Succession of Beryl Petrich Willoz

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIIZCUIT

2022 CA 1026

SUCCESSION OF BERYL PETRICH WILLOZ

DATE OFJUDGmENT.• JUL 0 5 2023

ON APPEAL FROM THE TWENTY- SECOND JUDICIAL DISTRICT COURT,
PARISH OF ST. TAMMANY, STATE OF LOUISIANA
NUMBER 2021- 30843, DIVISION H,

HONORABLE ALAN A. ZAUNBRECHER, JUDGE

James E. Moorman, III Counsel for Plaintiff A
- ppellee
Covington, Louisiana Desiree Willoz Drake

Tammy Karas- Griggs Counsel for Appellee
Covington, Louisiana Jessica L. Karr

Henry W. Kinney Counsel for Defendant -Appellee
New Orleans, Louisiana Karen Alexander

Henry W. Kinney Counsel for Appellant
New Orleans, Louisiana In Proper Person

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

Disposition: AFFIRMED IN PART AND REVERSED IN PART.

A0,

CHUTz, J.

Appellant, Henry W. Kinney, appeals a trial court judgment quashing a

witness subpoena and a subpoena duces tecum and awarding sanctions against

him. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

Beryl Petrich Willoz died on July 13, 2021. During the administration of her

testate succession, one of her daughters, Karen Alexander, questioned the

decedent' s capacity to make a will and filed a petition to annul the probate of the

decedent' s will. Trial on that issue was set for May 3, 2022. On April 7, 2022,

Mr. Kinney, in his capacity as Ms. Alexander' s attorney, had a witness subpoena

issued to Jessica Karr, an attorney, to appear at trial. The decedent was a former

client of Ms. Karr, who represented her in an interdiction proceeding. In response,

Ms. Karr filed a motion to quash the subpoena and for sanctions under La. C. C. P.

art. 863 on the basis that Mr. Kinney failed to follow the procedure delineated in

La. C.E. art. 508 to subpoena an attorney in a civil case. On April 21, 2022, the

trial court quashed the subpoena and ordered Mr. Kinney to show cause on May 3,

2022, why sanctions should not be imposed on him under Article 863.

At Mr. Kinney' s request, a second witness subpoena and a subpoena duces

tecum were issued to Ms. Karr on April 25, 2022, directing her to appear to testify

at trial on May 3, 2022 and to bring her entire file on the decedent for the period

from January 1, 2015 to date. Ms. Karr filed a first supplemental motion for

sanctions and a second motion to quash the subpoenas. Noting it was the second

time Mr. Kinney had attempted to obtain privileged attorney- client information

from her, Ms. Karr again requested that Mr. Kinney be sanctioned under Article

863 for this repeated behavior. The trial court ordered Ms. Karr' s motions be

heard on May 3, 2022. Following the hearing, the trial court signed a judgment on

May 23, 2022, quashing the April 25, 2022 witness subpoena and subpoena duces

K

tecum and ordering Mr. Kinney to pay Ms. Karr $2,400.00 in attorney fees and the

costs incurred in filing her motions to quash and for sanctions.

Mr. Kinney filed a suspensive appeal, arguing in three assignments of error

that the subpoenas were valid and the trial court erred in imposing sanctions under

Article 863.

APPEALABILITY OF JUDGMENT

After the appellate record was lodged, this court issued a show cause order

noting that "[ ilt appears from a review of the face of the May 23, 2022 judgment

that the judgment at issue in this appeal is not a final, appealable judgment" insofar

as it " quashes a subpoena and subpoena duces tecum."

Upon further review of the matter, we find the May 23, 2022 judgment is a

final, appealable judgment. In the judgment, the trial court not only quashed the

witness subpoena and subpoena duces tecum issued on April 25, 2022, but also

awarded sanctions against Mr. Kinney pursuant to Article 863, as specifically

prayed for by Ms. Karr. Under La. C. C. P. art, 1915( A)( 6), a judgment awarding

sanctions pursuant to Article 863 is a final, appealable judgment subject to an

immediate appeal, even if it does not adjudicate all the issues in the case. There is

no need for such a judgment to be designated as a final judgment by the trial court.

