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Bize v. Larvadain

Court of Appeals of Louisiana, Third Circuit

December 28, 2018



          Nelson Welch Cameron COUNSEL FOR PLAINTIFFS/APPELLANTS: Larry Bize, Sr., Michelle R. Bize

          James Huey Gibson COUNSEL FOR DEFENDANTS/APPELLEES: Malcolm Larvadain, Edward Larvadain, III

          Kelvin G. Sanders COUNSEL FOR DEFENDANT/APPELLEE: Edward Larvadain, Jr.

          Alexander T. Reinboth Louisiana Department of Justice, Civil Division COUNSEL FOR OTHER APPELLEE: Attorney General for the State of Louisiana

          Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.

          MARC T. AMY JUDGE

         The plaintiffs filed this claim against their former attorney, and purported former attorneys, alleging legal malpractice in a number of acts and omissions, including the entry of a settlement. The plaintiffs appealed to this court after the trial court sustained the defendants' exceptions of res judicata and peremption. The plaintiffs further seek review of the trial court's denial of their constitutional challenge of the setting of bond for security for costs pursuant to La.R.S. 13:4522. For the following reasons, we affirm in part; reverse in part; and remand for further limited proceedings as instructed. Upon reversal of the sustaining of the exception of res judicata, we deny that exception.

         Factual and Procedural Background

         The record indicates that Larry Bize, Sr. was arrested following a March 2008 incident at a bar he owned in Avoyelles Parish. Mr. Bize and his wife, Michelle R. Bize, retained Malcom Larvadain (Mr. Larvadain) to represent them in a suit by which they alleged that the Avoyelles Parish Sheriff's deputies involved in the arrest were liable to them for physical and mental damages resulting from the incident. That initial petition was filed in March 2009.

         In September 2010, a first supplemental and amending petition was filed attempting to plead claims pursuant to 42 U.S.C. § 1983. The trial court granted a motion for summary judgment in July 2015 as to those latter claims on the basis of prescription and upon a finding that they did not relate to the original petition due to its lack of allegations in support of the § 1983 claims. The trial court also granted summary judgment on the basis of an absence of genuine issues of material fact, as the plaintiffs "failed to provide any evidence that they will be able to satisfy their evidentiary burden regarding said claims at trial." Thus, the trial court dismissed all § 1983 claims.

         The remaining issues proceeded to trial before Judge Kerry Spruill. During a recess in the proceedings, Mr. and Mrs. Bize entered into a November 13, 2015 settlement agreement, whereby they would receive $50, 000 over a twelve-month period.[1] However, the matter was not dismissed at that point.

         In April 2016, with the agreement confected, the defendants in the personal injury suit filed a Motion to Enforce Settlement. While that motion was pending, Mr. Bize discharged Mr. Larvadain and retained Nelson W. Cameron as reflected in a May 2, 2016 Motion to Enroll and Withdraw as Counsel. Mr. Bize thereafter filed a Motion to Recuse, [2] asserting that he had lacked capacity to enter into the settlement agreement and that Judge Spruill was a potential witness at the forthcoming hearing on the Motion to Enforce Settlement.[3] Judge William J. Bennett was assigned to consider the motion to recuse. Following a hearing, Judge Bennett denied the motion, explaining in his reasons for ruling that Judge Spruill was not a witness to Mr. Bize's alleged deterioration given the latter's testimony that he became distraught during settlement negotiations that occurred during a recess.[4]

         Afterwards, on September 8, 2016, Mr. and Mrs. Bize signed a formal Receipt and Release of All Claims. Therein, they acknowledged that, for the sum of $50, 000, they released, acquitted, and discharged the officers named as defendants in the suit. In turn, the trial court granted the parties' Joint Motion to Dismiss and ordered, on November 15, 2016, that Mr. and Mrs. Bize's suit be dismissed as to all defendants.

