author: |,SUSAN M. CHEHARDY, Judge.

text:
    Rhonda Lee JOHNSON v. Eugene R. CAMANGA, Jr., Dolores Camanga, Wife of/and Roy Camanga.
    No. 02-CA-1198.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Michael G. Fanning, Grant & Barrow, Gretna, LA, for Eugene R. Camanga, Jr., Defendant-Appellant.
    Jack A. Ricci, Gary J. Giepert, Ricci & Giepert, New Orleans, LA, for Rhonda Lee Johnson, Plaintiff-Appellee.
    Panel composed of Judges THOMAS F. DALEY, SUSAN M. CHEHARDY, and WALTER J. ROTHSCHILD.
   |,SUSAN M. CHEHARDY, Judge.

This is a defamation suit in which the trial court ruled in favor of the plaintiff and awarded damages against several defendants. One of the defendants appeals. We affirm.

Rhonda Lee Johnson cohabited with Eugene R. “Gene” Camanga, Jr. for several years. One child was born of their relationship, a daughter, Nichole, on December 30,1987. Rhonda and Gene separated in 1991, when the child was four-and-a-half years old. During the first few years of her life Nichole spent a considerable amount of time with Gene’s parents, Dolores Camanga and Roy Camanga, even after Rhonda and Gene ended their cohabitation.

Sometime in 1992 disagreements arose between Rhonda and the elder Camangas over child-rearing techniques. Rhonda refused to allow the child to stay with the grandparents as she had previously done and placed her in day care. Gene filed a petition for custody, which resulted in a judgment granting joint custody of the child to Rhonda and Gene.

Subsequently Gene decided to seek full custody. His father, Roy Camanga, obtained a rap sheet from a friend in law enforcement that purported to show that Rhonda had been arrested for several crimes. In order to do so, Roy Camanga Lasked Rhonda for her Social Security number, on the pretext he wanted to use it to play the lottery.

In his petition for custody filed on December 21,1992, Gene alleged that Rhonda had been arrested for attempted crimes against nature, prostitution, and felony theft and that she had pleaded guilty to charges of prostitution. On the same date, Roy and Delores Camanga intervened in Gene’s custody proceeding with a pleading entitled “Petition For Relief Under Domestic Abuse Statute, Petition for Intervention and Petition for Custody,” in which they reiterated the allegations that Rhonda had a criminal history. They supported their son’s petition for sole custody and, alternatively, sought custody of the child themselves and sought relief under the Domestic Abuse Assistance statutes, La. R.S. 46:2131 et seq., for protection of the child.

Based on the allegations in the Camanga petitions, the district court signed an ex parte interim order granting interim custody to Roy and Delores Camanga.

In fact, the person named in the rap sheet was not Rhonda Lee Johnson, the plaintiff, but one Sheila Wilson alias Rhonda D. Johnson, who has a similar Social Security number. Rhonda Lee Johnson, the plaintiff, has no such criminal history. She was stationed in Europe on military duty at the time that Sheila Wilson a/k/a Rhonda D. Johnson was convicted.

After a hearing in January .1993, the trial court rendered an interim judgment granting Roy and Delores Camanga custody of the child, with Rhonda to have visitation. Following a full custody trial in November 1993, the court rendered judgment on November 2, 1993 granting Gene and Rhonda joint custody of the child, with each to have physical custody half the year and the other parent to have weekend and holiday visitation while the child was living with the other parent.

|40n December 20, 1993 Rhonda filed the petition in this matter, seeking damages for defamation. The suit eventually went to trial in March 2002. The trial court rendered a written judgment on April 12, 2002, finding in favor of the plaintiff and awarding damages in the amount of $1,500.00 against Roy and Delores Ca-manga and in the amount of $7,500.00 against Eugene R. Camanga, Jr.

In lengthy oral reasons for judgment the trial court stated, in pertinent part:

