Sanctions for Frivolous Civil Appeals in Louisiana

• Author: Gail S. Stephenson
• Position: Director of Legal Analysis & Writing and Associate Professor of Law, Southern University Law Center; J.D., Louisiana State University, Paul M. Hebert Law Center, 1984; former Administrative General Counsel, Louisiana First Circuit Court of Appeal.
• Pages: 1125-1163

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

I. INTRODUCTION

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

court dockets.”8

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

provides:

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

FRIVOLOUS-APPEAL SANCTIONS

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

appeals.

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

(1984).

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

applications.18

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.

1986).

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.