Dione W. David v. Richard G. David

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

14-999

DIONE W. DAVID

VERSUS

RICHARD G. DAVID

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 113919
HONORABLE CHARLES PORTER, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Jimmie C. Peters, Marc T. Amy, and Shannon J. Gremillion,
Judges.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR A
HEARING.

Ed W. Bankston
Post Office Box 53485
Lafayette, LA 70505
(337) 237-4223
COUNSEL FOR DEFENDANT/APPELLANT:
Richard G. David

L. E. “Tony” Morrow, Jr.
The Law Offices of Tony Morrow
323 E. University Avenue
Lafayette, LA 70503
(337) 233-9515
COUNSEL FOR PLAINTIFF/APPELLEE:
Dione W. David

AMY, Judge.

This matter is yet another facet of the ongoing proceedings stemming from

the parties‟ divorce and community property partition. After the community

partition judgment was amended and affirmed on appeal, and supreme court writs

were denied, the husband filed a Petition for Action of Nullity of Judgment, which

was set for trial. The day before trial, the husband filed a motion to recuse the trial

court judge. That motion was denied without a hearing. Neither the husband nor

his attorney appeared at the trial of the petition for nullity, and the trial court

dismissed the petition with prejudice and awarded sanctions against the husband

and his attorney. This appeal follows. For the following reasons, we affirm in

part, reverse in part, and remand for a hearing.

Factual and Procedural Background

As discussed in this case‟s previous incarnations before this court, Richard

and Dione David were married for thirty-six years before divorce proceedings were

instituted. At the time of the divorce, there were multiple businesses and parcels of

real property at issue for partition. After a multi-day trial on the community

property partition issue, the trial court rendered judgment partitioning the

community property. Richard appealed, and, on appeal, a panel of this court

amended the partition judgment and affirmed, as amended. David v. David, 12-

1051 (La.App. 3 Cir. 4/10/13), 117 So.3d 148. Richard sought a rehearing in this

court, which was denied. Additionally, his application for certiorari and request

for reconsideration at the Louisiana Supreme Court was denied. David v. David,

13-1541 (La. 10/4/13), 122 So.3d 1023; David v. David, 13-1541 (La. 11/15/13),

125 So.3d 1098. Although Richard‟s application for certiorari with regard to the

partition judgment was denied, litigation in both the trial and appellate courts

continued. Other proceedings before this court indicate that Richard was

sometimes at least partially successful in his appellate endeavors, David v. David,

14-126 (La.App. 3 Cir. 6/4/14), 114 So.3d 1110, and sometimes not, David v.

David, 12-1260 (La.App. 3 Cir. 3/13/13), 110 So.3d 713. Most recently, Dione

filed a motion to cancel several notices of lis pendens attached to properties that

were awarded to her in the partition judgment, which Richard opposed. David v.

David, 14-758 (La.App. 3 Cir. 12/10/14), __ So.3d __. Dione‟s motion was

granted by the trial court, and that judgment was affirmed on appeal. Id.

In December of 2013, Richard filed a Petition for Action of Nullity of

Judgment on the basis that he had been deprived of his “legal rights.” Therein,

Richard contended that the original community property partition judgment was in

violation of La.R.S. 9:2801(4)(b); that he had been required to pay for one of the

properties twice; that he paid one-half of his IRA account to Dione, but that he had

not received one-half of her IRA account; that the trial court failed to take into

consideration some 600 pages of evidence which had been filed, post-trial, with the

clerk of court; and that the trial court awarded Richard some credits that were not

reflected in the partition judgment.

According to the record, at Richard‟s request, a hearing was scheduled for

April 1, 2014. However, on March 31, 2014, Richard filed a motion to recuse the

trial court judge, alleging that the trial court judge was biased and that it was

“unexpected that [the trial court] would render an impartial judgment with regard

to these issues.” In support of this allegation, Richard pointed to the trial court‟s

original partition judgment; the alleged failure to consider the 600 pages of

evidence submitted post-trial; the trial court‟s prior issuance of bench warrants for

Richard‟s arrest and order to jail Richard for ninety days; and the cancellation of

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the notices of lis pendens. 1 That same day, the trial court denied the motion

without a hearing. Trial on the petition for nullity of judgment went forward the

next day. However, neither Richard nor his attorney appeared at the hearing.

After Dione‟s attorney requested dismissal of the petition and sanctions, the trial

court dismissed the petition for nullity with prejudice and awarded sanctions in the

form of attorney fees and costs.

