Dan S. Collins, Cpl & Associates,inc. v. Frank A. Godchaux, III

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-737

DAN S. COLLINS, CPL & ASSOCIATES, INC.

VERSUS

FRANK A. GODCHAUX, III, INDIVIDUALLY AND AS TRUSTEE FOR THE
CHARLES R. GODCHAUX LIVE OAK PLANTATION TRUST, AGNES K.
GODCHAUX AS TRUSTEE FOR CHARLES R. GODCHAUX LIVE OAK
PLANTATION TRUST, CHARLES R. GODCHAUX INDIVIDUALLY AND
AS TRUSTEE FOR THE FRANK A. GODCHAUX, III, LIVE OAK
PLANTATION TRUST AND LESLIE K. GODCHAUX AS TRUSTEE FOR
THE FRANK A. GODCHAUX , III, LIVE OAK PLANTATION TRUST

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 84618
HONORABLE JULES EDWARDS, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of John D. Saunders, Billy Howard Ezell, and J. David Painter,
Judges.

AFFIRMED.

Anthony Fontana, Jr.
210 Washington St.
Abbeville, LA 70510
Counsel for Plaintiff-Appellant:
Dan S. Collins, CPL & Associates, Inc.

Newman Trowbridge, Jr.
P.O. Box 3644
Lafayette, LA 70502
Counsel for Defendants-Appellees
Frank A. Godchaux, III, Individually and as Trustee for the Charles R.
Godchaux Live Oak Plantation Trust, Agnes K. Godchaux as Trustee for
Charles R. Godchaux Live Oak Plantation Trust, Charles R. Godchaux
Individually and as Trustee for the Frank A. Godchaux, III, Live Oak
Plantation Trust and Leslie K. Godchaux as Trustee for the Frank A.
Godchaux, III, Live Oak Plantation Trust

PAINTER, Judge.

Plaintiff, Dan S. Collins, CPL & Associates, Inc. (Collins & Associates),

appeals the trial court’s award of sanctions and costs against it. For the following

reasons, we affirm.

FACTS

In 1994, Dan Collins, individually, entered into a mineral consulting agreement

with Defendants, Frank A. Godchaux, III, Individually and as Trustee for the Charles

R. Godchaux Live Oak Plantation Trust, Agnes K. Godchaux as Trustee for Charles

R. Godchaux Live Oak Plantation Trust, Charles R. Godchaux, Individually and as

Trustee for the Frank A. Godchaux, III, Live Oak Plantation Trust and Leslie K.

Godchaux as Trustee for the Frank A. Godchaux, III, Live Oak Plantation Trust (the

Godchauxs). In 1996, the agreement was renewed, and in 2002, Collins’ company,

Collins & Associates and the Godchauxs entered into a similar mineral consulting

agreement. In 2004, the Godchaux executed a settlement with Cody Energy, LLC,

Newfield Exploration Company, Union Oil Company of California, Dunhill

Exploration and Production, LLC, KMC Energy, LLC, Bay Holdings, LLC, and Key

Production Company. Pursuant to the settlement, the Godchauxs entered into new

oil and gas leases and an amendment to a lease from 1952. The settlement agreement

and leases were drafted by the Godchauxs’ attorney, Newman Trowbridge, Jr. With

regard to the new leases, he also drafted assignments of royalties to Collins &

Associates. On February 21, 2006, Collins & Associates filed this suit alleging

breach of the consulting agreement when the Godchauxs refused to assign it a royalty

interest in the 1952 lease. The Godchauxs responded by filing exceptions, affirmative

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defenses, a reconventional demand, and a third party demand against Collins

individually.

In July 2006, counsel for Collins and Collins & Associates sent a letter to

Trowbridge accusing him of a conflict of interest and trying to cheat Collins out of

royalty interests. Counsel for Collins attempted to convince Trowbridge to withdraw

from representation of the Godchauxs and threatened to file a complaint with the

disciplinary counsel or to file a motion to have him removed by the trial court. On

August 11, 2006, Collins & Associates filed a Rule to Show Cause Why Defendants’

Attorney Should Not Be Required to Withdraw or Be Ordered to Be Deposed. A

hearing on this was originally set for November 6, 2006, but was reset to December

17, 2007, at Plaintiff’s request. Shortly thereafter, Collins & Associates filed a First

Supplemental and Amending Petition. In September 2007, the Godchauxs

propounded interrogatories, requests for admissions, and requests for production of

documents directed at the motion to withdraw. In response, Collins & Associates

identified more than nine hundred documents and things it expected to offer as

evidence at the hearing on the motion to withdraw.

