Opinion
No. 2009 CA 0611.
June 11, 2010.
ON APPEAL FROM THE CITY COURT OF HAMMOND SEVENTH WARD IN AND FOR THE PARISH OF TANGIPAHOA STATE OF LOUISIANA DOCKET No. 1-0509-0035 HONORABLE GRACE B. GASAWAY, JUDGE PRESIDING.
Jan P. Jumonville, Covington, Louisiana, Counsel for Defendant/Appellee, Mid-South Fire Protection, Inc.
Craig L. Kaster, Zachary, Louisiana, Counsel for Plaintiff/Appellant, Happy Haven Homes, Inc.
BEFORE: DOWNING, GAIDRY, AND McCLENDON, JJ.
ON REHEARING
Happy Haven timely filed an application for rehearing in this matter. For the following reasons, we grant Happy Haven's application for rehearing, amend the trial court's award, and affirm as amended.
We reiterate that the filing of a suit that is later determined to be prescribed, without more, is insufficient to warrant the imposition of sanctions under LSA-C.C.P. art. 863. However, courts have awarded sanctions for parties filing prescribed claims when the party has engaged in behavior beyond the mere filing of the prescribed claim.
In Bracken v. Payne Keller Co., Inc., 2006-0865, p. 4 (La.App. 1 Cir. 9/5/07), 970 So.2d 582, 586, the trial court determined that the plaintiff filed prescribed claims against his former attorneys "for no apparent reason other than mere harassment." See also Dubois v. Brown, 01-0816 (La.App. 1 Cir. 5/10/02), 818 So.2d 864, writ denied, 02-1654 (La. 10/14/02), 827 So.2d 421, wherein sanctions were warranted against an attorney who knowingly changed the date of the accident in the petition and on the accident report to make it appear that the suit had not prescribed, and further denied a request for admission as to the correct date of the accident.
In its petition filed on September 23, 2005, Mid-South, although it alleged that it performed work at two homes pursuant to contracts it had with Happy Haven, failed to include the dates the parties entered into the alleged contracts or the dates the alleged services were provided. In its October 10, 2005, response to Mid-South's request for admissions, Happy Haven denied that there was any such contract between the parties. On November 3, 2005, Mid-South filed an amended petition and again alleged that a contractual relationship existed, but failed to provide any dates in its petition. In its November 23, 2005, response to Mid-South's second request for admissions, Happy Haven again denied that a contractual relationship existed between the parties.
Cognizant of Happy Haven's position that no contractual relationship existed between the parties, Mid-South continued to maintain that a contract existed, which warranted application of the ten-year prescriptive period found in LSA-C.C. art. 3499. However, at trial, Mid-South, although it provided proof that at least some work was performed at Happy Haven's homes, presented scant evidence to support its assertion that a contract existed. Thus, the trial court could have reasonably concluded that Mid-South's actions herein went beyond the mere filing of a prescribed claim. After considering the foregoing, we cannot find that the trial court's award of sanctions pursuant to LSA-C.C.P. art. 863 was clearly wrong.
The determination of the type and/or the amount of the sanction is reviewed on appeal utilizing the "abuse of discretion" standard. Dubois v. Brown, 01-0816, p. 4 (La.App. 1 Cir. 5/10/02), 818 So.2d 864, 866, writ denied 02-1654 (La.10/14/02), 827 So.2d 421. Article 863 authorizes an award of "reasonable" and not necessarily actual attorney fees. Dubois v. Brown, 01-0816 at p. 4, 818 So.2d at 866. The goal to be served by imposing sanctions is not wholesale fee shifting, but correction of litigation abuse. Lafourche Parish Council v. Breaux, 02-1565, p. 5 (La.App. 1 Cir. 5/9/03), 845 So.2d 645, 648. Four factors have evolved which must be considered in arriving at an appropriate sanction award. They are: (1) what conduct is being punished or is sought to be deterred by the sanction? (2) What expenses or costs were caused by the violation of the rule? (3) Were the costs or expenses "reasonable" as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention? (4) Was the sanction the least severe sanction adequate to achieve the purpose of the rule under which [it] was imposed? Dubois v. Brown, 01-0816 at p. 4, 818 So.2d at 867.
After considering the foregoing factors, we find that the trial court abused its discretion in awarding a total of $12,081.83 in sanctions. After a thorough review of the record, we find that an award of $7,500 is appropriate under these circumstances.
Accordingly, we grant Happy Haven's motion for rehearing, amend the trial court's judgment to award $7,500 in sanctions, and affirm the judgment as amended.
REHEARING GRANTED. JUDGMENT AFFIRMED AS AMENDED.
DOWNING, J., concurs and assigns reasons
I concur in the result. I would not grant the rehearing. I agree, however, to the reduction in sanctions.