ELYSIAN, INC. AND * NO. 2020-CA-0674 CUSACHS FAMILY COLLECTION, L.L.C. * COURT OF APPEAL VERSUS * FOURTH CIRCUIT NEAL AUCTION COMPANY, * INC., PHILIP B. ALFORD, STATE OF LOUISIANA JOHN J. BOOTH, CELESTE W. ******* LINGLE, AND JOHN DOE INSURANCE COMPANY
CONSOLIDATED WITH: CONSOLIDATED WITH:
ELYSIAN, INC. AND CUSACHS NO. 2020-CA-0675 FAMILY COLLECTION, L.L.C.
VERSUS
NEAL AUCTION COMPANY, INC., PHILIP B. ALFORD, JOHN J. BOOTH, CELESTE W. LINGLE, AND JOHN DOE INSURANCE COMPANY
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10398, DIVISION “G-11” Honorable Robin M. Giarrusso, Judge ****** Judge Joy Cossich Lobrano ****** (Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Paula A. Brown)
BROWN, J., CONCURS IN THE RESULT
Isaac H. Ryan DEUTSCH KERRIGAN, L.L.P 755 Magazine Street New Orleans, LA 70130
COUNSEL FOR PLAINTIFFS/APPELLANTS
David Lingle 3948 3rd Street, #268 Jacksonville Beach, FL 32250 DEFENDANT-IN-RECONVENTION/APPELLANT, IN PROPER PERSON
Mary Ellen Roy Dan Brian Zimmerman Sarah M. Smith-Clevenger PHELPS DUNBAR LLP 365 Canal Street, Suite 2000 New Orleans, LA 70130-6534
COUNSEL FOR DEFENDANTS/APPELLEES
SANCTIONS JUDGMENTS AFFIRMED; APPEALS DISMISSED IN PART; ANSWER TO APPEAL STRICKEN
JULY 21, 2021 JCL Appellants, Elysian, Inc. (“Elysian”), Cusachs Family Collection, L.L.C. RLB (“Cusachs”) (together, “Sellers”), and David Lingle (“Lingle”) (collectively with
Sellers, “Appellants”), purport to appeal two judgments imposing sanctions under
La. C.C.P. art. 863 against Sellers (“sanctions judgments”), along with fifteen
interlocutory judgments, consisting of denials of motions for partial summary
judgment and special motions to strike filed on behalf of Sellers and/or Lingle and
the partial granting of a motion for partial summary judgment filed on behalf of
Appellees, Neal Auction Company, Inc. and Philip B. Alford (“interlocutory
judgments”). For the reasons that follow, we dismiss the appeals as to the
interlocutory judgments and affirm both sanctions judgments. We strike
Appellants’ answer to appeal.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
The case concerns the sale of items contained in an art collection that was on
display at the Louisiana State Museum for over a century. The Gaspar Cusachs
Collection (the “Collection”) is a large group of historical artifacts originally
assembled and owned by Gaspar Cusachs (1855-1929). Sellers equally shared
ownership of the Collection. In February 2016, Sellers entered into an agreement
1 with Neal Auction Company, Inc. and Philip B. Alford, president and senior
auctioneer (hereinafter “Neal”), Appellees, to sell the Collection.
On October 27, 2017, Sellers filed the instant lawsuit against Neal and
additional defendants, raising various claims stemming from Sellers’
dissatisfaction with the auction results. The early procedural history of this
litigation is set forth in this Court’s prior opinion. See Elysian, Inc. v. Neal Auction
Co., 18-0683 (La. App. 4 Cir. 3/20/19), 267 So.3d 143. Following the prior appeal
of this matter, Sellers filed four amended petitions.
Sellers filed their Fourth Amended Petition on October 14, 2019. The Fourth
Amended Petition alleged eleven separate causes of action, including, inter alia,
breach of contract, redhibition, conspiracy, conversion, fraud, breach of fiduciary
duty, violation of False Advertising Law, violation of auction law and rules,
violation of Unfair Trade Practices Act, and negligence. In November 2019, Neal
filed an answer to the Fourth Amended Petition and a reconventional demand
asserting claims against Sellers for breach of contract, misrepresentations and
omissions, and violation of the Unfair Trade Practices Act, and against both Sellers
and Lingle for defamation and abuse of process.
Sellers and Lingle each filed an answer to Neal’s reconventional demand on
January 10 and 15, 2020, respectively. Lingle’s answer included a reconventional
demand against Neal asserting an abuse of process claim.
On January 10 and 15, 2020, Sellers and Lingle, respectively, filed a special
motion to strike Neal’s defamation claim. On January 15, 2020, Sellers filed a
motion for partial summary judgment on their breach of contract claim and on
Neal’s claims for breach of contract and misrepresentations and omissions. On
January 21, 2020, Sellers filed a motion for partial summary judgment on their
2 conspiracy to commit abuse of process claim and on Neal’s abuse of process claim.
By seven separate judgments signed on February 21, 2020, the district court denied
the special motions to strike and motions for partial summary judgment.
Sellers and Lingle sought supervisory review of the February 21, 2020
judgments denying their special motions to strike, denying Sellers’ motion for
partial summary judgment on Sellers’ claim for conspiracy to commit abuse of
process, and denying Sellers’ motion for partial summary judgment on Neal’s
claim for abuse of process. This Court denied the application for supervisory writs
on May 29, 2020. See Elysian, Inc. v. Neal Auction Co., unpub., 20-0190 (La. App.
