Marks v. Marks

Decision Date28 September 2022
Docket Number21-CA-741
Citation349 So.3d 1071
Parties Kathryn Maguire MARKS v. Ladd Robert MARKS
CourtCourt of Appeal of Louisiana — District of US

COUNSEL FOR PLAINTIFF/APPELLEE, KATHRYN MAGUIRE MARKS, Georgia K. Thomas, Hammond

COUNSEL FOR DEFENDANT/APPELLANT, LADD ROBERT MARKS, Cynthia A. De Luca, Marynell L. Piglia

Panel composed of Judges Susan M. Chehardy, Marc E. Johnson, and Stephen J. Windhorst

JOHNSON, J.

Appellant, Ladd Robert Marks, appeals the 24th Judicial District Court's September 20, 2021 judgment granting his ex-wife's motion for reimbursement of costs and fees and awarding $7,924.50 in sanctions pursuant to La. C.C.P. art. 863. For the following reasons, we affirm the district court's judgment.

FACTS AND PROCEDURAL HISTORY

In August of 2014, appellee, Katherine Maquire Marks, now Lazarone,1 filed a "Petition For Divorce Pursuant To Article 102 And For Incidental Demands" in the 22nd Judicial District Court, Parish of St. Tammany, through her attorney, Ms. Georgia Thomas.

In December 2019, Mr. Marks retained Cynthia De Luca, APLC, to represent him in the ongoing domestic dispute with his ex-wife. On January 3, 2020, Ms. De Luca and Rebecca Gilson, an independent contract attorney working for Ms. De Luca at the time, formally enrolled as Mr. Marks’ attorneys of record. On Mr. Marks’ behalf, Ms. De Luca and Ms. Gilson also filed a Motion to Change Venue from the 22nd JDC to the 24th JDC, Parish of Jefferson. On January 15, 2020, Ms. Thomas emailed Ms. Gilson to indicate that Ms. Lazarone did not object to a change in venue. Accordingly, on February, 10, 2020, the district court signed a consent judgment transferring the matter to the 24th JDC. Around this time Ms. Gilson ceased working for Ms. De Luca and, on February 10, 2020, began working for Seale & Ross, the firm that employs Ms. Lazarone's attorney.

The record from the 22nd JDC did not lodge in the 24th JDC until August 2020, approximately six months after the venue transfer was ordered. On August 13, 2020, Mr. Marks filed a Motion to Reset a Rule for Contempt that had been pending in the 22nd JDC, and on August 17, 2020, he filed a Motion to Modify Custody, Rule for Contempt, and Other Relief. These matters were scheduled to be heard before a Hearing Officer on September 18, 2020, but the Hearing Officer subsequently continued the hearings to November 13, 2020. On November 11, 2020, Mr. Marks filed a Motion to Disqualify Petitioner's Attorney, arguing that Ms. Thomas and her law firm, Seale & Ross, must be disqualified from representing Ms. Lazarone in these proceedings due to Ms. Gilson's working for Seale & Ross, which represents Ms. Lazarone, after working for Ms. De Luca and representing Mr. Marks as his attorney of record. Mr. Marks sought to have the motion to disqualify heard by the commissioner and, the following day, filed a motion requesting that all pending motions be continued until the motion to disqualify was resolved. The commissioner granted the continuances and set all matters for January 20, 2021.

On January 12, 2021, Ms. Lazarone filed a written objection to the motion to disqualify being heard by the commissioner pursuant to La. R.S. 13:717(G).2 On January 13, 2021, the district court ruled that the motion to disqualify would not proceed before the commissioner.

On February 5, 2021, the disqualification hearing proceeded before the district court.3 At the conclusion of the hearing, the district court denied the motion to disqualify Ms. Thomas from representing Ms. Lazarone. Further, the district court specifically reserved Ms. Lazarone's right to seek reimbursement of costs and attorney fees associated with defending the motion.4

Mr. Marks filed a writ application in this Court seeking supervisory review of the February 5, 2021 judgment. This Court denied the writ, finding that the district court did not abuse its discretion in denying Mr. Marks’ motion to disqualify Ms. Lazarone's counsel. This Court further noted that whether the district court erred in granting Ms. Lazarone leave to request reimbursement of costs and attorney's fees was an issue not ripe for review, because no fees had been awarded. See Marks v. Marks , 21-129 (La. App. 5 Cir. 5/4/2021) (unpublished writ disposition).

