Elysian, Inc. and Cusachs Family Collection, L.L.C. v. Neal Auction Company, Inc., Philip B. Alford, John J. Booth, Celeste W. Lingle, and John Doe Insurance Company

ELYSIAN, INC. AND * NO. 2020-CA-0674
CUSACHS FAMILY
COLLECTION, L.L.C. *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
NEAL AUCTION COMPANY, *
INC., PHILIP B. ALFORD, STATE OF LOUISIANA
JOHN J. BOOTH, CELESTE W. *******
LINGLE, AND JOHN DOE
INSURANCE COMPANY

CONSOLIDATED WITH: CONSOLIDATED WITH:

ELYSIAN, INC. AND CUSACHS NO. 2020-CA-0675
FAMILY COLLECTION, L.L.C.

VERSUS

NEAL AUCTION COMPANY,
INC., PHILIP B. ALFORD, JOHN J.
BOOTH, CELESTE W. LINGLE,
AND JOHN DOE INSURANCE
COMPANY

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2017-10398, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Joy Cossich Lobrano
******
(Court composed of Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge
Paula A. Brown)

BROWN, J., CONCURS IN THE RESULT

Isaac H. Ryan
DEUTSCH KERRIGAN, L.L.P
755 Magazine Street
New Orleans, LA 70130

COUNSEL FOR PLAINTIFFS/APPELLANTS

David Lingle
3948 3rd Street, #268
Jacksonville Beach, FL 32250

DEFENDANT-IN-RECONVENTION/APPELLANT, IN PROPER
PERSON

Mary Ellen Roy
Dan Brian Zimmerman
Sarah M. Smith-Clevenger
PHELPS DUNBAR LLP
365 Canal Street, Suite 2000
New Orleans, LA 70130-6534

COUNSEL FOR DEFENDANTS/APPELLEES

SANCTIONS JUDGMENTS AFFIRMED;
APPEALS DISMISSED IN PART;
ANSWER TO APPEAL STRICKEN

JULY 21, 2021

JCL Appellants, Elysian, Inc. (“Elysian”), Cusachs Family Collection, L.L.C.
RLB
(“Cusachs”) (together, “Sellers”), and David Lingle (“Lingle”) (collectively with

Sellers, “Appellants”), purport to appeal two judgments imposing sanctions under

La. C.C.P. art. 863 against Sellers (“sanctions judgments”), along with fifteen

interlocutory judgments, consisting of denials of motions for partial summary

judgment and special motions to strike filed on behalf of Sellers and/or Lingle and

the partial granting of a motion for partial summary judgment filed on behalf of

Appellees, Neal Auction Company, Inc. and Philip B. Alford (“interlocutory

judgments”). For the reasons that follow, we dismiss the appeals as to the

interlocutory judgments and affirm both sanctions judgments. We strike

Appellants’ answer to appeal.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

The case concerns the sale of items contained in an art collection that was on

display at the Louisiana State Museum for over a century. The Gaspar Cusachs

Collection (the “Collection”) is a large group of historical artifacts originally

assembled and owned by Gaspar Cusachs (1855-1929). Sellers equally shared

ownership of the Collection. In February 2016, Sellers entered into an agreement

1

with Neal Auction Company, Inc. and Philip B. Alford, president and senior

auctioneer (hereinafter “Neal”), Appellees, to sell the Collection.

On October 27, 2017, Sellers filed the instant lawsuit against Neal and

additional defendants, raising various claims stemming from Sellers’

dissatisfaction with the auction results. The early procedural history of this

litigation is set forth in this Court’s prior opinion. See Elysian, Inc. v. Neal Auction

Co., 18-0683 (La. App. 4 Cir. 3/20/19), 267 So.3d 143. Following the prior appeal

of this matter, Sellers filed four amended petitions.

Sellers filed their Fourth Amended Petition on October 14, 2019. The Fourth

Amended Petition alleged eleven separate causes of action, including, inter alia,

breach of contract, redhibition, conspiracy, conversion, fraud, breach of fiduciary

duty, violation of False Advertising Law, violation of auction law and rules,

violation of Unfair Trade Practices Act, and negligence. In November 2019, Neal

filed an answer to the Fourth Amended Petition and a reconventional demand

asserting claims against Sellers for breach of contract, misrepresentations and

omissions, and violation of the Unfair Trade Practices Act, and against both Sellers

and Lingle for defamation and abuse of process.

Sellers and Lingle each filed an answer to Neal’s reconventional demand on

January 10 and 15, 2020, respectively. Lingle’s answer included a reconventional

demand against Neal asserting an abuse of process claim.

On January 10 and 15, 2020, Sellers and Lingle, respectively, filed a special

motion to strike Neal’s defamation claim. On January 15, 2020, Sellers filed a

motion for partial summary judgment on their breach of contract claim and on

Neal’s claims for breach of contract and misrepresentations and omissions. On

January 21, 2020, Sellers filed a motion for partial summary judgment on their

2

conspiracy to commit abuse of process claim and on Neal’s abuse of process claim.

By seven separate judgments signed on February 21, 2020, the district court denied

the special motions to strike and motions for partial summary judgment.