I find that it is more probable than not, given the entire panoply of behavior ... that Mrs. Delores Camanga and Mr. Eugene Roy Camanga were present for that meeting between Benny Plaia and Harry Cabral and Gene Camanga, the biological father, since they were involved in everything before, during and since.
At any rate, it is uncontroverted that at that meeting a discussion was had where in it was discussed that the Social Security number for Rhonda Lee Johnson depicted in the rap sheet was not exactly the same as for the Rhonda Lee Johnson, the mother of the child....
Gene Camanga quite candidly testified that at the time in question ... he ... certainly knew her birth date ..., and the birth date depicted in the rap sheet is certainly not the same as the rap sheet of the Rhonda Lee Johnson before [this] Court....
* * *
On the contrary, it happened that Rhonda Lee Johnson ... was one of those people who went to work everyday and had the same job for years and years, and lived a relatively sane existence.
It is relatively uncontroverted that the Camangas knew, that Gene Camanga, because it is uncontroverted that he was involved in the conversation with Cabral and Plaia, knew or should have known that this was not the same Rhonda Lee Johnson.
I find ... it is more probable than not that the older Camangas likewise were involved in this conversation, and at any rate all of them signed the affidavits attendant to the ex parte petition.... The petition which contained allegations of serious criminal conduct which is of a nature to include moral turpitude or immorality, and that Rthat being placed before the judge in an ex parte context is publication of the most serious, serious nature.
... [I]t was certainly placed in the petition in an attempt to convince a judicial officer to take a very, very serious act, which was to remove a child from a parent....
... [T]he allegation of prostitution, theft and crime against nature, when placed in the context of the balance of the allegations, cast Rhonda Lee Johnson in a light which was indefensible as a parent.
The defense makes much of the fact that upon receipt of this information [establishing Rhonda was not the subject in the rap sheet] they asked no questions on this issue, and from their perspective the issue died.
It is imperative to note that when one looks forward at Judge Zeno’s reasons for judgment, the issue did not die with regard to Judge Zeno.
... [T]he Camangas neither retracted the statement on the record, nor vacated that portion of their pleadings, nor filed amended pleadings deleting the untrue allegations. The pleadings sat in the record as they were from then to this day.
* * *
I must say parenthetically that Judge Zeno showed an incredible amount of restraint of not holding people in contempt of court for knowingly filing false statements in an ex parte motion.
This Court finds that there was actual malice. All three Camangas signed the pleadings, and all more probably than not knew that the information contained with regard to the three arrests was untrue....
* * *
... I find first, that the defendants knew ... the information contained in the rap sheet was probably untrue relative to this person; two, that the use of such highly volatile information in an ex parte pleading is extreme and dangerous; three, I find that the allegations placed in the ex parte petition were extreme and dangerous; I also find that the defendants knew or should have known that the distress to be suffered by any individual accused of such a crime when that individual has not engaged in such conduct would be severe, much less in a situation where it was intended by the defendants to result in the mother’s loss of her child.
U further find ... that she did indeed suffer severe emotional distress....
I certainly do find that the defamatory conduct credited to an overall atmosphere which resulted years later apparently in the mother losing custody of her child....
Now, interestingly Dolores and Roy Camanga were the people who were desperately seeking custody of their grandchild, but it was Gene Camanga who appears from the evidence to have been more intimately involved in the decision to place the language in the petition and so forth, and that will play into the awarding of damages.
At any rate, I can’t find that either the father or the grandparents engaged in this custody battle out of a sense of the best interest of the child. I find that it was engaged in, at least in the part that is before me, and that is the part that resulted in the defamatory conduct, just plain because they wanted the baby.

Gene Camanga alone has appealed. He assigns the following as errors.

1. The court erred in finding the appellant guilty of defamation after the presumption of malice for alleging immoral acts was rebutted by the testimony of the defendant and witnesses.

In his brief Gene states he cannot deny that he signed an affidavit containing a statement making false accusations against his former girlfriend and that, with reasonable diligence, he would have discovered that the allegations were false. He admits he would be guilty of defamation per se “if these constituted the total of facts surrounding this story.” He contends he did not file the court documents with a malicious purpose, but because he was doing so in the best interest of his child.

He also asserts that he and his parents were pressured to include the arrest allegations by the elder Camangas’ then-attorney. Gene notes that the attorney then representing him objected to the inclusions.

Gene further contends that his father and mother “clearly ... were at the forefront of this litigation at its inception and, until the final hearing in November |71993, reaped the greatest benefit from it.” He contends that the trial court “could and should have determined that the presumption of malice” arising from false allegations of criminality “was sufficiently rebutted.”

“To prevail on a claim of defamation, plaintiff has the burden of proving by a preponderance of the evidence five essential elements: defamatory words, publication, falsity, malice and resulting injury. If even one of these elements is absent, the cause of action fails.” Sommer v. State, Dept. of Transp. and Dev., 97-1929, p. 25 (La.App. 4 Cir. 3/29/00), 758 So.2d 923, 939, writ denied, 2000-1759, (La.10/27/00), 772 So.2d 122.

Defamatory words are those which tend to harm the reputation of another so as to lower him in the estimation of the community or to deter third persons from associating with him. To be actionable, the words must be communicated or published to someone other than the plaintiff. Words that expressly or implicitly accuse another of criminal conduct or that, by their nature, tend to injure one’s personal or professional reputation are considered defamatory per se. If the plaintiff proves publication of defamatory per se words, the elements of falsity, injury and malice are presumed, although they may be rebutted by the defendant. To rebut this presumption, defendants have the burden of proving a reasonable belief in the truth of the statements. [Citations omitted.]