4 Cir. 5/29/20).
On March 10, 2020, Sellers filed a motion for partial summary judgment on
their breach of contract claim and on Sellers’ claims for breach of contract and
misrepresentations and omissions. This motion sought summary judgment on the
identical claims as Sellers’ previously denied January 15, 2020 motion for partial
summary judgment. Neal filed a motion for sanctions for Sellers’ filing of the
repetitive motions for partial summary judgment. By three judgments signed on
May 28, 2020, the district court denied the motion for partial summary judgment.
By separate judgment signed on the same date, the court denied Neal’s request for
sanctions, although the court noted at the motions hearing that it was a “close call,
particularly considering the time frame of how closely [Sellers’ two motions for
partial summary judgment on claims for breach of contract and misrepresentations
and omissions] were filed after one another.”
On June 3, 2020, Sellers and Lingle filed a motion for partial summary
judgment on Neal’s abuse of process claim. On June 4, 2020, Sellers filed a motion
for partial summary judgment on their conversion claim. On June 5, 2020, Sellers
3 and Lingle filed a motion for partial summary judgment on “Booth’s letter”1
(which document relates to the parties’ breach of contract claims against one
another). On July 9, 2020, Neal filed a motion for Article 863 sanctions against
Sellers.2 By three judgments signed on July 24, 2020, the district court denied the
motions for partial summary judgment. By separate judgment of the same date, the
district court granted Neal’s motion for sanctions and imposed monetary sanctions
against Sellers in the amount of $500.
Appellants filed a motion for devolutive appeal on September 30, 2020
“based on their rights to an appeal, which are grounded in the final judgment
rendered on July 24, 2020.” Appellants filed a motion to designate record on
appeal on October 5, 2020, which included a “statement of the points for review.”
The “statement of the points for review” averred that the district court “erred in its
1 In August 2016, John Booth, Jr. (“Booth”), Appellee, sent a letter to Neal asserting an interest to the Collection on behalf of himself, Celeste Lingle, Appellee, and the other great grandchildren of Gaspar Cusachs. In the letter, Booth requested a meeting to inspect and take photographs of items contained in the Collection and threatened, if he did not receive a response within ten days, to “do what the law allows stopping the auction of the Cusachs Collection.” 2 La. C.C.P. art. 863 provides in pertinent part:
B. [T]he 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 nonfrivolous 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. *** 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 the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.
4 judgments” relating, inter alia, to the February 21, 2020, May 28, 2020, and July
24, 2020 judgments denying Appellants’ special motions to strike and motions for
partial summary judgment, indicating that Appellants are seeking appellate review
of these interlocutory judgments.3 The prayer for relief contained at the end of the
appellate brief filed by Appellants prays, inter alia, that this Court reverse the
February 21, 2020, May 28, 2020, and July 24, 2020 interlocutory judgments.
On July 28, 2020, Sellers filed a motion for partial summary judgment on
their claims for breach of fiduciary duty, false advertising, rescission, redhibition,
violation of auction law, and violation of LUTPA. Neal filed a motion for Article
863 sanctions on September 24, 2020. On August 11, 2020, Neal filed a motion for
partial summary judgment on Sellers’ claims of redhibition, conspiracy,
conversion, violation of false advertising law, and violation of auction law and
rules.
By judgments signed on October 19, 2020, the district court denied Sellers’
motion for partial summary judgment filed on July 28, 2020 and granted Neal’s
motion for partial summary judgment on Sellers’ claims of redhibition, conspiracy,
violation of false advertising law, and violation of auction law and rules and denied
Neal’s motion for partial summary judgment on Sellers’ conversion claim. By
3 The “statement of the points for review” further averred that the district court “erred in its judgments” relating to the court’s anticipated ruling at the hearing set on October 9, 2020 on the motions for partial summary judgment filed by Sellers and Neal and the motion for Article 863 sanctions filed by Neal. A party may not appeal a future, anticipated judgment on a matter the trial court has not yet heard and decided. See La. C.C.P. arts. 1974 and 2087 (which provide that the time for taking an appeal commences to run on the day after the clerk has mailed, or the sheriff has served, the notice of judgment); La. C.C.P. art. 1911 (which requires that “every final judgment . . . be signed by the judge,” and provides that “no appeal may be taken from a final judgment until the requirement of this Article has been fulfilled”). See also Wynne v. Parlay’s, Inc., 97-1170, pp. 2, 3 (La. App. 4 Cir. 11/5/97), 701 So.2d 1369, 1370 (“[T]he absence of a signed judgment is fatal to [an] appeal and mandates dismissal of [the] appeal as premature.” “Since there is no signed judgment the appeal must be dismissed as premature.”); State v. Dennis, 14-1258, p. 4 n. 3 (La. App. 4 Cir. 4/29/15), 165 So.3d 1124, 1127 (“[T]he fact that there is no written and signed final judgment here is an independent basis to dismiss [the instant] appeal.”) (citing Wynne, 97-1170, p. 2, 701 So.2d at 1370).