Sellers and Lingle sought supervisory review of the February 21, 2020

judgments denying their special motions to strike, denying Sellers’ motion for

partial summary judgment on Sellers’ claim for conspiracy to commit abuse of

process, and denying Sellers’ motion for partial summary judgment on Neal’s

claim for abuse of process. This Court denied the application for supervisory writs

on May 29, 2020. See Elysian, Inc. v. Neal Auction Co., unpub., 20-0190 (La. App.

4 Cir. 5/29/20).

On March 10, 2020, Sellers filed a motion for partial summary judgment on

their breach of contract claim and on Sellers’ claims for breach of contract and

misrepresentations and omissions. This motion sought summary judgment on the

identical claims as Sellers’ previously denied January 15, 2020 motion for partial

summary judgment. Neal filed a motion for sanctions for Sellers’ filing of the

repetitive motions for partial summary judgment. By three judgments signed on

May 28, 2020, the district court denied the motion for partial summary judgment.

By separate judgment signed on the same date, the court denied Neal’s request for

sanctions, although the court noted at the motions hearing that it was a “close call,

particularly considering the time frame of how closely [Sellers’ two motions for

partial summary judgment on claims for breach of contract and misrepresentations

and omissions] were filed after one another.”

On June 3, 2020, Sellers and Lingle filed a motion for partial summary

judgment on Neal’s abuse of process claim. On June 4, 2020, Sellers filed a motion

for partial summary judgment on their conversion claim. On June 5, 2020, Sellers

3

and Lingle filed a motion for partial summary judgment on “Booth’s letter”1

(which document relates to the parties’ breach of contract claims against one

another). On July 9, 2020, Neal filed a motion for Article 863 sanctions against

Sellers.2 By three judgments signed on July 24, 2020, the district court denied the

motions for partial summary judgment. By separate judgment of the same date, the

district court granted Neal’s motion for sanctions and imposed monetary sanctions

against Sellers in the amount of $500.

Appellants filed a motion for devolutive appeal on September 30, 2020

“based on their rights to an appeal, which are grounded in the final judgment

rendered on July 24, 2020.” Appellants filed a motion to designate record on

appeal on October 5, 2020, which included a “statement of the points for review.”

The “statement of the points for review” averred that the district court “erred in its

1
In August 2016, John Booth, Jr. (“Booth”), Appellee, sent a letter to Neal asserting an interest
to the Collection on behalf of himself, Celeste Lingle, Appellee, and the other great
grandchildren of Gaspar Cusachs. In the letter, Booth requested a meeting to inspect and take
photographs of items contained in the Collection and threatened, if he did not receive a response
within ten days, to “do what the law allows stopping the auction of the Cusachs Collection.”
2
La. C.C.P. art. 863 provides in pertinent part:

B. [T]he 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.

4

judgments” relating, inter alia, to the February 21, 2020, May 28, 2020, and July

24, 2020 judgments denying Appellants’ special motions to strike and motions for

partial summary judgment, indicating that Appellants are seeking appellate review

of these interlocutory judgments.3 The prayer for relief contained at the end of the

appellate brief filed by Appellants prays, inter alia, that this Court reverse the

February 21, 2020, May 28, 2020, and July 24, 2020 interlocutory judgments.

On July 28, 2020, Sellers filed a motion for partial summary judgment on

their claims for breach of fiduciary duty, false advertising, rescission, redhibition,

violation of auction law, and violation of LUTPA. Neal filed a motion for Article

863 sanctions on September 24, 2020. On August 11, 2020, Neal filed a motion for

partial summary judgment on Sellers’ claims of redhibition, conspiracy,

conversion, violation of false advertising law, and violation of auction law and

rules.

By judgments signed on October 19, 2020, the district court denied Sellers’

motion for partial summary judgment filed on July 28, 2020 and granted Neal’s

motion for partial summary judgment on Sellers’ claims of redhibition, conspiracy,

violation of false advertising law, and violation of auction law and rules and denied

Neal’s motion for partial summary judgment on Sellers’ conversion claim. By

3
The “statement of the points for review” further averred that the district court “erred in its
judgments” relating to the court’s anticipated ruling at the hearing set on October 9, 2020 on the
motions for partial summary judgment filed by Sellers and Neal and the motion for Article 863
sanctions filed by Neal. A party may not appeal a future, anticipated judgment on a matter the
trial court has not yet heard and decided. See La. C.C.P. arts. 1974 and 2087 (which provide that
the time for taking an appeal commences to run on the day after the clerk has mailed, or the
sheriff has served, the notice of judgment); La. C.C.P. art. 1911 (which requires that “every final
judgment . . . be signed by the judge,” and provides that “no appeal may be taken from a final
judgment until the requirement of this Article has been fulfilled”). See also Wynne v. Parlay’s,
Inc., 97-1170, pp. 2, 3 (La. App. 4 Cir. 11/5/97), 701 So.2d 1369, 1370 (“[T]he absence of a
signed judgment is fatal to [an] appeal and mandates dismissal of [the] appeal as premature.”
“Since there is no signed judgment the appeal must be dismissed as premature.”); State v.
Dennis, 14-1258, p. 4 n. 3 (La. App. 4 Cir. 4/29/15), 165 So.3d 1124, 1127 (“[T]he fact that there
is no written and signed final judgment here is an independent basis to dismiss [the instant]
appeal.”) (citing Wynne, 97-1170, p. 2, 701 So.2d at 1370).

5

judgment of the same date, the court granted Neal’s motion for Article 863

sanctions and ordered that “all parties are prohibited from filing any additional

motions for summary judgment or partial summary judgment.”

