Anthony Misita and Glenn and Linda Torres v. Gerald Caime, Jr. ( 2023 )

STATE OF LOUISIANA
COURT OF APPEAL
Atr FIRST CIRCUIT
Q' o NO. 2022 CA 0070
q -\
ANTHONY MISITA AND GLENN AND LINDA TORRES
VERSUS
GERALD CAIME, JR. AND HOPE L. CAIME, DANE P. CLEMENT AND
MARITZA P. CLEMENT, ROBERT E. COE AND LILLIAN S. COE,
COSMOS INDUSTRIES, LLC, JOHN B. EASTERLY, III AND LINDA L.
EASTERLY, THOMAS W. FITZGERALD AND CHRISTINE LEE
FITZGERALD, GARTH D. HERNANDEZ, III, AND ANASTASIA
HERNANDEZ, MICHAEL F. LOMBARDINO AND CARIN P.
LOMBARDINO, JASON R. MARTIN AND JENNIFER M. MARTIN,
KAREN G. MEYER AND JOHN F. MEYER, III, JAMES FERDINAND
NEYREY AND SUZANNE D. NEYREY, FIRST HORIZON, INC, ONE
CONSORT INTERNATIONAL, LLC AND JOHN MAMOULIDES, JAMES
W. PORTER, REDI COMM INDUSTRIES, LLC, MALCOLM P SCHULER,
JR. AND LISA NEWELL SCHULER, AND CHRISTOPHER PAUL
STARKEY AND TAMMY TERREBONNE STARKEY
Judgment Rendered. APR 0 3 2023
Appealed from the
22nd Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Case No. 201915014, Division I
The Honorable Reginald T. Badeaux, III, Judge Presiding
Louis R. Koerner, Jr. Counsel for Plaintiffs/ Appellants
New Orleans, Louisiana Anthony Misita and
and Glenn and Linda Torres
Pierre V. Miller, II
New Orleans, Louisiana
Roy L. Schroeder Counsel for Defendants/ Appellees
New Orleans, Louisiana Linda Easterly and John B.
Easterly
Morgan J. Wells, Jr. Counsel for Defendants/ Appellees
Evan J. Godofsky One Consort International, LLC,
Metairie, Louisiana John Mamoulides, Artesian
Services, LLC and David Guidry
Thomas P. Anzelmo Counsel for Defendant/Appellee
Lynda A. Tafaro St. Tammany Parish Government
New Orleans, Louisiana
BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.
2
THERIOT, J.
In this appeal, plaintiffs seek review of the trial court' s denial of their
request for leave to file cross- claims and assessment of sanctions. For the reasons
set forth herein, we affirm.
FACTS AND PROCEDURAL HISTORY
This appeal arises from one of at least three lawsuits filed in the Twenty -
Second Judicial District Court by plaintiffs, Anthony Misita and Glenn and Linda
Torres ( collectively " plaintiffs"), involving an alleged manipulation of the natural
hydrology of the Lake Ramsey area of St. Tammany Parish that resulted in
flooding of plaintiffs' land.
The plaintiffs' first suit, Docket No. 2013- 14638, was filed on October 2,
2013, and allotted to Division C, Judge Richard A. Swartz. In the Division C suit,
plaintiffs alleged that their property, located on Major Lane in St. Tammany
Parish, sustained damage from flooding due to the actions or inactions of the
defendants surrounding the development of Lake Ramsey Subdivision. The
defendants in the Division C suit were the developers of Lake Ramsey
Subdivision: John Mamoulides, One Consort International, L.L.C. (" OCI"),
Lakelots, Inc., Lake Ramsey Development, Intrepid, Inc., and Southeast
Investments, LLC; the St. Tammany Parish Government (" STPG") and individual
STPG elected officials and/ or employees: Paul Carroll, Kevin Davis, Joey
Lobrano, Brian K. Fortson, and James A. " Red" Thompson; Artesian Utility
Company, Inc. ( a subcontractor of OCI) and its president, David Guidry; and the
Homeowners Association of Lake Ramsey, Inc. Plaintiffs sought injunctive relief,
damages, attorney fees, and declaratory judgment.
