STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
23-213 consolidated with 23-431 and 23-432
IN RE: BRUCE CARLTON ANDERSON
**********
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 268,928-A HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
JONATHAN W. PERRY JUDGE
Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Guy E. Bradberry, Judges.
WRIT GRANTED, IN PART, AND DENIED, IN PART. 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 PERRY, Judge.
Melanie Bray and the legal organization of Disability Rights Louisiana sought
review of a trial court judgment ordering their disqualification and awarding
sanctions against them in the amount of $7,000. For the reasons assigned in the
companion opinion also issued on this day, In Re: Anderson, 23-432 (La.App. 3 Cir.
4/3/24), ___ So.3d ___, this writ is granted, in part, and denied, in part.
WRIT GRANTED, IN PART, AND DENIED, IN PART. STATE OF LOUISIANA
23-431 consolidated with 23-432 and 23-213
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 268,928-A HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Guy E. Bradberry, Judges.
AFFIRMED. Maria A. Losavio Losavio Law Office, LLC 1821 MacArthur Drive Post Office Box 12420 Alexandria, Louisiana 71315-2420 (318) 767-9033 COUNSEL FOR APPELLANT: Bruce Carlton Anderson
Pierre F. Gremillion 3500 N. Hullen Street Metairie, Louisiana 70002 (504) 495-3165 COUNSEL FOR CURATOR/APPELLEE: Carey Wayne Walker, Sr.
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: Disability Rights Louisiana and Melanie Bray PERRY, Judge.
In this interdiction proceeding, the issue is whether the facts and law operative
herein support the trial court judgment ordering the full interdiction of Bruce Carlton
Anderson. For the reasons set forth below, we affirm the judgment of the trial court.
FACTUAL AND PROCEDURAL HISTORY
On September 10, 2020, Carey Wayne Walker, Sr. (“Mr. Walker”) filed a
Petition for Interdiction, seeking to have his fifty-four-year-old nephew, Bruce
Carlton Anderson (“Mr. Anderson”), interdicted.1 According to Mr. Walker, since
shortly after his birth, Mr. Anderson has suffered from intellectual and
developmental disabilities; has no spouse, children, or siblings; and his parents are
deceased. Mr. Walker claimed Mr. Anderson was living in an apartment with
twenty-four-hour care provided by Leading Healthcare of Louisiana of Pineville
(“Leading Healthcare”) and was unable to care for himself or his property.
Therefore, Mr. Walker sought to have Mr. Anderson evaluated by Leading
Healthcare’s doctor with a report of the doctor’s findings provided to the court.
Mr. Walker further sought to have Mr. Anderson interdicted, to be appointed as
Mr. Anderson’s curator, and to have Mr. Anderson’s cousin, Stephanie Riley
(“Ms. Riley”), appointed as undercuratrix.
The record reflects attorney Melanie Bray and Disability Rights Louisiana
(hereinafter collectively referred to as “DRLA”) filed declinatory and dilatory
exceptions on behalf of Mr. Anderson. At the hearing of these exceptions held on
November 2, 2020, the trial court appointed Joseph Kutch2 as curator ad hoc to
1 Mr. Anderson’s date of birth is January 19, 1966. 2 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. interview Mr. Anderson and to file a report for the court’s review. Judgment to this
effect was signed December 3, 2020.
On January 7, 2021, Mr. Walker filed a supplemental and amended petition
for interdiction, asserting Mr. Anderson “was injured in an accident and needs a legal
representative to address his legal rights.” DRLA filed exceptions on behalf of Mr.
Anderson.
Mr. Walker filed a second supplemental and amended petition on February 3,
2021, requesting expedited consideration of his petition for limited interdiction,
alleging “there is a substantial likelihood that grounds for interdiction exist, and
substantial harm to Mr. Anderson’s property is imminent. Any claims stemming
from [Mr. Anderson’s] March 2020 injuries will soon prescribe.” DRLA again filed
exceptions on behalf of Mr. Anderson.
Following a hearing on February 22, 2021, the trial court overruled Mr.
