Kerry Fraino Versus Christopher Joseph Fraino, Sr.

KERRY FRAINO, ET AL. NO. 24-C-173

VERSUS FIFTH CIRCUIT

CHRISTOPHER JOSEPH FRAINO, SR., ET COURT OF APPEAL
AL
STATE OF LOUISIANA

ON APPLICATION FOR SUPERVISORY REVIEW FROM THE
TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 738-081, DIVISION "B"
HONORABLE R. CHRISTOPHER COX, III, JUDGE PRESIDING

June 17, 2024

JUDE G. GRAVOIS
JUDGE

Panel composed of Judges Jude G. Gravois,
Scott U. Schlegel, and Timothy S. Marcel

WRIT GRANTED; JUDGMENT REVERSED; EXCEPTIONS OF NO
CAUSE OF ACTION AND NO RIGHT OF ACTION GRANTED; RULE
FOR CONTEMPT DISMISSED
JGG
SUS
TSM

COUNSEL FOR DEFENDANT/RELATOR,
CHRISTOPHER JOSEPH FRAINO, SR.
Robert G. Harvey, Sr.

COUNSEL FOR PLAINTIFF/RESPONDENT,
SUSAN E. BROWN, CPA/CFF, CFE AND BROWN FORENSIC
ACCOUNTING, APAC
James E. Moorman, III

GRAVOIS, J.

Christopher Fraino seeks this Court’s supervisory review of the
trial court’s March 13, 2024 judgment which denied his exceptions of
no cause of action and no right of action relative to a Rule for
Contempt filed by plaintiffs-in-rule, Susan E. Brown, CPA/CFF, CFE
and Brown Forensic Accounting, APAC (hereinafter collectively “Ms.
Brown”). For the following reasons, we grant the writ application,
reverse the trial court’s judgment which denied Mr. Fraino’s
exceptions of no cause of action and no right of action, grant the
exceptions of no cause of action and no right of action, and dismiss
the Rule for Contempt.

FACTS AND PROCEDURAL BACKGROUND

By way of background, this suit involved a divorce proceeding
between Kerry Fraino and Christopher Joseph Fraino, Sr., which
included a protracted community property partition proceeding. In a
series of consent judgments pertaining to the partition proceeding, the
parties agreed to use a particular forensic accounting firm, with Mr.
Fraino being responsible for paying 100% of the fees associated
therewith. In due course, the original accounting firm was replaced in
another consent judgment between the parties, with Susan Brown and
her firm being appointed as the new forensic accountant. Mr. Fraino
continued to be responsible for the fees associated therewith.

According to the writ application, the partition was finally
settled between the Frainos on March 1, 2023, memorialized in a
consent judgment. Shortly thereafter, Ms. Brown filed a “Rule for
Contempt” against Mr. Fraino in the closed domestic proceeding.
Therein, she alleged that the consent judgments of February 8, 2019
and June 20, 2019 provided for her appointment as a joint expert in
the case and further ordered that “Christopher Joseph Fraino shall pay
100% of the fees associated with [plaintiffs-in-rule].” She further
alleged that she performed all of the duties required of her in a timely
and professional manner, and upon the completion of her “mandate,”
there remained a balance due and owing by Mr. Fraino to Ms. Brown

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in the full sum of $12,790.00.1 She further alleged that pursuant to the
“contractual agreement” between Mr. Fraino and Ms. Brown, all
outstanding balances were to be paid within 30 days of each invoice;
yet despite informal and formal demands, Mr. Fraino had failed to pay
the same. In the Rule for Contempt, Ms. Brown sought a judgment
ordering Mr. Fraino to immediately pay her the outstanding balance,
together with contractual interest, all additional fees incurred by Ms.
Brown in collection of the past due balance, reasonable attorney’s
fees, and all costs incurred therein.

In response, Mr. Fraino filed exceptions of no cause of action
and no right of action to the Rule for Contempt. Following a hearing
on the exceptions, the trial court orally denied the exceptions. A
written judgment to this effect was signed by the trial court on March
13, 2024. This timely writ application followed.