3
Although plaintiffs were granted leave to amend their petition in the
Division C suit three times,' Judge Swartz denied plaintiffs' February 26, 2018 and
April 26, 2019 requests for leave to amend their petition again. Plaintiffs'
proposed amendments sought to add a number of new defendants to the Division C
suit:
the individual homeowners in Lake Ramsey Subdivision; Artesian Services,
LLC2 (
a subcontractor of OCI); and Colony Specialty Insurance Company/ Argo
Group ( OCI' s insurer). At the hearing on plaintiffs' February 26, 2018 request to
amend their petition, Judge Swartz suggested that plaintiffs file a separate action
against the new defendants, explaining that he believed that bringing in new
defendants at that stage in the litigation would delay the proceedings and prejudice
the new defendants, who " have not had the benefit of everything that has gone on
prior to this date." Plaintiffs' counsel expressed that he had no objection to filing a
separate action against the new defendants, and thereafter plaintiffs filed two
additional suits in the Twenty -Second Judicial District Court. Plaintiffs also
appealed Judge Swartz' s denial of their requests to amend their petition in the
Division C suit, but the denial was ultimately upheld on appeal. See Masita v.
Maumoulides, 2020- 0952 ( La.App. 1 Cir. 11/ 15/ 21), 341 So. 3d 11, writ granted,
judgment aff'd in part, rev' d in part on other grounds sub nam., Misita v.
Maumoulides, 2022- 00266 ( La. 4/ 26/ 22), 336 So. 3d 886 ( per curium).
Following Judge Swartz' s denial of plaintiffs' requests to file additional
amending petitions in the Division C suit, plaintiffs filed a second lawsuit in the
Twenty -Second Judicial District Court on August 29, 2019. This second suit,
Docket No. 2019- 14575, was allotted to Division F, Judge Vincent Lobello. In the
Division F suit, plaintiffs asserted the claims against Artesian Services, LLC and
Colony Insurance Company ( insurer of OCI, Artesian Services, LLC and its
Plaintiffs filed a First Supplemental and Amended Petition on December 27, 2013; a Second Amending Petition on
August 29, 2014; and a Third Amending Petition for Damages on October 21, 2016.
2 Artesian Services, LLC was previously incorrectly named as a defendant in the Division C suit as Artesian utility
Company, Inc.
4
predecessor entity, and David Guidry) that they had previously attempted to assert
in the Division C suit. Plaintiffs' petition in the Division F suit states that " Whe
underlying facts upon which petitioners rely and the factual bases for the claims
and causes of action against the defendants named herein are as set forth in the
various petitions and amended petitions in [ the Division C suit] and are
incorporated herein by reference as if copied herein in extenso[.]" Plaintiffs
subsequently filed an amended petition in the Division F suit to add STPG and
OCI as defendants, alleging ( as they had in the Division C suit) that the actions or
inactions of the defendants resulted in flooding on plaintiffs' properties and
requesting damages. STPD and OCI filed exceptions of lis pendens in the Division
F suit, and plaintiffs filed a motion requesting that Judge Lobello transfer the
Division F suit to Division C. 3 The trial court sustained STPG and OCI' s
exceptions of lis pendens, dismissing plaintiffs' claims in the Division F suit
against them, and denied plaintiffs' motion to transfer the suit to Division C.
On September 23, 2019, the plaintiffs filed a third suit, Docket No. 2019-
15014, in the Twenty -Second Judicial District Court, which was allotted to
Division 1, Judge Reginald Badeaux, III, and from which this appeal is taken. In
the Division I suit, plaintiffs asserted claims against OCI, as the developer of Phase
IV -A of Lake Ramsey Subdivision, and a number of individual homeowners or lot
owners in Lake Ramsey Subdivision, including OCI and John Mamoulides as
owners of an individual lot. Plaintiffs alleged, as they did in their Division C and
Division F suits, that their properties sustained damage from flooding caused by
the development of Lake Ramsey Subdivision. They further alleged that beginning
in 2016, the homeowner defendants and lot owner defendants ( other than OCI and
Mamoulides) purchased property in Lake Ramsey Subdivision, and thereafter,
s In addition to requesting that Judge Lobello transfer the Division F suit to Division C, and despite the fact that
Judge Swartz' s denial of their requests to amend their petition in the Division C suit was pending on appeal,
plaintiffs filed another motion in Division C on March 10, 2020, requesting leave to file a Second Supplemental and
Fifth Amending Petition in order to add Artesian Services, LLC and Colony Insurance as defendants and to assert
new causes of action. This motion was denied by Judge Swartz on October 12, 2020.
5
acts of man" were constructed that increased the amount and burden of flooding
on plaintiffs' properties. Plaintiffs sought injunctive relief and reserved the right to
assert claims for damages at a later date.
OCI and Mamoulides filed a declinatory exception raising the objection of
lis pendens, alleging that the claims asserted and relief sought against them in the
Division I suit are identical to those asserted in the suit filed six years earlier and
still pending in Division C. A hearing was held on December 10, 2019, at the
conclusion of which the trial court sustained the exception of lis pendens and
dismissed plaintiffs' claims against OCI and Mamoulides in the Division I suit.
