Mother of Eden, LLC v. Chris Thomas

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

11-1303

MOTHER OF EDEN, LLC

VERSUS

CHRIS THOMAS

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2010-7774
HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and
Billy Howard Ezell, Judges.

AFFIRMED IN PART, REVERSED
IN PART, AND RENDERED.

R. Michael Moity, Jr.
The Moity Law Firm
340 Weeks Street
New Iberia, LA 70560
Telephone: (337) 365-5529
COUNSEL FOR:
Plaintiff/Appellant - Mother of Eden, LLC

Chaz H. Roberts
112 Oil Center Drive - Suite 113
Lafayette, LA 70503
Telephone: (337) 504-3203
COUNSEL FOR:
Defendant/Appellee - Chris Thomas

THIBODEAUX, Chief Judge.

Plaintiff, Mother of Eden, LLC (“Eden”), attempted to obtain a

preliminary injunction against Defendant, Chris Thomas, after Thomas allegedly

made defamatory statements about Eden’s CEO to the company’s customers and

retailers. When Eden’s attorney failed to appear at the injunction hearing, the trial

court sustained Thomas’ Exception of No Cause of Action (“Exception”), dismissed

the Petition for Injunction (“Petition”), and awarded sanctions and attorney fees to

Thomas. Eden then filed a Motion for New Trial, asserting that the parties reached a

settlement prior to the hearing. Following a hearing, the trial court denied Eden’s

Motion and awarded additional attorney fees to Thomas. Eden appeals. For the

following reasons, we affirm in part and reverse in part.

I.

ISSUE

We must decide whether the trial court erred by:

(1) sustaining Thomas’ Exception and dismissing Eden’s Petition;

(2) denying Eden’s motion for new trial; and,

(3) assessing sanctions and attorney fees against Eden.

II.

FACTS AND PROCEDURAL HISTORY

Eden is a company that makes organic baby diapers. Tereson Dupuy

founded the company and is its majority member/manager. In August 2010, Dupuy

learned that Thomas had allegedly made disparaging comments about her and her

company on an internet blog. On behalf of Eden, Dupuy subsequently initiated the

underlying action by filing a Petition, seeking to prohibit Thomas from “contacting

any and all retailers of Mother of Eden as well as posting any other malicious

information that is unfounded and untrue on any website.” In its Petition, Eden

asserted that Thomas published “slanderous and liablous [sic]” comments regarding

Dupuy.

Thomas responded to Eden’s Petition by filing an Answer and Exception,

asserting that Eden was not entitled to an injunction because (1) Eden failed to plead

irreparable injury and (2) all alleged comments were true. The trial court scheduled a

hearing on the Petition and Exception.

Prior to the scheduled hearing, attorneys for both parties attempted to

reach a settlement. Despite numerous communications between them, the parties

never signed a settlement agreement. The trial court held a hearing on the Petition

and Exception on May 16, 2011. Eden’s counsel failed to appear at the hearing.1 At

the hearing, the trial court sustained Thomas’ Exception and denied Eden’s Petition.

The trial court imposed sanctions and awarded attorney fees pursuant to La.Code

Civ.P. art. 863, reasoning that Eden filed the Petition to harass Thomas, that exhibits

to the Petition facially contradicted the allegation of defamation, and that the Petition

contained inappropriate accusations regarding Thomas that could constitute

defamation.

On May 25, 2011, Eden filed a Motion for New Trial, asserting that the

parties settled the matter prior to the May 16 hearing. The trial court held a hearing

on Eden’s Motion and denied the Motion in open court. Specifically, the trial court

ruled that no consummated settlement agreement existed between the parties, and

thus, no justification existed for Mr. Moity’s absence at the May 16 hearing. The trial

court awarded attorney fees incurred to defend against the Motion, stating that Mr.

Moity “acknowledged [and] admitted . . . unprofessional conduct.”

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Eden’s counsel, Michael Moity, asserts that his failure to appear was the result of his
misunderstanding that the parties had reached an amicable settlement. A careful review of the
record indicates that no settlement agreement was ever signed by the parties, and Mr. Moity was
remiss in not attending the hearing. His shameless attempts to cast blame on Thomas’ counsel is
unconvincing.
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Eden now appeals the trial court’s denial of its Petition, denial of its

Motion for New Trial, and award of sanctions and attorney fees to Thomas in

conjunction with both the Petition and the Motion.

III.

LAW AND DISCUSSION

Standard of Review

“A trial court’s determination as to whether to issue a preliminary

injunction is subject to the abuse of discretion standard of review.” Gautreau v.

