Linda M. Snavely v. Ace Pain Management, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-237,
Consolidated with 17-238,
Consolidated with 17-239

LINDA M. SNAVELY, ET AL.

VERSUS

ACE PAIN MANAGEMENT, LLC, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2011-0381; C/W 2014-3917; C/W 2014-5373
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

**********

D. KENT SAVOIE
JUDGE

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Court composed of Elizabeth A. Pickett, D. Kent Savoie, and Van H. Kyzar,
Judges.

PRESCRIPTION EXCEPTION GRANTED; DISMISSED.

Alan K. Breaud
Timothy W. Basden
Breaud & Meyers
600 Jefferson Street, Suite 1101
Lafayette, LA 70502
(337) 266-2200
COUNSEL FOR DEFENDANTS/APPELLANTS:
Ace Pain Management, LLC
Rice Medical Management, LLC
Margaret Rice, M.D., APMLLC
Margaret A. Rice, M.D.
Stacey E. Singleton

Joseph Lomax Jordan, Jr.
Max Jordan, Lawyer
1817 W. University Ave.
Lafayette, LA 70506
(337) 233-9984
COUNSEL FOR PLAINTIFF/APPELLEE:
Linda M. Snavely

James H. Gibson
Charles M. Kreamer
Michael O. Adley
Allen & Gooch
2000 Kaliste Saloom Rd, Ste. 400 (70508)
P. O. Drawer 81129
Lafayette, LA 70598-1129
(337) 291-1000
COUNSEL FOR DEFENDANT/APPELLEE:
J. Lomax Jordan, Jr.

SAVOIE, Judge.

Defendants appeal the trial court’s order consolidating three motions for

sanctions filed in three separate actions, as well as the trial court’s denial on the merits

of those actions. Plaintiff and her attorney assert an exception of prescription. For the

following reasons, we grant the exception and dismiss Defendants’ motions.

FACTUAL AND PROCEDURAL BACKGROUND

The parties herein have an extensive litigation history arising out of a 2010

motorcycle accident involving Brian Snavely and Brian’s subsequent death on August

18, 2012.

Following the motorcycle accident, Brian initiated an action in the Fifteenth

Judicial District Court for Lafayette Parish (“the Fifteenth JDC”) against the parents

of the minor driver of another vehicle involved in the accident, as well as the parents’

insurer. This action was assigned to Division C before Judge Rubin and given docket

number 11-0381 (“the motorcycle action”).

Both prior to, and following the accident, Brian received pain management

treatment from Dr. Margaret Rice. Approximately two years after Brian’s death,

Brian’s mother, Linda Snavely, initiated three separate actions alleging that medical

treatment provided by Dr. Rice and/or various related medical entities caused or

contributed to Brian’s death.

First, on June 26, 2014, Ms. Snavely sought to convene a medical review panel

against Dr. Rice, Mr. Stacey Singleton, who was an accountant, as well as the

following entities: Margaret A. Rice, APMLLC; Rice Medical Management, LLC;

and Ace Pain Management, LLC (“the Rice Entities”). However, according to the

Patient’s Compensation Fund (“PCF”), only Dr. Rice was a qualified healthcare

provider entitled to a medical review panel. Defendants sought a docket number from

the Fifteenth JDC, and the matter was assigned to Division K before Judge Michot

and given docket number 14-3917 (hereinafter “the PCF action”). On September 10,

2014, Dr. Rice filed an exception of prescription, and on October 27, 2014, the trial

court granted the exception and dismissed the PCF action against Dr. Rice. This court

affirmed that judgment. In Re: Professional Liability Claim of Snavely, 15-207

(La.App. 3 Cir. 11/4/15), 178 So.3d 614.

On October 21, 2014, Ms. Snavely sought and obtained leave to file an

amended petition in the motorcycle action (docket no. 11-0381). Therein, she

asserted medical malpractice and wrongful death claims against the Rice Entities and

Mr. Singleton. Shortly after, the pending claims against the minor driver and the

insurer were dismissed following a settlement. On February 9, 2015, Defendants

asserted an exception of prescription, which the trial court granted on March 10, 2015,

dismissing the medical malpractice and wrongful death claims. This court affirmed.