Following the trial court' s ruling, plaintiffs filed a motion for new trial; however,
they did not seek a new trial on the issue of the dismissal of their claims against
OCI and Mamoulides.' In fact, at the hearing on the motion for new trial,
plaintiffs' counsel admitted to the trial court court that the dismissal of OCI and
Mamoulides on the exception of lis pendens was proper:
You see, I' ve got it in Division C and I can' t have it in both places. In
other words, he is a lot owner in Division C. He sold all his property.
In his capacity as a one lot owner, he is in Division C. And so
technically, his lis pendens, I think, is valid. And I didn' t seriously
oppose it.
Along with their motion for new trial, plaintiffs also filed a motion to
transfer the Division I suit to Division C, arguing that "[ t]he instant case [ in
Division I] arises out of the same factual and legal circumstances as No. 2013-
14638 [ the Division C suit] and involves many of the same issues, exhibits, and
witnesses." Plaintiffs alleged that the only reason the Division I suit was filed as a
separate action was that Judge Swartz had refused to allow further amendments to
4 Plaintiffs' motion for new trial concerned the trial court' s dismissal of plaintiffs' claims against all defendants,
including plaintiffs' claims against the individual homeowner and lot owner defendants, who had not filed
exceptions of lis pendens. Accordingly, although plaintiffs' motion for new trial was granted in part, the language
of the July 20, 2020 judgment specifically excluded OCI and Mamoulides:
IT IS ORDERED, ADJUDGED, AND DECREED that the motion for new trial IS GRANTED so
that all defendants other than [ OCI] and [ Mamoulides] are again defendants in this action.
0
the petition in the Division C suit due to an upcoming trial date, and since the trial
in Division C had been continued, " the most efficient and expeditious course of
action" would be to for Judge Badeaux to transfer the Division I suit to Division C
to " permit Judge Swartz to make all further procedural and substantive decisions."
After a hearing, Judge Badeaux denied plaintiffs' motion to transfer, noting his
impression that plaintiffs had requested a transfer of the Division I suit to Division
C as a way of circumventing Judge Swartz' s denial of their request to amend their
petition in Division C. 5
Beginning in August 2020, a number of homeowner and lot owner
defendants in the Division I suit filed third -party demands or cross- claims against
OCI, Mamoulides, STPD, and others. The allegations of these incidental demands
included that OCI and Mamoulides failed to disclose the pending suit in Division C
prior to the sale of property to the homeowner and lot owner defendants and that
certain actions and inactions by STPG, OCI, and Mamoulides allegedly caused
flooding to plaintiffs' property, resulting in plaintiffs filing suit against the
homeowner and lot owner defendants and an injunction being issued enjoining lot
owner defendants from building or performing work on the lots. The cross-
claimants/third-party plaintiffs sought relief including rescission of the sale and
return of the purchase price, indemnification, and other damages and remedies.6
On November 16, 2020, STPG filed exceptions raising the objection of no
cause of action to the incidental demands filed against it by homeowner and lot
5 Although plaintiffs' counsel urged that Judge Badeaux could transfer the {Division I suit to Division C " on [ his]
own motion as well as over any opposition," this is incorrect. Louisiana Code of Civil Procedure article 253. 2
prohibits the transfer of a case from one division to another except where agreed to by all parties or where it is being
transferred to effect a consolidation pursuant to La. C. C.P. art. 1561. Since all parties did not agree in this matter, a
transfer could only be ordered after a consolidation of the suits. See Louisiana District Court Rules, Appendix 3. 1.
Louisiana Code of Civil Procedure article 1561( A) provides that consolidation of suits may be ordered by the
division of court in which the first filed action is pending upon a finding that common issues of fact and law
predominate and, in the event a trial date has been set in a subsequently filed action, upon a finding that
consolidation is in the interest of justice. Thus, the consolidation and transfer of these suits would have to originate
in Division C.
6 OCI and Mamoulides filed answers to the cross- claims and third party demands filed by the homeowner and lot
owner defendants in December 2020, in which they raised various exceptions and defenses to the incidental
demands. However, there is no indication in the record before us that these exceptions were ever set for hearing.
7
owner defendants. After a hearing, the trial court sustained STPG' s exceptions and
dismissed the incidental demands of the homeowner and lot owner defendants
against STPG in their entirety, with prejudice.
