Mickey McGuinness Quinlan, Mackey Sugar Quinlan, and Charles Brian Sugar v. Melissa Sugar-Gold

Judgment rendered March 11, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 53,348-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

MICKEY McGUINNESS Plaintiffs- 2nd Appellants
QUINLAN, MACKEY SUGAR
QUINLAN, AND CHARLES
BRIAN SUGAR

versus
MELISSA SUGAR-GOLD Defendant-1st Appellant

*****

Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 574,162

Honorable Craig Owen Marcotte, Judge

*****

THE PESNELL LAW FIRM, APLC Counsel for 1st Appellant,
By: Billy Ray Pesnell Melissa Sugar-Gold
John Whitney Pesnell

McMICHAEL, MEDLIN, D’ANNA Counsel for 2nd Appellants,
By: James C. McMichael, Jr. Mickey McGuinness Quinlan,
Elizabeth E. Wong Mackey Sugar Quinlan, and
Charles Brian Sugar

*****

Before WILLIAMS, STEPHENS, and McCALLUM, JJ.

STEPHENS, J.

Defendant, Melissa Sugar-Gold, and plaintiffs, Mickey McGuiness

Quinlan, Mackey Sugar Quinlan, and Charles Brian Sugar, appeal a

judgment of the First Judicial District Court, Parish of Caddo, State of

Louisiana, awarding defendant attorney fees in connection with her special

motion to strike wherein she prevailed against plaintiffs. For the following

reasons, we affirm in part and reverse in part the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

This matter arises from plaintiffs’ petition for injunctive relief and

damages for defamation and intentional infliction of emotional distress filed

against defendant in January 2014. The underlying facts of the action are

discussed in this court’s previous opinion, Quinlan v. Sugar-Gold, 51,191

(La. App. 2 Cir. 4/5/17), 219 So. 3d 1173 (“Quinlan I”). In response to

plaintiffs’ petition, defendant filed peremptory exceptions of no cause of

action and prescription as well as a special motion to strike plaintiffs’

petition, pursuant to La. C.C.P. art. 971. The trial court granted defendant’s

special motion to strike and dismissed plaintiffs’ petition with prejudice.

However, the trial court denied defendant’s request for attorney fees and

ordered the parties to bear their own costs. Defendant filed a motion for new

trial, arguing an award of attorney fees and costs was mandated under La.

C.C.P. 971(B); the trial court denied this. Both parties appealed the trial

court’s judgment. In Quinlan I, this court affirmed the trial court’s ruling

granting defendant’s special motion to strike and reversed the trial court’s

ruling denying attorney fees. The matter was remanded to the trial court.

The trial court subsequently held a hearing on March 4, 2019, wherein

defendant put on evidence in support of her claim for a total of $109,275 in

attorney fees and costs. The trial court issued a written opinion on May 29,

2019, and judgment was thereafter filed on June 13, 2019, awarding

defendant $48,588.33 in attorney fees and costs in connection with her

special motion to strike and denying her claim for attorney fees in

connection with her prior appeal, exceptions of no cause of action and

prescription, and motion for new trial.1 Both parties appeal the trial court’s

judgment.

DISCUSSION

Legal Principles

Louisiana C.C.P. art. 971 provides, in pertinent part:

A. (1) A cause of action against a person arising from any act of
that person in furtherance of the person’s right of petition or
free speech under the United States or Louisiana Constitution in
connection with a public issue shall be subject to a special
motion to strike, unless the court determines that the plaintiff
has established a probability of success on the claim.

(2) In making its determination, the court shall consider the
pleadings and supporting and opposing affidavits stating the
facts upon which the liability or defense is based.

...

B. In any action subject to Paragraph A of this Article, a
prevailing party on a special motion to strike shall be awarded
reasonable attorney fees and costs.

Article 971 was enacted by the legislature as a procedural device to be used

in the early stages of litigation to screen out meritless claims brought

primarily to chill the valid exercise of the constitutional rights of freedom of

speech and petition for redress of grievances. Johnson v. KTBS, Inc., 39,022

(La. App. 2d Cir. 11/23/04), 889 So. 2d 329, writ denied, 2004-3192 (La.

1
The trial court’s judgment does not expressly mention defendant’s motion for
new trial, but its opinion makes clear it did not award any attorney fees in connection
with that motion.

2

3/11/05), 896 So. 2d 68. In the act that created art. 971 (1999 La. Acts No.