Doe v. Grant, 01-0175 (La.App. 4 Cir. 1/29/03), 839 So.2d 408, 2003 La.App. LEXIS 181, citing Sommer, 97-1929, p. 29, 758 So.2d at 940.

[0]n appellate review of a factual determination, the reviewing court may not set aside the factfinder’s findings of fact in the absence of manifest error or unless they are clearly wrong. Also, where there is a conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring Co., 283 So.2d 716 (La.1973).

Johnson v. State Farm Mut. Auto. Ins. Co., 95-1027, pp. 3-4 (La.App. 5 Cir. 5/15/96), 675 So.2d 1161, 1162-1163.

The trial judge’s exhaustive reasons for judgment, quoted in part above, establish that she found that the defendants published information that was defamatory per se and that they had no reasonable belief in the truth of the statements. Hence, they failed to rebut the presumption. We find no manifest error in that determination and, thus, no merit to this assignment of error.

2. The court erred in failing to state a level of comparative negligence for the defendants and assigning a disproportionate amount of damages per defendant.

Here Gene complains that the court assessed the damages unequally among the defendants without apportioning degrees of fault. As mentioned above, the elder Camangas were held liable for $1,500.00 and Gene Camanga liable for $7,500.00, for a total of $9,000.00. Gene asserts that under Louisiana law the court must apportion degrees of fault specifically among multiple defendants. He asserts, “The facts indicate ... that the elder Ca-mangas, through and with their attorney, were at the forefront of this litigation, and certainly should bear at least an equal portion of the fault if not a significantly greater one.”

Gene contends his parents should bear the greater share of the fault and should have been assessed at least 65% of the damages.

La.C.C.P. art.1917, read in conjunction with La.C.C.P. art. 1812(C), provides that in nonjury cases to recover damages for injury, death or loss, the court shall make specific findings that shall include the degree of fault, expressed in percentage.

Here the trial court in fact addressed the issue of the disproportionate damages with her statement, “Dolores and Roy Ca-manga were the people who were desperately seeking custody of their grandchild, but it was Gene Camanga |3who appears from the evidence to have been more intimately involved in the decision to place the language in the petition and so forth, and that will play into the awarding of damages.”

However, the court failed to make a specific finding as to the degree of fault, expressed in percentage, as required by La.C.C.P. art.1917 and 1812(C). The total of the damages awarded was $9,000.00; the court allocated $7,500.00 to Gene Ca-manga and $1,500.00 to Roy and Delores Camanga. In proportion to the total, Gene Camanga was liable for 83.33% of the damages and the elder Camangas were liable for 16.67% of the award.

Technically, the court’s failure to apportion the damages between the defendants by percentage was a legal error. Johnson v. State Farm Mut. Auto. Ins. Co., 95-1027, pp. 3-4 (La.App. 5 Cir. 5/15/96), 675 So.2d 1161, 1162-1163.

However, we do not find it requires either reversal or amendment. Considering the testimony and evidence, the reasons set out by the trial judge sufficiently addressed the apportionment of damages and we find no reason to change the ratio allocated by the trial court. See Turner v. D’Amico, 96-0624, p. 3 (La.App. 1 Cir. 9/19/97), 701 So.2d 236, 238.

Hence, we find no merit to this assignment.

3. The court granted excessive damages for the extent of the injuries proven in trial.

The appellant contends the amount awarded is “far in excess of a reasonable amount of damages for what was proven in court, considering the amounts awarded in cases around the state for similar offenses.” He states that the plaintiff testified at trial that she was devastated, shocked and embarrassed, but she did not seek therapy from any mental health specialists. He also asserts she did not suffer any damage to her reputation because her friends only learned of the allegation |infrom the plaintiff herself and they testified it did not change their opinion of her. He notes the friends testified the plaintiff was upset, lost sleep and lost weight during the course of the entire custody battle and the allegations. Gene asserts, “Our court system would grind to a halt if everyone who suffered fantods over custody battles could file tort actions against their spouses or ‘significant others.’ ”

Gene contends that although the trial court tried to determine the effect the eomplained-of allegations had on the custody court’s decision to grant ex part custody, but that is difficult. He notes, once Rhonda presented clear proof she was not the person named in the rap sheet, it was never again used as a basis to maintain custody with the grandparents. He asserts, “Thus, at its worst, the allegation contributed, along with the other allegations, to the removal of the child from the mother for a period of no more than a few weeks.” He argues that Rhonda’s reactions were due to the overall circumstances, not just to the arrest allegations.

