Andre Pierce v. Buck Kreihs Company, Inc., Abc Insurance Company, Economy Iron Works, Inc., and Def Insurance Company

• Court: Louisiana Court of Appeal
• Decided: July 31, 2023
• Docket: 2022-CA-0848
• Status: Published

Opinion

ANDRE PIERCE * NO. 2022-CA-0848

VERSUS * COURT OF APPEAL BUCK KREIHS COMPANY, * INC., ABC INSURANCE FOURTH CIRCUIT COMPANY, ECONOMY IRON * WORKS, INC., AND DEF STATE OF LOUISIANA INSURANCE COMPANY *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2021-03951, DIVISION “E” Honorable Omar Mason, Judge ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Tiffany Gautier Chase, Judge Rachael D. Johnson)

Leo Caillier, III CAILLIER & ASSOCIATES, LLC 711 2nd Street Gretna, LA 70053

COUNSEL FOR PLAINTIFF/APPELLANT

Andrew Miner George J. Nalley, Jr. NALLEY, DEW & MINER, APLC 2450 Severn Ave, Suite 100 Metairie, LA 70001

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED July 31, 2023 DLD In this tort case, the plaintiff, Andre Pierce, appeals the trial court’s granting TGC RDJ of a motion for sanctions pursuant to La. C.C.P. art. 863 in favor of the defendant,

Buck Kreihs Marine Repair, LLC, and against the plaintiff.1 We affirm for the

reasons that follow.

FACTS AND PROCEDURAL HISTORY

Mr. Pierce alleges that he was injured in a workplace accident at the Port of

New Orleans on November 18, 2020, when he fell and injured himself because the

handrail on the trolley of the Port’s Crane No. 7 failed. On May 10, 2021, Mr.

Pierce filed a petition for damages, naming Buck Kreihs and others as defendants.

Prior to Mr. Pierce filing his petition for damages, counsel for Buck Kreihs had

spoken with the plaintiff’s counsel and advised him that Buck Kreihs had not done

any work on Crane No. 7 and that the Port’s representatives had told Buck Kreihs

1 According to La. C.C.P. art. 1915(A)(6): “A final judgment may be rendered and signed by the

court, even though it may not grant the successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in the case, when the court: (6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of Evidence Article 510(G). “Judgments rendered under Article 1915(A)(6) do not require that the trial court to designate the judgment as final for purposes of an immediate appeal.” Cambrie Celeste LLC v. Starboard Management, LLC, 2016-1318, p. 10 (La. App. 4 Cir. 11/6/17), 231 So.3d 79, 84-85.

1 that they had no information indicating that Buck Kreihs had performed any work

on the handrail at issue. Counsel for Buck Kreihs also asked that Mr. Pierce

produce any contradictory evidence or information that might show that Buck

Kreihs was in any way involved. No evidence or information was produced.

After being served with the citation and the plaintiff’s petition, Buck Kreihs

filed an answer, denying the plaintiff’s allegations and propounding discovery. In

response, Buck Kreihs was told that Port supervisor Jason Gervais had told Mr.

Pierce that Buck Kreihs had done work on the handrail prior to his accident.

Counsel for Buck Kreihs also obtained public records from the Port regarding all

work ever performed on Crane No. 7 and found no indication that Buck Kreihs had

ever done any work on the crane or its handrail. These records were produced to

the plaintiff’s counsel on November 28, 2021. At that time, a voluntary dismissal

was also requested. There was no response from the plaintiff.

On January 14, 2022, Buck Kreihs took the plaintiff’s deposition and he

testified that he had no personal information or knowledge that Buck Kreihs did

any work on the handrail in question, and no one ever told him that Buck Kreihs

may have been responsible for that work. Following the deposition, counsel for

Buck Kreihs again requested that the plaintiff dismiss his client. There was no

response from the plaintiff.

On February 16, 2022, the parties took the deposition of Jason Gervais. Mr.

Gervais testified that he had no knowledge of Buck Kreihs ever doing any work on

the subject handrail. The following day, February 17, 2022, counsel for Buck

2 Kreihs once again asked plaintiff’s counsel for a dismissal. In response, plaintiff’s

counsel faxed a letter to counsel for Buck Kreihs stating that “my client has not

been able to secure testimony or evidence that your client is legally liable for his

injuries,” but offered to dismiss Buck Kreihs for $25,000. Counsel for Buck

Kreihs rejected this offer.

Buck Kreihs filed a motion for summary judgment on March 14, 2022. The

plaintiff did not file any opposition and a hearing on the motion was scheduled for

May 6, 2022. However, on May 4, 2022, the plaintiff filed a motion for the

voluntary dismissal of Buck Kreihs.