         Mr. and Mrs. Bize instituted the present matter, also in November 2016, by filing a Petition for Damages and Trial By Jury in Rapides Parish. The plaintiffs named Mr. Larvadain and his brother, Edward Larvadain, III, as defendants, as well as their purported partnership. The plaintiffs alleged that Mr. Larvadain committed various instances of legal malpractice in his representation of them in the initial matter, including: 1) failing to timely plead claims allegedly arising under 42 U.S.C. § 1983 and failing to timely pursue an appeal or writ on a determination that such claims had prescribed; 2) failing to file the matter in federal court; and 3) pleading causes of action against the defendants in their official capacities and not in their individual capacities. The plaintiffs additionally alleged that Mr. Larvadain "counseled Plaintiffs to enter into a settlement agreement dismissing the named Defendants with prejudice. Due to failures in the pleading as drafted and the filings and subsequent practice, the settlement obtained was woefully inadequate." They continued, asserting that Mr. Larvadain "knew or should have known during the settlement negotiations that Larry Bize was under duress at the time and was not competent to proceed with a settlement." The plaintiffs alleged that they had suffered "loss of damages including but not limited to attorney fees, punitive damages and sufficient compensation for the losses sustained in the case filed in Avoyelles Parish district court."

         The plaintiffs thereafter filed three amending petitions. By those petitions, the plaintiffs named Edward Larvadain, Jr. as an additional defendant, suggesting that he assisted in Mr. Larvadain's representation of them.[5] Among other factual assertions, the plaintiffs alleged legal malpractice in the failure to employ experts in the use of force or arrest and in economics; the failure to conduct sufficient and timely discovery; and in the failure to conduct a prompt prosecution of the matter. And, finally, the plaintiffs alleged that certain instances of purported malpractice were not known to them at the time of the occurrence. Rather, by the second and third amended petitions, the plaintiffs contended that Mr. Larvadain acted with an intent to conceal the purported malpractice, doing so by failing to inform them of, among other things, the summary judgment resulting in the dismissal of the 42 U.S.C. § 1983 claims. They alleged that they only became aware of such actions after examination of the Avoyelles Parish Court records in November 2016 and only after receipt of the file from Mr. Larvadain. The plaintiffs further asserted that the delivery of the file was not prompt. Those actions, the plaintiffs contended, reflected concealment and fraud per La.R.S. 9:5605(E).

         Before pleading, Mr. Larvadain and Edward Larvadian, III ("the defendants") responded to the initial petition with a Motion to Set Bond For Security For Costs, seeking a bond in the amount of $25, 000, pursuant to La.R.S. 13:4522. The trial court granted the motion, ordering the posting of a bond by April 10, 2017. By the ruling, the trial court set for hearing the plaintiffs' motion and rule to show cause by which they prayed that La.R.S. 13:4522 be declared unconstitutional pursuant to La.Const. art. 1, § 2 (Due Process of Law); La.Const. art. 1, § 19 (Right to Judicial Review); and La.Const. art. 1, § 22 (Access to Courts).[6] Following that hearing, the trial court denied the plaintiffs' claim and entered judgment indicating that "the constitutionality of La.R.S. 13:4522 is hereby upheld." The trial court maintained its earlier order that the plaintiffs post a $25, 000 bond, but modified the date for the posting to "two weeks after any ruling by the Louisiana Third Circuit Court of Appeal regarding this Judgment."

         The defendants further filed various proceedings, including an Exception of Peremption, an Exception of Res Judicata, and a Motion for Summary Judgment on Estoppel. Following two hearings on the matters, the trial court denied the motion for summary judgment, but sustained the exception of peremption as well as the exception of res judicata. In sustaining the exception of res judicata, the trial court ordered that "all claims of plaintiffs Larry Bize, Sr. and Michelle R. Bize concerning the alleged lack of mental capacity of Larry Bize, Sr. when the plaintiffs settled the underlying lawsuit are hereby dismissed with prejudice."

         The plaintiffs appeal, asserting that the trial court erred in: 1) requiring them to post bond pursuant to La.R.S. 13:4522, as it violates La.Const. art. 1, § 22 and the Due Process Clause of the U.S. Constitution; 2) requiring them to post bond when there was insufficient evidence to support the amount imposed; 3) granting the exception of preemption, as the record indicates that acts of malpractice occurred within the one-year period before the filing of suit, and other acts occurred within one year of discovery and within three years of the filing of suit; 4) not applying prescription upon the demonstration of fraudulent concealment; and in 5) granting the exception of res judicata when the parties to the prior judgment and the case at issue are not the same.