Gene acknowledges that the trial judge “was most concerned that the affidavit and petition containing the offensive allegation was used to procure an order depriving a mother of her child.” However, he contends, the proper remedy for that is sanctions under La.C.C.P. art. 863, brought before the judge who tried the custody matter.

We disagree. The type of allegations made against the plaintiff are not protected because they appeared in legal pleadings. They were defamatory per se and the plaintiff was entitled to recover for them. The sanctions that may be levied under La.C.C.P. art. 863 are for false verification of pleadings, regardless whether the material thus falsely attested to is defamatory. Article 863 sanctions may offer an additional route for a defamed party to hold the opponent responsible for his or her actions, but do not provide recovery for the tort of defamation.

In Regarding the amount of the award, the trial judge discussed the awards in several other defamation cases, ranging from $500.00 to $90,000.00. We find no abuse of discretion in the amount awarded here.

For the foregoing reasons, the judgment of the district court is affirmed. The appellant is cast for the costs of this appeal.

AFFIRMED.

      . The Jefferson Parish Sheriff, Harry Lee, was originally named a defendant in connection with release of the rap sheet, but the plaintiff later voluntarily dismissed him from the case without prejudice, reserving her rights against the other parties.

      . At that time the elder Camangas were represented by the late Harry Cabral, whom the appellant characterizes as “by reputation a most aggressive domestic attorney.'1


source: Caselaw Access Project

author: I j>SOL GOTHARD, Judge.

license: Public Domain

text:
    Joyce T. ADAMS, v. JEFFERSON PARISH DEPARTMENT OF COMMUNITY ACTION PROGRAMS.
    No. 02-CA-1090.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Rita G. Pereira, New Orleans Legal Assistance Corporation, New Orleans, LA, for Plaintiff/Appellant.
    Clement P. Donelon, Metairie, LA, for Respondent/Appellee.
    Panel composed of Judges SOL GOTHARD, JAMES L. CANNELLA and SUSAN M. CHEHARDY.
   I j>SOL GOTHARD, Judge.

Joyce T. Adams, appellant, appeals a judgment of the Personnel Board for the Parish of Jefferson (hereinafter “The Board”) that upheld the termination of her employment and dismissed her appeal. For the following reasons, we affirm.

Claimant was terminated from employment on October 19, 2000. On November 13, 2000, she filed a petition with the Jefferson Parish Personnel Board, appealing her termination. A Hearing Examiner, Theodore Nass, was appointed and a hearing was held on May 30, 2001, August 13, 2001, and August 15, 2001, and was supplemented by memorandum on September 17, 2001. On November 15, 2001, the hearing examiner rendered an opinion finding that the decision of the Appointing Authority (employer) was justified and dismissing Ms. Adams’ appeal.

Ms. Adams filed an application for review of the decision of the hearing officer. By order signed April 24, 2002, the Board denied the application for review for failure to follow Jefferson Parish Personnel Board Rules of Appeal Procedure 26(B)(4)(5)(6). Claimant filed a timely motion for appeal with this court pursuant to Rule 30.

Ms. Adams was a permanent classified civil servant, employed by the Jefferson Parish Department of Community Action Programs “JeffCap” or “appointing authority.” She began work on August 17, 1992, and worked without incident for eight years. During the time period at issue, Nicole Ferrier was the | sDirector of JeffCap. Ms. Adams was employed as a Food Service Manager, and in that capacity she managed the food service operations at two Jefferson Parish Head Start Program Centers. In June of 1999, Laura Cullen was appointed Food Service Supervisor, with supervisory duties over Ms. Adams.

In early 2000, Ms. Adams received three citations for insubordination from Ms. Cullen, and on February 14, 2000, she was suspended without pay for three days. Ms. Adams’ appeal from this disciplinary action was heard by a Hearing Examiner, who issued a decision which sustained the suspension. Ms. Adams did not appeal from that decision.

On April 4, 2000, an annual Employee Service Rating, reviewing Ms. Adams performance for the previous year, was conducted. Ms. Adams’ performance was rated unsatisfactory in two areas, attitude and performance, based on three acts of insubordination cited by Ms. Cullen.

Ms. Adams went on a six-week furlough starting July 1, 2000, and she returned on August 14, 2000. Ms. Adams was re-evaluated on August 24, 2000, and again received an unsatisfactory rating. Reasons cited were her failure to adequately provide for a luncheon in June of 2000, and her failure to submit paperwork prior to furlough on July 1, 2000. At the meeting to discuss this rating, Ms. Adams became ill. She was placed on sick leave until October 18, 2000. When she returned to work she was terminated, as a result of the second unsatisfactory rating.

