Sanctions for Frivolous Civil Appeals in Louisiana
Gail S. Stephenson*
“[T]he courts are too busy, and the cost of litigation is too
high, to play games through appellate procedure . . . .”1
Frivolous appeals burden overcrowded courts, diminish the
opportunity for careful consideration of nonfrivolous appeals, and
delay access for litigants with meritorious claims.2 Rules sanctioning
frivolous appeals can deter unnecessary appeals,3 preserve the courts’
time and resources,4 and leave more time for meritorious appeals.5
Appeals are favored in Louisiana,6 and courts are loath to
punish appellants for fear of chilling the appellate process.7 Still,
frivolous appellants, like pro se litigants, should have “neither an
impenetrable shield nor a license to harass others, clog the judicial
machinery with meritless [appeals], or abuse already overloaded
Louisiana judges possess authority under Louisiana Code of
Civil Procedure article 2164 to “curb apparent abuses of process by
imposing sanctions . . . for frivolous appeals.”9 Article 2164,
enacted in 1960 and effective January 1, 1961, gives Louisiana
Copyright 2015, by GAIL S. STEPHENSON.
Director of Legal Analysis & Writing and Associate Professor of Law,
Southern Univers ity Law Center; J.D., Louisiana State University, Paul M.
Hebert Law Center, 1984; former Administrative General Counsel, Louisiana
First Circuit Court of Appeal. Funding to support work on this Article was
provided by a summer research stipend from Southern University Law Center,
with special thanks to Chancellor Freddie Pitcher, Jr.
1. Schnatz v. Schnatz, 501 So. 2d 318, 320 (La. Ct. App. 1987).
2. Asberry v. U.S. Postal Serv., 692 F.2d 1378, 1382 (Fed. Cir. 1982).
3. See State ex rel. Muse v. Ross, 651 So. 2d 364, 366 (La. Ct. App. 1995).
4. Kurt M. Saunders, Plying the Erie Waters: Choice of Law in the
Deterrence of Frivolous Appeals, 21 GA. L. REV. 653, 682 (1987).
5. Michael S. Oberman, Coping with Rising Caseload II: Defining the
Frivolous Civil Appeal, 47 BROOK. L. REV. 1057, 1058 (1981).
6. See, e.g., Thomas v. Bridges, 144 So. 3d 1001, 1010 (La. 2013); Kite
Bros., LLC v. Kite RV, LLC, 150 So. 3d 608, 609 (La. Ct. App. 2014).
7. See Doe v. Jo Ellen Smith Med. Found., 115 So. 3d 655, 665 (La. Ct.
App. 2013); Vincent v. Vincent, 95 So. 3d 1152, 1160 (La. Ct. App. 2012).
8. Bankston v. Alexandria Neurosurgical Clinic, 659 So. 2d 507, 511 (La.
Ct. App. 1994).
9. Borel v. Borel, 624 So. 2d 1279, 1284 (La. Ct. App. 1993). See also LA.
CODE CIV. PROC. art. 2164 (2015).
1126 LOUISIANA LAW REVIEW [Vol. 75
courts broad discretion to sanction frivolous civil appeals.10 It
The appellate court shall render any judgment which is just,
legal, and proper upon the record on appeal. The court may
award damages, including attorney fees, for frivolous appeal
or application for writs, and may tax the costs of the lower or
appellate court, or any part thereof, against any party to the
suit, as in its judgment may be considered equitable.11
Despite this broad discretion, during the past 30 years, frivolous-
appeal sanctions have been imposed in less than 10% of the cases
in which sanctions were sought.12
This Article reviews the jurisprudence from 1985 to 2015
applying article 216413 and examines the standard applied by
Louisiana courts, the circumstances under which frivolous-appeal
sanctions will be awarded, the procedural issues attorneys encounter,
the types of sanctions awarded, the treatment of pro se litigants, and
the ethical issues that arise. It concludes with recommendations for
action by the courts and the Louisiana Legislature that could
ultimately reduce the number of frivolous appeals.