         Louisiana Revised Statutes 13:4522

         The plaintiffs first two assignments of error address the trial court's order that they post a bond for security and its determination "that the constitutionality of La.R.S. 13:4522 is hereby upheld." Titled "Defendant may demand security for costs[, ]" the subject statute provides:

The defendant before pleading in all cases may by motion demand and require the plaintiff or intervenor to give security for the cost in such case, and on failure to do so within the time fixed by the court such suit or intervention, as the case may be, shall be dismissed without prejudice. This section shall not apply to the Parish of Orleans and to cases brought in forma pauperis, nor to the state or any political subdivision thereof.

Id. The supreme court has explained that the requirement for the advance posting of security for costs "secures the payment of those expenses incurred by the defendant in defense of the suit which may be taxed as court costs and which the plaintiff may finally be condemned to pay." Carter v. Phillips, 337 So.2d 187, 188 (La.1976). We turn to consideration of the plaintiffs' related arguments.

         Access to the Courts

         We first examine the plaintiffs' constitutional claim. In addition to the defendants' arguments rebutting the plaintiffs' contention, the Attorney General of the State of Louisiana files an amicus curiae brief with this court, [7] arguing that La.R.S. 13:4522 maintains the plaintiffs' right of access to the courts.

         As noted by the Attorney General, this court must first determine whether the constitutional issue presented by the plaintiffs in their brief is appropriately before this court. See State v. Lanclos, 07-0082 (La. 4/8/08), 980 So.2d 643. On this point, the supreme court has explained that:

We have repeatedly and consistently held that courts should refrain from reaching or determining the constitutionality of legislation unless, in the context of a particular case, the resolution of the constitutional issue is essential to the decision of the case or controversy. State v. Fleming, 2001-2799 (La.6/21/02), 820 So.2d 467, 470; Cat's Meow, Inc. v. City of New Orleans Through Dept. of Finance, 98-0601 (La.10/20/98), 720 So.2d 1186, 1199; Louisiana Associated Gen. Contractors, Inc. v. New Orleans Aviation Bd., 97-0752 (La.10/31/97), 701 So.2d 130, 132; Cameron Parish Sch. Bd. v. Acands, Inc., 96-0895 (La.1/14/97), 687 So.2d 84, 87; White v. West Carroll Hosp., Inc., 613 So.2d 150, 157 (La.1992). Further, our jurisprudence counsels that the practice of courts is "never to anticipate a question of constitutional law in advance of the necessity of deciding it." Matherne v. Gray Ins. Co., 95-0975 (La.10/16/95), 661 So.2d 432, 434; Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961) (citing Liverpool, New York & Philadelphia S.S. Co. v. Commissioners, 113 U.S. 33, 5 S.Ct. 352, 28 L.Ed. 899 (1885); Arizona v. California, 283 U.S. 423, 51 S.Ct. 522, 75 L.Ed. 1154 (1931). Courts should avoid constitutional rulings when the case can be disposed of on non-constitutional grounds. Blanchard v. State Through Parks and Recreation Commission, 96-0053 (La.5/21/96), 673 So.2d 1000, 1002.

Id. at 647-48 (quoting Ring v. State, Dep't of Transp. & Dev., 02-1367, pp. 4-5 (La. 1/14/03), 835 So.2d 423, 426-27).

         In addressing this preliminary question, the Attorney General suggests that if it is determined that the trial court appropriately dismissed the plaintiffs' suit upon sustaining the defendants' exception, then resolution of the constitutional challenge may not otherwise be required and, therefore, should not be addressed. As we below find reversal of aspects of the judgment necessary, we continue with discussion of the constitutional claim. We do not find, however, that the breadth of the plaintiffs' argument as now presented to this court is preserved for review.

         Rather, the supreme court has explained that "litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized." Arrington v. Galen-Med, Inc., 06-2968, p. 3 (La. 2/2/07), 947 So.2d 727, 728-29. Such a requirement permits the parties to brief and argue the issues raised at a contradictory hearing and affords the opportunity for a full record for review. Id. (citing Vallo v. Gayle Oil Co., Inc. 94-1238 (La. 11/30/94), 646 So.2d 859');">646 So.2d 859). The supreme court continued, stating that:

The requirement of specially pleading the unconstitutionality of a statute in pleadings implies that this notable issue will receive a contradictory hearing, wherein all parties will be afforded the opportunity to brief and argue the issue. Cf. LSA-C.C.P. arts. 929, 963, 966, 1038, 1871. The record of the proceeding could then be reviewed to determine whether the party attacking the statute sustained his or her burden of proof, and whether the trial court attempted to construe the statute so as to preserve its constitutionality. See Moore v. Roemer, 567 So.2d 75, 78 (La.1990); Board of Directors of the Louisiana Recovery Dist. v. All Taxpayers, Property Owners and Citizens of the State of Louisiana, 529 So.2d 384, 387-388 (La.1988).