734, § 2), the legislature stated its intent in enacting the provision as follows:

Section 2. The legislature finds and declares that there has been
a disturbing increase in lawsuits brought primarily to chill the
valid exercise of the constitutional rights of freedom of speech
and petition for redress of grievances. The legislature finds and
declares that it is in the public interest to encourage continued
participation in matters of public significance, and that this
participation should not be chilled through abuse of the judicial
process. To this end, it is the intention of the legislature that the
Article enacted pursuant to this Act shall be construed broadly.

In any action subject to La. C.C.P. art. 971(A), a prevailing party on a

special motion to strike shall be awarded reasonable attorney fees and costs.

La. C.C.P. art. 971(B); In re Succession of Carroll, 46,327 (La. App. 2 Cir.

7/20/11), 72 So. 3d 384, writ not cons., 2011-1844 (La. 11/4/11), 75 So. 3d

912. As a general rule, attorney fees are not allowed in Louisiana unless

they are authorized by statute or provided for by contract. State, Dept. of

Transp. & Dev. v. Wagner, 2010-0050 (La. 5/28/10), 38 So. 3d 240; Carroll

Insulation & Window Co., Inc. v. Biomax Spray Foam Insulation, LLC,

50,112 (La. App. 2d Cir. 11/18/15), 180 So. 3d 518. Statutes providing for

penalties and/or attorney fees are penal in nature and must be strictly

construed. See Langley v. Petro Star Corp. of La., 2001-0198 (La. 6/29/01),

792 So. 2d 721; Jones v. Johnson, 45,847 (La. App. 2d Cir. 12/15/10), 56

So. 3d 1016. An award of attorney fees is a type of penalty imposed, not to

make the injured party whole, but rather to discourage a particular activity

on the part of the opposing party. Langley, supra; Sharbono v. Steve Lang &

Son Loggers, 1997-0110 (La. 7/1/97), 696 So. 2d 1382. In the context of the

special motion to strike, the trial court’s award of attorney fees is subject to

the deferential abuse of discretion standard of review. See Davis v. Benton,

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03-0851 (La. App. 1 Cir. 2/23/04), 874 So. 2d 185 (finding “no abuse of

discretion” in the trial court’s award of attorney fees).

Attorney Fees for Exceptions of No Cause of Action
and Prescription and Motion for New Trial

In her first assignment of error, defendant asserts the trial court erred

in failing to award her reasonable attorney fees and costs in connection with

her exceptions of no cause of action and prescription and her motion for a

new trial. Defendant argues the exceptions of no cause of action and

prescription are directly related and associated with the “probability of

success” on the motion to strike and asserts “probability of success” is a

crucial issue on a motion to strike under art. 971. She further points to this

language of art. 971(2): “In making its determination, the court shall

consider the pleadings and supporting and opposing affidavits stating the

facts upon which the liability or defense is based.” She argues while not all

exceptions may be relevant to or associated with a motion to strike,

exceptions are pleadings, and the exceptions of no cause of action and

prescription clearly have bearing on the success or failure of a motion to

strike.

Plaintiffs argue an award for professional service outside of the work

done on the special motion to strike would encourage attorneys to attempt a

special motion to strike in an effort to have all of their work compensated by

the opposing party, abusing the court system’s time and resources. They

further assert if a special motion to strike is warranted, then there would be

no need to file additional exceptions or motions as the “probability of

success” is the burden of proof for the special motion to strike alone.

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Because attorney fees are penal in nature and must be strictly

construed, courts interpret La. C.C.P. art. 971(B) as limiting recovery to

those attorney fees and costs specifically associated with the special motion

to strike. Langley, supra; Jones, supra; Delta Chem. Corp. v. Lynch, 2007-

0431 (La. App. 4 Cir. 2/27/08), 979 So. 2d 579, writs denied, 2008-0683,

2008-0761 (La. 5/30/08), 983 So. 2d 898. In declining to award defendant

attorney fees for work done on her two exceptions and motion for new trial,

the trial court relied on Delta Chem. Corp., supra, which held as follows:

[The prevailing party] can recover only those fees associated
with the motion to strike. We do not agree with the [prevailing
party’s] position that [it] is entitled to recover the attorney’s
fees and costs incurred from the time the suit was filed until the
day the trial court made the award. Thus, for example, [it]
cannot recover attorney’s fees related to its litigation in this
case of the venue issue. Therefore, we find the award of
$20,000.00 is excessive and reverse the judgment of the trial
court.

Id. at 588.