On November 2, 2020, Sellers and Lingle filed a second motion for

devolutive appeal “based on their rights to an appeal of the final judgment signed

on October 19, 2020 and all interlocutory rulings prejudicial to them,” along with a

motion to designate record on appeal. The “statement of the points for review”

contained in the motion to designate record averred that the district court “erred in

its judgments” relating, inter alia, to the February 21, 2020, May 28, 2020, July 24,

2020, and October 19, 2020 interlocutory judgments, indicating that Appellees are

seeking appellate review of these interlocutory judgments. The prayer for relief

contained at the end of the appellate brief filed by Appellants prays, inter alia, that

this Court reverse the February 21, 2020, May 28, 2020, July 24, 2020, and

October 19, 2020 interlocutory judgments.

Appellants filed a motion to consolidate the two appeals on January 4, 2021.

On January 6, 2021, this Court granted the motion and consolidated the appeal

docketed as 2020-CA-0675 with 2020-CA-0674. Appellants filed an answer to

appeal on January 11, 2021.

ASSIGNMENT OF ERRORS

Appellees assert that the district court erred in denying the special motions

to strike and motions for partial summary judgment filed on their behalf and in

partially granting the motion for partial summary judgment filed on behalf of Neal.

Appellees further assert that the district court erred in granting Neal’s motions for

Article 863 sanctions and imposing monetary sanctions against Sellers and

6

prohibiting the parties from filing any additional motions for summary judgment or

partial summary judgment.

LEGAL DISCUSSION

Motion to Dismiss Appeal

Neal filed a motion to dismiss appeal of interlocutory judgments in each of

the appeals. Neal argues that the July 24, 2020 and October 19, 2020 judgments

imposing Article 863 sanctions are the only judgments subject to appeal and that,

therefore, the appeals of the adverse rulings on the special motions to strike and

motions for partial summary judgment, which are interlocutory judgments not

subject to appeal, should be dismissed. Neal further argues that since sanctions

were not imposed against Lingle in the July 24, 2020 sanctions judgment, Lingle

has no “justiciable interest” in the appeal of the July 24, 2020 sanctions judgment,

and therefore, his appeal as to that judgment should be dismissed. We agree.4

Judgments are either interlocutory or final. La. C.C.P. art. 1841. “A

judgment that does not determine the merits but only preliminary matters in the

course of the action is an interlocutory judgment. A judgment that determines the

merits in whole or in part is a final judgment.” Id. “A final judgment is appealable

in all causes in which appeals are given by law,” while “[a]n interlocutory

judgment is appealable only when expressly provided by law.” La. C.C.P. art.

2083. The Code of Civil Procedure expressly provides that a judgment denying a

motion for summary judgment is not appealable. See La. C.C.P. art. 968 (“An

appeal does not lie from the court’s refusal to render . . . summary judgment.)” See
4
Neal further argues that Lingle does not have a justiciable interest in the appeal of any of the
interlocutory judgments on motions in which he was not a party. Because we agree with Neal’s
argument that only the sanctions judgments are immediately appealable and dismiss both appeals
as to all of the interlocutory judgments, thereby leaving the October 19, 2020 sanctions judgment
as the only judgment properly appealed from by Lingle, we pretermit discussion of Lingle’s right
to appeal the interlocutory judgments on motions in which he was not a party.

7

also Barber v. Russell, 08-1366, pp. 1-2 (La. App. 4 Cir. 4/1/09), 9 So.3d 1033,

1034.

Louisiana Code of Civil Procedure article 1915 authorizes the immediate

appeal of certain “final” partial judgments:

A. A final judgment may be rendered and signed by the
court, even though it may not grant the successful party
or parties all of the relief prayed for, or may not
adjudicate all of the issues in the case, when the court:
***
(6) Imposes sanctions or disciplinary action pursuant to
Article 191, 863, or 864 or Code of Evidence Article
510(G).

B. (1) When a court renders a partial judgment or partial
summary judgment or sustains an exception in part, as to
one or more but less than all of the claims, demands,
issues, or theories against a party, whether in an original
demand, reconventional demand, cross-claim, third-party
claim, or intervention, the judgment shall not constitute a
final judgment unless it is designated as a final judgment
by the court after an express determination that there is
no just reason for delay.

(2) In the absence of such a determination and
designation, any such order or decision shall not
constitute a final judgment for the purpose of an
immediate appeal and may be revised at any time prior to
rendition of the judgment adjudicating all the claims and
the rights and liabilities of all the parties.

In this matter, the February 21, 2020, May 28, 2020, July 24, 2020, and

October 19, 2020 judgments denying Appellees’ special motions to strike and

motions for partial summary judgment and the October 19, 2020 judgment

granting in part and denying in part Neal’s motion for partial summary judgment

are non-appealable, interlocutory judgments. None of these judgments were

designated as a final judgment by the district court pursuant to La. C.C.P. art.

1915(B)(1), and the judgments are therefore not subject to immediate appeal. The

only judgments that are immediately appealable are the July 24, 2020 and October

8

19, 2020 sanctions judgments. See Trahant v. Perez, 02-1414, p. 8 (La. App. 4 Cir.

