65 So. 3d 266
La. Ct. App.2011Background
- Hardee sustained injuries as a police officer in January 1993; the dispute centers on discovery in 2010 regarding unemployment benefits reported on a 1020 statement.
- City of Jennings served multiple discovery requests and sought a Rule 10.1 conference; when responses were delayed, the City filed a motion to compel and requested $1,500 in fees and expenses.
- Hearing on the motion to compel occurred May 10, 2010; Hardee did not appear; the City’s counsel testified that opposing counsel had discussed answers but had not provided verified responses.
- The WCJ granted the motion to compel, ordered Hardee to answer within ten days, and awarded $750 in attorney fees to the City.
- Hardee moved for new trial, asserting the fee award was premature and unjust; during the new-trial proceedings the City admitted prior access to the underlying answers and contemplated the hearing going away if timely.
- The Third Circuit reversed the attorney-fees award, finding the WCJ abused discretion given pre-hearing communications, Hardee’s Washington residence, and the circumstances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether attorney fees were proper as a discovery sanction | Hardee argues fee award premature and unjust. | City contends discretionary and proper under Article 1469(4). | No; fee award reversed; improper at that stage. |
| Was the award premature due to lack of proof of expenses | Hardee asserts insufficient proof of costs. | City argues evidence not required at time of hearing; new-trial cure exists. | Yes; error to award without adequate proof; reversed. |
| Should a new trial have been granted | Hardee demonstrated new grounds from conflicting statements and undisputed facts. | City contends no new evidence warranted rebalance. | Yes; WCJ abused discretion in not granting new trial. |
| Whether damages for frivolous appeal should be awarded | N/A | City sought frivolous-appeal damages due to appeal on claimed prematurity. | Denied; appellate Court reversed fee award but declined frivolous-appeal damages. |
Key Cases Cited
- Garza v. International Maintenance Corp., 97-317, 702 So.2d 1021 (La.App. 3 Cir. 1997) (discovery sanctions and costs awardable unless substantially justified)
- Crowell v. St. Paul Fire & Marine Insurance Co., 490 So.2d 288 (La.App. 3 Cir. 1986) (prematurity of fee awards at first hearing; cure at new hearing)
- Corumia v. Broadhurst, 584 So.2d 377 (La.App. 3 Cir.1991) (awards require proof of expenses; lack of proof requiring reversal)
- LeJeune v. Lafayette Tower Service, 653 So.2d 112 (La.App. 3 Cir. 1995) (discretion in discovery sanctions; abuse if unreasonable)
- Dragon v. Schultz, 707 So.2d 1274 (La.App. 5 Cir. 1998) (burden on movant to prove entitlement to new trial)
- Henderson v. Sellers, 861 So.2d 923 (La.App. 3 Cir. 2003) (abuse of discretion standard for new-trial rulings)
- Bankston v. Alexandria Neurosurgical Clinic, 659 So.2d 507 (La.App. 3 Cir. 1994) (appeal standards; damages for frivolous appeal require justification)