In October 2007, Defendants filed exceptions to the supplemental and

amending petition, a motion to vacate the order giving leave to file the supplementary

petition, and a motion to strike the allegations contained therein and for sanctions.

Defendants asserted that the supplemental and amending petition did not comply with

the procedural requirements of La.Code. Civ.P. art 1151 in that it was not filed before

an answer to the original petition and that Plaintiff did not obtain the written consent

of Defendants to the filing. They argued that they were entitled to sanctions in that

the allegations of the pleading were legally insupportable and that it was interposed

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for the purpose of bolstering Plaintiff’s attempt to disqualify Defendants’ attorney.

On October 19, 2007, Defendants noticed the deposition of Collins and the corporate

deposition of Collins & Associates. In November 2007, Collins & Associates filed

a memorandum in support of its motion to disqualify or to depose Defendants’

attorney. At the same time, Plaintiff moved to vacate the order allowing it to file its

first supplemental and amending petition and for a hearing on a rule to show cause

why the first supplemental and amending petition should not be filed. Defendants

filed a memorandum in opposition to Plaintiff’s motion to disqualify or depose

Defendants’ attorney.

On December 10, 2007, Defendants moved to quash a subpoena for the

attendance of Defendants at the hearing on the motion to disqualify or depose

Defendants’s attorney. Three days later, Plaintiff moved to withdraw its rule to

disqualify or depose Defendants’ attorney. Defendants supplemented their motion

for sanctions to include arguments that the motion to disqualify or depose

Defendant’s attorney and the issuance of subpoenas for Defendants were without

basis in law and were interposed for purposes of delay and to inflate the cost of

litigation for Defendants.

On the day of the hearing of the motions to file the supplemental and amended

petition and of the motion for sanctions, Plaintiff presented a different First

Supplemental and Amended Petition that it wanted to have filed in place of the

identically named document previously filed.

The trial court, after hearing arguments, allowed the first supplemental and

amended petition presented that day to be filed and granted the motion to strike the

previously filed document of the same name. The court further granted the motion

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for sanctions in connection with the motion to disqualify or depose Defendants’

attorney. Plaintiff appeals.

DISCUSSION

Sanctions

Louisiana Code of Civil Procedure article 863 provides that:

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
address shall be stated. A party who is not represented by an attorney
shall sign his pleading and state his address.

B. Pleadings need not be verified or accompanied by affidavit or
certificate, except as otherwise provided by law, but the signature of an
attorney or party shall constitute a certification by him that he has read
the pleading; that to the best of his knowledge, information, and belief
formed after reasonable inquiry it is well grounded in fact; that it is
warranted by existing law or a good faith argument for the extension,
modification, or reversal of existing law; and that it is not interposed for
any improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation.

C. If a pleading is not signed, it shall be stricken unless promptly
signed after the omission is called to the attention of the pleader.

D. If, upon motion of any party or upon its own motion, the court
determines that a certification has been made in violation of the
provisions of this Article, the court shall impose upon the person who
made the certification or the represented party, or both, an appropriate
sanction which may include an order to pay to the other party or parties
the amount of the reasonable expenses incurred because of the filing of
the pleading, including a reasonable attorney's fee.

E. A sanction authorized in Paragraph D shall be imposed only
after a hearing at which any party or his counsel may present any
evidence or argument relevant to the issue of imposition of the sanction.

F. A sanction authorized in Paragraph D shall not be imposed
with respect to an original petition which is filed within sixty days of an
applicable prescriptive date and then voluntarily dismissed within ninety
days after its filing or on the date of a hearing on the pleading,
whichever is earlier.

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This court has held that the standard of appellate review applicable to a trial

court's ruling on an Article 863 claim is manifest error or abuse of discretion. Green

v. Iberia Parish Sch. Bd., 06-1060 (La.App. 3 Cir. 12/20/06), 945 So.2d 940, writ

denied, 07-111 (La. 3/16/07), 952 So.2d 697.