On March 25, 2021, Ms. Lazarone filed a Motion to Seek Reimbursement of Costs and Attorney Fees and prayed for an award of $9,387.43. In opposition, Mr. Marks argued that La. C.C.P. art. 863 presented the only possible avenue for seeking the sanction of costs and attorney's fees, but Ms. Lazarone did not move for sanctions under that article before the hearing on the motion to disqualify, rendering sanctions inappropriate. Mr. Marks further argued that Ms. Lazarone clearly believed the motion to disqualify had some merit, and the district court's suggestion to Ms. Lazarone that she seek attorney fees and costs was "unwarranted" and "legally erroneous."

After a hearing via Zoom on August 11, 2021, the district court awarded Ms. Lazarone $7,924.50 in sanctions under La. C.C.P. art. 863. In oral reasons for ruling, the court found that Mr. Marks’ attorneys did not reasonably inquire into the disqualification matter before filing the motion. The district court also stated that the motion was an "improper pleading done simply to harass and delay." The court limited the sanctions to the costs and fees incurred in defense of Mr. Marks's motion in the district court, exclusive of any duplicative fees that occurred when Ms. Thomas's co-counsel appeared in court along with Ms. Thomas, who also testified as a witness in the February 5, 2021 hearing. The court denied Ms. Lazarone's request to supplement the motion for reimbursement to include the costs of appeal. The court further noted that even if sanctions were not appropriate under La. C.C.P. art. 863, an award of costs was warranted under La. C.C.P. art. 1920.5 A written judgment was signed on September 20, 2021. Mr. Marks timely appeals that judgment.

ASSIGNMENTS OF ERROR

Mr. Marks argues the district court erred in awarding attorney's fees and costs to Ms. Lazarone pursuant to La. C.C.P. art. 863. He contends that the trial court "lacked authority to sanction" him, that no one moved for sanctions, and that the award of sanctions under La. C.C.P. art. 863 "lacks any proper legal basis" and is "improper, excessive and unwarranted."

LAW AND DISCUSSION

A trial court's determination that sanctions under La. C.C.P. art. 863 are appropriate is reviewed under the manifest error standard. Levert v. Martinez , 06-11 (La. App. 5 Cir. 9/26/06), 939 So.2d 615, 623 ; Koussanta v. Dozier , 16-45 (La. App. 5 Cir. 5/26/16), 196 So.3d 60, writ denied, 16-1214 (La. 9/6/16), 205 So.3d 917. The trial court's determination of the amount of sanctions to be awarded is reviewed for an abuse of discretion. Levert , 939 So.2d at 623 (citing Butler v. Reeder , 98-484 (La. App. 5 Cir. 12/29/98), 728 So.2d 888, 894, writs denied , 99-1026, 99-1035 (La. 5/28/99), 743 So.2d 674, 674 ).

We first address whether the trial court manifestly erred in awarding sanctions pursuant to Article 863. In pertinent part, Article 863 provides:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the 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.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.
* * *
G. If the court imposes a sanction, it shall describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed.

Under Article 863, attorneys and litigants have an affirmative duty to make an objectively reasonable inquiry into the facts and the law. "In determining whether an attorney has breached that affirmative duty, the trial court should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading was submitted." Landry v. Landry , 21-337 (La. App. 1 Cir. 10/8/21), 331 So.3d 351, 356, writ denied, 22-44 (La. 3/2/22), 333 So.3d 835 (citations omitted).

In determining whether sanctions are appropriate, a court considers these factors to evaluate whether a litigant and his counsel made the required reasonable factual inquiry before signing:

1. The time available to the signor for investigation;
2. The extent of the attorney's reliance on the client for factual support for the document;
3. The feasibility of a prefiling investigation;
4. Whether the signing attorney accepted the case from another attorney;
5. The complexity of the factual and legal issues; and
6. The extent to which development of the factual
...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT