State of Louisiana, Division of Administration, Office of Community Development - Disaster Recovery Unit Versus Estenio Joseph and Elina Joseph ( 2022 )

STATE OF LOUISIANA, DIVISION OF NO. 22-CA-65
ADMINISTRATION, OFFICE OF
COMMUNITY DEVELOPMENT - DISASTER FIFTH CIRCUIT
RECOVERY UNIT
COURT OF APPEAL
VERSUS
STATE OF LOUISIANA
ESTENIO JOSEPH AND ELINA JOSEPH
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 792-503, DIVISION "M"
HONORABLE SHAYNA BEEVERS MORVANT, JUDGE PRESIDING
December 21, 2022
ROBERT A. CHAISSON
JUDGE
Panel composed of Judges Susan M. Chehardy,
Jude G. Gravois, Marc E. Johnson, Robert A. Chaisson, Stephen J. Windhorst, Hans J.
Liljeberg, and John J. Molaison, Jr.
JUDGMENT VACATED; MATTER REMANDED
RAC
SMC
JGG
MEJ
SJW
HJL
COUNSEL FOR PLAINTIFF/APPELLEE,
STATE OF LOUISIANA, DIVISION OF ADMINISTRATION, OFFICE OF
COMMUNITY DEVELOPMENT - DISASTER RECOVERY UNIT
(“OCD-DRU”)
William J. Wilson
John C. Walsh
Mary C. Cali
John C. Conine, Jr.
COUNSEL FOR DEFENDANT/APPELLANT,
CHRISTOPHER H. SZETO
Christopher H. Szeto
COUNSEL FOR DEFENDANT/APPELLEE,
ESTENIO JOSEPH AND ELINA JOSEPH
Christopher H. Szeto
CHAISSON, J.
Attorney Christopher H. Szeto appeals a December 2, 2021 judgment of the
trial court that found him in contempt of court and ordered him to report to the
Louisiana Office of Disciplinary Counsel and pay the costs of the rule and the
judgment. For the following reasons, we vacate the judgment of the trial court.
FACTS AND PROCEDURAL HISTORY
Mr. Szeto represents various defendants in actions brought by the State of
Louisiana, Division of Administration, Office of Community Development -
Disaster Recovery Unit, to enforce a $30,000 liquidated damages provision
contained in an Elevation Incentive Agreement, a contract signed as part of the
Road Home program in the aftermath of Hurricane Katrina that required
homeowners to elevate their homes in exchange for funds from the state.
Following delays due to Hurricane Ida, two of these cases, which each involved
different defendants, were set on October 13, 2021, for the hearing on defendants’
exceptions of peremption.
The trial court issued a ruling on the first of these matters, State v. Lakeshia
Johnson, denying the exception of peremption, after which the judge called the
attorneys to a bench conference. While Mr. Szeto was in conference, his associate,
Mr. Dunbar, walked over to the clerk of court’s office and filed a Notice of Intent
to Apply for Supervisory Writ, Request for Return Date, and Motion for Stay in
both the Johnson matter, which the trial court had just ruled on, and the other
matter, State v. Estenio Joseph, et al., that had not yet been heard or ruled upon by
the trial court. Rather than hearing the Joseph matter after the bench conference,
the trial court continued it for a status hearing on November 5, 2021.
On October 25, 2021, the trial court, on its own motion pursuant to La.
C.C.P. arts. 224 and 225, issued a Rule to Show Cause to determine if Mr. Szeto
was in constructive contempt of court for improperly filing the Notice of Intent,
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failing to respond to lengthy voice mail messages from the Division “M” law clerk,
failing to respond to pages from the Division “M” bailiff to report to Division “M”
and for failing to voluntarily withdraw or tender the original Notice of Intent.
On the same day, October 25, 2021, Mr. Szeto sent a letter formally
withdrawing the Notice of Intent to seek a supervisory writ that was erroneously
filed in the Joseph matter. In his memorandum regarding constructive contempt
filed prior to the hearing on the matter, Mr. Szeto apologized to the court for the
filing and explained that it was made in error while attempting to comply with the
court’s prior instruction to be more timely with filings in the Road Home cases.
