156 So. 3d 1234
La. Ct. App.2014Background
- Consolidated property-damage/business-loss suit set for jury trial; extensive pretrial conference resulted in a pre-trial order requiring disclosure of all pending and contemplated motions.
- After jury selection and immediately after lunch, plaintiff’s counsel Wade Webster, during opening statements, announced an oral motion to dismiss the insured defendant Fellowship Missionary Baptist Church with prejudice while reserving action against its insurer, Colony.
- The oral dismissal was made without prior notice to the court or opposing counsel and in apparent contravention of the pre-trial order; the announcement surprised the trial judge and defense counsel.
- The trial judge excused the jury, heard argument, declared a mistrial, and later held a hearing on sanctions; he concluded Webster’s tactic surprised and prejudiced the defendants.
- The court ordered Webster to pay $2,000 (cost of one day’s jury venire); Webster appealed the sanction but did not challenge the mistrial declaration.
- The appellate court reviewed the sanction under an abuse-of-discretion standard and affirmed the $2,000 sanction; it denied defendants’ request for frivolous-appeal damages.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Webster’s oral dismissal during opening, made without prior notice and contrary to the pretrial order, justified sanctions against him personally | Webster: acted in good faith and relied on Soileau v. Smith True Value; oral dismissal during trial is permissible | Fellowship: Webster violated pretrial order, surprised and prejudiced defendants; sanctions appropriate | Court: Webster’s manner of dismissal (ambush) violated pretrial order and prejudiced opponents; sanction affirmed |
| Proper standard of review for sanctions | Webster: (implied) trial court abused discretion | Fellowship: defer to trial court’s discretion | Held: abuse-of-discretion standard applies; appellate court defers unless legal error; no abuse found |
| Whether Soileau authorized Webster’s conduct | Webster: Soileau permits dismissal of insured while preserving action against insurer, justifying his conduct | Fellowship: Soileau does not authorize surprise dismissal without notice; facts differ | Held: Soileau does not justify Webster’s surprise tactic; Soileau involved on-the-record consultation and no surprise |
| Whether appeal was frivolous and warranted damages to defendants | Webster: appeal not frivolous; taken in good faith | Fellowship/Colony: appeal is frivolous and for delay; seek damages under Art. 2164 | Held: Appeal not unquestionably frivolous; damages denied |
Key Cases Cited
- Soileau v. Smith True Value & Rental, Inc., 144 So.3d 771 (La. 2013) (plaintiff may dismiss an insured and proceed against insurer depending on record and intent; Court examined totality of on-record agreements and statements)
- Cooter & Gell v. Hartmarx Corp., 496 U.S. 384 (U.S. 1990) (appellate review of trial-court sanctions is deferential to courts controlling courtroom proceedings)
- Bourque v. Allstate Ins. Co., 760 So.2d 411 (La. App. 3 Cir.) (factors for sanctions under pretrial-order violation: conduct source, prejudice, nature and persistence of misconduct)
- Southern Casing of Louisiana, Inc. v. Houma Avionics, Inc., 809 So.2d 1040 (La. App. 1 Cir.) (pretrial orders control trial course and enforcement is within trial court discretion)