In his writ application, Mr. Fraino argues that a rule for
contempt cannot be used to obtain a money judgment against him, and
because Ms. Brown has not first obtained a money judgment against
him in a separate proceeding, the Rule for Contempt does not assert a
cause of action against him for contempt of court, to wit:

Contempt proceedings are strictly construed: a person is either
in contempt of the court or they are not; it is not a proceeding to
try a matter of degrees, or to be used for a third party to collect
a debt. This would lead to the absurd result of Mr. Fraino, or
any litigant in a divorce proceeding where a third party’s
charges are mentioned in a consent agreement, to lack the
procedural due process to put on a proper defense to such
outstanding bills and to question the validity or content of the
bills, at all, without risking the ire of the court and contempt
proceedings.

Mr. Fraino argues that the purpose of a contempt proceeding is
to vindicate the authority and dignity of the court, and not for the
benefit of the litigants. He contends that Ms. Brown’s Rule for
Contempt does not assert a cause of action for contempt under La.

1
This suggests that some of Ms. Brown’s bill was in fact paid. Mr. Fraino
has asserted in his writ application that he has paid part of the bill, but disputes
other portions thereof.

24-C-173 2

C.C.P. art. 2242 or La. R.S. 13:4611.3 He asserts that the Rule for
Contempt is devoid of any mention that Mr. Fraino “intentionally,
knowingly and purposefully” violated an order of the court. He
argues that the use of a motion for contempt as a collection device is
not recognized under Louisiana law, and collection of a debt is not
recognized as a remedy for contempt, citing La. R.S. 13:4611 and La.
C.C.P. arts. 221-227.4 He further argues that as a nonparty, Ms.
Brown has no right of action to move for contempt of court.

ANALYSIS

Exception of no cause of action

The function of the peremptory exception of no cause of action
is to test the legal sufficiency of the petition, which is done by
determining whether the law affords a remedy on the facts alleged in
the pleading. Pinegrove Elec. Supply Co. v. Cat Key Const., Inc., 11-
660 (La. App. 5 Cir. 2/28/12), 88 So.3d 1097, 1100. No evidence
may be introduced to support or controvert an exception of no cause
of action. La. C.C.P. art. 931. The issue at the trial of the exception is
whether, on the face of the petition, the plaintiff is legally entitled to
the relief sought. Pinegrove, 88 So.3d at 1100. The mover has the
burden of demonstrating the petition states no cause of action. Id.
The pertinent question is whether, in the light most favorable to the
plaintiff and with every doubt resolved in the plaintiff’s behalf, the
petition states a valid cause of action for relief. Id.

The Louisiana Code of Civil Procedure defines contempt of
court as “any act or omission tending to obstruct or interfere with the
orderly administration of justice, or to impair the dignity of the court
or respect for its authority.” La. C.C.P. art. 221. There are two kinds
of contempt of court: direct and constructive. Id. Constructive
contempt is any contempt other than a direct one, including the willful
disobedience of any lawful judgment, order, mandate, writ, or process
of the court. La. C.C.P. art. 224. To find a person guilty of

2
La. C.C.P. art. 224 provides generally as to constructive contempt.
3
La. R.S. 13:4611 provides generally as to punishment for contempt of
court.
4
These articles concern the power of the courts to punish for contempt.

24-C-173 3

constructive contempt, the court must find the person violated an
order of the court “intentionally, knowingly and purposefully,”
without justifiable excuse. Barnett v. Barnett, 15-766 (La. App. 5 Cir.
5/26/16), 193 So.3d 460, 470, writ denied, 16-1205 (La. 10/10/16),
207 So.3d 406. Contempt proceedings are designed for the
vindication of the dignity of the court, rather than for the benefit of a
litigant. Id.

In his writ application, Mr. Fraino argues that Ms. Brown has
ordinary remedies available to her to attempt to collect the fees
allegedly owed to her, such as a breach of contract suit or a suit on an
open account, where he could present his defenses to her claims of
nonpayment. He asserts that he is precluded from raising any
defenses to her claims in this contempt proceeding, as the matter
currently stands. He alleges that he paid most of Ms. Brown’s
charges, which the Rule for Contempt does not recognize or explain,
but disputes that he owes the remaining amount claimed.