Mr. Szeto also represented that the problems due to lack of communication were
not intentional, but rather due to technical issues with his phone provider. He
provided emails and invoices from his phone providers as evidence of the
problems he was experiencing.
Following a hearing on the rule, the trial court issued a judgment against Mr.
Szeto. The trial court specifically found Mr. Szeto to be in constructive contempt
of court “because his actions interfered with the orderly administration of justice
and impaired the dignity of the court and respect for its authority on each of the
following instances:
1. Filing a Notice of Intent to Seek Supervisory Writ containing false
information;
2. Failing to provide the original document to the court, having taken
same out of the clerk’s office after indicating it would be “walked
through;”
3. Failing to voluntarily withdraw the improper Notice of Intent to Seek
Supervisory Writ; and
4. Failing to report to Division “M” after being ordered to do so.
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As a sanction for these findings1, the trial court ordered Mr. Szeto to report
to the Louisiana Office of Disciplinary Counsel and ordered him to bear the costs
of the Rule to Show Cause, including service and filing of the judgment.
In its order granting a suspensive appeal of the judgment of contempt, the
trial court additionally stated, “[t]his court finds the sanction issued was not
monetary and the costs of the proceedings are covered by the paying of the
estimated costs as ordered herein. This court specifically finds the entirety of the
record to be relevant to the contempt as it demonstrates counsel’s propensity for
delay, and verifies the false certifications in violation of La. C.C.P. art. 863.”
On appeal, Mr. Szeto argues that the trial court legally erred in holding him
in constructive contempt. In particular, he argues that the trial court erred by
applying a “preponderance of the evidence” burden of persuasion rather than a
“beyond a reasonable doubt” burden of persuasion in what was, in effect, a
criminal contempt hearing. Mr. Szeto also argues that the trial court legally erred
in finding him to be in constructive contempt because there was no written or oral
orders made in open court demanding that he withdraw the Notice of Intent, return
the original documents, or report to Division “M” chambers. We consider these
arguments in our discussion below.
DISCUSSION
A contempt of court is any act or omission tending to obstruct or interfere
with the orderly administration of justice, or to impair the dignity of the court or
respect for its authority. La. C.C.P. art. 221. A contempt of court may be direct or
constructive. Id. La. Code of Civil Procedure article 224 defines constructive
contempt, including the following: “(4) Deceit or abuse of the process or procedure
1
In a footnote to the trial court’s analysis in its written reasons for judgment, but not clearly made part of
its order or decree, the judge stated, “[t]his court finds that Mr. Szeto was in constructive contempt for
failing to return any phone calls and/or appear in Division “M” after being ordered to do so.” It is unclear
exactly to which phone calls the trial court is referring; in its Rule to Show Cause, the trial court states
that some calls made to Mr. Szeto’s office by the Clerk’s Office and Division “M” law clerk were
returned by Mr. Szeto’s office.
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of the court by a party to an action or proceeding, or by his attorney;” and “(10)
Any other act or omission punishable by law as contempt of court, or intended to
obstruct or interfere with the orderly administration of justice, or to impair the
dignity of the court or respect for its authority, and which is not direct contempt.”
Generally, a trial court is vested with great discretion in determining whether
circumstances warrant holding a party in constructive contempt of court pursuant
to La. C.C.P. art. 224. Short v. Short, 12-312 (La. App. 5 Cir. 11/13/12), 105
So.3d 892, 896. Proceedings for contempt must be strictly construed, and should
not be resorted to where other remedies are provided by law. Hardy v. Hardy, 99-
0283 (La. App. 4 Cir. 9/22/99), 743 So.2d 810, 812, writ denied, 99-3558 (La.
2/11/00), 754 So.2d 945. When the trial court’s decision is based on an erroneous
application of law, its decision is not entitled to deference on review. Greene v.