Snavely v. Ace Pain Management, LLC, 15-684, 15-903 (La.App. 3 Cir. 2/3/16), 184

So.3d 871, writ denied, 16-425 (La. 4/22/16), 191 So.3d. 1049.

Ms. Snavely separately filed a third action on October 21, 2014, also in the

Fifteenth JDC, asserting medical malpractice claims against the Rice Entities, as well

as Rice Urgent Care (hereinafter “the medical malpractice action”). The medical

malpractice action was assigned to Division A before Judge Trahan and given docket

number 14-5373. Defendants filed a prescription exception on January 30, 2015, and

the trial court dismissed the action on prescription grounds on March 18, 2015. This

court affirmed. Snavely, 184 So.3d 871.1

On June 23, 2016, the Rice Entities and Mr. Singleton filed a motion in the

motorcycle action (docket no. 11-0381) seeking the assessment of attorney fees as

sanctions against Ms. Snavely and/or her attorney, J. Lomax Jordan, arguing that Ms.

Snavely’s attorney violated duties imposed by La.Code Civ.P. art. 863 by signing and

filing multiple petitions alleging the same prescribed claim. Also on June 23, 2016,

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Ms. Snavely’s appeals of the trial court’s dismissal of her claims in both the motorcycle
action and the medical malpractice action were consolidated.

2

the Rice Entities and Rice Urgent Care filed a motion to assess attorney fees as

sanctions in the medical malpractice action (docket no. 14-5373). Similarly, Dr. Rice

filed a motion to assess attorney fees as sanctions in the PCF action (docket number

14-3917) on June 27, 2016, and a hearing was set for August 15, 2016.

On July 25, 2016, in the motorcycle action (docket no. 11-0381), Ms. Snavely

filed a prescription exception, and other exceptions, arguing that the sanctions

motions were untimely as they were filed after a final judgment had been rendered.

She also filed a motion seeking to consolidate the motorcycle action with the PCF

action and the medical malpractice action. Ms. Snavely’s motion to consolidate was

heard August 29, 2016. Following the hearing, the trial court granted the motion and

signed an order consolidating the three matters. The order also denied the sanctions

motions filed in the motorcycle action, the PCF action, and the medical malpractice

action, stating that there was no violation of La.Code Civ.P. art. 863.

Defendants Dr. Rice, the Rice Entities, Rice Urgent Care, and Mr. Singleton

have filed appeals in connection with each of the three trial court docket numbers,

assigning as error the trial court’s consolidation and dismissal of the three motions for

sanctions. Those appeals have been consolidated in this court. Ms. Snavely has

asserted a prescription exception in this court.

ANALYSIS

We first address the issue of whether Defendants’ motions seeking attorney fees

as sanctions under La.Code Civ.P. art. 863 were timely. Ms. Snavely has asserted a

prescription exception in this court, which we may consider pursuant to La.Code

Civ.P. art. 2163.2

Louisiana Code of Civil Procedure article 863, which was derived from

Fed.R.Civ.P. 11 and provides for sanctions for improper pleadings, “does not create a

2
Louisiana Code of Civil Procedure article 2163 states: “The appellate court may consider
the peremptory exception filed for the first time in that court, if pleaded prior to the submission of
the case for a decision, and if proof of the ground of the exception appears in the record.”
3

private cause of action, but is rather a remedial tool available to the court.” Montalvo

v. Sondes, 93-2813 (La. 5/23/94), n.6, 637 So.2d 127. In determining the timeliness

of such motions, “we subscribe to the federal jurisprudence requiring that the motion

be filed within a ‘reasonable time frame,’ one that affords the offending attorney an

opportunity to defend his conduct and the court an opportunity to rectify it[ 3 ]”.

Frazer v. Bruscato, 34,021, p. 5 (La.App. 2 Cir. 11/1/00), 772 So.2d 293, 297. A

sanctions motion under La.Code Civ.P. art. 863 is not the same as an action for

malicious prosecution, and therefore, the requirement that the underlying litigation be

complete prior to the filing of a malicious prosecution action is inapplicable to a

sanctions motion. See Frazer, 772 So.2d 293; and In re Interdiction of Thomson, 602

So.2d 300 (La.App. 3 Cir.1992).