Here, defendant asserts that the arguments made in her exceptions

directly supported her special motion to strike. Acknowledging the nature of

these exceptions is more related to the special motion to strike than the issue

of venue referenced in Delta Chem. Corp, we nevertheless find the

association is insufficient to warrant recovery under art. 971. Notably,

defendant’s exceptions were not required for her to successfully litigate her

special motion to strike. The exceptions, instead, were independent

procedural devices that merely repeated arguments made in the special

motion to strike and thus served as back-up strategies in the event the trial

court found defendant had not satisfied the more stringent burden of proof of

the special motion to strike. Therefore, considering the repetitive and

unnecessary nature of defendant’s exceptions of no cause of action and

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prescription with regard to her special motion to strike, we find the trial

court did not err in declining to award attorney fees and costs in connection

with those exceptions.

Regarding her motion for new trial, defendant asserts the motion on

its face sought relief from the trial court’s erroneous failure to award her

attorney fees and costs and is thus directly related to and associated with her

claim for attorney fees and costs under art. 971. We agree. Plaintiffs’

argument that this claim for attorney fees for the motion for new trial was

appropriately denied because the motion was based on defendant’s request

for attorney fees, not the special motion to strike itself, is unconvincing. A

motion whose sole purpose was to enforce a provision of art. 971 is clearly

associated with that article. We also note where a party is forced to litigate

payment of a fee to which it is entitled, courts have allowed collection of an

additional fee for that work as well. See Quantum Res. Mgmt., L.L.C. v.

Pirate Lake Oil Corp., 13-74 (La. App. 5 Cir. 10/30/13), 128 So. 3d 462,

writ denied, 2013-2759 (La. 2/14/14), 132 So. 3d 963. Accordingly, the

trial court erred in failing to award defendant attorney fees for the work

performed in connection with her motion for new trial. While a hearing on

those fees has already been held in the trial court, and the evidence is

contained in the record before us, we believe the trial court is in a better

position to apply the relevant law to the particular facts and circumstances

of the case in order to determine a reasonable attorney fee for services

performed in the trial court, namely, those for the motion to new trial.

Therefore, we remand the case to the trial court with instruction to award

defendant reasonable attorney fees and costs in connection with her motion

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for new trial. The defendant’s claims regarding the exceptions of no cause

of action and prescription are without merit.

Attorney Fees for Appeal of Trial Court’s Original Judgment

In her second assignment of error, defendant asserts the trial court

erred in failing to award her the reasonable attorney fees and costs incurred

in connection with her appeal from the trial court’s original judgment.

Defendant argues there is nothing in the decree in Quinlan I that limits the

trial court’s award to the professional services performed by defendant’s

attorney in the trial court alone. She asserts absent a clear expression of

intent, it cannot be presumed the court Quinlan I intended to work a

forfeiture of defendant’s entitlement to attorney fees for services provided

on appeal. In support of her claim, defendant notes the legislative intent that

art. 971 be construed broadly in order to avoid the “chilling” effect of

unfounded suits on freedom of speech and press and argues this intent

cannot be accomplished unless the reasonable attorney fees incurred by the

defendant are shifted to the plaintiff.

Plaintiffs argue the opposite—if the court in Quinlan I had intended

to award appellate attorney fees, then it would have done so. They also

assert while the application of art. 971 as a procedural mechanism to further

the public policy it was intended for should be construed broadly, the award

of attorney fees should be strictly construed.

The appellate court shall render any judgment which is just, legal,

and proper upon the record on appeal. La. C.C.P. art. 2164. The general

rule regarding additional attorney fees for work done on appeal is that an

increase in attorney fees is usually allowed where a party was awarded

attorney fees by the trial court and is forced to and successfully defends an

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appeal. Carter . City of Shreveport, 51,589 (La. App. 2 Cir. 9/27/17), 244

So. 3d 659. It is within the appellate court’s discretion to award or increase

attorney fees for appellate work. Nesbitt v. Nesbitt, 46,514 (La. App. 2 Cir.

09/21/11), 79 So. 3d 347, writ denied, 2011-2301 (La. 12/02/11), 76 So. 3d

1178. The skill exercised by the attorney and the time and work done on

the appeal are factors considered in determining the amount of the award

for attorney fees. Wilks v. Ramsey Auto Brokers, Inc., 48,738 (La. App. 2

Cir. 1/15/14), 132 So. 3d 1009. The jurisprudence has also determined that

when an issue of attorney fees is present in the case, it is within the

appellate court’s discretion to award or increase attorney fees for the

expense of the appeal regardless of whether the appellee answered the

appeal. La. C.C.P. art. 2164; Nesbitt, supra. An appellate court can

evaluate the work of counsel and make an award of attorney fees for work

at the appellate level. O’Brien v. Remington Arms Co., Inc., 601 So. 2d 330

(La. App. 2 Cir. 1992), writ denied, 604 So. 2d 1003 (La. 1992).