5 judgment of the same date, the court granted Neal’s motion for Article 863
sanctions and ordered that “all parties are prohibited from filing any additional
motions for summary judgment or partial summary judgment.”
On November 2, 2020, Sellers and Lingle filed a second motion for
devolutive appeal “based on their rights to an appeal of the final judgment signed
on October 19, 2020 and all interlocutory rulings prejudicial to them,” along with a
motion to designate record on appeal. The “statement of the points for review”
contained in the motion to designate record averred that the district court “erred in
its judgments” relating, inter alia, to the February 21, 2020, May 28, 2020, July 24,
2020, and October 19, 2020 interlocutory judgments, indicating that Appellees are
seeking appellate review of these interlocutory judgments. The prayer for relief
contained at the end of the appellate brief filed by Appellants prays, inter alia, that
this Court reverse the February 21, 2020, May 28, 2020, July 24, 2020, and
October 19, 2020 interlocutory judgments.
Appellants filed a motion to consolidate the two appeals on January 4, 2021.
On January 6, 2021, this Court granted the motion and consolidated the appeal
docketed as 2020-CA-0675 with 2020-CA-0674. Appellants filed an answer to
appeal on January 11, 2021.
ASSIGNMENT OF ERRORS
Appellees assert that the district court erred in denying the special motions
to strike and motions for partial summary judgment filed on their behalf and in
partially granting the motion for partial summary judgment filed on behalf of Neal.
Appellees further assert that the district court erred in granting Neal’s motions for
Article 863 sanctions and imposing monetary sanctions against Sellers and
6 prohibiting the parties from filing any additional motions for summary judgment or
partial summary judgment.
LEGAL DISCUSSION
Motion to Dismiss Appeal
Neal filed a motion to dismiss appeal of interlocutory judgments in each of
the appeals. Neal argues that the July 24, 2020 and October 19, 2020 judgments
imposing Article 863 sanctions are the only judgments subject to appeal and that,
therefore, the appeals of the adverse rulings on the special motions to strike and
motions for partial summary judgment, which are interlocutory judgments not
subject to appeal, should be dismissed. Neal further argues that since sanctions
were not imposed against Lingle in the July 24, 2020 sanctions judgment, Lingle
has no “justiciable interest” in the appeal of the July 24, 2020 sanctions judgment,
and therefore, his appeal as to that judgment should be dismissed. We agree.4
Judgments are either interlocutory or final. La. C.C.P. art. 1841. “A
judgment that does not determine the merits but only preliminary matters in the
course of the action is an interlocutory judgment. A judgment that determines the
merits in whole or in part is a final judgment.” Id. “A final judgment is appealable
in all causes in which appeals are given by law,” while “[a]n interlocutory
judgment is appealable only when expressly provided by law.” La. C.C.P. art.
2083. The Code of Civil Procedure expressly provides that a judgment denying a
motion for summary judgment is not appealable. See La. C.C.P. art. 968 (“An
appeal does not lie from the court’s refusal to render . . . summary judgment.)” See 4 Neal further argues that Lingle does not have a justiciable interest in the appeal of any of the interlocutory judgments on motions in which he was not a party. Because we agree with Neal’s argument that only the sanctions judgments are immediately appealable and dismiss both appeals as to all of the interlocutory judgments, thereby leaving the October 19, 2020 sanctions judgment as the only judgment properly appealed from by Lingle, we pretermit discussion of Lingle’s right to appeal the interlocutory judgments on motions in which he was not a party.
7 also Barber v. Russell, 08-1366, pp. 1-2 (La. App. 4 Cir. 4/1/09), 9 So.3d 1033,
1034.
Louisiana Code of Civil Procedure article 1915 authorizes the immediate
appeal of certain “final” partial judgments:
A. 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).
B. (1) When a court renders a partial judgment or partial summary judgment or sustains an exception in part, as to one or more but less than all of the claims, demands, issues, or theories against a party, whether in an original demand, reconventional demand, cross-claim, third-party claim, or intervention, the judgment shall not constitute a final judgment unless it is designated as a final judgment by the court after an express determination that there is no just reason for delay.
(2) In the absence of such a determination and designation, any such order or decision shall not constitute a final judgment for the purpose of an immediate appeal and may be revised at any time prior to rendition of the judgment adjudicating all the claims and the rights and liabilities of all the parties.
In this matter, the February 21, 2020, May 28, 2020, July 24, 2020, and
October 19, 2020 judgments denying Appellees’ special motions to strike and
motions for partial summary judgment and the October 19, 2020 judgment
granting in part and denying in part Neal’s motion for partial summary judgment
are non-appealable, interlocutory judgments. None of these judgments were
designated as a final judgment by the district court pursuant to La. C.C.P. art.
1915(B)(1), and the judgments are therefore not subject to immediate appeal. The
only judgments that are immediately appealable are the July 24, 2020 and October
8 19, 2020 sanctions judgments. See Trahant v. Perez, 02-1414, p. 8 (La. App. 4 Cir.
3/19/03), 843 So.2d 479, 484 (“The Louisiana Code of Civil Procedure article
1915(A)(6) now permits the appeal of a judgment that imposes sanctions or
disciplinary action pursuant to La. C.C.P. article 191, 863, or 864.”).