Miller v. Stringer, 22- 0649 ( La. App. 1st Cir. 12122122), So. 3d , 2022 WL

17839876, at * 2; La. C. C. P. art. 1915, Comment - 1999. Moreover, in this case,

the appealed judgment did adjudicate all issues raised by or against Ms. Karr, who

is not a party to the underlying succession matter.

MOTION TO QUASH

Ms. Karr' s motion to quash the April 25, 2022 witness subpoena and

subpoena duces tecum was based on Mr. Kinney' s alleged failure to comply with

the requirements of La. C. E. art. 508, which governs the issuance of subpoenas to

attorneys in civil cases. Under Article 508, a subpoena shall not be issued to an

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attorney to reveal information about a client or former client obtained in the course

of representing the client unless, after a contradictory hearing, the trial court

determines: the information sought is not protected from disclosure by any

applicable privilege or work product rule;' the information sought is essential to

the successful completion of an ongoing investigation, is essential to the case of

the party seeking the information, and is not merely peripheral, cumulative, or

speculative; the purpose of seeking the information is not to harass the attorney or

his client; the subpoena lists the information sought with particularity and is

reasonably limited as to subject matter and period oftime and gives timely notice;

and there is no practicable alternative means of obtaining the information. La. C. E.

art. 508( A). In view of these requirements, the trial court did not err in granting

Ms. Karr' s motion to quash.

Article 508( A) specifically states "[ n] either a subpoena nor a court order

shall be issued to a lawyer ... unless, after a contradictory hearing, it has been

determined that the information sought is not protected from disclosure by any

applicable privilege or work product rule...." ( Emphasis added.) In considering

the hearing requirement in this provision, this court has previously pointed out that

words should be construed according to their common usage and the word " shall"

is mandatory. Porter v. Baton Rouge Police Department, 16- 0625 ( La. App. 1 st

Cir. 4/ 12/ 17), 218 So.3d 150, 157; see also La. R.S. 1: 3. In this case, Mr. Kinney

violated Article 508( A) by having the April 25, 2022 witness subpoena and

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subpoena duces tecum issued to Ms. Karr without a prior contradictory hearing.

In his brief, Mr. Kinney argues no attorney-client privilege exists herein due to La. C. E.
506( C)( 2), which provides an attorney- client privilege does not extend to communications " with
a client now deceased relevant to an issue between parties who claim through that client,
regardless of whether the claims are by testate or intestate succession or by transaction inter
vivos." Given the procedural defects in the witness subpoena and subpoena duces tecum issued
to Ms. Karr, however, we need not reach the issue of whether an attorney- client privilege existed
in this case. That is an issue to be decided at an Article 508 hearing.
2
Citing federal jurisprudence, Mr. Kinney argues Article 508 does not require a contradictory
hearing prior to issuing a subpoena to an attorney because consideration of the matter at the
4

See Porter, 218 So. 3d at 157 ( finding a district court abused its discretion in

finding the failure to hold a contradictory hearing before issuing a subpoena to an

attorney was not grounds to quash the subpoena); Renton Properties, LLC v. 213

Upland, LLC, 21- 734 ( La. App. 5th Cir. 214122), So. 3d , 2022 WL

533343, at * 2 ( finding a district court abused its discretion in denying a motion to

quash a subpoena that had been issued to a lawyer before a contradictory hearing

was held and in failing to find all the prerequisites of Article 508( A) were met).

Additionally, Article 508( A)(3) requires a subpoena issued to an attorney to

be reasonably limited as to its subject matter and time, to list with particularity the

information sought, and to give timely notice. An examination of the April 25,

2022 witness subpoena and subpoena duces tecum indicates they fail to meet these

requirements. The witness subpoena merely orders Ms. Karr to appear at trial " to

testify to the truth according to your knowledge." The subpoena fails to list with

particularity the information sought from Ms. Karr or to otherwise reasonably limit

the subject matter or time period concerning which she might be called to testify.

As to the subpoena duces tecum, it broadly orders Ms. Karr to bring with her to

trial the " entire file involving in any way [ the decedent] for the period from

January 1, 2015 to date," including " notes, pleadings, drafts, statements and

payment information, correspondence and expenses involved." This order for Ms.

