Girouard v. Summit Fin. Wealth Advisors, LLC
| Decision Date | 24 March 2021 |
| Docket Number | 20-261 |
| Citation | 318 So.3d 231 |
| Court | Court of Appeal of Louisiana — District of US |
| Parties | Lyle E. GIROUARD and Jo D. Breaux v. SUMMIT FINANCIAL WEALTH ADVISORS, LLC and Ruth Moncus |
Alan K. Breaud, Timothy W. Basden, Breaud & Myers, Post Office Box 3448, Lafayette, Louisiana 70502, (337) 266-2200, Attorneys for Appellants and Cross-Appellees: Lyle E. Girouard and Jo D. Breaux
James H. Gibson, Charles M. Kreamer, Sr., Stacy N. Kennedy, Gibson Law Partners, LLC, 2448 Johnston Street, Post Office Box 52124, Lafayette, Louisiana 70505, (337) 761-6023, Mitchell J. Hoffman, Paula H. Lee, Lowe, Stein, Hoffman, Allweis & Hauver, LLP, 701 Poydras Street, Suite 3600, New Orleans, Louisiana 70139-7735, (504) 581-2540, Attorneys for Appellees and Cross-Appellants: James D. Moncus and Ruth Moncus
Court composed of Shannon J. Gremillion, Van H. Kyzar, and Jonathan W. Perry, Judges.
This appeal involves questions of whether certain persons had a right of action to pursue a temporary restraining order and ancillary injunctive relief and whether an indispensable party was improperly omitted. In addition, this appeal questions whether the trial court could award damages for the wrongful issuance of that temporary restraining order because it expired by virtue of law before the motion to dissolve was filed and whether those damages could extend beyond its legal dissolution because the trial court improperly, and without a request from the movers, extended the expired temporary restraining order on its own motion.
We grant sua sponte the peremptory exception of nonjoinder of an indispensable party, amend and affirm the trial court's grant of the peremptory exception of no right of action, amend and increase the attorney fee award, deny the motion to strike and request for sanctions, deny the request for damages for a frivolous appeal, and render.
On September 16, 2019, Lyle E. Girouard ("Girouard") and Jo D. Breaux ("Breaux") filed a Petition for Interdiction, Protection from Abuse, and to Void Acts concerning James D. Moncus ("J.D.M.") under Docket Number 2019-5760; that proceeding was randomly allotted to Division "D" before the Honorable Edward D. Rubin.1 On that same date, these same petitioners filed a Verified Petition for Temporary Restraining Order, Preliminary and Permanent Injunction, naming as defendants Summit Financial Wealth Advisors, LLC ("Summit") and Ruth Moncus ("Moncus"); Summit manages four investment accounts for J.D.M., and Moncus is J.D.M.’s wife. This later proceeding was randomly allotted to Division "L" before the Honorable Marilyn C. Castle under Docket Number 2019-5838.2
Even though the petition for injunctive relief was allotted to Judge Castle, the matter was heard before Judge Rubin because Judge Castle was not in the country at the time. On September 17, 2019, Judge Rubin granted a Temporary Restraining Order which stated:
In that same order, Judge Rubin ordered Summit Financial and Moncus to show cause on November 18, 2019, at 9:00 a.m., why a preliminary injunction should not issue, in the form and substance of the TRO. After the Deputy Clerk of Court certified that Girouard and Breaux posted the $2,500.00 bond, the temporary restraining orders directed to Summit Financial and Moncus were recorded in the Clerk of Court's office for Lafayette Parish on September 17, 2019, at 10:47:24 a.m. and 10:47:47 a.m., respectively.
On September 23, 2019, J.D.M. and Ruth Moncus ("the Moncuses") filed a rule to show cause to dissolve the TRO and sought damages and attorney fees for the wrongful issuance of the TRO. They further filed peremptory exceptions of nonjoinder of a party under La.Code Civ.P. arts. 641 and 642 as to J.D.M., no right of action, and no cause of action. On that same date, Judge Rubin issued the following order:
Contemporaneous with that filing, Girouard and Breaux asked Judge Rubin to reset the hearing on the preliminary injunction for September 30, 2019, the same date set as the rule to show cause to dissolve the TRO.