Id. at 729 (quoting Vallo, 646 So.2d at 865).

         In pertinent part, the plaintiffs specifically pleaded in the motion instituting their constitutional claim that La.R.S. 13:4522 violated La.Const. art. 1, § 2 (Due Process of Law); La.Const. art. 1, § 19 (Right to Judicial Review); and La.Const. art. 1, § 22 (Access to Courts). Yet, the motion's incorporated memorandum[8] did not particularize the ground arising under Section 2, failing to separately cite to that provision. And, to the extent it superficially cited Section 19, it did so within its discussion of access to the courts. The plaintiffs did, however, address and further particularize this latter ground, arising under Section 22 and the due process considerations contained therein. We make final note here that, in framing their assignments of error, the plaintiffs also assert that the La.R.S. 13:4522 as applied here violates "the First Amendment and Due Process Clause of the U.S. Constitution." See U.S. Const. amend. I and U.S. Const. amend. XIV. However, we again note those grounds were not raised by the plaintiffs' motion and were referenced in the memorandum only within the reporting of jurisprudence. Accordingly, we limit review to that ground raised in the motion and ultimately preserved for review.

         Finding that the plaintiffs preserved for review the single ground of the constitutionality of La.R.S. 13:4522 in light of La.Const. art. 1, § 22, we turn to de novo review of the trial court's rejection of that constitutionality claim. See City of New Orleans v. Clark, 17-1453, p. 4 (La. 9/7/18), 251 So.3d 1047, 1051 ("The determination of the constitutionality of a statute presents a question of law, which is reviewed by this court de novo."). In doing so, we are mindful that statutes are presumed to be constitutional and that, in turn, it is the party challenging a statute's validity who must bear the burden of proving its unconstitutionality. Id. As "[a] facial constitutional challenge seeks more drastic relief than" those presented on an "as-applied" basis, "the movant in a facial challenge bears an especially heavy burden." LaPointe v. Vermilion Parish Sch. Bd., 15-0432, p. 10 (La. 6/30/15), 173 So.3d 1152, 1159 (citing U.S. v. Salerno, 481 U.S. 739, 107 S.Ct. 2095 (1987)). In such a challenge, the movant "must establish that no set of circumstances exists under which the statute would be valid, that is, that the law is unconstitutional in all its applications." Id. at 1159-60.

         Titled "Access to Court[, ]" La.Const. art. 1, § 22 provides: "All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."

         In lodging their constitutional claim, the plaintiffs observed in their memorandum to the trial court that, in Michel v. Edmondson, 218 So.2d 103 (La.App. 3 Cir. 1968), a panel of this court upheld the constitutionality of La.R.S. 13:4522. However, they noted both that Michel was rendered prior to the enactment of the 1974 Louisiana Constitution and that the Michel panel appeared to be addressing a facial constitutional challenge. The plaintiffs suggest that they alternatively lodged an "as- applied" challenge.

         Reference to Michel, 218 So.2d 103, indicates that the plaintiff in that case filed suit for damages allegedly sustained to his crops due to flooding caused by the defendant's construction of a dam across a drainage canal. The defendant filed a motion for security for costs pursuant to La.R.S. 13:4522 based on the need to employ engineers, surveyors, and agricultural experts for his defense. The plaintiff, however, raised various constitutional concerns, including one arising under Article 1, § 6 of the 1921 Louisiana Constitution. Then titled "Open courts; legal remedies[, ]" the provision indicated at the time of Michel, that:

Section 6. All courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law and justice administered without denial, partiality or unreasonable delay.

         Notwithstanding the plaintiff's assertion of unconstitutionality, the trial court in Michel ordered the plaintiff to post a $750 bond for costs. Michel, 218 So.2d 103. When the plaintiff failed to do so, the trial court dismissed the suit. The plaintiff appealed. Id.

