Virginia Anne Gerace Benoist v. Jackson National Life Insurance Company, Norma Ford Gerace, and Mary Kathryn Gerace Carleton ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
v
FIRST CIRCUIT
NO. 2022 CA 0879
VIRGINIA ANNE GERACE BENOIST
VERSUS
JACKSON NATIONAL LIFE INSURANCE COMPANY,
NORMA FORD GERACE, AND
MARY KATHRYN GERACE CARLETON
Judgment Rendered:
MAR 0 12023
On Appeal from the
19th Judicial District Court
Parish of East Baton Rouge, State of Louisiana
Trial Court No. 710447
The Honorable Trudy M. White, Judge Presiding
Jerry F. Pepper Attorney for Plaintiff A
- ppellant,
Baton Rouge, Louisiana Virginia Anne Gerace Benoist
Michelle Lorio St. Martin Attorneys for Defendant -Appellee,
David G. Koch Norma Ford Gerace
Riley F. Huntington
Baton Rouge, Louisiana
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
WOLFE, J.
In this appeal, plaintiff-appellant, Virginia " Ginny" Anne Gerace Benoist,
challenges the trial court' s judgment awarding attorney fees and costs to her mother,
defendant -appellee, Norma Ford Gerace. For the following reasons, we amend the
judgment and affirm as amended.
BACKGROUND
This lawsuit involves a dispute among family members; the case was
previously before this court and there are other appeals pending. See Benoist v.
Jackson National Life Ins. Co., 2022- 0292 ( La. App. 1st Cir. 11/ 15122), So. 3d
2022 WL 16946498 ( hereafter referred to as the " first appeal"). Of relevance
to this appeal is Ginny' s challenge to the acts of her sister, Mary Kathryn " Mary
Kay" Gerace Carleton, as a mandatary serving under a power of attorney executed
by Ginny' s mother, Norma F. Gerace " Mrs. Gerace."'
In the first appeal on the merits, this court affirmed the trial court' s November
12, 2021 dismissal of Ginny' s action to review the acts of Mary Kay as her mother' s
mandatary, as well as the grant of Mrs. Gera.ce' s motion for attorney fees and costs,
without expressing an amount for the attorney fees and costs. While the first appeal
was pending, Mrs. Gerace sought to have the trial court set the attorney fees and
costs by filing a motion on April 13, 2022, along with supporting documents. Ginny
filed an exception raising the objection of a lack of subject matter jurisdiction in the
trial court, since the first appeal on the merits was still pending; however, Ginny did
not contest the reasonableness of the amount of the requested attorney fees and costs.
On lune 1, 2022, the trial court signed a separate judgment granting Mrs.
Gerace' s motion to set attorney fees and costs and ordered Ginny to pay her mother' s
attorney fees in the amount of $60, 033. 10 and costs in the amount of $1, 510. 53,
A summary of the factual background and procedural history is recited in the first appeal on the
merits and will not be repeated here.
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reflecting 23 1. 10 hours of legal services as of the date of the filing of Mrs. Gerace' s
motion. Ginny appealed the June 2022 judgment, arguing that the trial court
erroneously overruled her exception of lack of subject matter jurisdiction and
contending, for the first time in this court, that the trial court' s award was abusively
high. Mrs. Gerace answered the appeal, seeking an affirmation of the trial court' s
award, an additional award for Ginny' s alleged frivolous appeal, and an award for
attorney fees and costs associated with answering this appeal. After the parties filed
their respective briefs in this appeal, the first appeal on the merits was decided by
this court on November 15, 2022. In that decision, this court specifically found that
the " trial court did not abuse its much discretion in granting Mrs. Gerace' s request
for attorney fees where it determined that Ginny was not entitled to relief." Benoist,
So. 3d at , 2022 WL 16946498 at * 8.