Furthermore, even when requested, additional attorney fees may not be

granted where the appellate court finds the amount awarded in the trial

court was sufficient to compensate counsel for both the work before the

trial court and on appeal. Strong v. Eldorado Casino Shreveport Joint

Venture, 46,464 (La. App. 2 Cir. 8/10/11) 73 So. 3d 967, writ denied, 2011-

1975 (La.11/14/11), 75 So. 3d 947.

In Quinlan I, this court stated:

For the foregoing reasons, we affirm the trial court’s ruling
which granted the defendant’s special motion to strike. We
reverse the trial court’s ruling denying attorney fees and we
remand this matter with instructions to the trial court to award
the defendant reasonable attorney fees and costs. Costs of this
appeal are assessed to the plaintiffs, Mickey McGuinness
Quinlan, Mackey Sugar Quinlan and Charles Brian Sugar.

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While Quinlan I is silent as to attorney fees for services rendered on appeal,

subsequent to that appeal, defendant requested those fees in the trial court.

The trial court denied that request, stating:

This court was unable to find any jurisprudence in which a trial
court [rather than an appellate court] granted an award of
attorney’s fees for work done on appeal. Therefore, this Court
finds that it would be procedurally improper to award attorney’s
fees for work done by Defendant on appeal to the Second
Circuit. It is the opinion of this Court that such an award would
more properly be requested of and determined by the Second
Circuit, as the venue which Defendant incurred the appellate
attorney’s fees and costs for which he now seeks recovery.
Accordingly, this Court’s award excludes any attorney’s fees
and costs associated with Defendant’s defense of the special
motion to strike on appeal.

Here, defendant was successful in obtaining relief on appeal,

plaintiffs were unsuccessful in obtaining relief on appeal, and the appeal

necessitated additional work by counsel for defendant. We note, however,

the issues and arguments on appeal had already been fleshed out and

thoroughly addressed throughout the pleadings and proceedings in the trial

court. Accordingly, considering the mandatory attorney fee language in art.

971(B), we find, under the facts and circumstances, a reasonable attorney

fee award for work done on Quinlan I is $1,500. We note defendants have

not requested attorney fees for work performed on the instant appeal.

However, we find the $1,500 awarded herein for work done on Quinlan I,

in conjunction with the trial court’s award below, is likewise reasonable and

sufficient to compensate counsel for work done on the instant appeal.

Attorney Fees Awarded for Motion to Strike

In her third assignment of error, defendant asserts the trial court erred

in refusing to award her the sum of $99,085.00 as reasonable attorney fees

and the sum of $9,140.10 as costs (for a total of $108,225.10) incurred in

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connection with her motion to strike. In support of her claim, defendant

points to the uncontested evidence she presented at the hearing on her

attorney fees and costs. She notes plaintiffs called no witnesses and offered

no evidence to show that any of the services performed or any of the

amounts of time spent by defendant’s attorney in connection with the motion

to strike were unnecessary, unreasonable, or excessive in any way.

Defendant asserts the award of attorney fees is fact-specific and must be

determined on a case-by-case basis. She argues given the constitutional

protection afforded freedom of speech, the extensive litigation defending

plaintiffs’ claims of defamation and intentional infliction of emotional

distress, which sought both injunctive relief and damages, was justified, and

an award of $108,225.10 is not unreasonable.

Plaintiffs assert in their sole assignment of error that the trial court

erred in awarding defendant attorney fees and costs in connection with her

special motion to strike that are far and above the reasonable standard

dictated by the factors in Rule 1.5 of the Rules of Professional Conduct.

They claim work on the special motion to strike for which the trial court

awarded defendant attorney fees was commingled with work performed on

her exceptions of no cause of action and prescription. Plaintiffs argue the

factors should be applied only to the work done on the special motion to

strike and, when so applied, weigh in favor of a reduced award of reasonable

attorney fees.

The factors to be considered when determining the reasonableness of

attorney fees are set forth in Rule 1.5 (a) of the Rules of Professional

Conduct and are as follows: (1) the ultimate result obtained; (2) the

responsibility incurred; (3) the importance of the litigation; (4) the amount of

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money involved; (5) the extent and the character of the work involved; (6)

the legal knowledge, attainment, and skill of the attorneys; (7) the number of

appearances involved; (8) the intricacies of the facts involved; (9) the

diligence and skill of counsel; and, (10) the court’s own knowledge. Rivet v.