On January 12, 2021, plaintiffs attempted to file cross- claims ( which they
alternately referred to as counterclaims) in the Division I suit against OCI,
Mamoulides, Artesian Services, LLC, David Guidry, Colony Insurance Company,
and STPG, all of whom were defendants at one time in one or more of the suits
filed by plaintiffs in Division C or Division F, and some of whom had been
previously dismissed from the Division I suit. Plaintiffs' proposed cross- claims
alleged that Judge Swartz' s January 2, 2020 denial of OCI and STPG' s motions for
summary judgment in the Division C suit constitutes the law of the case in the
Division I suit, and they asserted claims for the flooding of plaintiffs' properties
caused by the defendants' actions or inactions related to the development of Lake
Ramsey Subdivision. Plaintiffs again requested injunctive relief and damages.
STPG opposed plaintiffs' proposed cross- claim and filed a motion to strike,
along with a request for attorney fees and costs for opposing the motion. STPG
pointed out that it is not a party to the Division I suit, as all incidental demands
against it by the homeowner and lot owner defendants were dismissed with
prejudice by judgment dated January 29, 2021, and plaintiffs' attempt to bring
STPG into the Division I suit by way of a cross- claim is procedurally improper.
STPG argued that plaintiffs were attempting to assert the same claims against it in
the same capacity and request the same relief based on the same transactions and
occurrences in their cross- claim as they did in the Division C suit, and that
plaintiffs previously asserted nearly identical claims against it in the Division F
suit, which were dismissed on the basis of lis pendens.
OCI, Mamoulides, Artesian Services, LLC, and David Guidry also opposed
plaintiffs' proposed cross- claims on the grounds that they are procedurally
8
improper, an attempt to circumvent the doctrine of lis pendens, an improper
collateral attack on prior rulings by this court, and filed for an improper purpose in
violation of La. C. C. P. art. 863. The opposition pointed out that plaintiffs'
proposed cross- claims in the Division I suit are a reassertion of the claims against
OCI and Mamoulides that were previously held to be barred by the doctrine of lis
pendens in the same suit, and are also the same claims raised against OCI,
Mamoulides, Artesian Services, LLC, and David Guidry in the Division C and/or
Division F suits. The opposition also sought sanctions, costs, and attorney fees for
the improper filing of the cross- claim.
STPG also filed a Motion to Strike in response to another motion filed by
plaintiffs in the Division I suit. In this motion to strike, STPG asked the trial court
to strike four paragraphs relating to the Division C suit from plaintiffs' motion
pursuant to La. C. C. P. art. 964,E on the grounds that they are " entirely unnecessary
and assert factually incomplete and immaterial allegations and arguments, both of
which could mislead the court." STPG also requested that plaintiffs be cast with
reasonable costs and fees for filing of the motion to strike.
A hearing was held on March 23, 2021 on a number of matters, including
plaintiffs' motion to file cross- claims, STPG' s motions to strike, and other matters
not before us on appeal. The trial court issued a judgment dated June 10, 2021,
denying plaintiffs' motion to file cross- claims; ordering plaintiffs to pay all costs
incurred by OCI, Mamoulides, Artesian Services, LLC, David Guidry, and/ or
STPG in responding to plaintiffs' motion to file cross- claims; ordering plaintiffs to
pay attorney fees of $1, 500. 00 to counsel for STPG and $ 1, 500. 00 to counsel for
OCI, Mamoulides, Artesian Services, LLC, and David Guidry; granting STPG' s
January 21, 2021 motion to strike; and deeming moot STPG' s motion to strike the
Louisiana Code of Civil Procedure article 964 provides that after a hearing, the court may order stricken from any
pleading any redundant, immaterial, impertinent, or scandalous matter.
9
cross- claims. The judgment was designated as appealable under La. C. C. P. art.
1915( A)( 6). 8
Plaintiffs filed a motion for suspensive appeal of the June 10, 2021
judgment, " as well as ... any other adverse interlocutory order or judgments in this
case."
Although the only judgment specifically named in plaintiffs' appeal motion
was the June 10, 2021 judgment, they also filed a " Concise Statement of Issues," in
which they stated that they were seeking review of the June 10, 2021 judgment, the
February 2, 2021 judgment, the July 20, 2020 judgment, " and the legal issues
arising from said judgments." The trial court granted the suspensive appeal of the
June 10, 2021 judgment, but struck through the language concerning " any other
adverse interlocutory judgment that preceded that judgment," noting that such
interlocutory orders are not subject to appeal and may be out of time even for a
supervisory writ. On August 17, 2021, the plaintiffs filed an " Amended Concise
Statement of Issues," in which they added the " Judgment granting [ t] he exception
of lis pendens" to the list of judgments sought to be reviewed.
On appeal, plaintiffs assign the following trial court errors:
1. The first ( OCI and Mamoulides) exception of lis pendens was
erroneously granted.
