Plaquemines Parish Gov't v. Williams

302 So.3d 123

PLAQUEMINES PARISH GOVERNMENT

v.Byron WILLIAMS, et al.

NO. 2019-CA-0803

Court of Appeal of Louisiana, Fourth Circuit.

JUNE 24, 2020

Michael Lawrence Mullin, Betty Finley Mullin, LAW OFFICE OF MICHAEL L. MULLIN, 401 Whitney Avenue, Suite 205, Gretna, LA 70056, COUNSEL FOR PLAINTIFF/APPELLEE

David S. Daly, Elliot M. Lonker, FRILOT, LLC, 1100 Poydras Street, Suite 3700, New Orleans, LA 70163, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins )

JUDGE SANDRA CABRINA JENKINS

This appeal arises from a judgment imposing sanctions under La. C.C.P. art. 863 against plaintiff/appellant, Robert A. Barnett ("Barnett") and Plaquemines Parish Government ("PPG"), where Barnett was formerly employed as a special parish attorney. The trial court's April 24, 2019 judgment ordered Barnett and PPG to pay attorney's fees in the amount of $27,690.00; costs of $1,248.00; and expenses of $2,099.56, to defendants/appellees Byron V. Williams, Jr. ("Byron, Jr."); Byron V. Williams, Sr. ("Byron, Sr."); Vernon Williams ("Vernon"); Vernon Williams Trucking Service, LLC ("Vernon Trucking"); and Byron and Vernon Enterprises LLC ("B&V Enterprises") (collectively, "Defendants"). For the reasons that follow, we affirm the April 24, 2019 judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On October 26, 2016, PPG filed a "Petition for Damages, Losses and Return of Public Funds" ("Petition") against Bryon, Jr.; Vernon; Vernon Trucking; and B&V Enterprises. PPG's Petition was drafted and signed by attorney Barnett. The allegations were that the Defendants conspired to defraud PPG of public funds by illegally exploiting the position of Byron, Jr. as the PPG Director of Public Service from 2007 through May 2014. The Petition asserts that Byron, Jr., as Director of Public Service, was responsible for monitoring and overseeing PPG's physical facilities, including hiring and firing employees, developing protocols for the selection of PPG venders and contractors, creating bid specifications, and recommending specific venders for particular projects. PPG also alleged that Byron, Jr. personally reviewed, approved, and signed invoices submitted by venders for work performed on PPG properties.

According to the Petition, Byron, Jr. defrauded the public, misused public funds, and breached the public trust by contracting with his own companies, and approving payment of invoices from these companies. Byron, Jr. allegedly directed business to his family-owned companies, Vernon Trucking and B&V Enterprises, and was paid for PPG work while on the payroll of these two companies, which conducted business with PPG from 2007 to 2014. The Petition also alleges the Defendants engaged in payroll fraud and conspiracy.

In the Petition, PPG named Byron, Jr. and his uncle, Vernon, as defendants under the mistaken belief that Vernon was Byron, Jr.'s father. Under the Code of Governmental Ethics:

B. No public servant, except as provided in R.S. 42:1220, shall participate in a transaction involving the government entity in which, to his knowledge, any of the following persons has a substantial economic interest:

(1) Any member of his immediate family.

La. R.S. 1112(B)(1).

The Code of Ethics defines "immediate family" as:

children, the spouses of his children, his brothers and their spouses, his sisters and their spouses, his parents, his spouse, and the parents of his spouses.

La. R.S. 1102(13).

After the Petition was filed, counsel for Defendants immediately pointed out to Barnett that Vernon was Byron, Jr.'s uncle, not his father, and that the Code of Ethics did not prohibit their business dealings. Defendants demanded that the case be dismissed or sanctions would be sought pursuant to La. C.C.P. art. 863. Rather than dismissing the lawsuit, however, Barnett signed and filed a "Supplemental and Amending Petition for Damages, Losses and Return of Public Funds" ("Supplemental Petition") on November 3, 2016, naming Byron, Jr.'s father, Byron, Sr., as a party defendant. In the Supplemental Petition, PGG alleged a criminal conspiracy involving Byron, Jr., his father Byron, Sr., and his uncle Vernon, as well as two limited liability companies, Vernon Trucking and B&V Enterprises.