Frazer addressed the same issue that is currently before us; that is, whether a

motion seeking sanctions under La.Code Civ.P. art. 863 was timely, when it was filed

after the underlying action in which the allegedly offending pleading was filed had

been dismissed, and after the dismissal was affirmed on appeal. The Frazer court

affirmed the trial court’s dismissal of the motion for sanctions pursuant to an

exception of prescription, quoting favorably the trial court’s reasoning, which we find

persuasive:

In Mellon Bank Corp. v. First Union Real Est. Equity
& Mortgage Inv., 951 F.2d 1399 (3 Cir.1991), the court
found that a [Fed.R.Civ.P.] 11 motion for sanctions filed
nearly 2 ½ years after a suit was filed in federal court was
untimely. The court also found that the motion was not filed
in the trial court before the entry of a final judgment as
required by supervisory rule of the U.S. Court of Appeals,
3d Circuit. In the instant suit there is no such court rule but
the wisdom and purpose of the rule seems eviden[t] to this
court. A motion to sanction filed in the trial court following
completion of the trial and the appeal process raises at least
two problematic issues. First, what authority does the trial
court have to act after the jurisdiction of the trial court is
divested by appeal? And secondly, and more relevant to the
3
Since La.Code Civ.P. art. 863 “is derived from Rule 11, Federal Rules of Civil Procedure [,]
[t]he federal decisions afford us guidance for our interpretation and application.” Romero v. Chris
Custa Flying Service, 587 So.2d 803, 805 (La.App. 3 Cir. 1991).
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instant exception, can the purposes of Article 863 be
effectively served after the underlying litigation is over?[ ]

The imposition of sanctions usually serves two main
purposes: deterrence and compensation; encompassed
within those objectives are the related subsidiary goals of
punishing litigation abuse and facilitating case management.
Navarro-Ayala v. Nunez, 968 F.2d 1421 (1 Cir.1992).

Id., at 296.

We also find persuasive the following reasoning in Port Drum Co. v. Umphrey,

852 F.2d 148, 150 (5th Cir. 1988), wherein the federal court rejected an action seeking

monetary damages under Fed.R.Civ.P. 11 for allegedly offending pleadings filed in a

separate action:

[Federal Rule Civil Procedure] 11 is designed to regulate proceedings
among parties already before the court in a particular case. And even as
to such parties, the rule’s primary purpose is to discourage groundless
proceedings rather than to compensate wronged parties by means of
affirmative relief. In expressing the unanimous view of this circuit, we
have noted that “‘the imposition of sanctions pursuant to [Fed.R.Civ.P.]
11 is meant to deter attorneys from violating the rule.’” Thomas v.
Capital Sec. Services, Inc., 836 F.2d 866, 877 (5th Cir.1988) (en banc)
(quoting Donaldson v. Clark, 819 F.2d 1551, 1556 (11th Cir.1987) (en
banc)) (emphasis in this court’s original). Thus, “the least severe
sanction adequate to serve the purpose,” rather than a sanction
necessarily designed to compensate the wronged party fully, “should be
imposed.” [Thomas,] 836 F.2d at 878.

In this regard, Thomas suggests that the “least severe sanction”
may often fall short of monetary compensation:

. . . What is ‘appropriate’ may be a warm friendly discussion
on the record, a hard-nosed reprimand in open court,
compulsory legal education, monetary sanctions, or other
measures appropriate to the circumstances.

Id. Port Drum, however, seeks only monetary reward. It would be
incongruous with Thomas and with the scheme of Rule 11 for the district
court to entertain an independent lawsuit in which the only relief being
considered is cash compensation. Nor would it really make sense for the
court, assuming jurisdiction were present, to impose an alternative, lessor
sanction (such as a reprimand) when no such relief is even requested (or,
presumably, desired) by plaintiff Port Drum.