Anderson’s exceptions and entered a preliminary limited interdiction. In a judgment
signed on March 4, 2021, Mr. Walker was appointed as preliminary curator,
authorized “to evaluate and pursue any and all of Bruce Carlton Anderson’s legal
claims stemming from his March 2020 injuries[.]”3 Said judgment also ordered that
Mr. Anderson be evaluated by the Coroner for Rapides Parish, Jonathan Hunter
(“Dr. Hunter”), with a report of the doctor’s findings provided to the court.
3 The trial court has discretion in granting a temporary or preliminary interdiction:
When a petition for interdiction is pending, a court may order a temporary or preliminary interdiction when there is a substantial likelihood that grounds for interdiction exist and substantial harm to the health, safety, or property of the person sought to be interdicted is imminent.
La.Civ.Code art. 391.
2 The record reflects Mr. Walker settled claims against Leading Healthcare on
behalf of Mr. Anderson. The claims were asserted for personal injuries sustained by
Mr. Anderson in a scalding incident which occurred on or about March 20, 2020.
On October 11, 2022, Mr. Walker moved for full permanent interdiction of
Mr. Anderson and requested an expedited hearing. Mr. Walker’s motion also noted
that Dr. Hunter evaluated Mr. Anderson on October 3, 2022, and a written report
was submitted to the court on October 5, 2022.
Mr. Walker’s request for full permanent interdiction of Mr. Anderson was
heard on November 14, 2022. Thereafter, the trial court signed a judgment on
December 1, 2022, which ordered Mr. Anderson “be placed under full permanent
interdiction regarding his person and property[;]” appointed Mr. Walker as curator;
and appointed Ms. Riley as undercuratrix. From this judgment, Mr. Anderson has
appealed.4
APPELLANT’S ASSIGNMENT OF ERROR
In his sole assignment of error relevant to this appeal, Mr. Anderson contends
the “trial court erred in granting full interdiction when less restrictive means are
available and/or erred in not granting a limited interdiction.”
4 The appeal in this matter was filed by DRLA on December 23, 2022. However, on March 16, 2023, upon motion by Mr. Walker, the trial court disqualified DRLA from representing Mr. Anderson and ordered DRLA and Ms. Bray to pay $7,000 as sanctions.
In April 2023, DRLA sought a supervisory writ and filed an appeal of the judgment of disqualification and sanctions. This court granted DRLA’s writ, ordering Mr. Anderson’s appeal of the interdiction judgment dated December 1, 2022, to be consolidated with DRLA’s appeal of the judgment of disqualification and sanctions dated March 16, 2023. In addition, this court remanded this case with instructions for the trial court to appoint new counsel for Mr. Anderson in connection with the appeal of the judgment of interdiction presently at issue. In Re: Bruce Carlton Anderson, 23-213 (La.App. 3 Cir. 5/9/23) (unpublished writ opinion).
DRLA’s appeal of the judgment of disqualification and sanctions is considered in the companion opinion also issued on this day in the matter appearing under docket number 23-432.
3 APPELLANT’S ARGUMENTS
Mr. Anderson argues the trial court erred in finding that the evidence
supported his full interdiction under La.Civ.Code art. 389. He asserts that a less
restrictive alternative to full interdiction could have included the trial court ordering
Leading Healthcare to add Mr. Walker and/or a neutral person to act as a supportive
decision maker, in compliance with the Supported Decisionmaking Agreement Act
(“SDM”), also known as the Dustin Gary Act, set forth in La.R.S. 13:4261.101–302.
Alternatively, Mr. Anderson contends the trial court could have granted a limited
interdiction that allowed the curator to make his decisions such as legal, medical,
and financial matters, including making the decision as to what provider would care
for him.
APPELLEE’S POSITION
Mr. Walker argues the evidence that Mr. Anderson could not make reasoned
decisions regarding his person and property was clear and convincing. Thus, he
contends the trial court did not err in finding that full interdiction of Mr. Anderson
was warranted.
LAW
Louisiana Civil Code Article 389 provides:
A court may order the full interdiction of a natural person of the age of majority . . . who due to an infirmity, is unable consistently to make reasoned decisions regarding the care of his person and property, or to communicate those decisions, and whose interests cannot be protected by less restrictive means.
