Shannon Michelle Shepherd Hord v. Matthew Garrett Hord ( 2020 )

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 0704
SHANNON MICHELLE SHEPHERD HORD
Illyr5- 1
VERSUS
MATTHEW GARRETT HORD
JUDGMENT RENDERED: FEB 2 12020
Appealed from the
Twenty -Second Judicial District Court
In and for the Parish of St. Tammany • State of Louisiana
Docket Number 2006- 14439 • Division K
The Honorable Mary Devereaux, Judge Presiding
Richard Ducote ATTORNEY FOR APPELLANT
Covington, Louisiana PLAINTIFF— Shannon Michelle
Shepherd Hord
Kristen Stanley -Wallace ATTORNEYS FOR APPELLEE
Amber Sheppard DEFENDANT— Matthew Garrett
Slidell, Louisiana Hord
BEFORE: MCCLENDON, WELCH, AND HOLDRIDGE, JJ.
WELCH, J.
In this child custody dispute, Shannon Michelle Shepherd ( formerly " Hord")
appeals a trial court judgment ordering her to reimburse Matthew G. Hord for the
attorney fees and costs associated with her failure to submit an accurate judgment
reflecting a stipulation entered into in open court on March 7, 2018. We reverse
the judgment of the trial court and issue this memorandum opinion in compliance
with Uniform Rules— Courts of Appeal, Rule 2- 16. 2.
Ms. Shepherd and Mr. Hord were previously married. During their
marriage, the parties had one child, M.L.H. During the pendency of the divorce
proceedings and thereafter, M.L.H. has been the subject of child custody litigation.
On March 7, 2018, the parties were before the trial court for a hearing on Ms.
Shepherd' s objection to a hearing officer recommendation. At the hearing, the
parties eventually entered into a stipulation on the record wherein they specifically
agreed that M.L.H. would undergo a psychological evaluation by Dr. Allen James
Klein; however, should Dr. Klein not be available or unable to take the case, the
parties agreed that M.L.H. would be evaluated by Dr. Kristen Luscher. Counsel
for Ms. Shepherd then volunteered to " submit the order for Dr. Klein."
Counsel for Ms. Shepherd prepared an order providing for the appointment
of Dr. Klein; however, the proposed order did not provide for the alternative
appointment of Dr. Luscher. Counsel for Mr. Hord objected to the proposed order
because it did not provide for the alternative appointment of Dr. Luscher. The
proposed order was submitted to the trial court, along with a certification by
counsel for Ms. Shepherd that counsel for Mr. Hord objected to the order because
it did not include the language concerning the alternative appointment of Dr.
Luscher. Counsel for Mr. Hord then prepared an order providing for the
appointment of Dr. Klein and the alternative appointment of Dr. Luscher and
submitted it to the trial court. Mr. Hord also filed a motion for attorney' s fees and
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costs, claiming that as a result of counsel for Ms. Shepherd' s refusal to submit a
judgment or order that accurately reflected the stipulation of the parties, he
incurred increased attorney' s fees and costs related to: communications between
his counsel, counsel for Ms. Shepherd, and the court; ordering the transcript from
the March 7, 2018 hearing; drafting and filing of the correct judgment; and drafting
and filing the motion for attorney' s fees and costs. Therefore, Mr. Hord sought an
award of attorney' s fees and costs associated with counsel for Ms. Shepherd' s
failure to submit an accurate judgment from the March 7, 2018 hearing.
The trial court ultimately signed the order prepared by counsel for Mr. Hord
on April 9, 2018, and specifically declined to sign the order prepared by counsel
for Ms. Shepherd. In addition, after a hearing on July 11, 2018, the trial court
signed a judgment on August 22, 2018, ordering Ms. Shepherd to reimburse Mr.
Hord attorney' s fees and costs in the amount of $1, 921. 96, which were associated
with Ms. Shepherd' s failure to submit an accurate judgment reflecting the
stipulation entered into the record in open court on March 7, 2018. From this
August 22, 2018 judgment, Ms. Shepherd has appealed, arguing that there was no
factual or legal basis upon which to award attorney' s fees and costs.' We agree.