Karr to bring the decedent' s entire file, without any limitation whatsoever as to

subject matter and for a time period spanning over seven years, is too broad to

meet the requirements of Article 508( A)(3).

IMPOSITION OF SANCTIONS

Mr. Kinney argues the trial court erred in imposing sanctions pursuant to

hearing on the motion to quash is sufficient. See Frazier v Runnels, 2019 WL 398930, at * 3
E. D. La. 2019); Stafford a Stanton, 2019 WL 13159919, at * I ( W.D. La. 2019). We note that
decisions from federal courts are persuasive only and are not binding on this court. State v
King, 19- 01332 ( La. 413120), 340 So. 3d 754, 757.

5

Article 863 because: ( 1) a subpoena is not a pleading subject to the provisions of

Article 863; and ( 2) a non-party is not entitled to seek sanctions under Article 863.

Both contentions have merit with respect to the trial court' s order for Mr. Kinney

to pay Ms. Karr $2, 400.00 in attorney fees.'

Article 863 provides, in pertinent part, as follows:

A. Every pleading of a party represented by an attorney shall be
signed by at least one attorney of record in his individual name, whose
physical address and email address for service of process shall be
stated... .

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.

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 the
amount of the reasonable expenses incurred because of the filing of

3 We find no error or abuse of discretion in the portion of the trial court judgment assessing Mr.
Kinney with all costs associated with Ms. Karr' s motions to quash and for sanctions. Under La.
C. C. P. art. 1920, a trial court may assess costs in any manner and against any party in any
proportion it deems equitable. A trial court has great discretion in matters relating to the
assessment of costs. Williams v. Leeper, 21- 1177 ( La. App. 1st Cir. 418122), 341 So. 3d 850.
856.

the pleading, including reasonable attorney fees.

Emphasis added.)

By its terms, Article 863 authorizes the imposition of sanctions only when

an attorney signs a pleading in violation of the required certification. Documents

other than pleadings are not subject to Article 863. See Samuel v. Remy, 15- 0464

La. App. 1st Cir. 8/ 31/ 16) ( unpublished), 2016 WL 4591885, at * 9, writ denied,

16- 1785 ( La. 11/ 29/ 16), 211 So. 3d 387; Maxie a McCormick, 95- 1105 ( La. App.

1 st Cir. 2/ 23/ 96), 669 So. 2d 562, 564. Under La. C. C.P. art. 852, pleadings in civil

matters consist of " petitions, exceptions, written motions, and answers." Thus,

Article 863 sanctions may not be imposed against an attorney for the wrongful

issuance of a subpoena or subpoena duces tecum since they are not pleadings.

Samuel, 2016 WL 4591885, at * 9; Bourgeois v Bourgeois, 23- 0038 ( La. App. 1st

Cir, 9/ 13/ 13), 135 So. 3d 1, 7, writ not considered, 13- 2439 ( La. 1/ 27/ 14), 130

So. 3d 94. Accordingly, the trial court erred in imposing sanctions on Mr. Kinney

pursuant to Article 863 based on the issuance of the April 25, 2022 witness

subpoena and subpoena duces tecum.4

Further, the imposition of sanctions against Mr. Kinney under Article 863

was also improper because Ms. Karr was not a party in the underlying matter.

Article 863 provides for the imposition of sanctions only upon the motion of "any

party" or upon the court' s own motion. La. C. C. P. art. 863( D). For this reason, a

non-party such as Ms. Karr is not entitled to seek sanctions under Article 863. 5

a Ms. Karr contends that even if subpoenas are not pleadings under Article 863, Mr. Kinney was
subject to Article 863 sanctions for disparaging and defamatory statements he made in other
pleadings he filed, i.e., the Pretrial Order and his " Opposition to Motion to Quash Witness
Subpoena and Request to Withdraw Ex Parte Order Communicated to the Court," which she
contends are unquestionably pleadings. Ms. Karr' s contention is meritless. Neither a pretrial
order nor an opposition brief is a pleading since they do not constitute either petitions,
exceptions, written motions, or answers. La. C. C. P. art. 852; Maxie, 669 So. 2d at 565 n.4.
Further, to the extent that Mr. Kinney' s request to withdraw an ex parte order included in the
opposition brief could be construed as a written motion, neither Ms. Karr' s original nor
supplemental motion for sanctions requested sanctions on that basis.

s In support of her argument that she is entitled to Article 863 sanctions, Ms. Karr cites
7

See Samuel, 2016 WL 4591885, at * 9.