In State ex rel. Hero, 36 La. Ann. 352 (1884), the trial court
issued an order or writ of sequestration, commanding the sheriff to
sequester certain property belonging to a succession and stated to be
in the possession of the relator, Andrew Hero, a nonparty to the
succession proceeding. When the sheriff demanded that Hero deliver
the property, Hero denied that he possessed the property and failed to
make delivery. The trial court found as a matter of fact that Hero
possessed the property, held him in contempt, and imprisoned him for
ten days or until he delivered the property. Id. at 352. On appeal, the
Supreme Court found that the order to sequester the property was not
enforceable via a contempt proceeding against a nonparty to the suit.
Id. at 355. The court noted that Hero was not involved in the
succession proceeding, and the order in question merely commanded
the sheriff to sequester the property. The court reasoned that the order
was not enforceable by contempt against Hero because, in general, the
law does not authorize the enforcement of final judgments, and much
less of ex parte orders, directing the delivery of property by process
for contempt. Id. at 354. The court therefore concluded that the
judgment holding Hero in contempt was null and void. Id. at 354-55.

24-C-173 4

A similar result was reached in State ex rel. Duffy & Behan v.
Civil Dist. Ct. for Parish of Orleans, 112 La. 182, 36 So. 315 (1904),
in which the order in question commanded the civil sheriff to seize
certain property, including $3,000. Claiming that the money was not
in their possession or under their control, the relators did not deliver
the money to the sheriff and were thereafter held in contempt. Id. at
318. On appeal, the Supreme Court found that the case was controlled
by Hero, which it quoted at length. The court was concerned that a
contempt proceeding would become an easy and convenient substitute
for the usual legal remedies provided by the then Code of Practice for
the enforcement of private rights and obligations of litigants in
judicial proceedings. It stated that a contempt proceeding is not
designed for the benefit of one or more of the litigants, but its object
and purpose is to vindicate the authority and maintain the dignity of
the court itself. Id. It declared that, when a specific remedy is
provided by the code, it should be followed rather than disregarded
through a mere change in the form of the proceedings. Id. at 319.

For purposes of this exception, we agree with Mr. Fraino’s
assertion that the “Rule for Contempt” filed by Ms. Brown is not a
valid suit for a money judgment. Examination of the Rule for
Contempt shows that it fails to state a valid cause of action for
contempt of court against Mr. Fraino. First, the Rule fails to allege
that Mr. Fraino “intentionally, knowingly and purposefully” violated
an order of the court. See Barnett, supra. Second, the Rule
improperly attempts to seek a money judgment in favor of Ms.
Brown. The object of a contempt proceeding is vindication of the
dignity of the court, rather than for the benefit of a litigant. Id. Third,
the consent judgments at issue themselves do not specifically order
Mr. Fraino to pay Ms. Brown any particular invoices or amounts—the
judgments only determine which party to the suit, as between Mr. and
Mrs. Fraino, shall eventually be responsible for payment of the
forensic accountant’s fees, once legally established.

Accordingly, we conclude the trial erred in denying the
exception of no cause of action as to Ms. Brown’s Rule for Contempt.
We grant the exception and dismiss the Rule for Contempt.

24-C-173 5

Exception of no right of action

The exception of no right of action raises the issue of whether a
particular plaintiff falls as a matter of law within the general class of
persons in whose favor the remedy may be asserted. Unlike the
exception of no cause of action, on the trial of the exception of no
right of action, evidence is admissible to support or controvert the
issue of whether there is a right or interest in the particular plaintiff to
institute the suit. A determination of whether a plaintiff has a right to
bring an action raises a question of law. A question of law requires de
novo review. Villarrubia v. Villarrubia, 18-320 (La. App. 5 Cir.
12/27/18), 264 So.3d 554, 562, citing Eagle Pipe & Supply, Inc. v.
Amerada Hess Corp., 10-2267 (La. 10/25/11), 79 So.3d 246, 252.