3/19/03), 843 So.2d 479, 484 (“The Louisiana Code of Civil Procedure article

1915(A)(6) now permits the appeal of a judgment that imposes sanctions or

disciplinary action pursuant to La. C.C.P. article 191, 863, or 864.”).

It is well-settled that although an interlocutory judgment may not itself be

immediately appealable, it is nevertheless subject to review by an appellate court

when a judgment is rendered in the case which is appealable. People of the Living

God v. Chantilly Corp., 251 La. 943, 947-48, 207 So.2d 752, 753 (1968); see also,

e.g., Phillips v. Gibbs, 10-0175, p. 4 (La. App. 4 Cir. 5/21/10), 39 So.3d 795, 798.

“When an unrestricted appeal is taken from a final judgment, the appellant is

entitled to seek review of all adverse interlocutory rulings prejudicial to him, in

addition to the review of the final judgment.” Wimsatt v. City of New Orleans, 19-

0461, p. 7, n. 6 (La. App. 4 Cir. 12/20/19), 286 So.3d 1217, 1223 (quoting Favrot

v. Favrot, 10-0986, p. 2 n. 1 (La. App. 4 Cir. 2/9/11), 68 So.3d 1099, 1102); see

also Roger A. Stetter, Louisiana Civil Appellate Procedure, § 3:36 (Sept. 2020

Update) (observing that “[i]n most instances, when an unrestricted appeal is taken

from a final judgment, the appellant is entitled to seek review of all adverse

interlocutory judgments prejudicial to her, in addition to the review of the final

judgment”).

In Trahant v. Perez, 02-1414, 843 So.2d 479, the defendant appealed the

judgment of the district court finding him in contempt of court and imposing

sanctions against him. The defendant filed an exception of no cause of action in the

appellate court. The Court found that it lacked jurisdiction to consider the

exception and dismissed it. The Court addressed the appealability of the district

court’s denial of the defendant’s exception of no cause of action as follows:

9

Nevertheless, the defendant’s exception of no cause of
action goes to the merits of this case. The trial court’s
denial of the defendant’s exception of no cause of action
is an interlocutory judgment. “Generally speaking, there
is no appeal from a judgment overruling exceptions
because such a judgment is simply interlocutory in
nature.” Allied Nav. Co. v. International Org. of Masters,
Mates & Pilots, 272 So.2d 23, 25 (La.App. 4 Cir.1973).
And although the jurisprudence “allows appeals from
otherwise unappealable interlocutory judgments when
they form part of an unrestricted appeal from a final
judgment in the cause,” Walters v. Canal Motors,
Inc., 240 So.2d 101, 103 (La.App. 4 Cir.1970), this
appeal is not “an unrestricted appeal” but rather an appeal
restricted by La. C.C.P. art. 1915(A)(6) to the March 11,
2002 Judgment which, unlike the February 28, 2001
Judgment on Exceptions, imposes sanctions or
disciplinary action pursuant to Article 191, 863, or 864.
For this reason, Longenecker can validly appeal the
Judgment which found him in contempt of court, but has
no right as of yet to appeal the interlocutory judgment on
the exception of no cause of action.

Id., 02-1414, pp. 8-9, 843 So.2d at 484. See also Sellers v. El Paso Indus. Energy,

L.P., 08-403, pp. 15-16 (La. App. 5 Cir. 2/10/09), 8 So.3d 723, 731-32 (following

Trahant).5

Similarly here, the appeal of each of the sanctions judgments “is not ‘an

unrestricted appeal’ but rather an appeal restricted by La. C.C.P. art. 1915(A)(6).”

5
Notably, the First Circuit has held that a court may address interlocutory issues on appeal if
they are “related” or “identical” to or “the same” as the issues raised in the restricted appeal.
Carrollton Presbyterian Church v. Presbytery of South Louisiana of Presbyterian Church (USA),
11-0205, pp. 5-6 (La. App. 1 Cir. 9/14/11), 77 So. 3d 975, 979; Dean v. Griffin Crane & Steel,
Inc., 05-1226, p. 4 n. 3 (La. App. 1 Cir. 5/5/06), 935 So.2d 186, 189. In Hood v. Cotter, 06-1390,
pp. 4-5 (La. App. 1 Cir. 12/28/07), 978 So.2d 988, 992, the First Circuit allowed the review on
appeal of an interlocutory issue “directly related” to the issue raised in the restrictive appeal. The
Louisiana Supreme Court found that “court of appeal did not improperly reach the
[interlocutory] issue [] because it could have chosen to consider this interlocutory ruling under its
supervisory jurisdiction.” Hood v. Cotter, 08-0215, p. 8 (La. 12/2/08), 5 So.3d 819, 824 (citation
omitted). Nevertheless, the issues concerning the merits of the interlocutory judgments are
numerous and distinct from the sanctions issues in this restricted appeal.

10

Trahant, 02-1414, p. 9, 843 So.2d at 484. Accordingly, Appellants may not appeal

any of the interlocutory judgments.6

We next address Lingle’s right to appeal the July 24, 2020 judgment

imposing sanctions against Sellers.