Nevertheless, Ms. Karr argues on appeal for the first time that even if

sanctions against Mr. Kinney were improper under Article 863, sanctions against

him were warranted under La. C. C. P. art. 1420( D) and/ or La. C. C. P. art. 224. Like

the duty imposed by Article 863, Article 1420 requires an attorney signing

discovery documents to certify certain facts and authorizes sanctions if that duty is

violated. See La. C. C. P. art. 1420( A), ( B) & ( D). Contrary to Ms. Karr' s

assertions, however, Article 1420 is not applicable herein because it applies only to

discovery matters, specifically requests for discovery, or responses or objections

thereto. La. C. C.P. art. 1420( A). The requests Mr. Kinney made for subpoenas to

be issued to Ms. Karr were not discovery requests. instead, the subpoenas issued

to Ms. Karr were for trial purposes. Moreover, as with Article 863, sanctions may

be imposed under Article 1420( D) only " upon motion of any party or upon [ the

court' s] own motion." As a non-party, Ms. Karr was not entitled to seek sanctions

under Article 1420(D).6 See Lockett v. UV Insurance Risk Retention Group,

Inc., 15- 166 ( La. App. 5th Cir. 11119/ 15), 180 So. 3d 557, 575.

We also find no merit in Ms. Karr' s argument that sanctions were warranted

under Article 224 due to Mr. Kinney' s contempt of court. Specifically, Ms. Karr

argues Mr. Kenney' s request to issue another, duplicative subpoena after the trial

Sternberg v. Sternberg, 97- 101 ( La. App. 5th Cir, 5/ 28/ 97), 695 So. 2d 106$, 1071, writ

denied, 97- 1737 ( La. 10113197), 703 So. 2d 618. In Sternberg, the Fifth Circuit affirmed a trial
court judgment quashing a subpoena issued to a non-party and granting the non- party' s motion
for sanctions under Article 863. The sanctioned attorney had signed a motion to compel the
appearance of a non-party who was never properly served with a subpoena for a deposition and,
moreover, had the non-party arrested for failing to appear at the deposition. In addition to
Sternberg being factually distinguishable from the present case, this court is not bound by the
decision of another circuit, which constitutes only persuasive authority. Huggins v. Gerry Lane
Enterprises, Inc., 05- 2665 ( La. App. 1st Cir. 1113/ 06), 950 So. 2d 750, 756 n.3, affirmed, 06-
2816 ( La. 5122107), 957 So. 2d 127. Because the Sternberg decision is factually distinguishable
and conflicts directly with the law of this circuit, it is not entitled to any weight in this matter.

6 The instant case is distinguishable in significant respects from Bourgeois v. Bourgeois, 13-
0038 ( La. App. 1st Cir. 9/ 13/ 13), 135 So. 3d 1, which Ms. Karr cites as support for imposing
Article 1420( D) sanctions against Mr. Kinney. Unlike this case, Bourgeois involved a discovery
request rather than trial subpoenas and, moreover, the person requesting sanctions was a party to
the underlying litigation (although the subpoena duces tecunx was issued to a non-party).

N

court had already quashed the prior subpoena issued to her was " done in violation

of the Trial Court' s Order."

Willful disobedience of a lawful court order constitutes constructive

contempt. La. C. C. P. art. 224( 2). Without expressing any opinion as to whether

Mr. Kinney' s actions constituted constructive contempt, we note an attorney can be

held guilty of constructive contempt only after a trial by a judge of a rule against

him to show cause why he should not be adjudged guilty of contempt. La. C.C. P.

art. 225( A); Official Revision Comments -1960, Comment ( a) to La. C. C. P. art.