On May 27, 2022, Buck Kreihs filed a motion for sanctions pursuant to La.

C.C.P. art. 863. The plaintiff’s opposition consisted of his affidavit, which directly

contradicted his previous sworn deposition testimony. A hearing on the motion for

sanctions took place on October 6, 2022, and immediately following the hearing,

the trial court issued an oral ruling in favor of the defendant, Buck Kreihs, and

against the plaintiff, Mr. Pierce. On October 7, 2022, the plaintiff filed a motion to

vacate, which was heard by the trial court on October 21, 2022 and denied. The

trial court also issued its written judgment granting Buck Kreihs’ motion for

sanctions on October 21, 2022. The trial court ordered the plaintiff to pay: Buck

Kreihs’ filing fees of $163.00 and service costs of $7.82 for the motion for

sanctions; Buck Kreihs’ reasonable attorneys’ fees of $990.00 and costs of $13.99

for the hearing on October 6, 2022; and $10,000.00 in reimbursement for the cost

3 of reasonable and necessary discovery incurred in this matter. It is from this

judgment that the plaintiff now appeals.

DISCUSSION

On appeal, the plaintiff raises the following lone assignment of error: the

trial court abused its discretion when it ruled granting the defendant’s motion for

sanctions pursuant to La. C.C.P. art. 863. Also, in connection with this appeal, the

defendant/appellee, Buck Kreihs, seeks sanctions pursuant to La. C.C.P. art. 2164

for the filing of a frivolous appeal, for not presenting a substantial legal question

and/or presenting facts, arguments and law not supported by the record in the case

on appeal.

A trial court’s judgment regarding sanctions under La. C.C.P. art. 863 is

reviewed under a manifest error/clearly wrong standard. Mathis v. Mathis, 06-

1589, p. 3 (La. App. 4 Cir. 7/25/07), 964 So.2d 426, 428. Accordingly, a trial

court’s judgment may not be disturbed unless the record furnishes no evidence to

support the court’s finding, or if the finding is clearly wrong. Id. (quoting Green v.

Wal-Mart Store No. 1163, 96-1124 (La. App. 4 Cir, 10/17/96), 684 So.2d 966,

969).

At issue in the instant case is whether the trial court erred in granting the

defendant’s motion for sanctions pursuant to La. C.C.P. art. 863. Louisiana law

requires all parties to conduct an objectively reasonable inquiry into the factual

basis of their allegations prior to signing and filing pleadings with the court. See

La. C.C.P. art. 863(B); See also John W. Fisk Co., Div. of Fisk Corp. v. Michel, 97-

4 2105, p. 3 (La. App. 4 Cir. 3/25/98), 709 So.2d 1061, 1063. Violation of this

requirement, “shall” result in sanctions. See La. C.C.P. art. 863(D). “Subjective

good faith will not satisfy the duty of reasonable inquiry.” Loyola v. A Touch of

Class Transp. Serv., Inc., 90-1694 (La. App. 4 Cir. 1991), 580 So.2d 506, 510.

The goal to be served by the imposition of sanctions is the “correction of litigation

abuse.” Keaty v. Raspanti, 03-1080, p. 5 (La. App. 4 Cir. 2/4/04), 866 So.2d 1045,

1050 (citing Joyner v. Wear, 27,631, p. 14 (La. App. 2 Cir. 12/6/95), 665 So.2d

634, 642).

The trial court “has considerable discretion imposing the type and severity of

sanctions.” John W. Fisk Co., Div. of Fisk Corp., 97-2105, p. 2 , 709 So.2d at

1063. Generally, four factors are considered in determining the appropriate

sanctions award: (1) the conduct that is being punished or sought to be deterred, (2)

the expenses or costs caused by the violation of article 863, (3) whether the

expenses or costs were reasonable as opposed to self-imposed, and (4) whether the

sanction is the least severe adequate to serve its purpose. Keaty, 03-1080, p. 5,

866 So.2d at 1050 (citing Butler v. Reader, 98-484, p. 14 (La. App. 5 Cir.

12/28/99), 728 So.2d 888, 895).

In the instant case, the trial court awarded Buck Kreihs the costs for filing the

motion for sanctions, the time and costs for the hearing on the motion for

sanctions, and $10,000.00 for the reasonable and necessary discovery incurred in

the matter. The trial court found that that the plaintiff had violated its affirmative

5 duty to investigate the facts prior to filing suit. Therefore, such a finding was

warranted.