         On review, however, the panel rejected the plaintiff's claim that La.R.S. 13:4522 discriminated against civil suit plaintiffs as they, distinct from defendants, could be required to furnish security for costs. Michel, 218 So.2d 103. The panel explained:

In Grinage et al. v. Times-Democrat Publishing Company, 107 La. 121, 31 So. 682 (1902), the constitutionality of Act 136 of 1880, Section 4 was again attacked and the court held:
"The constitutional declaration that the courts shall be open, and every person for injury done him in his rights, lands, goods, person or reputation shall have adequate remedy by due process of law, etc. (article 6, Const. 1898) is not to be understood or construed as taking from the legislature the power to prescribe reasonable rules and regulations relative to the costs incurred in litigation. Succession of Grover, 49 La.Ann. 1050, 1051, 22 So. 313. When a person is impleaded in the courts his right to make defense thereto arises and he, necessarily, in many cases, incurs expense. While a plaintiff is primarily bound for the costs of a suit he institutes, it is not always true that he is financially able to respond. A defendant may make large outlays in vindicating his position, and may successfully vindicate it, and yet at the end of the suit, with a judgment discharging him, may be unable to recoup his expenditures . Therefore it is, that the requirement of a bond for costs has always been sustained."
In the Federal Courts security for costs is not expressly covered by the Federal Rules of Civil Procedure. The Federal District Courts require such security under their general rule-making power, Federal Rule 83. Usually, they follow the state court practice. See the general discussion in Barron & Holtzoff, Sections 1198 and 1711. We find no Federal case holding security for costs unconstitutional as denying either due process or equal protection of the laws.
The equal protection of law guarantees in our Federal Constitution require generally that all citizens similarly situated be accorded the same rights in the prosecution of civil suits. Classifications of citizens who are similarly situated may be established by the legislature, so long as such classifications are based on reasonable grounds. Roper v. Brooks, 201 La. 135, 9 So.2d 485 (1942); 16A C.J.S. Verbo Constitutional Law §§ 502-503 and 557-566, pp. 296-300, and 502-536.
Under these general principles, we think the reasoning of the court in the Grinage case quoted above, furnishes valid grounds to treat plaintiffs as a class in civil actions different from defendants under the state statute authorizing security for costs.
We find at least one of our sister states has considered a similar problem. In Columbia Water Power Company v. Nunamaker, 73 S.C. 550, 53 S.E. 996, the Supreme Court of South Carolina held that a statute requiring a bond of the plaintiff before granting an injunction, while no such bond was required of the defendant, does not deny to plaintiff the equal protection of the laws.

Id. at 105. While the plaintiffs point out that Michel was decided under the prior constitution, comparison of Article 1, § 6 of the 1921 Louisiana Constitution to La.Const. art. 1, § 22 reveals substantively equivalent language. Further, the version of La.R.S. 13:4522 under review in Michel has not been amended since that time.

         Although they acknowledge Michel, the plaintiffs argue that the 1968 opinion is no longer authoritative. They instead assert that Detraz v. Fontana, 416 So.2d 1291 (La.1982) is reflective of a contemporary view of La.Const. art. 1, § 22 and is similar to the present case. In Detraz, the defendants filed a rule to require the plaintiffs in that case to furnish a bond for attorney fees pursuant to La.R.S. 42:261(E) as it existed at that time.[9] The plaintiffs opposed the rule on the basis of state and federal equal protection. The trial court ordered the posting of a $15, 000 bond and ultimately dismissed the suit when the plaintiffs failed to post the bond.

         After the appellate panel upheld the constitutionality of the statute, the supreme court granted the writ application in order to consider the constitutional question presented, i.e., the equal protection mandate of U.S. Const. amend. XIV and La.Const. art. 1, § 22. Detraz, 416 So.2d 1291. The supreme court observed that the statute treated litigants opposing governmental defendants differently than those opposing private defendants. It noted that only the first class of litigants would suffer the burden of the bond for attorney fees. Id. It found no justification for that disparate treatment and, thus, the statute was found to violate both the state and federal constitutions. Following that determination as to equal protection, the supreme court further determined that the statute deprived the plaintiff of due process and denied open access to the courts. Id. (citing U.S. Const. amend. V; U.S. Const. amend. XIV; La.Const. art. 1, § 2; La.Const. art. 1, § 22). This reasoning, the plaintiffs suggest, should be applied in the present case to find La.R.S. 13:4522 similarly unconstitutional.