Greene, 19-37 (La. App. 5 Cir. 12/11/19), 286 So.3d 1103, 1120. If the trial court
makes a reversible error of law, the reviewing court must examine the record de
novo for the facts and render judgment on the merits. Id.Contempt proceedings may be either civil or criminal in nature depending on
the court’s purpose when imposing the sentence. Id. If the purpose of the court is
to force compliance with an order, the contempt proceeding is a civil matter, but if
the purpose is to punish the disobedience of a court order, the proceeding is
criminal. Id. In criminal contempt proceedings, the sentence is punitive, to
vindicate the authority of the court, rather than remedial and for the benefit of the
complainant. Id. Different standards are applied in civil and criminal contempt
proceedings. The applicable burden of proof is a question of law. Id.A review of the Rule to Show Cause, the hearing transcript, and the
judgment indicate that the trial court’s purpose was to punish Mr. Szeto rather than
compel compliance with an order. Indeed, the record does not show that the trial
court ordered, either in writing or in open court, Mr. Szeto to withdraw the Notice
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of Intent, to return the original documents, or to report to Division “M” chambers.
The court’s intention to punish is clear as well from the trial court’s failure to offer
Mr. Szeto any alternative to the court’s punishment or means by which he could
have come into compliance. See Clark v. G.B. Cooley Serv., 35,675 (La. App. 2
Cir. 4/5/02), 813 So.2d 1273, 1283 (“When a determinate sentence is rendered
without setting conditions for the contemnor to avoid the sentence imposed or
purge himself from it, the punishment is criminal in nature and cannot be imposed
unless constitutional protections are applied in the contempt proceeding.”)
Particular evidence of this may be seen in the trial court’s written reasons for
judgment where the court states:
… Mr. Szeto’s refusal to voluntarily withdraw the Notice of Intent is
constructive contempt of court. Whether or not Mr. Szeto had
technical issues receiving this Division’s courtesy phone calls does
not negate his responsibility, as an attorney, to withdraw an
erroneously filed Notice of Intent. Mr. Szeto’s statement that the
notice of intent was withdrawn disingenuous [sic]. Mr. Szeto’s letter
requesting to withdraw the Notice of Intent was filed only after this
court’s Motion for Constructive Contempt was filed.
Under this logic, there is apparently no corrective measure Mr. Szeto could
have taken following the trial court’s Rule to Show Cause that could have brought
him into compliance or that would not have been viewed as “disingenuous” by the
trial court. Also of concern, such statements appear to indicate that the trial court
had already made its determination to find Mr. Szeto in constructive contempt of
court for failing to withdraw the Notice of Intent when the court’s Rule to Show
Cause was issued on October 25, 2021, rather than following the December 1,
2022 hearing on the matter.
It is also clear from the written reasons for judgment that the trial court
applied the standard of proof applicable to a civil contempt proceeding while
conducting a hearing on criminal contempt, as is evidenced by the court’s
statement that “[t]he burden of proof for civil contempt is a preponderance of the
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evidence.” This standard is inapplicable in criminal contempt proceedings where
the court seeks to punish a person for disobeying a court order, rather than civil
contempt proceedings where the court seeks to force a person in compliance with
an order. See Dazet Mortgage Sols. LLC v. Faia, 12-486 (La. App. 5 Cir. 4/10/13),
116 So.3d 711, 717, writ denied, 13-1046 (La. 6/21/13), 118 So.3d 1095. Criminal
contempt is a crime, and the Due Process Clause of the Fourteenth Amendment
protects a defendant in a criminal proceeding against conviction of a crime except
upon proof beyond a reasonable doubt of every fact necessary to constitute the
contempt charge. Dauphine v. Carencro High Sch., 02-05 (La. 4/21/03), 843
So.2d 1096, 1108. We find that the trial court legally erred in applying the
incorrect burden of proof in these contempt proceedings.
The trial court also appears to have legally erred in conflating the attorney’s
obligation to certify truthful filings under La. C.C.P. art. 863 and the court’s
constructive contempt powers under La. C.C.P. art. 224(4). It is undisputed that
Mr. Szeto falsely certified a Notice of Intent stating that an action had been taken
in the Joseph matter for which he sought supervisory review. While the court
claims this is a violation of La. C.C.P. art. 863, in its written reasons for judgment,
it does not apply the legal standard for Article 863.2
Under La. C.C.P. art. 863, attorneys have an affirmative duty to make an
objectively reasonable inquiry into the facts and the law. In determining whether
an attorney has breached that affirmative duty, the trial court should test the
signer’s conduct by inquiring what was reasonable to believe at the time the
pleading was submitted. Marks v. Marks, 21-741 (La. App. 5 Cir. 9/28/22), 2022
WL 4491510. In determining whether sanctions are appropriate under La. C.C.P.