II. LOUISIANA’S STANDARD FOR IMPOSING
Four years after its effective date, the Louisiana Supreme Court
rendered a decision interpreting article 2164 and severely limiting
its application. In Parker v. Interstate Life & Accident Insurance
Co.,14 the court set forth an extremely subjective test, permitting
sanctions for frivolous appeals only when “it is obvious that the
appeal was taken solely for delay or that counsel is not sincere in
10. Act No. 15, 1960 La. Acts 22.
11. LA. CODE CIV. PROC. art. 2164 (2015).
12. Sanctions were imposed in 83 of 834 cases between 1985 and 2015.
These figures are based on a chart compiled by the author listing the history,
result, and reasoning fro m ever y civil case that sought frivolo us-appeal
sanctions between 1985 and 2015. The chart is on file with the author. The
author conducted a Westlaw search using the terms “frivolous /s appeal %
Anders & da(aft 1984).” Anders was excluded from the search terms to filter
criminal frivolous appeals, as this Article discusses only civil appeals. Anders v.
California, 386 U.S. 738 (1967), is the fountainhead case on frivolous criminal
13. This author reviewed the jurisprudence applying article 2164 from its
effective date in 1961 through 1984 in an earlier work. See Gail Sweeney
Stephenson, Comment, Damages for Frivolous Appeal, 45 LA. L. REV. 137
14. 179 So. 2d 634 (La. 1965).
2015] SANCTIONS FOR FRIVOLOUS APPEALS 1127
the view of the law he advocates even though the court is of the
opinion that such view is not meritorious.”15 The court explained
that if the appellant’s counsel “proclaim[ed] his sincerity,” the
court could not “disbelieve [it] unless, and only unless, the
proposition advocated is so ridiculous or so opposed to rational
thinking that it is evident beyond any doubt that it is being
deliberately professed for ulterior purposes.”16
This author decried the Parker test 30 years ago as “tip[ping] the
balance too far in favor of the appellant” and suggested that the
Legislature amend the article to set forth a more objective
standard.17 The only legislative change in the last 54 years, however,
has been an amendment in 2010 to specify that attorney fees can be
included as damages and to make the article applicable to writ
The Louisiana Supreme Court has been as disinclined as the
Legislature to make changes. In the 50 years since Parker, the
Supreme Court has ruled on only six cases involving frivolous-
appeal sanctions—Hampton v. Greenfield, its only full opinion,19
and five memorandum opinions. In Hampton, the court simply
reiterated the Parker standard.20 In four of the memorandum
opinions, it summarily reversed awards of sanctions.21 In the fifth,
it summarily remanded the case to the court of appeal “to award
damages and attorney fees for a frivolous appeal.”22
The intermediate appellate court found that the appeal in
Hampton was sanctionable because the appellant’s arguments were
“identical to those already adjudicated” and simply ignored the
court’s prior holding.23 The Supreme Court reversed.24 The court
began its analysis of the frivolous-appeal argument by repeating
language Louisiana courts had used for 80 years: “Appeals are
always favored and, unless the appeal is unquestionably frivolous,
15. Id. at 636.
16. Id. at 637.
17. Stephenson, supra note 13, at 147.
18. Act No. 184, 2010 La. Acts 1391.
19. Hampton v. Greenfield, 618 So. 2d 859, 863–64 (La. 1993).
20. Id. at 863.
21. Landry v. Broussard, 108 So. 3d 760 (La. 2013); Cajun Contractors, Inc.
v. Lafayette Consol. Gov’t, 723 So. 2d 968 (La. 1998); G.B.M., I nc. v. Juna
Corp., 614 So. 2d 1249 (La. 1993); Arnoult v. Arnoult, 498 So. 2d 749 (La.
22. Bouzon v. Bouzon, 532 So. 2d 1386, 1387 (La. 1988) (remanding case
to appellate court).
23. Hampton v. Greenfield, 602 So. 2d 327, 329 (La. Ct. App. 1992), aff’d
in part & rev’d in part, 618 So. 2d 859 (La. 1993).
24. Hampton, 618 So. 2d at 864.