The comments to Article 389 note that if a person is unable to make reasoned
decisions regarding the care of his person and property, or to communicate those
decisions, he is a candidate for full interdiction. See La.Civ.Code art. 389 cmt. c.
Comment (e) to La.Civ.Code art. 389 further states:
4 Full interdiction is a last resort and, as a result, is warranted only when a person’s interests cannot be protected by less restrictive means. A person’s interests can be protected by less restrictive means if, for example, his interests (1) are currently being protected by other legal arrangements, including procuration, mandate, or trust, or (2) could be protected by other legal arrangements, including limited interdiction, see Civil Code Article 390 (Rev. 2000). If the court determines that less restrictive means can protect the defendant’s interests, the court should deny full interdiction.
The petitioner in a full interdiction proceeding shall prove by clear and
convincing evidence all facts justifying interdiction. See La.Code Civ.P. art. 4548.
“To prove a matter by clear and convincing evidence means to demonstrate that the
existence of a disputed fact is highly probable, that is, much more probable than its
nonexistence.” In re Interdiction of Cockerton, 21-1316, p. 7 (La.App. 1 Cir.
4/8/22), 341 So.3d 834, 839. “Whether interdiction is warranted is a finding of fact.
Thus, the trial court’s judgment will not be set aside in the absence of manifest error
or unless it is clearly wrong.” Id. See also Stobart v. State, through DOTD, 617
So.2d 880 (La. 1993).
DISCUSSION
In this case, it is undisputed that Mr. Anderson requires full-time supervision
and support in all his daily needs. Mr. Anderson was born with congenital cerebral
maldevelopment which resulted in him having lifelong severe intellectual
disabilities. He also suffers with right sided hemiplegia (partial paralysis) secondary
to cerebral palsy, contracture of his fingers on both hands and toes on both feet, and
contracture of his right wrist, all which significantly restrict his physical abilities.
Mr. Anderson lived with his mother, Betty Anderson (“Betty”), until he was
eighteen. He then lived at Pinecrest Supports and Services Center (“Pinecrest”), a
state-owned institution located in Pineville, Louisiana, that provides residential care
for disabled individuals. In 2011, Mr. Anderson qualified for Louisiana’s New
Opportunities Waiver (“NOW”), a state program that allowed him to leave Pinecrest
5 and live in the community with in-home supportive services paid under Medicaid.
Mr. Anderson’s mother moved him out of Pinecrest and into his own apartment
where he has been living since 2011 with twenty-four-hour supervised in-home care
provided by direct service workers employed by Leading Healthcare. On March 17,
2020, Mr. Anderson’s mother died. On March 20, 2020, Mr. Anderson suffered
second and third degree burns on his feet, legs, groin, and back due to scalding hot
bath water. He was hospitalized for several weeks and underwent surgeries and
extensive rehabilitation as a result of his injuries.
At the trial on his request for full interdiction held on November 14, 2022,
Mr. Walker testified he is Mr. Anderson’s maternal uncle. He recalled that his sister
Betty, Mr. Anderson’s mother, died on a Tuesday. Two days later, Mr. Walker
visited Mr. Anderson to pick out clothing and to inform Mr. Anderson’s caretakers
of Betty’s funeral arrangements. When Mr. Anderson did not appear for his
mother’s funeral, Mr. Walker questioned employees of Leading Healthcare about
Mr. Anderson. All Mr. Walker was told was that Mr. Anderson was in a hospital.
He found Mr. Anderson in the burn unit of a hospital in Lafayette, Louisiana, after
calling hospitals around the state.
According to Mr. Walker, Mr. Anderson suffered severe burns only three days
after his mother’s death because he could not care for himself and because of
Leading Healthcare’s negligence in its care of Mr. Anderson. In addition, Mr.
Anderson could not manage his property, which included his inheritance from Betty,
whose succession had not been opened as of the date of trial. Mr. Anderson’s
property also included the proceeds from the settlement of a personal injury lawsuit
which Mr. Walker filed in 2021 against Leading Healthcare. Mr. Walker testified
he requested full interdiction to guard Mr. Anderson’s health and property, and to
honor his sister’s request that he ensure Mr. Anderson is “well taken care of.”