It is well-settled that although an interlocutory judgment may not itself be
immediately appealable, it is nevertheless subject to review by an appellate court
when a judgment is rendered in the case which is appealable. People of the Living
God v. Chantilly Corp., 251 La. 943, 947-48, 207 So.2d 752, 753 (1968); see also,
e.g., Phillips v. Gibbs, 10-0175, p. 4 (La. App. 4 Cir. 5/21/10), 39 So.3d 795, 798.
“When an unrestricted appeal is taken from a final judgment, the appellant is
entitled to seek review of all adverse interlocutory rulings prejudicial to him, in
addition to the review of the final judgment.” Wimsatt v. City of New Orleans, 19-
0461, p. 7, n. 6 (La. App. 4 Cir. 12/20/19), 286 So.3d 1217, 1223 (quoting Favrot
v. Favrot, 10-0986, p. 2 n. 1 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102); see
also Roger A. Stetter, Louisiana Civil Appellate Procedure, § 3:36 (Sept. 2020
Update) (observing that “[i]n most instances, when an unrestricted appeal is taken
from a final judgment, the appellant is entitled to seek review of all adverse
interlocutory judgments prejudicial to her, in addition to the review of the final
judgment”).
In Trahant v. Perez, 02-1414, 843 So.2d 479, the defendant appealed the
judgment of the district court finding him in contempt of court and imposing
sanctions against him. The defendant filed an exception of no cause of action in the
appellate court. The Court found that it lacked jurisdiction to consider the
exception and dismissed it. The Court addressed the appealability of the district
court’s denial of the defendant’s exception of no cause of action as follows:
9 Nevertheless, the defendant’s exception of no cause of action goes to the merits of this case. The trial court’s denial of the defendant’s exception of no cause of action is an interlocutory judgment. “Generally speaking, there is no appeal from a judgment overruling exceptions because such a judgment is simply interlocutory in nature.” Allied Nav. Co. v. International Org. of Masters, Mates & Pilots, 272 So.2d 23, 25 (La.App. 4 Cir.1973). And although the jurisprudence “allows appeals from otherwise unappealable interlocutory judgments when they form part of an unrestricted appeal from a final judgment in the cause,” Walters v. Canal Motors, Inc., 240 So.2d 101, 103 (La.App. 4 Cir.1970), this appeal is not “an unrestricted appeal” but rather an appeal restricted by La. C.C.P. art. 1915(A)(6) to the March 11, 2002 Judgment which, unlike the February 28, 2001 Judgment on Exceptions, imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864. For this reason, Longenecker can validly appeal the Judgment which found him in contempt of court, but has no right as of yet to appeal the interlocutory judgment on the exception of no cause of action.
Id., 02-1414, pp. 8-9, 843 So.2d at 484. See also Sellers v. El Paso Indus. Energy,
L.P., 08-403, pp. 15-16 (La. App. 5 Cir. 2/10/09), 8 So.3d 723, 731-32 (following
Trahant).5
Similarly here, the appeal of each of the sanctions judgments “is not ‘an
unrestricted appeal’ but rather an appeal restricted by La. C.C.P. art. 1915(A)(6).”
5 Notably, the First Circuit has held that a court may address interlocutory issues on appeal if they are “related” or “identical” to or “the same” as the issues raised in the restricted appeal. Carrollton Presbyterian Church v. Presbytery of South Louisiana of Presbyterian Church (USA), 11-0205, pp. 5-6 (La. App. 1 Cir. 9/14/11), 77 So. 3d 975, 979; Dean v. Griffin Crane & Steel, Inc., 05-1226, p. 4 n. 3 (La. App. 1 Cir. 5/5/06), 935 So.2d 186, 189. In Hood v. Cotter, 06-1390, pp. 4-5 (La. App. 1 Cir. 12/28/07), 978 So.2d 988, 992, the First Circuit allowed the review on appeal of an interlocutory issue “directly related” to the issue raised in the restrictive appeal. The Louisiana Supreme Court found that “court of appeal did not improperly reach the [interlocutory] issue [] because it could have chosen to consider this interlocutory ruling under its supervisory jurisdiction.” Hood v. Cotter, 08-0215, p. 8 (La. 12/2/08), 5 So.3d 819, 824 (citation omitted). Nevertheless, the issues concerning the merits of the interlocutory judgments are numerous and distinct from the sanctions issues in this restricted appeal.
10 Trahant, 02-1414, p. 9, 843 So.2d at 484. Accordingly, Appellants may not appeal
any of the interlocutory judgments.6
We next address Lingle’s right to appeal the July 24, 2020 judgment
imposing sanctions against Sellers.
“Appeal is the exercise of the right of a party to have a judgment of a trial
court revised, modified, set aside, or reversed by an appellate court.” La. C.C.P.
art. 2082. “The sole object of an appeal is to give an aggrieved party to a suit
recourse to a superior tribunal for the correction of a judgment of an inferior
court…” Emmons v. Agricultural Insurance Company, 245 La. 411, 425, 158
So.2d 594, 599 (1963). Any party, or person who could have intervened in the trial
court, who is aggrieved by a trial court judgment has the right to appeal that
judgment unless he has acquiesced therein, or is otherwise deprived of that
remedy. La. C.C.P. arts. 2085 and 2086. A person need not have a judgment
directly against him in order to appeal that judgment. Brock v. Tidewater
Construction Company, 318 So.2d 100, 102 (La. App. 3rd Cir. 1975).