“Appeal is the exercise of the right of a party to have a judgment of a trial

court revised, modified, set aside, or reversed by an appellate court.” La. C.C.P.

art. 2082. “The sole object of an appeal is to give an aggrieved party to a suit

recourse to a superior tribunal for the correction of a judgment of an inferior

court…” Emmons v. Agricultural Insurance Company, 245 La. 411, 425, 158

So.2d 594, 599 (1963). Any party, or person who could have intervened in the trial

court, who is aggrieved by a trial court judgment has the right to appeal that

judgment unless he has acquiesced therein, or is otherwise deprived of that

remedy. La. C.C.P. arts. 2085 and 2086. A person need not have a judgment

directly against him in order to appeal that judgment. Brock v. Tidewater

Construction Company, 318 So.2d 100, 102 (La. App. 3rd Cir. 1975).

Louisiana jurisprudence is consistent in holding that where a party is

“aggrieved” by a judgment he has a right to appeal and that this rule applies even

where the party appealing “may be” aggrieved and does not have any direct

pecuniary interest in the judgment appealed from. Bossier Bank & Trust Co. v.

Fryar, 488 So.2d 428, 433 (La. App. 3rd Cir. 1986); Andrade v. Shiers, 516 So.2d

1192, 1193 (La. App. 2nd Cir. 1987); Brock, 318 So.2d at 102. However, this

Court has held that that a party has no right to appeal where “he cannot benefit by

any reversal or change in the judgment from which he appeals.”

6
For the reasons explained more fully below, we decline to exercise our discretion to convert the
appeals of the interlocutory judgments to supervisory writs.

11

Werhan v. Helis, 147 So.2d 260, 263 (La. App. 4th Cir. 1962) (citations omitted);

see also Greater Rose Hill Baptist Church v. Roberts, 10-1594, p. 6 (La. App. 4

Cir. 6/1/11), 71 So.3d 968, 972.

In Sanders v. Gore, 95-660, p. 16 (La. App. 3 Cir. 7/10/96), 676 So.2d 866,

875, the court held that “[a party] has no interest in the sanctions imposed on [the

party’s attorney] and that [the party] has no right to appeal the [sanctions

judgment]. The right to appeal the sanctions is personal to [the party’s attorney]

and to no other.” See also In re Succession of Williams, unpub., 08-2156 (La. App.

1 Cir. 6/19/09), 2009 WL 1719353, *2. We find Sanders v. Gore persuasive

authority in the present matter.

Lingle asserts that he “is the incorporator of Elysian, still has [sic] direct

legal interest in it, and also serves as its officer.” He alleges that “[t]he $500

sanctions paid to Appellees, as a result of the July 24 judgment, partially belonged

to [him],” although there is no evidence of Lingle’s payment of any part of the

sanctions judgment in the appellate record.

A corporation is a separate entity from its shareholders, and a Louisiana

limited liability company is a separate legal entity from its members. La. C.C. art.

24; La. R.S. 12:1304; Metro Riverboat Associates, Inc. v. Bally’s Louisiana

Inc., 99-0983, p. 6 (La. App. 4 Cir. 1/24/01), 779 So.2d 122, 125. Under Louisiana

law, shareholders and officers of a corporation generally do not have a personal

right of action against third parties to recover for acts committed against or causing

damage to the corporation. Joe Conte Toyota, Inc. v. Toyota Motor Sales, USA,

Inc., 689 So.2d 650, 654 (La. App. 4th Cir. 1997) (citing Bolanos v. Madary, 609

So.2d 972, 977 (La. App. 4th Cir.1992)). See also UniDev, L.L.C. v. Housing

Authority of New Orleans, No. 05-2649 (E.D. La. April 2, 2008), 2008 WL

12

906308, *7 (applying rule to members of a limited liability company). This same

rule applies even where one person is the sole shareholder. Glod v. Baker, 02-988,

p. 13 (La. App. 3 Cir. 8/6/03), 851 So.2d 1255, 1265 (applying rule to limited

liability company) (citing Mente & Co. v. Louisiana State Rice Milling Co., 176

La. 476, 480, 146 So.28, 29 (1933)). To the extent that any personal right of action

does exist, it must be grounded on injury that is “unique” or “special” to the

shareholder. Paul Piazza & Son, Inc. v. Piazza, 11-548, pp. 6-7 (La. App. 5 Cir.

12/28/11), 83 So.3d 1066, 1070) (citing St. Bernard Optical Corp. v.

Schoenberger, 05-0548, p. 6 (La. App. 4 Cir. 1/25/06), 925 So.2d 604, 608).

Where the alleged loss to the individual shareholder is the same loss that would be

suffered by other shareholders, the loss is considered to be indirect and is not

actionable individually. Sun Drilling Prod. Corp. v. Rayborn, 00-1884, p. 18 (La.

App. 4 Cir. 10/3/01), 798 So.2d 1141, 1154. But where the shareholder and not the

corporation suffers the loss, the loss is considered to be direct and the shareholder

may have the right to sue individually. Id. Even where the shareholder has

personally guaranteed the corporation’s debts, he cannot sue individually for the

damage to the corporation. See Joe Conte Toyota, 689 So.2d at 654.

Here, the July 24, 2020 sanctions judgment imposed monetary sanctions

against Elysian and Cusachs only; sanctions were not levied against Lingle. Thus,

Lingle has no justiciable interest in the appeal of that judgment. For this reason, we

dismiss Lingle’s appeal of the July 24, 2020 sanctions judgment.

Conversion of Appeal to Writ Application

“A court of appeal has plenary power to exercise supervisory jurisdiction

over district courts and may do so at any time, according to the discretion of the

court.” Favrot, 10-0986, p. 5, 68 So.3d at 1104 (quoting Herlitz Constr. Co., Inc.