As discussed in Thomas, 836 F.2d at 879-881, a party seeking sanctions under

Fed.R.Civ.P. 11 must give prompt notice to the court of his intent to do so:

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[A]n attorney may not remain idle after a “motion, pleading, or other
paper” filed in violation of Rule 11 by his opponent has come to his
attention. The advisory committee notes stress that “[a] party seeking
sanctions should give notice to the court and the offending party
promptly upon discovering a basis for doing so.” Fed.R.Civ.P. 11
advisory committee notes (emphasis added). In the same manner that a
failure to mitigate expenses may result in a corresponding reduction in
the amount of attorney’s fees and costs awarded, so also may a failure to
provide prompt notice of an alleged violation to the court and the
offending party reduce the ultimate award. Donaldson [v. Clark], 819
F.2d [1551 (11th Cir. 1987)]. Prompt notice of Rule 11 violations
conserves judicial time and energy, as well as monetary resources, while
at the same time deterring future violations.

....

[T]his Court [has] implicitly condemned using Rule 11 to challenge
generally all papers filed in a lawsuit at the termination of a
proceeding. . . . Parties should not be allowed to “run up” exorbitant fees
and expenses when responding to papers filed in violation of Rule 11;
nor should litigants or courts remain idle in the face of possible violations.
To allow such behavior would effectively transform Rule 11 from a
shield to a sword, whereby guileful practitioners could profit from the
misfortunes and mistakes of fellow professionals.

....

[I]t is precept that sanctions must be imposed within a time frame that
has a nexus to the behavior sought to be deterred. . . . Sanctions assessed
by courts should not amount to an “accumulation of all perceived
misconduct, from filing through trial,” resulting in a “single post-
judgment retribution in the form of a massive sanctions award.” In re
Yagman, 796 F.2d 1165, 1183 (9th Cir.1986), cert. denied, 484 U.S. 963,
108 S.Ct. 450, 98 L.Ed.2d 390 (1987).

The most obvious defect in this procedure is that it
flies in the face of the primary purpose of sanctions, which
is to deter subsequent abuses. This policy is not well served
by tolerating abuses during the course of an action and then
punishing the offender after the trial is at an end. A proper
sanction assessed at the time of a transgression will
ordinarily have some measure of deterrent effect on
subsequent abuses and resultant sanctions. Such “prompt
action helps enhance the credibility of the rule and, by
deterring further abuse, achieve its therapeutic purpose.”

Id. (citations omitted).

In the instant matter, Defendants’ Motions To Assess Attorney Fees as

Sanctions were essentially identical, and each asserted the following:

6

In the present case, and in two related cases, Ms. Snavely and her
attorney, Max Jord[a]n, filed claims which were obviously prescribed.
However, rather than merely filing a prescribed claim in one proceeding,
Ms. Snavely and Max Jord[a]n filed three separate actions, all against the
same Defendants, and all asserting the same prescribed claim. The
repeated filing of the same prescribed claim in multiple separate
proceedings showed a clear pattern of filing frivolous claims, needlessly
increasing the cost of litigation, and harassment. None of the cases filed
by Ms. Snavely and her attorney, Max Jordan, had merit. All were
obviously prescribed. The result was that Defendant[s] were required to
litigate three separate cases to conclusion. . . . This is the kind of abuse
of litigation that Article 863 protects against.

....

Wherefore, premises considered, Defendants . . . . respectfully
request that . . . this honorable Court grant the present Motion to Assess
Attorney Fees as Sanctions and assess all attorney fees and expenses
incurred in the defense of this matter, and the related matters . . . under
Louisiana Code of Civil Procedure Article 863.

The motions were filed twenty months after all three of the separate, allegedly

offending petitions had been filed in each case, over sixteen months after all

prescription exceptions had been filed, and after the trial courts’ dismissals of the

underlying claims had become final. Not once, prior to the conclusion and finality of

the three separate matters, did Defendants suggest to the trial court that Ms. Snavely’s

and/or her attorney’s filing of three separate actions was sanctionable under La.Code

Civ.P. art. 863.

We find that under the unequivocal facts established by the record, Defendants’

motions, which seek sanctions only in the form of compensation, were not timely as

they were not filed in a reasonable time frame following Ms. Snavely’s multiple

filings or otherwise within a timeframe that had a nexus to the behavior that was

sought to be deterred, which according to Defendants was “[t]he repeated filing of the

same prescribed claim in multiple separate proceedings.” Defendants were clearly

aware of the perceived problems with Ms. Snavely’s multiple filings, as reflected by

their own prescription exceptions filed in each of the three cases, over sixteen months

prior to the first sanctions motion. Waiting until after Ms. Snavely’s claims were

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dismissed on prescription grounds to file motions seeking monetary sanctions based

upon the repeated prescribed claims is contrary to the primary purpose of La.Code

Civ.P. art. 863.