6 Dr. Hunter, accepted at trial as a medical expert qualified to render opinions
about a person’s mental and intellectual abilities, evaluated Mr. Anderson and
reviewed some of Mr. Anderson’s medical records. Dr. Hunter prepared a written
report as ordered by the trial court.5 Dr. Hunter found Mr. Anderson to have a
profound level of intellectual disability. In reviewing Mr. Anderson’s medical
records from the treating neurologist, Dr. Hunter noted that Mr. Anderson was
diagnosed with epilepsy, intellectual disability, and schizencephaly (a congenital
lack of formation of part of the brain). Dr. Hunter opined that these medical
conditions would impair Mr. Anderson’s ability to make reasoned decisions.
Dr. Hunter also confirmed that Mr. Anderson’s Comprehensive Plan of Care
(“CPOC”)6—a requirement of the NOW program from which Mr. Anderson
receives support—included a diagnosis of “severe intellectual disability.” It was Dr.
Hunter’s opinion that Mr. Anderson could not have understood the series of items
that are listed in the CPOC, nor did Mr. Anderson have the ability to make reasoned
financial decisions or decisions regarding services that would impact the budget. Dr.
Hunter concluded his testimony stating it was his medical opinion that Mr. Anderson
is not intellectually capable of making reasoned decisions concerning his person and
his property.
Counsel for Mr. Walker then called Mr. Anderson to testify. Mr. Anderson
took the stand in order for the trial court to establish whether Mr. Anderson would
invoke his right not to testify. Mr. Anderson was asked, “[W]ould you like to testify
5 Dr. Hunter’s report was admitted into evidence. After examining Mr. Anderson on October 3, 2022, Dr. Hunter reported: “Based on my impression of [Mr. Anderson’s] cognitive capacity, I would place his executive function and reasoning to be commensurate with his level of assistance: both consistent and with a profound level of intellectual disability.” Dr. Hunter concluded, “Mr. Anderson is not capable of independently managing his activities of daily living or his financial affairs without a high degree of assistance.” 6 Mr. Anderson’s CPOC was entered into evidence as Mr. Walker’s Exhibit No. 3.
7 here today?” He replied, “Yeah.” Mr. Anderson said he did not remember meeting
with his own attorney, Melanie Bray, and when asked if he knew when his mother
passed away, he answered, “Died yesterday.” Under cross-examination, Mr.
Anderson declared “the supervisor” makes his decisions, though he did not provide
a person’s name.
Testimony was also heard from Amy Sherrie Jones (“Ms. Jones”), the
assistant director of Leading Healthcare. Ms. Jones described Mr. Anderson as
being independent and capable of making decisions. She stated Mr. Anderson is
capable of doing everything except cooking for himself. According to Ms. Jones,
Mr. Anderson decides what he wants to eat, what groceries he wants to buy, and he
asks for help when he needs help.
Despite describing Mr. Anderson as independent, Ms. Jones acknowledged
under cross-examination that Mr. Anderson’s CPOC states that he requires full
assistance with several tasks. Specifically, “Historical Information” provided in Mr.
Anderson’s CPOC, states, in pertinent part:
[Mr. Anderson] needs full assistance to travel within the community, schedule and attend medical appointments, and full assistance with all aspects of monies—both coin and paper. [Mr. Anderson] needs full assistance to dial 911 and remain free from exploitation. [Mr. Anderson] must be monitored for choking while eating and he needs full assistance to take his medications. [Mr. Anderson] needs full assistance to make healthy meal choices and full assistance for all aspects of meal preparation. [Mr. Anderson] needs verbal prompting to complete activities thoroughly such as bathing, shaving, brushing teeth and hair, applying his acne medication, and to pick up his room.
Testimony was also heard from four other employees of Leading Healthcare:
Sandra Barbin, Amy Jones, Tymeka Hobbs, and Zachary Ware; as well as from
Raisha Harris, a support coordinator for Easterseals Louisiana. All testified as to
their dealings with Mr. Anderson, describing his pleasant demeanor and his ability
to communicate with them.