A civil service employee is afforded protection in disciplinary actions, taken without cause, pursuant to La. Const. Art. 10 Sec. 8(A). Lewis v. Jefferson Parish Dept. of Public Works, 99-16 (La.App. 5 Cir. 5/19/99), 761 So.2d 558, writ denied, 99-2906 (La.1/14/00), 753 So.2d 215; Ruddock v. Jefferson Parish Fire Civil Service Bd., 96-831 (La.App. 5 Cir. 1/28/97) 688 So.2d 112. A dismissal of a civil servant “for cause” is synonymous with legal cause. Lewis, supra; Ruddock, | ¡supra. Legal cause for disciplinary action exists if the facts found by the commission disclose that the conduct of the employee impairs the efficiency of the public service. Ruddock v. Jefferson Parish Fire Civil Service Bd., supra.

A public employee may apply to the Board for a review of discharge or disciplinary action, at which time the appointing authority (here the Department) bears the burden of proving legal cause. Lewis, supra. The Personnel Board has a duty to decide, independently from the facts presented, whether the appointing authority has good and lawful cause for taking disciplinary action and, if so, whether the punishment imposed is commensurate with the dereliction. La. R.S. 33:2561, Wilson v. Jefferson Parish, 95-470 (La.App. 5 Cir. 1/17/96), 668 So.2d 1167, writ denied, 96-0413 (La.4/19/96), 671 So.2d 927.

On appeal, this court should apply the clearly wrong or manifest error rule. Wilson, supra. An appellate court review of an administrative disciplinary decision is limited to a determination of whether the decision was made in good faith for legal cause; unless the record contains insufficient evidence to support the administrative decision or shows that the decision was clearly wrong, the decision must be affirmed. Lewis, supra.

In this appeal, Ms. Adams argues that the appointing authority failed to meet its burden of proving legal cause for termination. She further argues that even if it is decided that disciplinary action was warranted, the Board erred in failing to impose a less severe penalty than termination. The Appointing Authority argues that it was mandated to provide disciplinary action once Ms. Adams had received the unsatisfactory re-rating. It further argues that the decision to terminate Ms. Adams’ employment, rather than to impose a lesser sanction, was proper.

Rule XII, Section 1.6, of the Personnel Rules of Jefferson Parish states that any employee rated unsatisfactory shall be re-rated within two to six months and if the re-rating is unsatisfactory, the appointing authority has the duty to reassign, | Rdemote, or dismiss the unsatisfactory employee. Pursuant to this rule, after Ms. Adams received an unsatisfactory rating on April 14th, a re-evaluation was conducted on August 24, 2000. Because Ms. Adams again received an unsatisfactory rating, the Appointing Authority was obligated to impose some disciplinary action.

Ms. Adams does not argue that her unsatisfactory rating of April 14, 2000 was unwarranted. In this appeal, she refers to her re-evaluation, and argues that the appointing authority failed to meet its burden of proving legal cause for termination “when the most egregious conduct complained of did not occur as was alleged and did not in any way impair the efficient operation of the appointing authority.” With regard to her failure to provide an adequate luncheon in June of 2000, Ms. Adams contests her employer’s assertions that the food was late, and was insufficient to feed the members present. Ms. Adams did admit that she did not provide utensils, plates, napkins and beverages for this meeting, but alleges that this did not cause inconvenience for anyone. Concerning her failure to submit paperwork prior to furlough, she argues that she could not have completed the paperwork because it was inclusive of inventories that could not be completed before June 30th, and that she was confidant that she could return from furlough on August 14th, and complete the work needed prior to the submission deadline on August 28th.

The Hearing Examiner, in his well-explained disposition of this matter, stated that:

Joyce Adams was found to be deficient in her handling of her duties to provide food for a meeting on June 21, 2000. She was completely unprepared for that meeting. What bothered this writer was her statement at page 188 of the testimony at line ten her emphasis on children (not reflected in writing but remembered by me) indicating her disdain for this assignment. She further was very cavalier about her duties towards the end of June that might be categorized as housekeeping in nature. The work was in anticipation of the 5-6 week furlough that occurs during the summer of each year.
| fiWhile the re-rating of August 24th was not appealed it must be reviewed when it results in a dismissal and the re-rating of unsatisfactory is found to be properly arrived at.
The decision to terminate the employee rather than to demote or transfer is justified especially since much of the conduct complained of seems to be the appellants (sic) attempt to show her dis-proval of the persons appointed over her and the policies adopted by the director.