13

v. Hotel Investors of New Iberia, Inc., 396 So.2d 878, 878 (La. 1981)). Thus, we

have the discretion to consider the interlocutory judgments under our supervisory

authority. Id., 10-0986, pp. 5-6, 68 So.3d at 1104. “Because the proper procedural

vehicle for seeking review of an interlocutory judgment is ordinarily by application

for supervisory review, we can – when appropriate – convert the improper appeal

to such an application.” Succession of Scheuermann, 15-0040, p. 13 (La. App. 4

Cir. 5/22/15, 171 So.3d 975, 983 (internal footnote omitted).

One important criterion that we use in guiding our discretion is whether or

not exercising our supervisory jurisdiction is dictated under the factors set forth

in Herlitz.7 Scheuermann, 15-0040, p. 13, 171 So.3d at 983. The primary

consideration under Herlitz is whether review and decision by this Court would

result in a final disposition of all issues in this case. Scheuermann, 15-0040, p. 14,

171 So.3d at 983. The granting of a writ application and reversal of the

interlocutory judgments would not terminate the litigation at this time.

Additionally, with one exception, the motions for devolutive appeal were

filed beyond the thirty-day period applicable to supervisory writs as set forth

in Rule 4-3 of the Uniform Rules of Court.8 The only interlocutory judgment for

which an appeal was taken within the thirty-day period set forth in Rule 4-3 is the

October 19, 2020 judgment on the parties’ motions for partial summary judgment.

“[W]e [exercise our discretion to convert the appeal of an interlocutory judgment

into an application for supervisory writ] only when the motion for appeal has been

filed within the thirty-day time period allowed for the filing of an application for
7
Under Herlitz, the appellate court should review the merits of an application for supervisory
writs when: (1) there is no dispute of material fact; (2) the ruling of the trial court appears
incorrect; and (3) a reversal would terminate the litigation. Whitney Nat’l Bank v. Rockwell, 94-
3049, p. 6 n. 3 (La. 10/16/95), 661 So.2d 1325, 1329 n. 3.
8
Rule 4-3 provides that “[t]he return date in civil cases [for an application for writs] shall not
exceed 30 days from the date of the notice, as provided in La. C.C.P. Art. 1914.”

14

supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.”

Delahoussaye v. Tulane Univ. Hosp. & Clinic, 12-0906, p. 5 (La. App. 4 Cir.

2/20/13), 155 So.3d 560, 563.

Therefore, under these circumstances, we decline to exercise our discretion

to convert the appeals of the interlocutory judgments to supervisory writs.

Sanctions Judgments

In January 2020, Appellants filed two special motions to strike and two

motions for partial summary judgment. The first motion for partial summary

judgment was filed by Sellers on January 15, 2020 and sought judgment on

Sellers’ claims for breach of contract and Neal’s claims for breach of contract and

misrepresentations and omissions. The second motion for partial summary

judgment was filed by Sellers on January 21, 2020 and sought judgment on

Sellers’ conspiracy to commit abuse of process claim and Neal’s abuse of process

claim. The four motions were denied by judgments signed on February 21, 2020.

Sellers timely sought supervisory review of the district court’s judgment denying

their motion for partial summary judgment on conspiracy/abuse of process claims.

The writ was denied on May 29, 2020. See Elysian, Inc. v. Neal Auction Co.,

unpub., 20-0190 (La. App. 4 Cir. 5/29/20).

On March 10, 2020, Sellers filed a motion for partial summary judgment on

their claims for breach of contract and misrepresentations and omissions, the same

claims as its motion for partial summary judgment filed on January 15, 2020. The

district court denied this motion for partial summary by judgments signed on May

28, 2020. Neal sought sanctions under Article 863 based on the repetitive nature of

the two motions for partial summary judgment. By judgment dated May 28, 2020,

15

the court denied Neal’s request for sanctions, noting that its decision was a “close

call.”

On June 3, 2020, just five days after this Court denied Sellers’ writ

application, Sellers and Lingle filed another motion for partial summary judgment

on Neal’s abuse of process claim, which claim had been a part of the subject matter

of the writ application. On June 4, 2020, Sellers filed a motion for partial summary

judgment on their conversion claim. On June 5, 2020, Sellers and Lingle filed a

motion for partial summary judgment on “Booth’s letter,” which relates to the

parties’ breach of contract claims against one another. By judgments signed on

July 24, 2020, the district court denied the motions for partial summary judgment

filed on June 3-5, 2020. The district court imposed sanctions against Sellers in the

amount of $500 for filing repetitive motions, noting: “[T]he persistence in filing

things when I’ve already ruled on the exact same issue is very troubling to me. I

mean, writs were denied and yet here we are back again.” The court warned that

further sanctions could be issued again if this behavior persisted and repeatedly

stated that it was time for the case to go to trial.

On July 28, 2020, Sellers filed a motion for partial summary judgment on

their claims of breach of fiduciary duty, false advertising, rescission, redhibition,

violation of auction law, and violation of LUTPA. On August 11, 2020, Neal filed

a motion for partial summary judgment on Sellers’ claims of redhibition,

conspiracy, conversion, violation of false advertising law, and violation of auction

law and rules. By judgments signed on October 19, 2020, the district court denied

Sellers’ motion for partial summary judgment and granted in part and denied in

part Neal’s motion for partial summary judgment. By judgment of the same date,

the court granted Neal’s motion for Article 863 sanctions and ordered that “all

16

parties are prohibited from filing any additional motions for summary judgment or

partial summary judgment.”