Louisiana jurisprudence is consistent in holding that where a party is
“aggrieved” by a judgment he has a right to appeal and that this rule applies even
where the party appealing “may be” aggrieved and does not have any direct
pecuniary interest in the judgment appealed from. Bossier Bank & Trust Co. v.
Fryar, 488 So.2d 428, 433 (La. App. 3rd Cir. 1986); Andrade v. Shiers, 516 So.2d
1192, 1193 (La. App. 2nd Cir. 1987); Brock, 318 So.2d at 102. However, this
Court has held that that a party has no right to appeal where “he cannot benefit by
any reversal or change in the judgment from which he appeals.”
6 For the reasons explained more fully below, we decline to exercise our discretion to convert the appeals of the interlocutory judgments to supervisory writs.
11 Werhan v. Helis, 147 So.2d 260, 263 (La. App. 4th Cir. 1962) (citations omitted);
see also Greater Rose Hill Baptist Church v. Roberts, 10-1594, p. 6 (La. App. 4
Cir. 6/1/11), 71 So.3d 968, 972.
In Sanders v. Gore, 95-660, p. 16 (La. App. 3 Cir. 7/10/96), 676 So.2d 866,
875, the court held that “[a party] has no interest in the sanctions imposed on [the
party’s attorney] and that [the party] has no right to appeal the [sanctions
judgment]. The right to appeal the sanctions is personal to [the party’s attorney]
and to no other.” See also In re Succession of Williams, unpub., 08-2156 (La. App.
1 Cir. 6/19/09), 2009 WL 1719353, *2. We find Sanders v. Gore persuasive
authority in the present matter.
Lingle asserts that he “is the incorporator of Elysian, still has [sic] direct
legal interest in it, and also serves as its officer.” He alleges that “[t]he $500
sanctions paid to Appellees, as a result of the July 24 judgment, partially belonged
to [him],” although there is no evidence of Lingle’s payment of any part of the
sanctions judgment in the appellate record.
A corporation is a separate entity from its shareholders, and a Louisiana
limited liability company is a separate legal entity from its members. La. C.C. art.
24; La. R.S. 12:1304; Metro Riverboat Associates, Inc. v. Bally’s Louisiana
Inc., 99-0983, p. 6 (La. App. 4 Cir. 1/24/01), 779 So.2d 122, 125. Under Louisiana
law, shareholders and officers of a corporation generally do not have a personal
right of action against third parties to recover for acts committed against or causing
damage to the corporation. Joe Conte Toyota, Inc. v. Toyota Motor Sales, USA,
Inc., 689 So.2d 650, 654 (La. App. 4th Cir. 1997) (citing Bolanos v. Madary, 609
So.2d 972, 977 (La. App. 4th Cir.1992)). See also UniDev, L.L.C. v. Housing
Authority of New Orleans, No. 05-2649 (E.D. La. April 2, 2008), 2008 WL
12 906308, *7 (applying rule to members of a limited liability company). This same
rule applies even where one person is the sole shareholder. Glod v. Baker, 02-988,
p. 13 (La. App. 3 Cir. 8/6/03), 851 So.2d 1255, 1265 (applying rule to limited
liability company) (citing Mente & Co. v. Louisiana State Rice Milling Co., 176
La. 476, 480, 146 So.28, 29 (1933)). To the extent that any personal right of action
does exist, it must be grounded on injury that is “unique” or “special” to the
shareholder. Paul Piazza & Son, Inc. v. Piazza, 11-548, pp. 6-7 (La. App. 5 Cir.
12/28/11), 83 So.3d 1066, 1070) (citing St. Bernard Optical Corp. v.
Schoenberger, 05-0548, p. 6 (La. App. 4 Cir. 1/25/06), 925 So.2d 604, 608).
Where the alleged loss to the individual shareholder is the same loss that would be
suffered by other shareholders, the loss is considered to be indirect and is not
actionable individually. Sun Drilling Prod. Corp. v. Rayborn, 00-1884, p. 18 (La.
App. 4 Cir. 10/3/01), 798 So.2d 1141, 1154. But where the shareholder and not the
corporation suffers the loss, the loss is considered to be direct and the shareholder
may have the right to sue individually. Id. Even where the shareholder has
personally guaranteed the corporation’s debts, he cannot sue individually for the
damage to the corporation. See Joe Conte Toyota, 689 So.2d at 654.
Here, the July 24, 2020 sanctions judgment imposed monetary sanctions
against Elysian and Cusachs only; sanctions were not levied against Lingle. Thus,
Lingle has no justiciable interest in the appeal of that judgment. For this reason, we
dismiss Lingle’s appeal of the July 24, 2020 sanctions judgment.
Conversion of Appeal to Writ Application
“A court of appeal has plenary power to exercise supervisory jurisdiction
over district courts and may do so at any time, according to the discretion of the
court.” Favrot, 10-0986, p. 5, 68 So.3d at 1104 (quoting Herlitz Constr. Co., Inc.