DISCUSSION
This court' s decision that the trial court did not abuse its discretion in granting
Mrs. Gerace' s motion for attorney fees and costs without expressing an amount in
the November 15, 2021 judgment on the merits, is the law of the case. Where there
is one lawsuit with multiple judgments of the trial and appellate courts within the
same suit, the law of the case doctrine applies. Reed v. Louisiana Horticulture
Commission, 2021- 0657 (La..App. I st Cir. 12/ 22/ 21), 341 So. 3 d 66, 70, writ denied,
2022- 00284 ( La. 4112/ 22), 336 So. 3d 89. That doctrine embodies the principle that
an appellate court generally does not revisit its own rulings of law on a subsequent
appeal in the same case. Id.In the first appeal, Ginny maintained that her action to review the activities of
her sister as mandatary for her mother was not frivolous and, therefore, the trial court
erred in granting her mother' s request for attorney fees. In this appeal, Ginny argues
that the trial court lacked subject matter jurisdiction to set the amount of attorney
fees and costs while the previous appeal was pending. We disagree. In La. Code
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Civ. P. art. 2088( A)( 10), as amended by 2021 La. Acts No. 259, § 2( effective
August 1, 2021), we find a clear and unambiguous expression of law that " the trial
court has jurisdiction in the case only over those matters not reviewable under the
appeal, including the right to ... [ s] et and tax costs, expert witness fees, and attorney
fees." See also Comments 2021 of Article 2088, comment ( a) " the trial court retains
jurisdiction for purposes of setting attorney fees after an appeal has been taken from
the initial judgment.... [ I] t is no longer necessary for an appellate court to dismiss
an appeal in order to allow the trial court to set the amount of the attorney fees,
because the trial court has jurisdiction to set attorney fees while the appeal is
pending." Therefore, the judgment awarding attorney fees and costs in an indefinite
amount did not divest the trial court ofjurisdiction to determine, after a hearing and
consideration of evidence, the actual amount to be awarded as attorney fees and
costs. See also Price v. City of Ponchatoula Police Dept., 2012- 0727 ( La. App.
1st Cir. 12121/ 12), 111 So. 3d 1053, 1055. Accordingly, the trial court did not err in
denying Ginny' s exception of lack of subject matter jurisdiction.
Ginny also argues that the trial court abused its discretion in awarding far in
excess of the actual attorney fees incurred by her mother for this lawsuit. Initially,
we note that the attorney fees and costs have statutory authority in La. R. S. 9: 3555
The court may render judgment for costs and attorney fees, or any part thereof,
against any party" in an action to review the acts of a mandatary.). When provided
for by statute, the award of attorney fees rests within the discretion of the fact finder.
Cupp Drug Store, Inc. v. Blue Cross and Blue Shield of Louisiana, 50, 843 ( La.
App. 2d Cir. $110116), 201 So.3d 319, 322, Generally, each case is considered in
light of its own facts and circumstances; however, the amount awarded must be
reasonable. Id. Before an attorney fee award will be disturbed on appeal, the record
must reveal that the trial court abused its discretion in making the award. Id. See
also Regions Bank v. Automax USA, L.L.C., 2002- 1755 ( La. App. 1st Cir.
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6127103), 858 So. 2d 593, 595- 596, writ denied, 2003- 2131 ( La. 1117103), 857 So. 2d
503.
The reasonableness of attorney fees is determined by the factors set forth in
Rule 1. 5( a) of the Rules of Professional Conduct, which are as follows: ( 1) the time
and labor required, the novelty and difficulty of the questions involved and the skill
requisite to perform the Iegal service properly; ( 2) the likelihood, if apparent to the
client, that the acceptance of the particular employment will preclude other
employment by the lawyer; ( 3) the fee customarily charged in the locality for similar
legal services; ( 4) the amount involved and the results obtained; ( 5) the time
limitations imposed by the client or by the circumstances; ( 6) the nature and length
of the professional relationship with the client; ( 7) the experience, reputation, and
ability of the lawyer or lawyers performing the services; and ( 8) whether the fee is
fixed or contingent. An analysis of the factors pertinent to a determination of
reasonableness is extremely fact intensive. At issue ultimately is the reasonable
value of the services rendered and value received by the client. Regions Bank, 858
So. 2d at 596.