At the hearing on September 30, 2019, Judge Rubin entertained oral argument, focusing primarily on the issue of whether Girouard and Breaux had standing to bring their petition for a TRO and injunctive relief. Without ruling on the standing issue he raised or anything else scheduled for that day, Judge Rubin stated that he would appoint a psychiatrist to examine J.D.M. and that he would not dissolve the TRO but would allow it to remain, pending a report from the psychiatrist.
Thereafter, the Moncuses timely filed a notice of intent to apply for a supervisory writ to this court. This court granted the writ in part and vacated and set aside the TRO based on a failure to comply with the requirements of La.Code Civ.P. arts. 3603 and 3604 ; it then remanded the case to the trial court for further proceedings, particularly to determine "the outstanding motion for attorneys’ fees for wrongful issuance of the TRO." Girouard v. Summit Fin. Wealth Advisors, LLC , 19-715 (La.App. 3 Cir. 10/29/19) (unpublished writ decision).
On remand to the district court, Judge Castle granted the peremptory exception of no right of action and dismissed with prejudice all claims Girouard and Breaux asserted in their claim for injunctive relief against Summit Financial and Ruth Moncus. The only damages sustained and sought were attorney fees; attorneys from the two law firms who represented the Moncuses, called by Girouard and Breaux, testified about their billings related to the dissolution of the TRO. In that regard, Judge Castle also granted judgment against Girouard and Breaux for the wrongful issuance of the TRO they filed against Ruth Moncus. However, in making this ruling, Judge Castle only awarded attorney fees up to the time the TRO expired by law prior to the hearing Judge Rubin conducted; accordingly, she awarded none of the attorney fees the Moncuses incurred in their successful writ application to this court. The trial court then rendered judgment "in favor of Ruth Moncus for attorney fees in the amount of $18,280.25, consisting of attorney fees for the service of Lowe, Stein, Hoffman, Allweiss & Hauver, LLP, in the amount of $12,141.00, and for services of Gibson Law Partners, LLC in the amount of $6,139.25."4
Girouard and Breaux appealed, urging that the trial court erred: (1) in awarding attorney fees to Ruth Moncus in connection with a TRO which expired by operation of law three days before the hearing on the motion to dissolve and which was reimposed sua sponte by the trial court without legal authority; (2) in granting excessive attorney fees to Ruth Moncus related to legal work which was not directly related to the litigation of a successful motion to dissolve the TRO; and (3) in granting the peremptory exception of no right of action filed by Ruth Moncus and dismissing the petition for TRO, preliminary and permanent injunction filed by Girouard and Breaux.
The Moncuses also appealed, arguing that the trial court erred in using a fault-based inquiry to award less than the total amount of attorney fees and costs incurred by the improperly restrained party in successfully dissolving the wrongfully issued TRO. Additionally, they have answered the appeal of Girouard and Breaux, further seeking attorney fees and costs in defending this appeal.
Furthermore, the Moncuses have filed a motion to strike portions of the brief filed on behalf of Girouard and Breaux pursuant to Rule 2-12.2(C) of the Uniform Rules of the Louisiana Court of Appeal. Also, the Moncuses have asked us to find Girouard and Breaux in contempt, urging that they have violated the trial court order which sealed the filings made in the interdiction proceeding, In Re J.D.M.
From the outset, we must address J.D.M.’s presence as a party-litigant in the trial court and now before us. The initial pleadings of Girouard and Breaux do not name him as a defendant; neither does the TRO granted by Judge Rubin name him as one bound by the restraining order. Also, the trial court judgment, which forms the basis for this appeal, neither names him as a party who filed the peremptory exception of no right of action nor grants him judgment in its award of attorney fees. To the contrary, the trial...
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