From the time Buck Kreihs was made aware of the plaintiff’s allegations, it

denied ever doing any work on Crane No. 7 or the handrail in question. Mr. Pierce

made no inquiry and did no investigation into the involvement of Buck Kreihs with

the crane either prior to or after filing his lawsuit. Counsel for Buck Kreihs,

however, did obtain the public records from the Port regarding all work ever

performed on Crane No. 7 and the subject handrail by any contractor. These

records were reviewed by counsel for Buck Kreihs and produced to plaintiff’s

counsel. Counsel for Buck Kreihs also took Mr. Pierce’s deposition and he

testified that he had no personal information or knowledge that Buck Kreihs did

any work on the handrail. The deposition testimony of Jason Gervais also revealed

he had no knowledge of Buck Kreihs ever doing any work on the subject handrail.

Prior to Mr. Pierce’s lawsuit being filed, his counsel was asked to produce any

evidence he had regarding Buck Kreihs’ connection with Crane No. 7 or the

subject handrail. No evidence was ever produced. Counsel for Buck Kreihs also

requested numerous times that plaintiff dismiss their client. The plaintiff only

dismissed Buck Kreihs two days prior to a scheduled hearing on Buck Kreihs’

motion for summary judgment.

At the hearing on the motion for sanctions, the trial court found based on the

plaintiff’s own deposition testimony “that it doesn’t suggest that there was a

legitimate basis or legal basis [or] evidentiary basis – evidentiary support for the

6 allegations against the defendant Buck Kreihs.” In determining the amount of

sanctions, the trial court stated: “I understand the request was for $25,000, but the

Court’s going to grant $10,000 and costs associated with defending the matter and

having to take the depositions to investigate the matter and to get the information

that was necessary to discover further that the plaintiff’s claims were not based

upon evidentiary support.”

In the instant case, it is evident that the plaintiff’s counsel did not investigate

or make a reasonable inquiry into the basis of the plaintiff’s claims against Buck

Kreihs before filing the plaintiff’s lawsuit. It is also evident that in connection

with this case, Buck Kreihs’ attorneys invested a considerable amount of time and

work in investigating Mr. Pierce’s claims, conducting depositions and other

discovery, communicating with their client and Mr. Pierce’s attorney, drafting

documents and court appearances. When the sanctions award of $10,000 is

considered in connection with the goal of preventing litigation abuse, it is evident

that the award was not an abuse of the trial court’s discretion. We find no error in

the trial court’s award.

In connection with appealing this matter, Buck Kreihs also seeks additional

sanctions pursuant to La. C.C.P. art. 2164. That article states: “The appellate court

shall render any judgment which is just, legal, and proper upon the record on

appeal. The court may award damages, including attorney fees, for frivolous

appeal or application for writs, and may tax the costs of the lower or appellate

court, or any part thereof, against any party to the suit, as in its judgment may be

7 considered equitable.” Id. Considerations similar to those for La. C.C.P. art. 863,

such as curtailing of appeals intended to delay, harass, or those which have no

reasonable basis in fact or law, also apply. See Johnson v. Johnson, 08-0060, p. 5

(La. App. 4 Cir. 5/28/08), 986 So.2d 797, 801. A case’s background and the

history of the litigation may also be considered when determining whether to

award sanctions in connection with an appeal. See Hester v. Hester, 97-2009, p. 5

(La. App. 4 Cir. 6/3/98), 715 So.2d 43, 46-47.

In Acosta v. B&B Oilfield Servs., Inc., 12-0122 (La. App. 3 Cir. 6/6/12), 91

So.3d 1263, the Third Circuit found that the appeal, challenging the imposition of

sanctions and the amount thereof, failed to present a substantial legal question and

warranted appellate sanctions. The underlying basis for sanctions was the

plaintiff’s continuing pursuit of litigation after being supplied with all necessary

information by the defendants warranting their dismissal. We have a similar

situation in the instant case.

Applying the aforementioned standards to the case before us, it is apparent

that Buck Kreihs is entitled to sanctions associated with this appeal. Buck Kreihs’

counsel answered the appeal, prepared and filed a brief, as well as prepared and

delivered an oral argument before this Court. These actions all required defense

counsel to spend time and energy on this matter. There were also other costs

involved with the appeal, including court filings, copies, postage and parking.

Considering the facts surrounding this case, it would be fundamentally unfair for

Buck Kreihs to have to pay these expenses. Therefore, it is reasonable to sanction

8 the plaintiff and award Buck Kreihs $2,500.00 for its costs and attorney fees

associated with this appeal.

CONCLUSION

For the foregoing reasons, we affirm the trial court judgment in favor of the

defendant, Buck Kreihs, and against the plaintiff, Mr. Pierce. Pursuant to La.

C.C.P. art. 2164, we also sanction the plaintiff in connection with this appeal and

award $2,500.00 to the defendant for its costs and attorney fees associated with this

appeal.

AFFIRMED