We believe that the Appointing Authority presented sufficient evidence to support a finding of legal cause for termination. Plaintiff received an unsatisfactory rating stemming from three acts of insubordination, and she was re-evaluated within six months of that rating. Her reevaluation was also unsatisfactory. Although prior reprimands may not be resurrected as grounds for further disciplinary action, they may be considered along with new grounds to determine whether there is legal cause for the disciplinary actions taken. Murray v. Department of Revenue and Taxation, 504 So.2d 561 (La.App. 1 Cir.1986), writ denied, 504 So.2d 880, 882. In this case, the Hearing Examiner found that Ms. Adams’ actions indicated her disdain for her supervisors and their policies. Actions that show disdain for supervisors are, by their very nature, detrimental to the efficiency of the public service. We find no manifest error in the Hearing Examiner’s decision supporting plaintiffs termination.

Ms. Adams next alleges that the Appointing Authority should have imposed a penalty less severe than termination, such as re-assignment or demotion. Nicole Ferrier, director of JeffCap, testified that there were no available positions available to re-assign Ms. Adams. She stated that a demotion would require Ms. Adams to work with people whom she had previously supervised, which would be difficult. In addition, because of non-improvement in Ms. Adams, termination of employment was justified in this case. Considering the findings that Ms. Adams’ unsatisfactory performance was found to be related to her attitude toward her 17supervisors, we cannot say that the Appointing Authority was in error in dismissing plaintiff.

Finally, plaintiff alleges that her unsatisfactory ratings by Ms. Cullen was retaliation for her actions in filing a grievance against Ms. Cullen in 1999. The Hearing Examiner appointed to hear this case apparently found no merit to that allegation, because he found that the ratings were justified. We can find no manifest error in this determination.

For the above-discussed reasons, we affirm the decision of the Jefferson Parish Personnel Board upholding appellant’s termination. Costs of the appeal are assessed against appellant.

AFFIRMED.


author: |,ROTHSCHILD, Judge.

text:
    Byron P. COULON, Sr. and Mary C. Coulon v. WITCO CORPORATION, Witco Chemical Corporation, Argus Chemical Corporation, Bacharach, Inc., Walk, Haydel and Associates, Inc., Gulf Environmental Service & Technology, Inc. and Corporate Health Resources, Inc.
    No. 03-CA-117.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      S.Gene Fendler, Carol W. Reisman, Khristina D. Miller, Liskow & Lewis, New Orleans, LA, for Crompton Corporation, Defendant/Appellant.
    Matthew J. Ungarino, James M. Benson, Ungarino & Eckert, LLC, Metairie, LA, for Gulf Evironmental Science and Technology, Inc., Defendant/Appellee.
    Panel composed of Judges SOL GOTHARD, CLARENCE E. McMANUS and Walter J. Rothschild.
   |,ROTHSCHILD, Judge.

In this contract dispute, Crompton Corporation (formerly “Witco Corporation”) appeals from a summary judgment rendered in favor of Gulf Environmental Science and Technology, Inc. (“GEST”). For the reasons stated more fully herein, we affirm.

Facts and Procedural History

Plaintiffs, Byron P. Coulon, Sr. and his wife Mary Coulon, filed the instant suit for damages against several defendants, including Witco Corporation and GEST, alleging that Mr. Coulon was employed by Witco at its plant in Taft, Louisiana from 1978 to 1999. During this time, plaintiffs allege that Mr. Coulon was exposed to toxic chemical vapors which caused him severe and permanent neurological damage. Plaintiffs allege that Witco knew of the presence of these vapors yet intentionally exposed Mr. Coulon to harm by requiring him to work under these conditions. Plaintiffs further allege that as owner of the Taft plant, Witco was strictly liable for defects in the plant equipment which allowed the vapors to leak. In addition, plaintiffs allege that Witco contracted with GEST to monitor the plant for the emission of various vapors, and that GEST failed to use reasonable care to detect or eliminate these harmful vapors.

|3Plaintiffs subsequently filed a first amended petition naming as defendant Crompton Corporation, the successor corporation to Witco Corporation. In their amended petition, plaintiffs further alleged that based on Crompton’s intentional acts involving hazardous and toxic chemicals, Crompton was liable for punitive or exemplary damages.

Crompton Corporation filed an answer to the plaintiffs’ petition, generally denying its allegations and farther averring that plaintiffs had no cause of action for punitive damages. Subsequently, Crompton Corporation filed a cross-claim against GEST seeking a defense to plaintiffs’ suit and indemnity if necessary based on the terms of a contract between the parties whereby Witco, Crompton’s predecessor corporation, secured industrial hygiene monitoring services by GEST. In response to this cross-claim, GEST filed an answer denying the allegations and subsequently brought a motion for summary judgment as to the allegations of the cross-claim. Crompton subsequently brought its own motion for summary judgment based on the terms of the contract between the parties.