Trahan, 07-875, p. 4 (La.App. 3 Cir. 12/5/07), 971 So.2d 445, 447. Similarly, a trial

court’s ruling on a Motion for New Trial is reviewed under an abuse of discretion

standard. Guillory v. Lee, 09-75 (La. 6/26/09), 16 So.3d 1104. An award of sanctions

under La.Code Civ.P. art. 863, however, is reviewed for manifest error. Richardson v.

Whitney Nat. Bank, 06-803 (La.App. 5 Cir. 2/27/07), 953 So.2d 836, writ denied, 07-

670 (La. 5/18/07), 957 So.2d 153.

Discussion

Preliminary Injunction and Exception of No Cause of Action

Eden asserts that the trial court erred by denying Eden’s Petition and

granting Thomas’ Exception. Specifically, Eden argues that it presented a prima facie

case for an injunction. We disagree and find that the trial court did not abuse its

discretion in denying Eden’s Petition and granting Thomas’ Exception.

A trial court has great discretion to grant or deny a request for a

preliminary injunction. Burnham Broadcasting Co. v. Williams, 629 So.2d 1335

(La.App. 4 Cir. 1993), writ denied, 94-150 (La. 2/25/94), 632 So.2d 770, cert. denied,

513 U.S. 814, 115 S.Ct. 69 (1994). To be entitled to relief, the moving party must

show that if she is not granted injunctive relief, she will suffer irreparable injury, and

she must make a prima facie showing that she will prevail on the merits. Camp,

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Dresser & McKee, Inc. v. Steimle & Associates, Inc., 94-547 (La.App. 5 Cir. 2/15/95),

652 So.2d 44. “[W]hile the trial court has broad discretion in deciding whether to

grant injunctive relief, injunction is an extraordinary remedy and should only issue

where the party seeking it is threatened with irreparable loss without adequate remedy

at law. . . .” Gautreau, 971 So.2d at 450. “Irreparable injury, for purposes of the

preliminary injunction, means that the applicant cannot be adequately compensated in

money damages for the injury or that he will suffer injuries which cannot be measured

by pecuniary standards.” Camp, Desser & McKee, 652 So.2d at 47. A movant is not

required to show irreparable injury where the offensive act is unlawful. Id.

On appeal, Eden alleges that the comments Thomas allegedly made on

internet blogs are a violation of a separate injunction entered against Thomas. Thus,

Eden argues that it need not prove irreparable injury since Thomas’ actions are per se

unlawful. Eden’s arguments make repeated reference to this previous injunction that

was never introduced into evidence. Appellate courts are courts of record and may

not review evidence that is not in the appellate record, and they may not receive new

evidence. La.Code Civ.P. art. 2164; Denoux v. Vessel Mgmt. Servs., Inc., 07-2143

(La. 5/21/08), 983 So.2d 84. Documents quoted in memoranda do not constitute

evidence and cannot be considered as such on appeal. Id. Although Eden apparently

deems it important, the previous injunction is not a matter of record, and we do not

consider it on appeal.

Instead, we turn to the trial court’s judgment denying Eden’s Petition and

granting Thomas’ Exception and evaluate its judgment for abuse of discretion. A

review of Eden’s Petition reveals that it fails to make a fundamental showing of

irreparable injury. Indeed, the Petition makes no mention of damages—actual or

speculative—suffered by Eden because of Thomas’ alleged actions. Because Eden

failed to plead or prove any irreparable injury, we find that the trial court did not

abuse its discretion in denying Eden’s Petition and granting Thomas’ Exception.

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Motion for New Trial

Eden argues that the trial court abused its discretion in denying its

Motion for New Trail. Though its argument is short and vaguely cites supporting

authority, Eden appears to argue that failure to grant a new trial results in a

miscarriage of justice. La.Code Civ.P. art. 1973 provides that the trial court may

grant a new trial if there exists good grounds therefor.

Courts adopt “the well-established principle that a new trial should be

granted in cases where the enforcement of the judgment would be inequitable and

unconscionable.” Hairston v. Monroe Gas Corp., 308 So.2d 809, 811 (La.App. 2 Cir.

1975); Crump v. Bank One Corp., 35,990 (La.App. 2 Cir. 5/8/02), 817 So.2d 1187.

Thus, if a trial court is convinced that the judgment, even if free from legal error, does

not do substantial justice, it may properly grant a new trial. Gilley v. Wendy’s, Inc.,

31,353 (La.App. 2 Cir. 12/9/98), 723 So.2d 517; Dawson v. Mazda Motors of

America, Inc., 475 So.2d 372 (La.App. 1 Cir. 1985).