On March 6, 2018, Defendants filed a Motion for Summary Judgment and For Sanctions Pursuant to La. C.C.P. Art. 863 ("Motion for Summary Judgment"). On that date, defendants also filed a Motion to Continue and Re-Set Hearing on Motion for Sanctions, which the trial court granted.¹

The trial court held a hearing on defendants' Motion for Summary Judgment on June 7, 2018, and on June 18, 2018 the trial court granted defendants' motion, and dismissed PPG's claims, with prejudice. PPG appealed the June 18, 2018 judgment to this Court, which affirmed, concluding that PPG failed to provide evidentiary support for its contention that Byron, Jr. violated La. R.S. 42:1111(A)² by receiving money while he was serving as public works director, as a result of the invoices paid to his family-owned businesses. Further, the Court found that PPG provided no evidence of any economic benefit Byron, Jr., improperly received during his tenure as public works director. See Plaquemines Parish Govt. v. Williams , 18-0675 (La. App. 4 Cir. 12/19/18), 262 So.3d 1080.

On January 9, 2019, Defendants filed an Amended Motion for Sanctions, in which they requested an award of additional fees and costs accrued since the filing of the original Motion for Sanctions.

The trial court held a hearing on Defendants' Amended Motion for Sanctions on April 4, 2019. On April 24, 2019, the trial court signed a judgment granting Defendants’ motion and ordering Barnett and PPG to pay Defendants’ attorney's fees of $27,690.00; costs of $1,248.00; and expenses of $2,099.56.³

Barnett filed a timely suspensive appeal.⁴

After oral argument was held, this Court entered an order remanding the case for the sole purpose of compliance with La. C.C.P. art. 863(G), which directs the trial court to "describe the conduct determined to constitute a violation of the provisions of this Article and explain the basis for the sanction imposed." On January 17, 2020, the trial court issued its "Basis for Sanctions Under La. C.C.P. Art. 863(G)" ("Basis for Sanctions"). On February 12, 2020, Barnett filed a supplemental brief responding to the trial court's Basis for Sanctions. On February 26, 2020, Defendants filed their own supplemental brief.

DISCUSSION

Standard of Review

"On appeal, this Court reviews a trial court's findings of a violation of LSA-C.C.P. art. 863 to determine whether the record furnishes no evidence to support the finding, or the finding is clearly wrong." John W. Fisk Co. v. Michel , 97-2105 p. 2 (La. App. 4 Cir. 3/25/98), 709 So.2d 1061, 1063 (citing Borne v. New Orleans Health Care, Inc ., 616 So.2d 236, 239 (La. App. 4 Cir. 1993), writ denied , 623 So.2d 1332 (La. 1993) ). "After a court determines that a violation of LSA-C.C.P. art. 863 occurred, it has considerable discretion imposing the type and severity of sanctions." Id .

Sanctions Pursuant to La. C.C.P. art. 863

La. C.C.P. art. 863 provides, in pertinent part:

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; 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.

(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

* * * * * * *

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 or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney's fee.

" Article 863 requires the attorney or litigant to make an objectively reasonable inquiry prior to signing the pleadings." Fisk , 97-2105, p. 3, 709 So.2d at 1064. "Subjective good faith does not satisfy the duty of reasonable inquiry." Id. " Article 863 is intended only for exceptional circumstances and is not to be used simply because the parties disagree as to the correct resolution of a legal matter." England v. England , 16-0936, 16-1229, p. 9 (La. App. 4 Cir. 6/28/17), 223 So.3d 582, 589. "The duties are personal and non-delegable." Fisk , 97-2105, p. 3, 709 So.2d at 1064. "The signing attorney must satisfy himself, by application of his own judgment, that the pleading is factually and legally responsible." Id .

Assignment of Error

Barnett has a single assignment of error⁵ :

Whether the trial court erred as a matter of law in finding Barnett's conduct in filing the lawsuit and continuing to prosecute it as not having the slightest justification and not being objectively reasonable , when the acts were done pursuant to Parish Resolutions, not only authorizing the investigation into appellees, but also authorizing the filing of the instant lawsuit, and the continuation of that

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