2. The grant of the STPG' s exception of no cause of action was a
prohibited collateral attack on Judge Swartz' s 1/ 2/ 20 judgment
denying the STPG' s discretionary immunity plea.
3. The cross claims against existing defendants in 2013- 14638 were
substantively different from those permitted to be asserted in 2013-
14638 and involved later time periods and new causes of action. The
grant of lis pendens was error and alternatively not a violation of
C. C. P. art. 864( B) [ sic].
4. La. C. C. P. art. 863( B) sanctions were not warranted.
Louisiana Code of Civil Procedure art. 1915( A)( 6) provides:
A. A final judgment may be rendered and signed by the court, even though it may not grant the
successful party or parties all of the relief prayed for, or may not adjudicate all of the issues in
the case, when the court:
6) Imposes sanctions or disciplinary action pursuant to Article 191, 863, or 864 or Code of
Evidence Article 51O( G).
10
DISCUSSION
In their first assignment of error, plaintiffs allege that the trial court erred in
granting the exception of lis pendens filed by OCI and Mamoulides, since they
were made defendants in a different capacity in the Division I suit than in the
Division C proceedings. The judgment complained of by plaintiffs in this
assignment of error was issued on April 14, 2020, and dismissed " all claims
asserted herein by plaintiffs, Anthony Misita and Glenn and Linda Torres, against
OCI and Mamoulides] in this matter." As previously noted, plaintiffs did not
request a new trial on the issue of the dismissal of OCI and Mamoulides, and
counsel for plaintiffs admitted to Judge Badeaux that the exception of lis pendens
was valid and not seriously opposed.
The April 14, 2020 judgment was a partial final judgment subject to
immediate appeal because it dismissed all of plaintiffs' claims against OCI and
Mamoulides. See La. C. C. P. art. 1915( A)( 1); See also Bailey v. Clark, 2020- 0257,
p. 4, n.2 ( La.App. 1 Cir. 5/ 12/ 21), 326 So. 3d 900, 902, n. 2. Once notice of the July
20, 2020 judgment on plaintiffs' motion for new trial was mailed on August 12,
2020, the appeal delays commenced for all parties. See La. C. C. P. arts. 2123( B) &
2087( C); see also Boyd v. Allied Signal, Inc., 2007- 1409, pp. 5- 7 ( La.App. 1 Cir.
10117108), 997 So.2d 111, 115- 117, writ denied, 2008- 2682 ( La. 1/ 16/ 09), 998 So.
2d 105 ( holding that the filing of a motion for new trial by one party suspends the
appeal delays for all parties, regardless of any connexity or overlapping issues
between the parties). Accordingly, the time to appeal the April 14, 2020 judgment
sustaining the exception of lis pendens and dismissing plaintiffs' claims against
OCI and Mamoulides began on August 12, 2020, and had long since passed by the
time the plaintiffs filed their motion for suspensive appeal on July 12, 2021. See
La. C. C. P. arts. 2123 & 2087.
11
An appellant' s failure to file a timely appeal is a jurisdictional defect, in that
neither the court of appeal nor any other court has the jurisdictional power and
authority to reverse, revise, or modify a final judgment after the time for filing an
appeal has elapsed. When an appellant fails to file a devolutive appeal from a final
judgment timely, the judgment acquires the authority of the thing adjudged, and
the court of appeal has no jurisdiction to alter that judgment. Bridges v. Baton
Rouge General Medical Center, 2020- 0270, p. 28 ( La.App. 1 Cir. 12130120), 317
So3d 662, 684, writ denied, 2021- 00144 ( La. 417121), 313 So. 3d 985.
Accordingly, the propriety of the trial court' s dismissal of plaintiffs' claims against
OCI and Mamoulides on their declinatory exception of lis pendens is not properly
before us on appeal. See M.
Plaintiffs' next assignment of error concerns the January 29, 2021 judgment
that granted STPG' s exceptions of no cause of action and dismissed the incidental
demands of certain homeowner and lot owner defendants against STPG in their
entirety, with prejudice. Although plaintiffs did not oppose STPG' s exceptions or
raise this issue in the trial court,9 they now argue on appeal that the January 29,
2021 judgment was a prohibited collateral attack on a January 2, 2020 judgment in
the Division C suit, in which Judge Swartz denied STPG' s motion for summary
judgment in part.