2
The court does cite La. C.C.P. art. 224(4) in support of its finding that Mr. Szeto intentionally deceived
the court by filing the Notice of Intent in the Joseph matter. How such an erroneous filing could deceive
the court is unclear, considering that such a deception could only be accomplished in a court that was
unaware of the matters it had or had not called and ruled upon.
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art. 863, the court should consider the following factors to evaluate whether a
litigant and his counsel made the required reasonable factual inquiry before
signing: (1) the time available to the signor for investigation; (2) the extent of the
attorney’s reliance on the client for factual support for the document; (3) the
feasibility of a prefiling investigation; (4) whether the signing attorney accepted
the case from another attorney; (5) the complexity of the factual and legal issues;
and (6) the extent to which development of the factual circumstances underlying
the claim requires discovery. Id. The trial court makes no mention of any of these
factors in its written reasons for judgment, nor is there any other indication in the
record that the court considered any of these factors or made an objective inquiry
into what was reasonable for the attorney to believe at the time the pleading was
submitted. This failure to apply the correct standard constitutes legal error.
The trial court additionally erred in finding Mr. Szeto in violation of La.
C.C.P. art. 863 by failing to file its own motion or otherwise place him on notice
that it was conducting an Article 863 inquiry and was considering imposing
sanctions for his violation of the article. Article 863 states in pertinent part:
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.
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 Court has previously held that this language and due process require
that a party be given reasonable notice of an Article 863 hearing at which sanctions
are to be considered. Alombro v. Alfortish, 02-1081 (La. App. 5 Cir. 4/29/03), 845
So.2d 1162, 1169, writ denied, 03-1947 (La. 10/31/03), 857 So.2d 486. A review
of the trial court’s Rule to Show Cause indicates that the court at that time made no
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reference whatsoever to La. C.C.P. art. 863 or that it was considering the
imposition of sanctions pursuant to that article. Instead, the trial court appears to
have raised the issue of a possible violation of La. C.C.P. art. 863 for the first time
sua sponte at the hearing on constructive contempt. Such an action is inconsistent
with the notice requirements of Article 863 and constitutes legal error.
On appellate review of criminal contempt proceedings, the reviewing court
must determine that the evidence, viewed in the light most favorable to the
prosecution, was sufficient for a rational trier of fact to conclude that every
element of the contempt charge was proved beyond a reasonable doubt. Dauphine,
843 So.2d at 1108. Willful disobedience of a court order requires a consciousness
of the duty to obey the order and an intent to disregard that duty. Id. Upon de
novo review of the record before us, we find that the evidence is insufficient for a
rational trier of fact to conclude that Mr. Szeto willfully disobeyed orders of the
trial court.
DECREE
For the foregoing reasons, the judgment of December 2, 2021, holding Mr.
Szeto in contempt of court, is vacated.
JUDGMENT VACATED;
MATTER REMANDED
22-CA-65 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
INTERIM CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
HANS J. LILJEBERG
JOHN J. MOLAISON, JR. FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
DECEMBER 21, 2022 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
22-CA-65
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE SHAYNA BEEVERS MORVANT (DISTRICT JUDGE)
DREW D. LYONS (APPELLEE) MARY C. CALI (APPELLEE) WILLIAM J. WILSON (APPELLEE)
IAN DUNBAR (APPELLANT) CHRISTOPHER H. SZETO (APPELLEE)
MAILED
HUNTER FARRAR (APPELLEE)
JOHN C. CONINE, JR. (APPELLEE)
JOHN C. WALSH (APPELLEE)
ATTORNEYS AT LAW
POST OFFICE DRAWER 4425
BATON ROUGE, LA 70821