We review the imposition of sanctions pursuant to an abuse of discretion

standard. See Show & Tell of New Orleans, L.L.C. v. Fellowship Missionary

Baptist Church, 14-0843, pp. 7-8 (La. App. 4 Cir. 12/17/14), 156 So.3d 1234, 1239

(citing Raspanti v. Litchfield, 05-1512, p. 10 (La. App. 4 Cir. 11/21/06), 946 So.2d

234, 241). A trial court is vested with inherent power to maintain control of

its docket and in case management. Gorbach v. Tulane Univ. Med. Ctr., 11-1575,

p. 4 (La. App. 4 Cir. 4/11/12), 89 So.3d 429, 432 (citing Boykins v. Boykins, 04-

0999, p. 5 (La. App. 4 Cir. 4/24/07), 958 So.2d 70, 74); Show & Tell of New

Orleans, 14-0843, p. 3, 156 So.3d at 1237. A trial court’s decision in such matters

is to be set aside by an appellate court only when there has been an abuse of the

trial court’s discretion. Gorbach, 11-1575, pp. 4-5, 89 So.3d at 432 (citing Beteta

v. City of New Orleans, 06-0972, pp. 4-5 (La. App. 4 Cir. 1/10/07), 950 So.2d 862,

865). Appellate courts interfere in a trial court’s decision in such matters “only

with reluctance and in extreme cases.” Brice Bldg. Co. v. Southland Steel

Fabricators, Inc., 15-1110, p. 6 (La. App. 4 Cir. 6/17/16), 194 So.3d 1285, 1290

(quoting Brice Bldg. Co. v. Southland Steel Fabricators, Inc., 2015-1110, p. 6 (La.

App. 4 Cir. 6/17/16), 194 So.3d 1285, 1290).

La. C.C.P. art. 863(B) authorizes sanctions for an attorney’s false

certification of a pleading.

B. [T]he 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:

17

(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.

If the court determines that an attorney violated art. 863, the court “shall impose”

an appropriate sanction “upon the person who made the certification or the

represented party, or both.” La. C.C.P. art. 863(D).

Art. 863 thus imposes a duty of reasonable inquiry on a party signing

pleadings. Art. 863 imposes a duty to make an objective inquiry into the facts and

law; hence, “[s]ubjective good faith will not satisfy the duty of reasonable

inquiry.” Loyola v. A Touch of Class Transp. Serv., Inc., 580 So.2d 506, 509-10

(La. App. 4th Cir. 1991) (citation omitted).

In Mendonca v. Tidewater, Inc., we held that “repetitive and duplicitous

actions constitute an abuse of the judicial system and warrant the imposition of

Article 863 sanctions.” Id., 11-0318, p. 9 (La. App. 4 Cir. 9/7/11), 73 So.3d 407,

414 (internal quotations marks omitted) (quoting Zeno v. Flowers Baking Co., 10-

1413, p. 7 (La. App. 3 Cir. 4/6/11), p. 7, 62 So.3d 303). Likewise, in Hester v.

Hester, 96-0189 (La. App. 4 Cir. 9/11/96), p. 6, 680 So.2d 1232, 1235, we held

that a party’s “repeated motions for identical relief from the same court

violated Art. 863.”

“A court may impose sanctions upon a litigant so long as they are, taken

together, not so burdensome as to deny the litigant meaningful access to the

18

courts.” Rochon v. Roemer, 630 So.2d 247, 248 (La. 1994). “Restrictive

conditions, other than total preclusion, which are available include assessment of

damages to the prevailing party, imposition of costs, and contempt proceedings.”

Id.

The Louisiana Third Circuit Court of Appeal’s decision in Green v. Iberia

Parish School Bd., 06-1060 (La. App. 3 Cir. 12/20/06), 945 So.2d 940, is an

example of a case in which the court imposed sanctions other than monetary

sanctions after finding a violation of art. 863. After having twice unsuccessfully

pursued the same claims against the defendant in federal court, the plaintiff filed

suit in state court. The appellate court affirmed the trial judge’s decision to prohibit

the litigant from filing further proceedings related to the defendant’s discharge of

plaintiff from employment. Green, 06-1060, pp. 5-7, 945 So.2d at 944-46. The

clerk of court was also prohibited from accepting such pleadings from the plaintiff

without prior approval of the court. Green, 06-1060, p. 5, 945 So.2d at 944.

In Alexander v. Louisiana State Bd. of Priv. Investigator Examiners, 19-

0778 (La. App. 4 Cir. 4/1/20), 293 So.3d 1243, writ denied, 20-01072 (La.

11/10/20), 303 So.3d 1039, we noted the sanctions imposed against the plaintiff for

“innumerable . . . filings” by the United States District Court for the Eastern

District of Louisiana prohibiting the plaintiff from filing in the court “any

additional complaint, motion, or other pleading” relating to the subject matter of

the lawsuit “without first seeking leave of Court to do so, and certifying, in writing,

that the proposed submission is not frivolous, presented for an improper purpose,

repetitive or duplicative, has evidentiary support, and does not contain any

inappropriate, irrelevant, malicious, harassing and/or insulting comments.”