Following a hearing, the trial court denied the motion for summary judgment filed by Crompton against GEST for the reasons orally assigned. In the same ruling, the trial court granted GEST’s summary judgment on the cross-claim and dismissed Crompton’s cross-claim with prejudice. In its written judgment signed on August 9, 2002, the trial court designated the judgment as final pursuant to La. C.C.P. art.1915. It is from this judgment that Crompton Corporation now appeals.

Law and Discussion

On appeal, Crompton contends that the parties entered into a contract which provides that GEST agreed to defend and indemnify Crompton, and that this ^provision in the contract applies to plaintiffs’ claims against Crompton. As such, Crompton argues it is entitled to judgment against GEST requiring GEST to defend Crompton, and that the trial court erred in denying its motion for summary judgment and in granting summary judgment in favor of GEST. Conversely, GEST argues that the provision of the contract relied upon by Crompton does not provide for a defense or indemnity in this case, and further that the terms of the contract are ambiguous and must therefore be construed against Crompton, the drafter of the document.

The record in this matter reveals that Crompton contracted with GEST to provide certain industrial hygiene services, including air sampling and monitoring at the Taft plant. In connection with this work, Crompton forwarded to GEST certain purchase orders to cover the cost of GEST’s professional and analytical services. The record contains a purchase order dated August 20, 1993 which provides that an attached supplement was to be made an integral part of the order. One of these attachments is a twenty page document entitled “General Conditions of the Contract for Construction,” also referred by the parties as “Form 471.” Paragraph 14.6 of that documents provides as follows:

The CONTRACTOR agrees to defend, indemnify, and hold harmless, all at its expense, the OWNER from and against the following described claims: all liens, claims and demands, loss, costs, damages, actions, suits, or other proceedings by whomsoever made, including claims for bodily injuries, death and property loss and damage, brought or prosecuted in any manner based upon, occasioned by, or attributable to the CONTRACTOR, its agents, invitee, licensee, or Subcontractors and all workmen and persons employed by it or otherwise under its control. Without otherwise limiting the application of this provision, CONTRACTOR and OWNER intend that this provision shall apply to all claims as described herein, which assert any form of negligence, statutory liability of an owner of realty, products liability or strict liability against OWNER.

1 fjCrompton argues that this attachment to the purchase order sent to GEST forms a valid and enforceable contract between the parties. Crompton also argues that GEST accepted the terms of this contract by failing to voice any objection thereto and by leading Crompton to believe that it accepted the terms and conditions of the purchase order and its attachments. Further, Crompton contends that the above-cited provision which was made an integral part of the purchase order requires GEST to defend and indemnify Crompton for all claims which are “in any manner based upon, occasioned by, or attributable to” GEST. Crompton claims that the plaintiffs’ claims fall within the scope of this provision, and that GEST is required to defend the suit and indemnify Crompton.

GEST responds that the contract relied on by Crompton is ambiguous, and under the terms of the contract as written, GEST does not owe a defense or indemnity for Crompton’s own negligence or strict liability or for its intentional acts. The trial court agreed with GEST, and concluded that the terms of the contract do not mandate that GEST provide a defense or indemnification to Crompton based on the allegations of plaintiffs’ petition.

In reviewing a trial court judgment on a motion for summary judgment, the de novo standard of review is utilized. Schroeder v. Board of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). The general rules which govern the interpretation of other contracts apply in construing a contract of indemnity. Soverign Ins., Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986). Contracts have the force of law between the parties, and the courts are bound to interpret them according to the common intent of the parties. La.Civ. Code art.1983; La.Civ.Code art.2045.

If the words of the contract are clear, unambiguous, and lead to no absurd consequences, the court need not look beyond the contract language to determine the true intent of the parties. La.Civ. Code art.2046. When a contract is unclear it | sis to be interpreted against the party who furnished the text. Further, a contract executed in a standard form of one party must be interpreted, in case of doubt, in favor of the other party. La. C.C. art.2056. Whether or not a contract is ambiguous is a question of law. American Deposit Inc. Co. v. Myles, 00-2457 (La.4/25/01), 783 So.2d 1282, 1286; Sanders v. Ashland Oil, Inc., 96-1751 (La.App. 1 Cir. 6/20/97), 696 So.2d 1031, writ denied, 97-1911 (La.10/31/97), 703 So.2d 29.