         As urged by both the defendants and the Attorney General in opposition, however, reference to Detraz, 416 So.2d 1291 in full undermines the plaintiffs' comparison. Rather, the supreme court therein discussed at length the illegitimate "motivating force" in the enactment of La.R.S. 42:261(E) in 1960. Id. at 1292. Namely, the supreme court reviewed legislatively-endorsed materials from the time period that revealed "contempt of state leaders for the decision of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, [ ] (1954)." Id. at 1293 (footnote omitted). The supreme court remarked that although the specific legislative history was unavailable, the context in which it was passed indicated that it too would further the segregationist purpose "by making it extremely costly, if not prohibitive, for minority groups or individuals to bring suit against any public official (school board member, police officer, police juror) for the redress of grievances suffered because of race." Id. at 1293-94 (footnote omitted).

         The supreme court acknowledged that "[w]ide discretion is normally afforded legislative classifications" and that "legislative judgment will be upheld 'if any state of facts reasonably may be conceived to justify it.'" Detraz, 416 So.2d at 1294 (quoting McGowan v. State of Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105 (1961)). It further explained, however, that racial classifications such as the one before it are "suspect and subject to the 'most rigid scrutiny.'" Id. (quoting Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823 (1967)). Such has not been alleged to be the context of the statute in the present case. Further recall that the plaintiffs have not preserved an equal protection claim.

         While the supreme court in Detraz also found that the statute at issue in that case violated concepts of due process and access to the courts, it is critical to recognize that the statute under review by the supreme court afforded neither an opportunity to be heard nor did it include an exception for litigants qualified as paupers.[10] By contrast, La.R.S. 13:4522 includes an express exception for those qualified as paupers. Carter, 337 So.2d 187; Whitson v. American Ice Co., 164 La. 283, 113 So. 849 (1927). In fact, and as it relates to the plaintiffs' suggestion that they have raised an as-applied challenge, we note that the record demonstrates that the plaintiffs have not qualified as paupers, but have instead received settlement proceeds and, as developed at trial, the plaintiffs have multiple sources of income. They were also afforded a hearing at which they were able to oppose the necessity and the size of the bond (as well as a separate hearing for consideration of the instant constitutional challenge). The record does not otherwise demonstrate, other than a bare assertion, any way in which the application of La.R.S. 13:4522 is an economic hardship or is otherwise violative of the plaintiffs' right of access to the courts as guaranteed by La.Const. art. 1, § 22.[11]

         Similarly, we find no merit in the plaintiffs' suggestion that the analysis in Michel, 218 So.2d 103, is now antiquated. Instead, the supreme court has explained that "the legislature is free to allocate access to the judicial machinery in any system or classification which is not totally arbitrary." Moore v. RLCC Tech., Inc., 95-2621, p. 16 (La. 2/28/96), 668 So.2d 1135, 1144 (quoting Bazley v. Tortorich, 397 So.2d 475, 485 (La.1981)). Finding no indication of such unreasonableness in the limitations attendant to the bond requirement provided by La.R.S. 13:4522, we find no merit to the plaintiffs' constitutional claim.

         Evidentiary Support for the Bond

         The plaintiffs alternatively assert that the defendants failed to demonstrate sufficient need for the $25, 000 bond. They contend that, rather than presenting specific evidence of the necessity of the bond, the defendants relied upon the bare allegations of their motion to set the bond. This type of reliance, the plaintiffs suggest, is insufficient for the type of bond provided by La.R.S. 13:4522.

         In Carter, 337 So.2d at 189, the supreme court examined a trial court's bond order and stated that: "We agree that it is within the discretion of the trial judge to determine whether the showing required may be made by the allegations in the motion, supporting affidavits, the arguments of counsel at the hearing, introduction of evidence, or in any other manner which the trial judge deems appropriate." Under the facts of the case before it, however, the supreme court annulled the order, explaining that:

[W]e feel that the trial judge abused his discretion here in accepting as a showing the allegations in the motion and perhaps argument of counsel. There is no indication in the record that the trial judge exercised his discretion "with the regard for the actual necessity for a bond and for the interest or motive of the party demanding it." (Emphasis added). Whitson v. American Ice Co., 113 So. 849, 851. We are not convinced by the bare pleadings that the defendant needed the testimony of five expert witnesses in order to properly defend his suit. Nor is it clear why the defendant must take the depositions of the three doctors from Alexandria rather than subpoenaing them as witnesses at the trial. We do not mean to suggest that the arguments of counsel may never ...

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