In support of her motion to set attorney fees and costs, Mrs. Gerace attached
a copy of the November 12, 2021 judgment ordering Ginny to pay Mrs. Gerace " all
of her actual attorney fees and costs in this litigation[,]" along with a copy of the
engagement letter for legal services setting forth the hourly rates of Mrs. Gerace' s
counsel and staff, copies of the detailed invoices for attorney fees and costs
generated in the lawsuit, an affidavit by the lead attorney for Mrs. Gerace' s defense
outlining the skill and experience of the lawyers involved in the case, and copies of
letters between counsel on both sides seeking resolution of the lawsuit. At the May
16, 2022 hearing on the motion, Ginny' s attorney acknowledged that they had not
filed an opposition to Mrs. Gerace' s motion to set attorney fees and costs, but instead
filed and argued an exception of lack of subject matter jurisdiction. Thus, there is
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nothing in the record to contradict or challenge Mrs. Gerace' s evidence. Considering
there was no opposition to the specific amounts requested and supported by Mrs.
Gerace, the trial court awarded the full amount of attorney fees and costs evidenced
by the invoices through the filing of the motion to set the fees and costs.
As noted previously, factors to be considered in making an award of attorney
fees include the degree of professional skill and ability exercised, and the time
devoted to the case. The underlying merits of the case involved complex facts, legal
issues, and a prior appeal concerning invasive and embarrassing court scrutiny of a
bitter family dispute over Mrs. Gerace' s ability to manage her affairs and understand
the function of the power of attorney that she gave to Ginny' s sister, Mary Kay. We
conclude that the trial court did not abuse its great discretion in its award of attorney
fees and costs to Mrs. Gerace. The record reasonably supports the undisputed
experience, time, and labor expended by Mrs. Gerace' s counsel and staff under the
circumstances of this particular case involving multiple appeals.
ANSWER TO APPEAL
Mrs. Gerace filed an answer to this appeal, requesting that we award damages
for frivolous appeal as authorized by La. Code Civ. P. art. 2164. Under Article 2164,
appeals are favored, and we will not award damages unless they are clearly due.
Whitney Bank v. Rayford, 2021- 0407 ( La. App. tst Cir. 4/ 5122), 341 So. 3d 741,
746. Damages for frivolous appeal are only allowed when it is obvious that the
appeal was taken solely for delay, or that counsel is not sincere in the view of the
law he advocates. Id. The slightest justification for an appeal precludes damages
for frivolous appeal. Id. Considering counsel for Ginny advanced the argument that
the trial court' s lack of subject matter jurisdiction to award attorney fees and costs
while the first appeal on the merits was pending and was decided after the hearing
on Mrs. Gerace' s motion to set fees and costs, we decline to assess damages for
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frivolous appeal. We find that Ginny' s counsel sincerely viewed the law as
advocated, even though the current law was not in Ginny' s favor.
However, it is within an appellate court' s discretion to award or increase
attorney fees for the expense of the appeal. Cupp Drug Store, Inc., 201. So. 3d at
325 n.3. The undisputed supplemental evidence submitted by Mrs. Gerace and
accepted at the hearing on the motion to set attorney fees and costs reveals that an
additional amount of attorney fees in the amount of $9, 155. 00 and $ 614. 47 for costs
were incurred through the date of the May 16, 2022 hearing. Thus, we find that the
record reasonably supports an additional $ 15, 000. 00 for attorney fees and costs,
consisting of $9, 799.47 for attorney fees and costs through the date of the hearing
and $ 5, 200. 53 for this appeal.
DECREE
For the outlined reasons, the trial court' s June 1, 2022 judgment, which
awarded a total of $61, 543. 63 for attorney fees and costs to Norma Ford Gerace, to
be paid by Virginia " tinny" Anne Gerace Benoist, is affirmed as amended with an
additional $ 15, 000.00 award for attorney fees and costs through the conclusion of
this appeal. All costs of this appeal are assessed to plaintiff-appellant, Virginia
Ginny" Anne Gerace Benoist.
AMENDED; AFFIRMED AS AMENDED.
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