st Cir 12 951 So 06 28 2d 318 writ denied 070192 La 3 951 So 2d 1106 and Lamz v Wells 07 23 05 1497 La App 1st Cir 6 938 So 2d 792 06 9 Louisiana Code of Civil Procedure article 863 provides that once the court determines that the provisions of the article have been violated it shall impose an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading including a reasonable attorney fee s Four factors that must be considered in setting an amount of sanctions are 1 the conduct being punished or sought to be deterred by the sanction 2 the expenses or costs caused by the violation of the rule 3 whether the costs or expenses were reasonable as opposed to self imposed mitigatable or the result of delay in seeking court intervention and 4 whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed Dubois v Brown 01 0816 p 4 We note that the cases cited by Ms Hornot involve an attorney seeking attorney fees for sell s representation not representation by the attorney firm as in this case s G La App 1 st Cir 5 81 So 2d 864 867 writ denied 021654 La 02 10 8 02 14 10 827 So 2d 421 At the sanctions hearing Mr Cardenas testified that members of his firm spent one hundred plus hours defending the suit brought by Ms Hornot which went to trial was appealed to the First Circuit had writs filed in the Louisiana Supreme Court and United States Supreme Court and was remanded to the trial court for a hearing on the sanctions Counsel for Ms Hornot objected to the testimony and in overruling the objection the trial court noted that it had previously awarded attorney fees to Mr Cardenas in the judgment on the merits s of the defamation claim and that it was not using attorney fees incurred as the s basis for a sanction award The trial court subsequently awarded 15 in 00 000 sanctions representing the one hundred plus hours in time spent by Mr Cardenas law firm defending her suit time that presumably could have been spent generating fees for the firm Sanctions under La C art 863 serve to prevent abuse of the judicial P process See Rochon v Roemer 93 2444 La 1 630 So 2d 247 248 cert 94 7 denied 512 U 1224 114 S Ct 2716 129 L Ed 2d 841 1994 The trial court S agreed with the Fourth Circuit determination that not only did Ms Hornot s knowingly fail to tell the truth in her petition she did so with reckless disregard for the truth and that there was no valid basis upon which the claims could have been made truthfully Further the trial court concluded as noted above that the filing of the claim in the Nineteenth Judicial District Court two years after filing a similar suit that was dismissed with such scathing comments by the Fourth Circuit was a pure and blatant 863 violation and that this is the precise type of conduct that Article 863 seeks to avoid The trial court determined that sanctioning Ms Hornot to pay Mr Cardenas 15 was appropriate under the facts to achieve 00 000 VA the purpose of Article 863 After reviewing the record herein we find no abuse of the trial court discretion in setting this amount s Ms Hornot also asserts on appeal that the trial court erred in excluding from evidence certain documents and testimony relating to garnishment of the settlement funds held in Mr Cardenas client trust account The trial court ruled that the evidence which related to collection of the judgment in the Orleans Parish suit was not relevant to the narrow issue that was before the court on remand which was whether sanctions under Article 863 should be imposed Generally all relevant evidence is admissible La C E art 402 Relevant evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence La C art 401 Whether evidence is relevant is E within the discretion of the trial court and its ruling will not be disturbed on appeal in the absence of a clear abuse of discretion Boudreaux v Mid Continent Casualty Company 05 2453 p 8 La App 1st Cir 11 950 So 2d 839 845 06 3 writ denied 06 2775 La 1 948 So 2d 171 07 26 From our review of the record we find no abuse of discretion in the trial s court ruling As recognized by the trial court the sole issue before the court on remand was whether Article 863 sanctions should be imposed The documentary evidence and testimony which Ms Hornot sought to be admitted into evidence at the sanctions hearing related to the garnishment of the settlement funds in Mr Cardenas client trust account for collection of the judgment rendered in the Z At the beginning of the hearing on Article 863 sanctions the trial court addressed a motion for protective order filed by Mr Cardenas The subject of the protective order was a request by Ms Hornot for discovery related to garnishment pleadings filed in connection with the judgment rendered in the Orleans Parish suit The trial court ruled that the evidence was not relevant to the issue before it on remand and therefore granted Mr Cardenas motion for protective order However because Ms Hornot was already in possession of certain documents related to the garnishment proceeding that she wanted to introduce into evidence and wanted to cross examine Mr Cardenas regarding these documents and proceedings this ruling really went more to the admissibility of evidence at trial r 3 Orleans Parish suit Ms Hornot asserts that this evidence is relevant in determining the amount of sanctions that should be imposed citing Dubois 01 0816 at p 4 818 So 2d at 867 because such seizure already constitutes severe punishment However like the trial court we do not find the fact that Mr Cardenas obtained a judgment against Ms Homot in the Orleans Parish suit and instituted a garnishment action to collect on that unrelated judgment is relevant to any issue before the court on remand As noted by the trial court whether Mr Cardenas had a right to collect on an unrelated judgment is something that needed to be addressed in the Orleans Parish suit not in a collateral proceeding in the Nineteenth Judicial District Court therefore we find no abuse of discretion in the trial court ruling excluding from evidence certain documents and testimony s relating to garnishment of the settlement funds held in Mr Cardenas client trust account Finally Mr Cardenas asserts in his appellate brief that additional sanctions should be imposed against Ms Hornot because her continued assertions and allegations on appeal are false and are entirely without merit However the ability to impose sanctions under Article 863 is limited to the trial court An appellate s court authority to regulate conduct before it is governed by La C art 2164 P which provides in pertinent part that the appellate court may award damages for frivolous appeal In re Succession of Badeaux 08 1085 p 6 La App 1 st Cir 3 12 So 3d 348 353 writ denied 090822 La 5 9 So 3d 166 09 27 09 29 However Article 2164 damages are not proper where the party does not appeal or answer the appeal Because Mr Cardenas did not answer Ms Homot appeal his s claim for damages for frivolous appeal is not properly before this court Schulingkamp v Schulin kam See 2680 96 p 4 La App 1st Cir 12 706 97 29 So 2d 1005 1007 writ denied 98 0279 La 3 715 So 2d 1219 98 20 9 CONCLUSION For the foregoing reasons we affirm the judgment of the trial court ordering Janice Hornot to pay 15 in sanctions to Leonard Cardenas III plus all 00 000 costs and judicial interest on the sanctions award from date ofjudicial demand All costs of this appeal are assessed to Janice Hornot AFFIRMED 10
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