The January 29, 2021 judgment was a partial final judgment subject to
immediate appeal because it dismissed all claims by the homeowner and lot owner
defendants against STPG. See La. C. C. P. art. 1915( A)( 1). Notice of judgment
9 In fact, on March 23, 2021, counsel for plaintiffs seemingly conceded the dismissal of the homeowner defendants'
claims against STPG during arguments on plaintiffs' motion to file cross- claims and STPG' s request for sanctions:
Plaintiffs' Counsel]: I filed the cross claim [ against STPG] prior to the hearing [ on STPG' s
exceptions of no cause of action] in this Court_ So if you think they' re
out, they' re out_ And if they' re not in the case, I can' t file a cross claim
against them.
The Court: Well they' re not. They' re out.
Plaintiffs' Counsel]: Okay. Well, it seems to me they' re out.
12
was mailed on February 19, 2021. Accordingly, the time period for appealing the
January 29, 2021 judgment had elapsed before the plaintiffs filed their motion for
suspensive appeal on July 12, 2021, and the judgment is not properly before us on
appeal. See La. C. C. P. arts. 2123 & 2087.
In plaintiffs' third assignment of error, they argue that the trial court erred in
granting the lis pendens exception and in sanctioning plaintiffs on account of their
filing cross claims." However, despite plaintiffs' assertions, the trial court
judgment does not state that there was an exception of lis pendens before the court
or that the trial court found that plaintiffs' cross- claims were barred by lis pendens;
rather, the judgment simply denied plaintiffs' motion for leave to file cross-claims.
Therefore, we will review the propriety of the trial court' s denial of plaintiffs'
motion for leave to file cross- claims.
In support of their motion to file cross- claims, plaintiffs explained that they
decided not to seek appellate review of the April 14, 2020 judgment sustaining the
exception of lis pendens and dismissing their claims against OCI and Mamoulides
because they believed that it would be " efficient" to simply assert the claims as
cross- claims. Plaintiffs explained that the " underlying case and causes of action
are now in their eighth year," but "[ t] he basic claims and causes of action have not
changed," and they urged the trial court to grant their request to file cross- claims
because the " cross[-] claim [s] will bring all parties before a single Court for the first
time."
At the hearing on plaintiffs' motion to file the cross- claims, plaintiffs'
counsel conceded that plaintiffs could not assert a cross- claim against STPG once
STPG had been dismissed from the Division I suit; however, plaintiffs' counsel
maintained that plaintiffs " certainly ... have a cross claim against OCI." Defense
counsel argued that the plaintiffs' proposed cross- claims were procedurally
improper because cross- claims are intended to be filed against a co -party, such as a
13
co- defendant, rather than by a plaintiff against a defendant. Defense counsel
further argued that plaintiffs were attempting to circumvent the dismissal of their
claims against OCI and Mamoulides in the Division I suit by rebranding the same
claims as cross- claims, and these claims would again be subject to dismissal based
on lis pendens. Judge Badeaux questioned whether plaintiffs were attempting to
piece by piece take the case from [ Division] C and rebuild it all here [ in Division
I]," and noted that plaintiffs' attempts to effect a consolidation of the actions in this
way " smack[ s] of forum shopping." Counsel for plaintiffs explained that plaintiffs
had no choice but to file the Division I suit because Judge Swartz " cut [ plaintiffs]
off' after their third amending petition in 2016 and would not allow them to assert
additional claims in the Division C suit. He went on to say that plaintiffs " have a
right to assert those [ claims] in some court or another" and are " looking for some
place to try our case before one judge who' s willing to hear the whole case[,] [ a] nd
it seems to me that this is the best place to be." Following arguments of counsel,
the trial court denied plaintiffs' motion to file cross- claims. 10
After an answer to the principal demand is filed, leave of court is required to
file an incidental demand. La. C. C. P. art. 1033. A trial court has broad discretion
in deciding whether to allow an incidental demand to be filed. Naramore v.
Aikman, 2017- 1621, p. 16 ( La.App. I Cir. 614118), 252 So. 3d 935, 945.
The cross- claim is a type of incidental demand that may be instituted against
a co -party. La. C. C. P. arts. 1031 and 1071. Louisiana Code of Civil Procedure
article 1071 provides that a party may assert as a cross- claim a demand against a
co -party arising out of the transaction or occurrence that is the subject matter of
either the original action or a reconventional demand or relating to any property
that is the subject matter of the original action, and the cross- claim may include a
L0 While Judge Badeaux opined that it would be best for the Division F and Division 1 suits to be consolidated with
the first -filed suit in Division C, he noted that Judge swartz' s denial of plaintiffs' request to amend their petition in
the Division C suit to assert the claims that were subsequently asserted in the Division 1 and F suits was still pending
on appeal, and consolidation and transfer could be addressed at a later date, depending on the outcome of the appeal.