Defendants rely on Keaty v. Raspanti, 00-221 (La.App. 4 Cir. 2/7/01), 781

So.2d 607 and urge us to find that their motions were timely because, as in Keaty,

they were filed within a year of the finality of the trial court’s dismissal of the

underlying case wherein the allegedly offending pleadings were filed.

In Keaty, a client’s former attorneys filed suit against the current attorney

seeking a portion of legal fees that were collected. Ultimately, the trial court

dismissed the plaintiffs’ claims pursuant to a motion for summary judgment, the court

of appeal affirmed, and the supreme court denied writs. Three months after the

appellate court’s decision, but prior to the supreme court’s writ denial, the defendants

filed a motion for sanctions under La.Code Civ.P. art. 863. The trial court granted the

plaintiffs’ exception of prescription, finding the defendant’s motion for sanctions

untimely.

In reversing the trial court, the appellate court in Keaty agreed with the

defendants that the claim for sanctions had not prescribed “because it was brought . . .

within less than a year after this [c]ourt rendered judgment affirming the dismissal of

the [plaintiffs’] claims.” Keaty, 781So.2d at 610. In so holding, the Keaty court

found “no reason why sanctionable conduct should not be classified as an offense for

prescription purposes,” applied the one-year prescriptive period applicable to torts,

and found that the one-year period began from the date of a final judgment as doing so

“seems consistent with the concept of a continuing tort.” Id. at 612. We disagree

with the reasoning as sanctions motions are not separate causes of action and their

timeliness is not determined by prescriptive periods applicable to tort actions. Frazer,

772 So.2d 293.

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In rendering its opinion, the Keaty court also cited favorably to Connelly v. Lee,

96-1213 (La.App. 1 Cir. 5/9/97), 699 So.2d 411, writ denied, 97-2825 (La. 1/30/98).

In Connelly, the plaintiff filed a legal malpractice claim against his wife’s attorney on

February 2, 1993. On September 1, 1993, the trial court granted the defendant’s

exception of no cause of action but allowed time for the plaintiff to amend his action.

The plaintiff failed to do so, and on November 2, 1993, the trial court dismissed the

plaintiff’s action. A year later, on November 2, 1994, the defendant-attorney filed a

motion for sanctions against the plaintiff, and the trial court denied the plaintiff’s

prescription exception. The court of appeal affirmed, stating :

[c]onsidering the facts in this case, we feel that the imposition of
sanctions within a year after the plaintiff filed his objectionable petition
serves the policy purpose of deterrence and is not so remote in time from
the behavior sought to be deterred . . . . Moreover, a year from the filing
of the plaintiff’s petition is not inordinately long.”

Connelly, 699 So.2d at 417 (emphasis added).

We note that the Connelly court’s analysis focused on the date the objectionable

petition was filed, even though the petition in that case was filed more than a year

before the motion for sanctions. There is no analysis in Connelly pertaining to its

apparent conclusion that the motion for sanctions, which was filed after the dismissal

of the underlying claim, was timely. However, we disagree with both Connelly, and

Keaty, to the extent they support a finding that a motion seeking monetary sanctions

under La.Code Civ.P. art. 863 filed after the decision in the underlying action had

become final is timely, especially when the moving party was aware of the behavior

sought to be deterred by the sanctions motion [i.e. the repeated filing of prescribed

claims in the instant matter] prior to the finality of the underlying action. We

therefore grant the exception of prescription, and the issues asserted by Defendants on

appeal are now moot.

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CONCLUSION

For the foregoing reasons, the exception of prescription filed by Ms. Snavely

and J. Lomax Jordan is granted. Defendants’ motions seeking attorney fees as

sanctions filed in each of the three consolidated matters are dismissed with prejudice.

All costs of this appeal are assessed to Defendants.

PRESCRIPTION EXCEPTION GRANTED; DISMISSED WITH PREJUDICE.

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