State, Dept. of Transp. & Dev., 1996-0145 (La. 9/5/96), 680 So. 2d 1154; S.

Trace Prop. Owner’s Ass’n, 52,653 (La. App. 2 Cir. 9/25/19), 280 So. 3d

826.

A reasonable attorney fee is determined by the facts of an individual

case. Cupit v. Hernandez, 45,670 (La. App. 2d Cir. 9/29/10), 48 So. 3d

1114, writ denied, 2010-2466 (La. 12/17/10), 51 So. 3d 7. Each case is

considered in light of its own facts and circumstances, but the amount

awarded must be reasonable. Carter, supra. The trial court has discretion to

determine the amount of an attorney fee based upon the court’s own

knowledge, the evidence, and the court’s observation of the case and the

record. Delta Land & Inv., LLC v. Hunter Estates, Inc., 51,069 (La. App. 2

Cir. 1/11/17), 211 So. 3d 1255, 1263, writ denied, 2017-0264 (La. 3/31/17),

217 So. 3d 364. A court does not have to hear evidence concerning time

spent or hourly rates charged in order to make an award since the record will

reflect much of the services rendered. Id. Likewise, a court, in awarding

attorney fees, is not bound by the amount actually charged by the attorney.

S. Trace Prop. Owner’s Ass’n v. Williams, supra. The trial court is vested

with great discretion in arriving at an award of attorney fees. Delta Land &

Inv., LLC, supra. The exercise of this discretion will not be reversed on

appeal without a showing of abuse of discretion. Id.

In support of her argument, defendant relies on Gwandiku v. State

Farm Mut. Auto Ins. Co., 2007-580 (La. App. 3 Cir. 10/31/07), 972 So. 2d

11

334, where the defendant claimed the trial court erred by failing to grant all

fees and costs as prayed for, as plaintiff submitted no evidence or testimony

to controvert the amounts sought. There, plaintiff had submitted the

affidavit of the attorney with an attached client ledger showing the actual

amount of attorney fees and costs incurred totaled $4,001.00 in attorney

fees and $739.16 in costs. The trial court, without explanation for the

reduction, awarded only $3,000.00 in attorney fees and $434.95 in costs.

On appeal, the court increased the award to the amount prayed for in the

court below, stating “given the lack of any evidence in opposition thereto,

and considering the article’s mandatory language ‘shall,’ we find these

awards to be manifestly erroneous.” Id. at 339.

Here, defendant’s evidence included the engagement letter between

her and her attorney, showing the hourly rate of $350.00, which rate

plaintiffs stipulated was reasonable for that attorney, and the attorney’s

affidavit summarizing his experience, along with his resumé and detailed

invoices with time records attached. However, the trial court observed in

its opinion that the invoices provided by defendant’s attorney did not

specifically delineate exactly what was performed on the motion to strike.

Nevertheless, the trial court was able to provide a well-written and reasoned

opinion outlining its reasons for judgment, noting it reviewed the invoices

and identified the fees it determined to be associated with the motion to

strike. The trial court also specifically noted its consideration of the Rule

1.5 Factors and its analysis of the evidence presented by defendants at the

hearing. This case is distinguishable from Gwandiku. Though we may not

be able to replicate the exact method by which the trial court arrived at the

figure awarded due to the ambiguity of the invoices, it is clear the trial

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court’s departure from the amount requested by defendant was not executed

without thought, reason, and justification. Like the trial court, we have

reviewed the invoices as well as the record in its entirety, and, affording

great weight to the discretion of the trial court to set attorney fees and costs,

we cannot say its award to defendant in connection with her special motion

to strike was clearly wrong or manifestly erroneous. Accordingly, the

assignments of error of each party regarding the reasonableness of the

attorney fees awarded by the trial court in connection with defendant’s

motion to strike are without merit.

CONCLUSION

For the foregoing reasons, we reverse the portions of the trial court’s

judgment denying defendant, Melissa Sugar-Gold, reasonable attorney fees

for her motion for new trial and prior appeal. All other portions of the trial

court’s judgment are affirmed. We award defendant a total of $1,500 in

attorney fees for both the instant and prior appeal in this court. The matter is

remanded to the trial court for further proceedings in accordance with this

opinion. Costs of this appeal are assessed one-half to plaintiffs, Mickey

McGuiness Quinlan, Mackey Sugar Quinlan, and Charles Brian Sugar, and

one-half to defendant, Melissa Sugar-Gold.

REVERSED IN PART; AFFIRMED IN PART; REMANDED

FOR FURTHER PROCEEDINGS.

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