14
demand that the party against whom it is asserted is or may be liable to the cross-
claimant for all or part of the demand asserted in the action against the cross-
claimant. Although the Louisiana Code of Civil Procedure does not define " co -
party," Section 7: 5 of the Louisiana Civil Law Treatise explains that a " co -party"
logically is one who is at the same functional level in the lawsuit, i.e., two
plaintiffs in the original action, two defendants in the original action, or two
defendants in a third -party demand. See Buras v. Parish of Tangipahoa, 2008-
2429, p. 6 ( La.App. 1 Cir. 9123109), 28 So. 3d 1066, 1070. A cross- claim may not
be asserted against a party on the opposite side of the action. 1 Frank L. Maraist,
Louisiana Civil Law Treatise: Civil Procedure § 7: 5 ( 2d ed.).
Therefore, a cross- claim is not the proper procedural vehicle for the
assertion of plaintiffs' demands against parties on the opposite side of the action,
and the trial court did not abuse its discretion in denying plaintiffs' request to file
the cross- claims. Nevertheless, the improper label given to plaintiffs' claims is of
no import because pleadings are construed for what they really are, not for what
they are erroneously designated. Buras, 2008- 2429 at pp. 6- 7, 28 So. 3d at 1070.
In this instance, plaintiffs are clearly attempting to add new defendants and claims
to their principal demand in the Division I suit, which requires amendment of the
petition. See La. C. C. P. art. 1151.
Once the answer has been served, the petition may be amended only by
leave of court or written consent of the adverse party. La. C. C. P. art. 1151. Leave
to amend is within the court' s sound discretion, and courts are generally liberal in
allowing amendments to the petition, absent a showing of prejudice to the
defendant or a finding of bad faith or dilatory purposes on the part of the plaintiff.
Walton v. Burns, 47,388, p. 8 ( La.App. 2 Cir. 1/ 16/ 13), 151 So. 3d 616, 620- 621;
Taylor v. Babin, 2008- 2063, p. 14 ( La.App. 1 Cir. 518109), 13 So. 3d 633, 642, writ
denied, 2009- 1285 ( La. 9125109), 18 So. 3d 76.
15
Since the denial of plaintiffs' requests to file amending petitions in the
Division C suit, plaintiffs have repeatedly attempted to circumvent the denial and
effect a transfer and consolidation of the separate actions. Counsel for plaintiffs
made it clear that the proposed cross- claims were an attempt to consolidate all of
their claims into one division so that one judge could " hear the whole case."
Plaintiffs noted that all defendants named in their proposed cross- claims in the
Division I suit were original defendants in either the Division C suit or the
Division F suit, that the basic claims and causes of action have not changed in the
eight years that the Division C suit has been pending, and that the filing of the
cross- claims " will bring all parties before a single Court for the first time." This
attempt to transfer and consolidate their claims by rebuilding the suit in a single
division of court ( Division I) was procedurally improper. As previously noted, a
procedure exists for transfer and consolidation of cases into one division of court.
A consolidation of plaintiffs' separate actions must originate in the division where
the first suit was filed ( Division Q and will result in the other actions being
transferred to the division of the first -filed suit ( Division C). See La. C. C. P. arts.
253. 2 and 1561. Finally, plaintiffs' counsel implied to the trial court that plaintiffs
were attempting to revive claims that had been dismissed on the basis of lis
pendens without seeking appellate review by refiling them as cross- claims. In light
of these facts, it was not an abuse of discretion for the trial court to deny plaintiffs'
motion to file the proposed claims.
Plaintiffs' final argument in this appeal is that the trial court erred in
awarding sanctions for their attempt to assert cross- claims in the Division I suit.
An attorney may be sanctioned for willful violation of any provision of La.
C. C. P. art. 863. La. C. C. P. art. 864. Article 863 provides, in pertinent part:
B. [ T] he signature of an attorney or party shall constitute a
certification by him that he has read the pleading, and that to the
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best of his knowledge, information, and belief formed after
reasonable inquiry, he certifies all of the following:
1) The pleading is not being presented for any improper purpose,
such as to harass, cause unnecessary delay, or needlessly
increase the cost of litigation.
2) Each claim, defense, or other legal assertion in the pleading is
warranted by existing law or by a nonfrivolous argument for
the extension, modification, or reversal of existing law.
3) Each allegation or other factual assertion in the pleading has
evidentiary support or, for a specifically identified allegation or
factual assertion, is likely to have evidentiary support after a
reasonable opportunity for further investigation or discovery.
4) Each denial in the pleading of a factual assertion is warranted
by the evidence or, for a specifically identified denial, is
reasonably based on a lack of information or belief.
