147 So. 3d 809
La. Ct. App.2014Background
- Cox appeals district court ruling sustaining O’Brien’s res judicata exception and sanctioning Cox for frivolous appeal.
- This case stems from a divorce/custody matter where Cox represented Davisson; O’Brien evaluated the parties.
- Davisson v. O’Brien, a prior defamation suit, resulted in a summary judgment for O’Brien and a frivolous-appeal fee award.
- Cox filed a first action of nullity to reverse the appellate attorney-fee award; it was dismissed for lack of jurisdiction.
- Cox then filed a second action of nullity, seeking to annul the appellate judgment against him; O’Brien moved to enforce res judicata.
- District court maintained res judicata and imposed sanctions under La. C.C.P. art. 863; later, Cox was assessed $2,500 sanctions and, on appeal, the court awarded $1,000 attorney fees against Cox and costs of appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether res judicata bars Cox’s second nullity | Cox contends first nullity lacked final, valid judgment | O’Brien argues second nullity is a duplicate action with final judgment | Res judicata does not apply; no valid final judgment due to lack of jurisdiction in first action |
| Whether Cox disclosed a valid no-cause-of-action claim | Cox argues art. 2006 applies | O’Brien argues no-cause-of-action doctrine applies under art. 927(B) | Cox failed to disclose a no-cause-of-action, second nullity dismissed |
| Sanctions under La. C.C.P. art. 863 upheld | Cox argues no improper purpose; due process | Court properly found violations and heard argument | Sanctions for filing second nullity upheld; record shows certification violation and hearing conducted |
| Attorney-fee/Costs on appeal upheld | Cox asserts no basis for appellate-fee award | Davisson v. O’Brien confirms appellate-fee authority | $1,000 attorney fees and costs of appeal affirmed against Cox |
| Appropriate remedy for Davisson v. O’Brien decision | N/A | N/A | Affirmed in part, reversed in part, rendered: second nullity dismissed, sanctions upheld, fees awarded |
Key Cases Cited
- Davisson v. O’Brien, 104 So.3d 467 (La.App.2d Cir. 2012) (defamation suit; appellate fee award affirmed; frivolous-appeal finding)
- Everything on Wheels Subaru, Inc. v. Subaru S., Inc., 616 So.2d 1234 (La.1993) (test for no-cause-of-action exception; review on petition alone)
- Joyner v. Wear, 665 So.2d 634 (La.App.2d Cir.1995) (standard of review for Article 863 violations (manifest error))
- Straughter v. Hodnett, 975 So.2d 81 (La.App.2d Cir.2008) (damages for frivolous appeal; strict construction of sanctions)
- Everything on Wheels Subaru, 616 So.2d 1234 (La.1993) (no-cause-of-action function; petition sufficiency)