At the hearing Collins testified in direct examination that he thought that

Trowbridge was the only person that had relevant testimony to offer the court as to

the facts relied on in determining what royalty he, Collins, would have received.

However, on cross-examination he admitted that he remembered testifying in

deposition that Trowbridge had no information not available to himself or to

Defendants. He further stated that he was not aware of any additional information

with respect to the documents that was not available either though his own testimony

or that of Defendants, which might have come to his attention since the deposition.

In answer to questioning by the trial court, he stated that he did not think that he had

any information on the date he decided to withdraw the motion to disqualify or

depose Trowbridge that he did not have prior to the filing of the motion.

The trial court gave the following reasons for its decision that sanctions were

appropriate:

A couple of - - several bits of - - several items of documentary
evidence and two witnesses that testified today, and that information
was considered in order for me to make this determination. And of
those items, the testimony of the plaintiff - - a few items were
particularly important for me for resolution of this case; the first being
the testimony of the plaintiff that there was no information that Mr.
Trowbridge possessed that was not also possessed by the plaintiffs and
the defense. That was very persuasive.

Secondly, there has been - - despite the often pronounced
conviction of Mr. Fontana that Newman Trowbridge was the only
person to possess certain information, there has been no attempt to seek
that information from folks who would have a reasonable chance of also
possessing that information, particularly the defendants in the case. It

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is true that the plaintiff was deposed for the purpose of preparing for
these hearings that were set for today, but the defendants were not
deposed.

Also, the documents that were particularly interesting to me and
significant to me were Defense Exhibits 16 and 17; Defense Exhibit 16
being a 13 July 2006, 2006 letter from Mr. Fontana to Mr. Trowbridge,
and then a 21 July 2006 letter from Mr. Trowbridge to Mr. Fontana.

There’s been lots of effort taken to encourage Mr. Trowbridge to
cease his representation of the defendants in this case. And I can
understand how that might be a goal of the plaintiff, and I can also
understand how Mr. Fontana could become so impressed with the justice
of his client’s cause that he may not have been able to see the forest for
the trees.

But nonetheless, the filing of this rule to show cause, as well as
the filing of the supplemental and amending petition that was filed on
the 23rd of August, despite the repeated, clear comments of Mr.
Trowbridge about the legal obligations that are described in - - the legal
requirements described in Code of Civil Procedure, the Code of
Evidence as to what needs to be - - how a lawyer can be removed from
a case in this kind of circumstance, for Mr. Fontana to move forward in
the way that he did without developing the evidence needed to support
his conviction before filing these pleadings, I mean, that’s just
unacceptable.

One would - - it is - - I am unable to determine whether the
purpose of this action was to harass the defendants, but it seems fairly
clear that the purpose was to deprive the defendants of the counsel of
their choice; and one could conclude, there is enough evidence to
conclude that the purpose was to drive up the litigation costs for the
defendants. But both of those purposes are improper purposes, and I can
think of no reason why those pleadings would have - - why there was
any requirement to file those pleadings prior to the discovery of
evidence that would support those allegations.

To say that this was - - these were valid pleadings and it was a
tactical decision to withdraw, step away from that approach to the case,
because it is, in fact, true because I say it’s true that Trowbridge is the
only person who has this information and if we don’t discover the
information, that means the defendants will not be able to prove their
claims, that tactical decision - - if we are to characterize it as a tactical
decision - - is on that could have been made prior to the filing of these
pleadings. All of this discovery that has occurred in this case could have
occurred without these pleadings being filed. However, the fact of the
filing of these pleadings has dramatically increased the cost of this
litigation.

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Given the testimony adduced at the hearing on the motions, we find neither

abuse of discretion nor manifest error in the trial court’s decision to impose sanctions

on Plaintiff.

Motion to Vacate and/or to Strike

Plaintiff asserts that the trial court committed reversible error in holding a

hearing on the motions to vacate the order allowing him to file a supplemental and

amending petition and to strike that supplemental and amending petition where it had

already been withdrawn. We note that the outcome of the hearing on the

supplemental and amending petition was to allow Plaintiff to file its substitute

supplemental and amending petition. Since Plaintiff incurred no harm, we are unable

to grant any relief.

CONCLUSION

For these reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Plaintiff-Appellant, Dan S. Collins, CPL & Associates, Inc.

AFFIRMED.

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