225. Moreover, the alleged instances of noncompliance must be correctly,

precisely, and explicitly set out in a rule for contempt. Estate of Graham v. Levy,

636 So. 2d 287, 293, ( La. App. 1 st Cir. 4/ 8/ 94), writ denied, 94- 1202 ( La. 7/ 1/ 94),

639 So. 2d 1167. This requirement is mandatory. La. C. C. P. art. 225( A); Geo- Je' s

Civic Association, Inc. v. Reed, 525 So.2d 192, 196 ( La. App. l st Cir. 1958).

Thus, because no rule for contempt was filed against Mr. Kinney, he could not

properly be sanctioned for contempt of court.

CONCLUSION

For these reasons, the portion of the May 23, 2022 trial court judgment

ordering Henry W. Kinney to pay Jessica L. Karr $ 2,400.00 for attorney fees is

hereby reversed. The judgment of the trial court is affirmed in all other respects.

Mr. Kinney and Ms. Karr are to each pay one-half of the costs of this appeal.

AFFIRMED IN PART AND REVERSED IN PART.

E

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2022 CA 1026

SUCCESSION OF BERYL PETRICH WILLOZ

THERIOT, J., concurring and assigning reasons.

Although I agree with the majority that sanctions were not available under La.

C.C. P. art. 863 because the subpoenas issued by Mr. Kinney were not " pleadings,"

I believe that the trial court possessed the inherent authority to sanction Mr. Kinney

for his actions under La. C. C. P. art. 191.

Louisiana Code of Civil Procedure article 191 provides that a court "possesses

inherently all of the power necessary for the exercise of its jurisdiction even though

not granted expressly by law." The supreme court has explained that this doctrine

of inherent powers confers upon the court the power ( other than those powers

expressly enumerated in the constitution and statutes) to do all things reasonably

necessary for the exercise of their functions as courts. State in Int. afA.C., 643 So. 2d

719, 732 ( La. 1994). Article 191 has been interpreted to authorize a court to impose

sanctions when a failure to adhere to evidentiary or discovery rules clearly interferes

with the court' s ability to fairly administer justice. See Roussell v. Circle K Store,

Inc., 2021- 0582, pp. 5- 6 ( La.App. 1 Cir. 12/ 22/ 21), 340 So. 3d 52, 55- 57 ( in addition

to the range of sanctions that may be available under other provisions of the law for

spoliation of evidence, a trial court may also impose sanctions pursuant to the court' s

inherent authority under La. C.C. P. art. 191 to manage its own affairs); Carter v. Hi

Nabor Super Market, 2013- 0529, p. 7- 8 ( La.App. 1 Cir. 12130114), 168 So.3d 698,

703- 704 ( although La. C. C.P. art. 1471( A) authorizes a trial court to issue sanctions

when a party refuses or fails to comply with a discovery order, sanctions may

nevertheless be imposed by the trial court for failure to adhere to discovery rules in

the absence of a discovery order under the inherent authority of La. C. C. P. art. 191,

because the failure to comply with discovery rules interferes with the court' s ability

to administer justice); see also Stevens v. St. Tammany Parish Government, 2016-

0534, pp. 17- 20 ( La.App. 1 Cir. 1f18/ 17), 212 So. 3d 568, 578- 580 ( although La.

C. C. P. art. 1426 does not explicitly authorize a trial court to issue a protective order

or exercise control over allegedly protected information where the information was

obtained outside of discovery, the trial court has the inherent authority to do so under

the proper circumstances to assure the fair administration ofjustice).

I believe under the circumstances presented by this case, where an attorney

twice had subpoenas issued in violation of the provisions of La. C. E. art. 508, with

the second subpoena issued after the trial court quashed his first improperly issued

subpoena,
the trial court' s inherent authority to direct the manner in which

proceedings are conducted would allow the trial court to impose sanctions ( such as

payment of the improperly subpoenaed party' s attorney fees and costs) for the

attorney' s refusal to follow the evidentiary rules. However, no one argued La. C. C.P.

art. 191 should apply in this matter, nor did the trial court mention La. C. C. P. art.

191 in its reasons for judgment. Therefore, I concur in the result reached by the

majority.

2