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Breaux-Faciane v. Willard

Court of Appeals of Louisiana, Fourth Circuit

December 5, 2018

GERALYN BREAUX-FACIANE
v.
WALTER I. WILLARD, ESQUIRE, THE WILLARD FIRM, PLC AND ABC INSURANCE COMPANY

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-11440, DIVISION "E" Honorable Clare Jupiter, Judge

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Paula A. Brown) Taetrece Harrison HARRISON LAW GROUP, L.L.C.

          COUNSEL FOR PLAINTIFF/APPELLEE Roy J. Rodney, Jr. John K. Etter RODNEY & ETTER, LLC

          Michael G. Bagneris Davillier Law Group, LLC COUNSEL FOR DEFENDANT/APPELLANT

          PAULA A. BROWN JUDGE

         This case arises out of sanctions assessed against Appellant, the law firm of Rodney & Etter, LLC ("Rodney & Etter").[1] Rodney & Etter appeals the district court's judgment which granted the Motion for Sanctions, Attorney's Fees and Costs filed on behalf of Plaintiff/Appellee, Geralyn Breaux-Faciane ("Plaintiff"), ordering Rodney & Etter to pay a $500.00 sanction to the Civil District Court for the Parish of Orleans ("Civil District Court") and $67.00 in court costs to Plaintiff. For the reasons that follow, we vacate the judgment and remand the matter to the district court for proceedings consistent with this opinion.

         FACTUAL AND PROCEDURAL HISTORY

         In December 2014, Plaintiff filed a legal malpractice action against Defendants, Walter I. Willard and the Willard Law Firm (collectively, "Mr. Willard"). Mr. Willard hired John Etter ("Mr. Etter") and Roy Rodney ("Mr. Rodney") of the Rodney & Etter law firm as his defense counsel.

         Plaintiff filed a motion for summary judgment on or about May 10, 2016.[2] The defense opposed the motion for summary judgment, arguing in part that discovery was incomplete. The district court denied the motion for summary judgment on November 7, 2016. Thereafter, on November 18, 2016, Plaintiff filed a motion for a pre-trial scheduling conference to establish certain cut-off dates and prompt the completion of discovery, pursuant to La. C.C.P. art. 1551.[3] (See also La. C.C.P. art. 1471).[4] The district court fixed the scheduling conference for January 24, 2017, with a handwritten notation that "[a]ttorneys must appear in person."

         Plaintiff's counsel, Taetrece Harrison ("Ms. Harrison"), and Mr. Etter appeared at the scheduling conference. The district court issued a Scheduling Order, which Ms. Harrison signed. Mr. Etter did not; instead, he wrote the following in the designated area for the "attorney's signature:" "not signed, . . . due to lack of authority to consent to discovery dates." The next day, January 25, 2017, Rodney & Etter filed a motion for an in camera status conference. Rodney & Etter requested the status conference to address concerns about the firm's continued representation of Mr. Willard; to inform the district court of facts relating to Mr. Willard's disability; and to consider actions the firm should take to protect Mr. Willard's interests. The district court scheduled the status conference for February 6, 2017. Plaintiff's counsel attended the status conference; however, no representative from Rodney & Etter appeared.

         On March 15, 2017, Rodney & Etter filed a "motion to continue pending deadlines, motion for appointment of curator, and motion for emergency status conference," which was scheduled for a hearing on March 31, 2017 at 1:30 p.m. As for the firm's request for an emergency status conference, the district court denied the request, noting that "counsel did not appear at 2/[6]/17[5] status conference he requested on 1/25/17." The district court granted the firm's request for a hearing on the motion and ordered all counsel to appear on March 31, 2017 at 1:30 p.m. for the hearing.

         On March 31, 2017, Ms. Harrison and Mr. Rodney participated in a telephone status conference.[6] At the conclusion of the conference, the attorneys verbally agreed to a follow-up status conference, which the district court scheduled for April 18, 2017.

         On April 18, 2017, Ms. Harrison appeared in person for the status conference. Rodney & Etter did not make a physical appearance. After some time lapsed and telephone calls were made, the district court contacted Rodney & Etter and learned the firm was involved in a trial in Texas. Mr. Rodney advised the district court that pleadings would be filed relative to Mr. Willard's status on April 19, 2017.[7] Ms. Harrison verbally requested sanctions for Rodney & Etter's failure to appear. The district court indicated that it would consider a written motion for sanctions.

         Plaintiff filed a motion for sanctions, attorney's fees, and costs ("the Motion") against Mr. Willard and Rodney & Etter on April 27, 2017, alleging they had purposefully failed to comply with scheduling dates and had failed to appear at court-ordered status conferences. Plaintiff prayed for sanctions, including "all of the reasonable expenses incurred by the Plaintiff and her counsel and reasonable attorney's fees including the costs of filing this said Motion."

         The district court heard argument on the Motion on June 23, 2017. The district court denied the Motion as it pertained to Mr. Willard. It granted the Motion against Rodney & Etter. The judgment rendered included the following:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Motion for Sanctions, Attorney's Fees, and Costs filed by Plaintiff, Geralyn Breaux-Faciance be and is hereby Granted against the Rodney & Etter law firm.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Rodney & Etter, LLC law firm shall pay $500.00 to the Civil District Court.
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Rodney & Etter law firm shall pay the costs incurred by Plaintiff for the foregoing Motion for Sanctions, Attorney's Fees and Costs to Plaintiff, ...

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