13 v. Hotel Investors of New Iberia, Inc., 396 So.2d 878, 878 (La. 1981)). Thus, we
have the discretion to consider the interlocutory judgments under our supervisory
authority. Id., 10-0986, pp. 5-6, 68 So.3d at 1104. “Because the proper procedural
vehicle for seeking review of an interlocutory judgment is ordinarily by application
for supervisory review, we can – when appropriate – convert the improper appeal
to such an application.” Succession of Scheuermann, 15-0040, p. 13 (La. App. 4
Cir. 5/22/15, 171 So.3d 975, 983 (internal footnote omitted).
One important criterion that we use in guiding our discretion is whether or
not exercising our supervisory jurisdiction is dictated under the factors set forth
in Herlitz.7 Scheuermann, 15-0040, p. 13, 171 So.3d at 983. The primary
consideration under Herlitz is whether review and decision by this Court would
result in a final disposition of all issues in this case. Scheuermann, 15-0040, p. 14,
171 So.3d at 983. The granting of a writ application and reversal of the
interlocutory judgments would not terminate the litigation at this time.
Additionally, with one exception, the motions for devolutive appeal were
filed beyond the thirty-day period applicable to supervisory writs as set forth
in Rule 4-3 of the Uniform Rules of Court.8 The only interlocutory judgment for
which an appeal was taken within the thirty-day period set forth in Rule 4-3 is the
October 19, 2020 judgment on the parties’ motions for partial summary judgment.
“[W]e [exercise our discretion to convert the appeal of an interlocutory judgment
into an application for supervisory writ] only when the motion for appeal has been
filed within the thirty-day time period allowed for the filing of an application for 7 Under Herlitz, the appellate court should review the merits of an application for supervisory writs when: (1) there is no dispute of material fact; (2) the ruling of the trial court appears incorrect; and (3) a reversal would terminate the litigation. Whitney Nat’l Bank v. Rockwell, 94- 3049, p. 6 n. 3 (La. 10/16/95), 661 So.2d 1325, 1329 n. 3. 8 Rule 4-3 provides that “[t]he return date in civil cases [for an application for writs] shall not exceed 30 days from the date of the notice, as provided in La. C.C.P. Art. 1914.”
14 supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.”
Delahoussaye v. Tulane Univ. Hosp. & Clinic, 12-0906, p. 5 (La. App. 4 Cir.
2/20/13), 155 So.3d 560, 563.
Therefore, under these circumstances, we decline to exercise our discretion
to convert the appeals of the interlocutory judgments to supervisory writs.
Sanctions Judgments
In January 2020, Appellants filed two special motions to strike and two
motions for partial summary judgment. The first motion for partial summary
judgment was filed by Sellers on January 15, 2020 and sought judgment on
Sellers’ claims for breach of contract and Neal’s claims for breach of contract and
misrepresentations and omissions. The second motion for partial summary
judgment was filed by Sellers on January 21, 2020 and sought judgment on
Sellers’ conspiracy to commit abuse of process claim and Neal’s abuse of process
claim. The four motions were denied by judgments signed on February 21, 2020.
Sellers timely sought supervisory review of the district court’s judgment denying
their motion for partial summary judgment on conspiracy/abuse of process claims.
The writ was denied on May 29, 2020. See Elysian, Inc. v. Neal Auction Co.,
unpub., 20-0190 (La. App. 4 Cir. 5/29/20).
On March 10, 2020, Sellers filed a motion for partial summary judgment on
their claims for breach of contract and misrepresentations and omissions, the same
claims as its motion for partial summary judgment filed on January 15, 2020. The
district court denied this motion for partial summary by judgments signed on May
28, 2020. Neal sought sanctions under Article 863 based on the repetitive nature of
the two motions for partial summary judgment. By judgment dated May 28, 2020,
15 the court denied Neal’s request for sanctions, noting that its decision was a “close
call.”
On June 3, 2020, just five days after this Court denied Sellers’ writ
application, Sellers and Lingle filed another motion for partial summary judgment
on Neal’s abuse of process claim, which claim had been a part of the subject matter
of the writ application. On June 4, 2020, Sellers filed a motion for partial summary
judgment on their conversion claim. On June 5, 2020, Sellers and Lingle filed a
motion for partial summary judgment on “Booth’s letter,” which relates to the
parties’ breach of contract claims against one another. By judgments signed on
July 24, 2020, the district court denied the motions for partial summary judgment
filed on June 3-5, 2020. The district court imposed sanctions against Sellers in the
amount of $500 for filing repetitive motions, noting: “[T]he persistence in filing
things when I’ve already ruled on the exact same issue is very troubling to me. I
mean, writs were denied and yet here we are back again.” The court warned that
further sanctions could be issued again if this behavior persisted and repeatedly
stated that it was time for the case to go to trial.
On July 28, 2020, Sellers filed a motion for partial summary judgment on
their claims of breach of fiduciary duty, false advertising, rescission, redhibition,
violation of auction law, and violation of LUTPA. On August 11, 2020, Neal filed
a motion for partial summary judgment on Sellers’ claims of redhibition,
conspiracy, conversion, violation of false advertising law, and violation of auction
law and rules. By judgments signed on October 19, 2020, the district court denied
Sellers’ motion for partial summary judgment and granted in part and denied in
part Neal’s motion for partial summary judgment. By judgment of the same date,
the court granted Neal’s motion for Article 863 sanctions and ordered that “all
16 parties are prohibited from filing any additional motions for summary judgment or
partial summary judgment.”
We review the imposition of sanctions pursuant to an abuse of discretion
standard. See Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary
Baptist Church, 14-0843, pp. 7-8 (La. App. 4 Cir. 12/17/14), 156 So.3d 1234, 1239
(citing Raspanti v. Litchfield, 05-1512, p. 10 (La. App. 4 Cir. 11/21/06), 946 So.2d
234, 241). A trial court is vested with inherent power to maintain control of
its docket and in case management. Gorbach v. Tulane Univ. Med. Ctr., 11-1575,
p. 4 (La. App. 4 Cir. 4/11/12), 89 So.3d 429, 432 (citing Boykins v. Boykins, 04-
0999, p. 5 (La. App. 4 Cir. 4/24/07), 958 So.2d 70, 74); Show & Tell of New
Orleans, 14-0843, p. 3, 156 So.3d at 1237. A trial court’s decision in such matters
is to be set aside by an appellate court only when there has been an abuse of the
trial court’s discretion. Gorbach, 11-1575, pp. 4-5, 89 So.3d at 432 (citing Beteta
v. City of New Orleans, 06-0972, pp. 4-5 (La. App. 4 Cir. 1/10/07), 950 So.2d 862,
865). Appellate courts interfere in a trial court’s decision in such matters “only
with reluctance and in extreme cases.” Brice Bldg. Co. v. Southland Steel
Fabricators, Inc., 15-1110, p. 6 (La. App. 4 Cir. 6/17/16), 194 So.3d 1285, 1290
(quoting Brice Bldg. Co. v. Southland Steel Fabricators, Inc., 2015-1110, p. 6 (La.
App. 4 Cir. 6/17/16), 194 So.3d 1285, 1290).
La. C.C.P. art. 863(B) authorizes sanctions for an attorney’s false
certification of a pleading.
B. [T]he 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:
17 (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 nonfrivolous 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.
If the court determines that an attorney violated art. 863, the court “shall impose”
an appropriate sanction “upon the person who made the certification or the
represented party, or both.” La. C.C.P. art. 863(D).
Art. 863 thus imposes a duty of reasonable inquiry on a party signing
pleadings. Art. 863 imposes a duty to make an objective inquiry into the facts and
law; hence, “[s]ubjective good faith will not satisfy the duty of reasonable
inquiry.” Loyola v. A Touch of Class Transp. Serv., Inc., 580 So.2d 506, 509-10
(La. App. 4th Cir. 1991) (citation omitted).
In Mendonca v. Tidewater, Inc., we held that “repetitive and duplicitous
actions constitute an abuse of the judicial system and warrant the imposition of
Article 863 sanctions.” Id., 11-0318, p. 9 (La. App. 4 Cir. 9/7/11), 73 So.3d 407,
414 (internal quotations marks omitted) (quoting Zeno v. Flowers Baking Co., 10-
1413, p. 7 (La. App. 3 Cir. 4/6/11), p. 7, 62 So.3d 303). Likewise, in Hester v.
Hester, 96-0189 (La. App. 4 Cir. 9/11/96), p. 6, 680 So.2d 1232, 1235, we held
that a party’s “repeated motions for identical relief from the same court
violated Art. 863.”
“A court may impose sanctions upon a litigant so long as they are, taken
together, not so burdensome as to deny the litigant meaningful access to the
18 courts.” Rochon v. Roemer, 630 So.2d 247, 248 (La. 1994). “Restrictive
conditions, other than total preclusion, which are available include assessment of
damages to the prevailing party, imposition of costs, and contempt proceedings.”
Id.
The Louisiana Third Circuit Court of Appeal’s decision in Green v. Iberia
Parish School Bd., 06-1060 (La. App. 3 Cir. 12/20/06), 945 So.2d 940, is an
example of a case in which the court imposed sanctions other than monetary
sanctions after finding a violation of art. 863. After having twice unsuccessfully
pursued the same claims against the defendant in federal court, the plaintiff filed
suit in state court. The appellate court affirmed the trial judge’s decision to prohibit
the litigant from filing further proceedings related to the defendant’s discharge of
plaintiff from employment. Green, 06-1060, pp. 5-7, 945 So.2d at 944-46. The
clerk of court was also prohibited from accepting such pleadings from the plaintiff
without prior approval of the court. Green, 06-1060, p. 5, 945 So.2d at 944.
In Alexander v. Louisiana State Bd. of Priv. Investigator Examiners, 19-
0778 (La. App. 4 Cir. 4/1/20), 293 So.3d 1243, writ denied, 20-01072 (La.
11/10/20), 303 So.3d 1039, we noted the sanctions imposed against the plaintiff for
“innumerable . . . filings” by the United States District Court for the Eastern
District of Louisiana prohibiting the plaintiff from filing in the court “any
additional complaint, motion, or other pleading” relating to the subject matter of
the lawsuit “without first seeking leave of Court to do so, and certifying, in writing,
that the proposed submission is not frivolous, presented for an improper purpose,
repetitive or duplicative, has evidentiary support, and does not contain any
inappropriate, irrelevant, malicious, harassing and/or insulting comments.”
Alexander, 19-0778, pp. 23-24, 293 So.3d at 1258-59 (quoting Alexander v. City of
19 New Orleans, No. 12-1524, *3-4 (E.D. La. 1/12/15), 2015 WL 160435. We further
noted the warning subsequently issued to the plaintiff by the United States Fifth
Circuit Court of Appeals: “[The plaintiff] is WARNED, however, that future
frivolous, repetitive, or otherwise abusive filings will result in the imposition of
progressively severe sanctions, which may include . . . restrictions on his ability to
file pleadings and other documents in this court and in any court subject to this
court’s jurisdiction.” Alexander, 19-0778, p. 24, 293 So.3d at 1259 (quoting
Alexander v. Cannon Cochran Mgmt. Servs., Inc., 638 Fed. Appx. 410, 410 (5th
Cir. 2016)).
Given the sheer volume of the motions for partial summary judgment filed
by Sellers and Lingle, the repetitive nature of the motions, and their fact intensive
nature, we find no abuse of the district court’s discretion in awarding minimal
attorney fees and in prohibiting all parties from filing further motions for summary
judgment or partial summary judgment, particularly where these claims can be
litigated at trial where their full merits can be considered and fact issues be
resolved.
Answer to Appeals
Sellers and Lingle jointly filed each of the two appeals in this matter. After
the appeals were consolidated, Sellers and Lingle collectively filed an answer to
appeal. In their answer, Lingle “files his answer to the appeal of Elysian and
Cusachs [; and] [p]ursuant to La.C.C.P. Art. 2133(A) and based on [] Lingle’s
answer, Elysian and Cusachs also file an answer.” Neal subsequently filed a
motion to strike the answer on the basis that Sellers and Lingle do not have the
right to file an answer to their own appeal.
20 La. C.C.P. art. 2133 governs the right of an “appellee” to answer an appeal
and provides, in pertinent part:
Art. 2133. Answer of appellee; when necessary A. An appellee shall not be obliged to answer the appeal unless he desires to have the judgment modified, revised, or reversed in part or unless he demands damages against the appellant. In such cases, he must file an answer to the appeal . . . . The answer filed by the appellee shall be equivalent to an appeal on his part from any portion of the judgment rendered against him in favor of the appellant and of which he complains in his answer. Additionally, however, an appellee may by answer to the appeal, demand modification, revision, or reversal of the judgment insofar as it did not allow or consider relief prayed for by an incidental action filed in the trial court. If an appellee files such an answer, all other parties to the incidental demand may file similar answers within fifteen days of the appellee’s action.
La. C.C.P. art 2133 (emphasis added).9 There is no provision in the Code of Civil
Procedure that allows an appellant to answer his own appeal.
In Borne v. Mike Persia Chevrolet Co., 396 So.2d 326, 329 (La. App. 4th
Cir. 1981), this Court held: “It is only an ‘appellee,’ C.C.P. 2133, who can appeal
against an appellant by answer to that appellant’s appeal.” See also Citizens Bank
& Tr. Co. v. Little Ford, Inc., 506 So.2d 815, 817 (La. App. 1st Cir. 1987) (“It is
well-established in Louisiana jurisprudence that one must be an appellee in order
to file an answer to an appeal.”) (citations omitted). “Webster’s New International
Dictionary (2d ed.) defines appellee as ‘one against whom an appeal is taken,’ and
Black’s Law Dictionary (rev. 4th ed.) defines appellee as ‘The party in a cause
against whom an appeal is taken; that is, the party who has an interest adverse to
setting aside or reversing the judgment.’ ” Borne, 396 So.2d at 329.
9 Neal did not answer either appeal.
21 Here, Sellers and Lingle are not appellees, as they do not have interests
adverse to setting aside or reversing the judgments appealed from. Thus, neither
has the right to file an answer to the appeals.
Lingle also does not have the right to answer Sellers’ appeal, or to take his
own appeal, pursuant to La. C.C.P. art. 2087(B), which states: “When a devolutive
appeal has been taken timely, an appellee who seeks to have the judgment
appealed from modified, revised, or reversed as to any party may take a devolutive
appeal therefrom. . . .” (emphasis added). By its terms, the statute applies only to
an “appellee.” Because Lingle is not an appellee, he cannot avail himself of Article
2087(B).
Accordingly, we grant Neal’s motion to strike answer to appeal and strike
Sellers and Lingle’s answer to appeal.
CONCLUSION
For the reasons discussed in this opinion, we affirm the sanctions judgments
dated July 24, 2020 and October 19, 2020. We find, however, that the interlocutory
judgments signed on February 21, 2020, May 28, 2020, July 24, 2020, and October
19, 2020 are not subject to immediate appeal. Accordingly, we dismiss the appeals
of these judgments. We decline to convert the appeals of these judgments to
applications for supervisory review. We further find that Lingle has no justiciable
interest in the appeal of the July 24, 2020 sanctions judgment. Accordingly, we
dismiss his appeals of the July 24, 2020 sanctions judgment. Finally, we find that
Appellants do not have the right to answer their own appeal and strike Appellants’
answer to appeal.
SANCTIONS JUDGMENTS AFFIRMED; APPEALS DISMISSED IN PART; ANSWER TO APPEAL STRICKEN