Courts have specifically considered circumstances where a party asserts

that the conduct of an attorney has created a miscarriage of justice warranting a new

trial. Lapse of legal rights due to a party’s delay, in particular, has not been held to

warrant a new trial. In Crump, FGB’s failure to file an answer resulted in a default

judgment against FGB. The court declined to grant a new trial, noting that FGB

lacked a good excuse or reason for its failure to file an answer and held that the “mere

failure to file an answer, without more, is not adequate grounds to grant a new trial.”

Crump, 817 So.2d at 1193. Similarly, in circumstances where a defendant failed to

file an answer to a default judgment and asserted only human error as his defense, the

court declined to find an abuse of discretion in the trial court’s denial of the motion

for new trial, commenting that “[m]ere human error was not enough to convince the

trial court that a miscarriage of justice would result if a new trial was not granted.”

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Hickman v. Wm. Wrigley, Jr. Co., Inc., 33,896, p. 4 (La.App. 2 Cir. 10/4/00), 768

So.2d 812, 816.

Eden makes much of its attorney’s failure to appear at the injunction

hearing, asserting that its attorney was under the misguided assumption that the

parties had reached a settlement. The record reflects, however, that the parties never

executed a settlement agreement. No meeting of the minds occurred with respect to

the settlement communications. Common sense dictates that Eden’s counsel should

have simply appeared at the hearing. Louisiana jurisprudence does not consider error

in an attorney’s performance of his duty as grounds for granting a new trial. Thus,

Eden cannot argue that negligence on the part of its attorney resulted in a miscarriage

of justice warranting a new trial. See Maxie v. Gines, 95-986 (La.App. 3 Cir.

1/31/96), 670 So.2d 344, writ denied, 96-560 (La. 5/10/96), 672 So.2d 921. We find

that the trial court did not abuse its discretion in denying Eden’s Motion for New

Trial.

Award of Sanctions and Attorney Fees

Finally, we turn to Eden’s assignment of error that the trial court

erroneously awarded sanctions and attorney fees to Thomas. We agree that the trial

court erroneously awarded sanctions and attorney fees to Thomas.

The trial court’s judgment, dated May 16, 2011, indicates that the trial

court awarded sanctions and attorney fees in accordance with La.Code Civ.P. art. 863.

Article 863, sections (D) and (E) state:

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.

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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.

This article and relevant jurisprudence make clear that sanctions can only be imposed

on motion, either by a party or by the court, and after a hearing. La.Code Civ.P. art.

863; Petroleum Helicopters, Inc. v. Gen. Motors Corp., 561 So.2d 203 (La.App. 3 Cir.

1990). Here, we may assume that the trial court properly brought its own motion for

sanctions and attorney fees, but we cannot excuse the absence of a hearing before

sanctions and attorney fees were awarded. The record indicates that Eden’s counsel

had no opportunity to respond to the proposed award of sanctions and attorney fees.

Thus, we find the trial court erred by awarding sanctions and attorney fees without

first holding a hearing.

The trial court also awarded attorney fees in its judgment dated August

29, 2011, following a hearing on Eden’s Motion for New Trial. 2 It is difficult to

discern from the record the basis upon which attorney fees were levied. If they were

levied in connection with Article 863, they were improper because, again, the trial

court failed to hold a hearing before imposing the attorney fees. If they were not

levied under Article 863, they remain improper because a party shall recover attorney

fees only when authorized by statute or stipulated by contract. Haskell v. Hawkins,

580 So.2d 453 (La.App. 5 Cir. 1991). Here, the parties have no contract, and no

applicable statute authorizes the award of attorney fees. The trial court erred in

awarding attorney fees in its August 29, 2011 judgment.

Given our finding that the trial court erroneously imposed sanctions and

attorney fees to Thomas, we reverse that portion of the trial court’s judgment.

2
Both parties assert that the trial court awarded attorney fees and sanctions in the August 29,
2011 judgment. We see nothing in the record indicating an award of sanctions. If sanctions were
awarded, however, they would also be improper because no hearing was held in accordance with
La.Code Civ.P. art. 863(E).
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IV.

CONCLUSION

For the reasons articulated above, we affirm in part, reverse in part, and

render the judgment of the trial court. Costs of this appeal are assessed against

Appellant, Mother of Eden.

AFFIRMED IN PART, REVERSED IN PART, AND RENDERED.

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