Article 863 imposes an affirmative duty on attorneys and litigants who sign
pleadings to make an objectively reasonable inquiry into the facts and the law. In
determining whether an attorney has breached that duty, the trial court is required
to test the signer' s conduct by inquiring what was reasonable to believe at the time
the pleading was signed and submitted. Landry v. Landry, 2021- 0337, p. 6
La.App. I Cir. 10/$/ 21), 331 So. 3d 351, 356, writ denied, 2022- 00044 ( La.
312/ 22), 333 So. 3d 835. The trial court' s determination that sanctions are
warranted because one of the affirmative duties imposed by La. C. C. P. art. 863( B)
has been violated is subject to the manifest error or clearly wrong standard of
review.
Droddy v. Porter, 2019- 0633, p. 5 ( La. App. 1st Cir. 12127119), 292 So. 3d
925, 928.
Once the court finds a violation of La. C. C.P. art. 863( B), 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 the other party
the amount of the reasonable expenses incurred because of the filing of the
pleading, including reasonable attorney fees. La. C. C. P. art. 863( D). In arriving at
an appropriate sanction award, courts consider: ( 1) the conduct that is being
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punished or is sought to be deterred by the sanction; ( 2) the expense or costs
caused by the violation of the rule; ( 3) the reasonableness of the costs or expenses
as opposed to self-imposed, mitigatable, or those that are the result of delay in
seeking court intervention; and ( 4) whether the sanction is the least severe sanction
adequate to achieve the purpose of the rule under which it was imposed. Dubois v.
Brown, 2001- 0816, p. 4 ( La.App. 1 Cir. 5110102), 818 So. 2d 864, 867, writ denied,
2002- 1654 ( La. 10114102), 827 So. 2d 421. The determination of the type and
amount of the sanction is reviewed on appeal for abuse of discretion. Landry,
2021- 0337 at p. 6, 331 So. 3d at 356. The goal to be served by imposing sanctions
is not wholesale fee shifting but correction of litigation abuse. Landry, 2021- 0337
at pp. 6- 7, 331 So. 3d at 356.
There were multiple requests for sanctions before the court on March 23,
2021. OCI, Mamoulides, Artesian Services, LLC, David Guidry, and STPG all
requested that the trial court award costs and attorney fees for plaintiffs' filing of
cross- claims for improper purposes. In addition, there were two motions to strike
before the court, both of which requested that plaintiffs be cast with costs and fees.
The first motion to strike before the court at the March 23, 2021 hearing was
filed in response to plaintiffs' insertion of extraneous material in an unopposed
motion. After hearing argument by counsel, the trial court detennined that
plaintiffs had improperly attempted to expand the pleadings in the Division i suit
without filing a motion to amend their petition by inserting excerpts from their
Division C petition into their January 5, 2021 motion to withdraw their request for
a preliminary injunction. Based on this finding that plaintiffs used a pleading for
an improper purpose, the trial court granted STPG' s motion and struck four
paragraphs of " impertinent and immaterial language" from plaintiffs' January 5,
2021 motion. STPG' s second motion to strike concerned the allegations of
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plaintiffs' proposed cross- claims and was rendered moot by the trial court' s denial
of plaintiffs' motion to file the proposed cross- claims.
In reference to plaintiffs' proposed cross- claims, STPG sought sanctions in
order to end the " frivolous, redundant, immaterial, and impertinent pleadings being
filed repeatedly" by plaintiffs. STPG argued that plaintiffs' counsel' s failure to
withdraw the proposed cross- claim against STPG once STPG was dismissed from
the suit entirely, or even to make a phone call to let STPG' s counsel know that
plaintiffs would not pursue the cross- claim against STPG, unnecessarily caused
STPG to incur legal fees to oppose the motion. Counsel for OCI, Mamoulides,
Artesian Services, LLC, and David Guidry argued that plaintiffs' proposed cross-
claims were " frivolous" and " intended to unnecessarily delay and needlessly
increase the cost of litigation," and sought sanctions, including costs and attorney
fees " for compelling us to respond ... once again before this Court."
After a thorough review of the record, and especially considering plaintiffs'
attempts to reassert previously -dismissed claims and use improper procedures to
consolidate multiple pending actions in a single division of court or to enlarge the
pleadings, we find no manifest error in the trial court' s decision to award sanctions
under La. C. C. P. 863, and no abuse of discretion in the award of court costs and
1, 500. 00 in attorney fees to each of the two attorneys required to oppose
plaintiffs' motion.
CONCLUSION
For the reasons set forth herein, the June 10, 2021 judgment is affirmed.
Costs of this appeal are assessed to plaintiffs, Anthony Misita and Glenn and Linda
Torres.
AFFIRMED.
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