Richard appeals, asserting that:

A. The trial court erred by its judgment of Article 863
Sanctions in the amount of $10,000.00.

B. The court erred by having denied defendant‟s motion to
recuse.

C. The court erred by dismissing defendant‟s petition for
nullity with prejudice.

Discussion

Motion to Recuse

Louisiana Code of Civil Procedure Articles 151—161 address the recusation

of judges. Louisiana Code of Civil Procedure Article 151 provides the grounds for

recusation, stating:

A. A judge of any court, trial or appellate, shall be recused
when he:

(1) Is a witness in the cause;

(2) Has been employed or consulted as an attorney in the cause
or has previously been associated with an attorney during the latter‟s
employment in the cause, and the judge participated in representation
in the cause;

1
The trial court‟s judgment cancelling the notices of lis pendens was on appeal when the
motion to recuse was filed. Since that time, a panel of this court affirmed the trial court‟s
judgment in David, __ So.3d __.

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(3) Is the spouse of a party, or of an attorney employed in the
cause or the judge‟s parent, child, or immediate family member is a
party or attorney employed in the cause; or

(4) Is biased, prejudiced, or interested in the cause or its
outcome or biased or prejudiced toward or against the parties or the
parties‟ attorneys or any witness to such an extent that he would be
unable to conduct fair and impartial proceedings.

B. A judge of any court, trial or appellate, may be recused when
he:

(1) Has been associated with an attorney during the latter‟s
employment in the cause;

(2) At the time of the hearing of any contested issue in the
cause, has continued to employ, to represent him personally, the
attorney actually handling the cause (not just a member of that
attorney‟s firm), and in this case the employment shall be disclosed to
each party in the cause;

(3) Has performed a judicial act in the cause in another court; or

(4) Is related to: a party or the spouse of a party, within the
fourth degree; an attorney employed in the cause or the spouse of the
attorney, within the second degree; or if the judge‟s spouse, parent,
child, or immediate family member living in the judge‟s household
has a substantial economic interest in the subject matter in controversy
sufficient to prevent the judge from conducting fair and impartial
proceedings in the cause.

Additionally, La.Code Civ.P. art. 154 addresses the procedure for recusation,

stating:

A party desiring to recuse a judge of a district court shall file a
written motion therefor assigning the ground for recusation. This
motion shall be filed prior to trial or hearing unless the party discovers
the facts constituting the ground for recusation thereafter, in which
event it shall be filed immediately after these facts are discovered, but
prior to judgment. If a valid ground for recusation is set forth in the
motion, the judge shall either recuse himself, or refer the motion to
another judge or a judge ad hoc, as provided in Articles 155 and 156,
for a hearing.

When a party seeks recusation of a judge based on allegations of bias or

prejudice, our jurisprudence requires not only a finding of actual bias or prejudice,

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but that the bias or prejudice “„must be of a substantial nature and based on more

than conclusory allegations.‟” Covington v. McNeese State Univ., 10-250, pp. 2-3

(La. 4/5/10), 32 So.3d 223, 224-225 (quoting Southern Casing of La., Inc. v.

Houma Avionics, Inc., 00-1930 (La.App. 1 Cir. 9/28/01), 809 So.2d 1040).

Adverse rulings alone do not show bias or prejudice. Earles v. Ahlstedt, 591 So.2d

741 (La.App. 1 Cir. 1991). Further, alleged bias or prejudice which “emanates

from testimony and evidence set forth in the proceedings” is not of an

“extrajudicial nature” and is therefore insufficient to merit recusal. Augman v. City

of Morgan City, 03-396, p. 3 (La.App. 1 Cir. 12/31/03), 864 So.2d 248, 249.

Where the motion to recuse does not contain a valid ground for recusation,

the trial court judge may deny the motion without referring it to another judge for

determination. Augman, 864 So.2d 248. Our review of the record indicates that

the allegations of bias and impropriety in the motion to recuse are conclusory and

stem from the trial court‟s rulings adverse to Richard. Accordingly, we find no

error in the trial court‟s denial of the motion to recuse without a hearing.

This assignment of error is without merit.

Dismissal of Petition for Nullity

Richard asserts that the trial court erred in dismissing his petition for nullity.

The transcript of the trial of the action of nullity shows that neither Richard nor his

counsel appeared for hearing. The trial court‟s judgment dismissing the petition

for action of nullity states, in pertinent part:

Although being noticed of the hearing date and time, both Mr.
David and Mr. Bankston[, his attorney,] failed to appear in Court for
this hearing, where each party and their attorney could present
evidence and/or argument. Present in court for the hearing was Dione
W. David and her attorney, L.E. “Tony” Morrow, Jr.