Alexander, 19-0778, pp. 23-24, 293 So.3d at 1258-59 (quoting Alexander v. City of

19

New Orleans, No. 12-1524, *3-4 (E.D. La. 1/12/15), 2015 WL 160435. We further

noted the warning subsequently issued to the plaintiff by the United States Fifth

Circuit Court of Appeals: “[The plaintiff] is WARNED, however, that future

frivolous, repetitive, or otherwise abusive filings will result in the imposition of

progressively severe sanctions, which may include . . . restrictions on his ability to

file pleadings and other documents in this court and in any court subject to this

court’s jurisdiction.” Alexander, 19-0778, p. 24, 293 So.3d at 1259 (quoting

Alexander v. Cannon Cochran Mgmt. Servs., Inc., 638 Fed. Appx. 410, 410 (5th

Cir. 2016)).

Given the sheer volume of the motions for partial summary judgment filed

by Sellers and Lingle, the repetitive nature of the motions, and their fact intensive

nature, we find no abuse of the district court’s discretion in awarding minimal

attorney fees and in prohibiting all parties from filing further motions for summary

judgment or partial summary judgment, particularly where these claims can be

litigated at trial where their full merits can be considered and fact issues be

resolved.

Answer to Appeals

Sellers and Lingle jointly filed each of the two appeals in this matter. After

the appeals were consolidated, Sellers and Lingle collectively filed an answer to

appeal. In their answer, Lingle “files his answer to the appeal of Elysian and

Cusachs [; and] [p]ursuant to La.C.C.P. Art. 2133(A) and based on [] Lingle’s

answer, Elysian and Cusachs also file an answer.” Neal subsequently filed a

motion to strike the answer on the basis that Sellers and Lingle do not have the

right to file an answer to their own appeal.

20

La. C.C.P. art. 2133 governs the right of an “appellee” to answer an appeal

and provides, in pertinent part:

Art. 2133. Answer of appellee; when necessary
A. An appellee shall not be obliged to answer the appeal
unless he desires to have the judgment modified, revised,
or reversed in part or unless he demands damages against
the appellant. In such cases, he must file an answer to the
appeal . . . . The answer filed by the appellee shall be
equivalent to an appeal on his part from any portion of
the judgment rendered against him in favor of the
appellant and of which he complains in his answer.
Additionally, however, an appellee may by answer to the
appeal, demand modification, revision, or reversal of the
judgment insofar as it did not allow or consider relief
prayed for by an incidental action filed in the trial court.
If an appellee files such an answer, all other parties to the
incidental demand may file similar answers within fifteen
days of the appellee’s action.

La. C.C.P. art 2133 (emphasis added).9 There is no provision in the Code of Civil

Procedure that allows an appellant to answer his own appeal.

In Borne v. Mike Persia Chevrolet Co., 396 So.2d 326, 329 (La. App. 4th

Cir. 1981), this Court held: “It is only an ‘appellee,’ C.C.P. 2133, who can appeal

against an appellant by answer to that appellant’s appeal.” See also Citizens Bank

& Tr. Co. v. Little Ford, Inc., 506 So.2d 815, 817 (La. App. 1st Cir. 1987) (“It is

well-established in Louisiana jurisprudence that one must be an appellee in order

to file an answer to an appeal.”) (citations omitted). “Webster’s New International

Dictionary (2d ed.) defines appellee as ‘one against whom an appeal is taken,’ and

Black’s Law Dictionary (rev. 4th ed.) defines appellee as ‘The party in a cause

against whom an appeal is taken; that is, the party who has an interest adverse to

setting aside or reversing the judgment.’ ” Borne, 396 So.2d at 329.

9
Neal did not answer either appeal.

21

Here, Sellers and Lingle are not appellees, as they do not have interests

adverse to setting aside or reversing the judgments appealed from. Thus, neither

has the right to file an answer to the appeals.

Lingle also does not have the right to answer Sellers’ appeal, or to take his

own appeal, pursuant to La. C.C.P. art. 2087(B), which states: “When a devolutive

appeal has been taken timely, an appellee who seeks to have the judgment

appealed from modified, revised, or reversed as to any party may take a devolutive

appeal therefrom. . . .” (emphasis added). By its terms, the statute applies only to

an “appellee.” Because Lingle is not an appellee, he cannot avail himself of Article

2087(B).

Accordingly, we grant Neal’s motion to strike answer to appeal and strike

Sellers and Lingle’s answer to appeal.

CONCLUSION

For the reasons discussed in this opinion, we affirm the sanctions judgments

dated July 24, 2020 and October 19, 2020. We find, however, that the interlocutory

judgments signed on February 21, 2020, May 28, 2020, July 24, 2020, and October

19, 2020 are not subject to immediate appeal. Accordingly, we dismiss the appeals

of these judgments. We decline to convert the appeals of these judgments to

applications for supervisory review. We further find that Lingle has no justiciable

interest in the appeal of the July 24, 2020 sanctions judgment. Accordingly, we

dismiss his appeals of the July 24, 2020 sanctions judgment. Finally, we find that

Appellants do not have the right to answer their own appeal and strike Appellants’

answer to appeal.

SANCTIONS JUDGMENTS AFFIRMED;
APPEALS DISMISSED IN PART;
ANSWER TO APPEAL STRICKEN

22