Under Louisiana law, attorney' s fees are not allowed except where
authorized by statute or by contract. Dipaola v. Municipal Police Employees
Retirement System, 2014- 0037 ( La. App. 1St Cir. 9/ 25/ 14), 155 So. 3d 49, 52, writ
denied, 2014- 2572 ( La. 2/ 27/ 15), 159 So. 3d 1071. Furthermore, a statute
providing for an award of attorney' s fees is penal in nature and must be strictly
construed. Molinere v. Lapeyrouse, 2016- 0991 ( La. App. 1St Cir. 2/ 17/ 17), 214
The August 22, 2018 judgment was captioned as an " Order" and Ms. Shepherd initially filed an
application for supervisory writs with this Court with regard to this order. However, since this
Court determined that the August 22, 2018 order was a final, appealable judgment in accordance
with La. C. C. P. art. 1915( A)(6), this Court granted the writ application for the limited purpose of
remanding the case to the trial court with instructions to grant Ms. Shepherd an appeal pursuant
to the pleading that notified the trial court of her intention to seek writs. Shannon Michelle
Shepherd v. Matthew G. Hord, 2018- 1344 ( La. App. 1St Cir. 1/ 10/ 19) ( unpublished writ
action).
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So. 3d 887, 896. Herein, there is no dispute that there is no contractual agreement
for attorney' s fees. Thus, any award of attorney' s fees must have been based on a
specific statute providing for such an award.
Under the facts and circumstances of this case, we have not found, nor have
we been directed to any provision of law authorizing an award of attorney' s fees
and costs with regard to the submission of a stipulated judgment. While Mr. Hord
maintains that the award of attorney fees was proper pursuant to La. C. C. P. art.
863, we note that by its terms, La. C. C. P. art. 8632 applies to the signing or
2 Louisiana Code of Civil Procedure article 863 provides:
A. Every pleading of a party represented by an attorney shall be signed by at least
one attorney of record in his individual name, whose address shall be stated. A
party who is not represented by an attorney shall sign his pleading and state his
address.
B. Pleadings need not be verified or accompanied by affidavit or certificate,
except as otherwise provided by law, but the signature of an attorney or party
shall constitute a certification by him that he has read the pleading, and that to the
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.
C. If a pleading is not signed, it shall be stricken unless promptly signed after the
omission is called to the attention of the pleader.
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.
certification of " pleadings" and the sanction for the violation thereof. In a civil
case, pleadings " shall consist of petitions, exceptions, written motions, and
answers." La. C. C. P. art. 852. Applying the rule of strict construction applicable
to sanctions under La. C. C. P. art. 863, we find that the submission of a proposed
judgment to the trial court— stipulated or otherwise— is not a " pleading" to which
La. C. C. P. art. 863 is applicable. As such, we must conclude that the trial court
had no statutory basis ( or contract) upon which to base an award of attorney' s fees
and costs.3 Therefore, we reverse the August 22, 2018 judgment of the trial court.
CONCLUSION
For all of the above and foregoing reasons, the August 22, 2018 judgment of
the trial court is reversed. All costs of this appeal are assessed to the appellee,
Matthew M. Hord.
REVERSED.
F. A sanction authorized in Paragraph D shall not be imposed with respect to an
original petition which is filed within sixty days of an applicable prescriptive date
and then voluntarily dismissed within ninety days after its filing or on the date of
a hearing on the pleading, whichever is earlier.
G. If the court imposes a sanction, it shall describe the conduct determined to
constitute a violation of the provisions of this Article and explain the basis for the
sanction imposed.
3 From the record, it is apparent that counsel for Mr. Hord and the trial court are frustrated with
this case and perhaps counsel for Ms. Shepherd. We further recognize that 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 may constitute a contempt of court— either direct or
constructive— and may be punishable in accordance with law. See La. C. C. P. arts. 221- 227; La.
R. S. 13: 4611. However, since the procedures set forth by law with regard to contempt were not
followed in this case ( i.e., La. C. C. P. arts. 223 and 225), we decline to address whether La.
C. C. P. arts. 221- 227 provided the legal basis upon which to award the attorney' s fees and costs
herein.
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