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After waiting until all other matters on the Court‟s docket
where [sic] heard, and after insuring that Mover in Motion and his
attorney were not present, either inside or outside the courtroom,
Counsel for respondent, L.E. “Tony” Morrow, proceeded forward
with argument in regards to the Petition for Action of Nullity of
Judgment.

In addition to his legal arguments, Dione‟s attorney moved for dismissal of the

petition for nullity of judgment, which was granted by the trial court.

Pursuant to La.Code Civ.P. art. 1672(A)(1), “[a] judgment dismissing an

action shall be rendered upon application of any party, when the plaintiff fails to

appear on the day set for trial. In such case, the court shall determine whether the

judgment of dismissal shall be with or without prejudice.” The trial court‟s

dismissal of an action based on a plaintiff‟s failure to appear for trial will only be

reversed on appeal if there is a showing that the trial court abused its discretion.

Jackson v. Royal Ins. Co., 97-723 (La.App. 3 Cir. 12/17/97), 704 So.2d 424.

The record shows that Richard requested that trial be set in this matter and

that notices were sent from the Clerk‟s office approximately one month before the

trial date. Neither Richard nor his counsel appeared at the trial. There is nothing

in the record before this court that explains or attempts to excuse this failure. We

find no abuse of discretion in the trial court‟s dismissal, with prejudice, of the

petition for action of nullity.

This assignment of error is without merit.

Sanctions

The trial court imposed sanctions, in the form of attorney fees, against

Richard and his attorney. Richard contends that the trial court erred in so doing.

Pursuant to La.Code Civ.P. art. 863, the trial court may impose sanctions,

including attorney fees, upon an attorney or his client when the court determines

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that the party has filed a frivolous pleading. See Richardson v. Whitney Nat’l

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. The trial court‟s determination that sanctions are

warranted is subject to the manifest error standard of review. Acosta v. B & B

Oilfield Servs., Inc., 12-122 (La.App. 3 Cir. 6/6/12), 91 So.3d 1263. Once the trial

court determines that sanctions are appropriate, the type and/or amount of

sanctions is subject to the abuse of discretion standard of review. Id.

However, as pointed out by Richard in his brief, pursuant to La.Code Civ.P.

art. 863(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.” Although the article does not

address the requirement of notice, the first and fifth circuits have previously found

that due process requires reasonable notice in these cases. Alombro v. Alfortish,

02-1081 (La.App. 5 Cir. 4/29/03), 845 So.2d 1162, writ denied, 03-1947 (La.

10/31/03), 857 So.2d 486; Lee v. Woodley, 615 So.2d 349 (La.App. 1 Cir.), writ

denied, 618 So.2d 411 (La.1993). The request for sanctions may be made orally

and actual notice is sufficient. Lee, 615 So.2d 349.

In Cox v. O’Brien, 49,278 (La.App. 2 Cir. 8/13/14), 147 So.3d 809, writ

denied, 14-1907 (La. 11/21/14), __ So.3d __, the second circuit recently rejected

an attorney‟s argument that he had been denied due process because there was no

hearing on the merits regarding sanctions. Therein, the trial court dismissed an

attorney‟s nullity action pursuant to exceptions of res judicata and no cause of

action. Id. At the same hearing, the trial court found that the action was filed for

improper purposes and/or not warranted by existing law and awarded sanctions

against the attorney. Id. The second circuit found no error in the trial court‟s

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award of sanctions, noting that the attorney had “the opportunity to present an

argument regarding the imposition of the sanction[.]” Id. at __.

Pursuant to our review, there is nothing in the record that would indicate that

either Richard or his attorney was provided with notice of the issue of sanctions.

The request for sanctions was made at the hearing on the petition for action of

nullity, a hearing which neither Richard nor his attorney was present. Thus, unlike

in Cox, 147 So.3d 809, neither Richard nor his attorney had the opportunity to

present an argument or evidence concerning the imposition of the sanction.

Accordingly, we reverse the award of sanctions and remand for a hearing.

DECREE

For the foregoing reasons, the trial court‟s denial of Richard G. David‟s

motion to recuse, signed March 31, 2014, is affirmed. The trial court‟s judgment,

signed May 29, 2014, is affirmed as to the dismissal of Mr. David‟s Petition for

Action of Nullity of Judgment and reversed as to the award of sanctions against

Mr. David and his attorney, Ed Bankston. This matter is remanded to the trial

court for a hearing on the issue of sanctions. Costs of this matter are assessed one-

half to Richard David and one-half to Dione David.

AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR A
HEARING.

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