Regarding the exception of no right of action, Mr. Fraino
argues that the consent judgments between him and Mrs. Fraino
determined which of them would be liable, as between them, for the
accountant’s fees, and that the consent judgments did not confer a
right upon a nonparty, Ms. Brown, to sue within the divorce
proceeding for contempt for nonpayment of these fees. Nor did the
consent judgments order Mr. Fraino to pay Ms. Brown a particular
sum or an invoice. Therefore, as Ms. Brown is not a party to the suit,
nor a party to the consent judgments, he argues that she has no right of
action within the divorce suit to sue for contempt to enforce the
judgments. He also noted that Ms. Brown is not the beneficiary of a
stipulation pour autrui (a contractual benefit for a third party) in the
consent judgments, which must be express.

While it is true that a judge may find a nonparty in contempt of
court for willful failure to abide by a lawful order of the court, the
converse is not true. There are several analogous cases from our
circuit which hold that a nonparty may not move for sanctions against
a party.

In Thiel v. State Farm Mut. Auto. Ins. Co., 14-879 (La. App. 5
Cir. 5/28/15), 171 So.3d 375, writ denied, 15-1259 (La. 10/9/15), 186
So.3d 1150, OCCL, a nonparty, moved for discovery sanctions
against the defendants (parties to the suit) under La. C.C.P. art. 1420.
The trial court granted the motion and awarded the nonparty

24-C-173 6

sanctions, attorney’s fees, and costs. Id. at 377. On appeal, this Court
granted an exception of no right of action in favor of the defendants
and vacated the judgment of sanctions. Id. at 378. This Court
reasoned that statutes that order sanctions, like La. C.C.P. art. 1420
and 863, are to be strictly construed. The court noted the plain
language of Article 1420(D), which states, in relevant part: “If, upon
motion of any party or upon its own motion … .” (Emphasis added.)
Accordingly, OCCL, as a nonparty, had no right of action against the
defendants for discovery sanctions. Id.

Likewise, in Lockett v. UV Ins. Risk Retention Grp., Inc., 15-
166 (La. App. 5 Cir. 11/19/15), 180 So.3d 557, the underlying lawsuit
was brought by the plaintiff Lockett against the defendant tortfeasors
and their insurers in a personal injury case. Id. at 560. Lockett’s
nonparty treating physicians moved to hold the defendants liable for
the attorney’s fees they incurred in defending the defendants’
subpoenas duces tecum and corporate depositions over the issue of
potential bias and/or financial motives with respect for their treatment
of the plaintiff, and were awarded sanctions, attorney’s fees, and
costs. Id. at 572-73. The defendants appealed. This Court found that
as nonparties to the action, the treating physicians had no right of
action for sanctions, attorney’s fees, and costs against the defendants
under La. C.C.P. art. 1420(D). Id. at 575.

We are guided by the analyses in the above cases. Under the
circumstances presented, we conclude that as a nonparty to the
partition suit, Ms. Brown does not have a right of action to request
contempt sanctions against Mr. Fraino. Accordingly, the trial court
erred, as a matter of law, in denying Mr. Fraino’s exception of no
right of action as to Ms. Brown’s Rule for Contempt. We grant the
exception of no right of action and dismiss the Rule for Contempt on
this basis as well.

CONCLUSION

This writ application is granted. The trial court’s judgment
which denied Mr. Fraino’s exceptions of no cause of action and no
right of action as to Ms. Brown’s Rule for Contempt is reversed. The

24-C-173 7

exceptions of no cause of action and no right of action are granted.
The Rule for Contempt filed by Ms. Brown is dismissed.

WRIT GRANTED; JUDGMENT REVERSED;
EXCEPTIONS OF NO CAUSE OF ACTION
AND NO RIGHT OF ACTION GRANTED;
RULE FOR CONTEMPT DISMISSED

24-C-173 8

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
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NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JUNE 17, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT
REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-C-173
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
R. CHRISTOPHER COX, III (DISTRICT JUDGE)
ROBERT G. HARVEY, SR. (RELATOR) JAMES E. MOORMAN, III (RESPONDENT)

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