8 The initial question in this matter is whether Mr. Anderson is able to
consistently make reasoned decisions regarding the care of his person and property,
or to communicate those decisions as set forth in La.Civ.Code art. 389. Though
described as independent and communicative, there is no dispute Mr. Anderson is
profoundly intellectually disabled. Despite requiring direct service workers to be
with him at all times, Mr. Anderson was scalded while bathing because he,
purportedly, was left alone, turned on the hot water, and remained therein until
someone noticed. The evidence indicates Mr. Anderson is unable to consistently
make reasoned decisions regarding the care of his person.
As to his property, Mr. Anderson neither instituted nor directed anyone to
initiate a negligence claim on his behalf, despite purportedly having legal
representation. Mr. Walker acted on Mr. Anderson’s behalf. The evidence indicates
Mr. Anderson is unable to consistently make reasoned decisions regarding the care
of his property.
The second consideration for a full interdiction is whether Mr. Anderson’s
interests can be protected by less restrictive means. Though in brief Mr. Anderson
proposes that an alternative to full interdiction could have included Mr. Walker
being added by Leading Healthcare as a supportive decision maker, the medical
testimony from Dr. Hunter is that Mr. Anderson lacks the understanding to make
this type of decision. Thus, we find no merit to Mr. Anderson’s contention that an
alternative to full interdiction exists.
Considering the evidence, we do not find manifest error in the trial court’s
determination that Mr. Anderson required full interdiction. The medical records
prove by clear and convincing evidence and support the trial court’s factual finding
that Mr. Anderson is unable to make reasoned decisions regarding the care of his
person and property.
9 DECREE
The trial court’s judgment of December 1, 2022, is affirmed. Costs of this
appeal are assessed to Appellant, Bruce Carlton Anderson.
AFFIRMED.
10 STATE OF LOUISIANA
23-432 consolidated with 23-431 and 23-213
APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT PARISH OF RAPIDES, NO. 268,928-A HONORABLE MONIQUE F. RAULS, DISTRICT JUDGE
Court composed of Jonathan W. Perry, Sharon Darville Wilson, and Guy E. Bradberry, Judges.
AFFIRMED IN PART; REVERSED IN PART. 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 PERRY, Judge.
Melanie 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.1 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.
Mr. Walker’s request for disqualification of and sanctions against Appellants
was heard on March 13, 2023.2 The trial court granted Mr. Walker’s motion to
disqualify counsel and ordered Appellants to pay $7,000 as sanctions.
1 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. 2 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). 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
judgment 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. 4544,3 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
3 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.
2 La.Code Civ.P. arts. 684(B)4 and 4554,5 which provide that an interdicted person
maintains procedural capacity for purposes of modifying or terminating the
judgment of interdiction.
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.
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)6 were not followed. Thus, Mr. Walker
contends the trial court’s judgment of disqualification should be affirmed.
4 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.” 5 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. 6 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 Mr. Walker also contends the trial court correctly sanctioned Appellants under
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
“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.
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”).7 The record reflects
Mr. Anderson’s court-appointed curator ad hoc, Joseph Kutch,8 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
(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. 7 Mr. Anderson lived in an apartment with twenty-four-hour care provided by Leading Healthcare. 8 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.
4 against Leading Healthcare on Mr. Anderson’s behalf, whereas Appellants
seemingly advocated against Mr. Anderson’s interests by arguing:
[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.[9]
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), ___ So.3d ___. Consequently, Mr. Walker, as
curator, is the proper party to act on behalf of Mr. Anderson. See La.Code Civ.P.
9 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.
5 art. 684. Thus, the questions surrounding the correctness of the trial court’s
judgment of Appellants’ disqualification are now moot.
Sanctions
Appellants argue that the trial court erred in awarding sanctions under
La.Code Civ.P. art. 863. We agree.
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 #1473, 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
6 exceptions 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. 397.10 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).
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
10 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.
7 to 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).11
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,
11 As a result, the hearing on Mr. Walker’s request for full, permanent interdiction was rescheduled for November 14, 2022.
8 therefore, 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.12 For these reasons, we reverse the trial court’s
award of sanctions in the amount of $7,000 against Appellants.
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.
12 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.