A contract of indemnity whereby the indemnitee is indemnified against the consequences of his own negligence is to be strictly construed. Perkins v. Rubicon, Inc., 563 So.2d 258 (La.1990); Soverign Ins., Co. v. Texas Pipe Line Co., 488 So.2d 982 (La.1986); Such a contract will not be construed to indemnify an indemnitee against losses resulting to him through his own negligent acts unless such an intention is expressed in unequivocal terms. Stewart v. Winn Dixie La., 96-599 (La.App. 5 Cir. 12/11/96), 686 So.2d 907, 917; Perkins v. Rubicon, supra. The purpose of the indemnity agreement is to allocate the risks inherent in the activity between the parties to the contract. Stewart, supra, 686 So.2d at 917.

We have carefully reviewed the entire record in this matter, including the purchase orders and its attachments, and we agree with the trial court that the indemnity provisions relied upon by Crompton to support their cross-claim against GEST do not apply under the facts of this case.

We first note that the indemnity provisions are contained in a standard contract executed by Crompton which is entitled “General Conditions for the Contract of Construction.” The work performed by GEST did not involve construction, and the record fails to show the basis for attachment of a document relating to a construction contract. Further, although the standard form was attached to the purchase order issued by Crompton, neither the purchase order nor its attachments were signed by a representative of GEST.

|7The indemnity provisions relied upon by Crompton are contained on page 11 of this attachment in Section 14.6 and provides that GEST agrees to defend, indemnify, and hold harmless Crompton from all claims and demands which are “based upon, occasioned by or attributable to” GEST. However, Crompton has failed to show how plaintiffs’ claims against it are due to the fault of GEST, or that the plaintiffs’ claims against Crompton are “based upon, occasioned by or attributable to” GEST. Plaintiffs allege that Crompton is liable for its actions at the Taft plant during a twenty-year period. The record in this case shows that GEST agreed to provide air sampling and monitoring during 1993 and 1994. Under these circumstances, we fail to find plaintiffs’ injuries were based upon or attributable to the performance of the sampling and monitoring services by GEST.

Further, the indemnity clause in this ease does not contain language evidencing a clear and unequivocal intent for GEST to defend and indemnify Crompton for Crompton’s own negligence, strict liability or intentional acts. Although Crompton relies on the last sentence of the indemnity provision to support its position that GEST is obligated to defend and indemnify it for all claims, we fail to find any express language in this agreement regarding the negligence of Crompton. The first sentence of the indemnity provision requires GEST to defend and indemnify Crompton for claims attributable to GEST. The last sentence of the paragraph simply states that the provisions apply to all claims for negligence, statutory liability, strict liability and products liability. Nothing in this sentence evidences the parties’ intent that GEST indemnify Crompton for its own negligence, strict liability or intentional act.

Any doubt which exists in this standard contract executed by Crompton must be interpreted against Crompton. La. C.C. art.2056. Absent a clear and unequivocal agreement in the contractual provisions that GEST agreed to indemnify Crompton for its own negligence or fault, we agree with the trial judge [sthat the indemnity provisions of this document are applicable in this case. Stewart v. Winn Dixie, La., supra.

Accordingly, we find no error of the trial court in finding as a matter of law that GEST did not owe a defense or indemnity to Crompton under the terms and provisions of Section 14.6 of Form # 471. The judgment of the trial court granting summary judgment in favor of GEST and dismissing Crompton’s cross-claim -with prejudice is therefore affirmed. Appellant shall bear all costs of this appeal.

AFFIRMED.

      . Although the original petition names Witco as defendant, we will refer the successor corporation Crompton throughout this opinion for clarity purposes.

      . The record indicates that prior to the hearing on the motions for summary judgment, plaintiffs settled with and dismissed their demands against GEST. Thus, the only remaining claim against GEST was the crossclaim filed by Crompton Corporation.


author: LSOL GOTHARD, Judge.

text:
    Lillian Levee LAMBERT v. BANK ONE TRUST, NA.
    No. 02-CA-1172.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.

      Jane Ettinger Booth, Booth & Booth, New Orleans, LA, for Plaintiff/Appellee.
    Brian D. Roth, Sessions, Fishman & Nathan, Mandeville, LA, and John W. Hite, III, New Orleans, LA, for Defendant/Appellant.
    Panel composed of Judges SOL GOTHARD, MARION F. EDWARDS and SUSAN M. CHEHARDY.
   LSOL GOTHARD, Judge.

This is an appeal from a judgment of the First Parish Court for the Parish of Jefferson in which the court held that defendant, Bank One Corporation, was hable to plaintiff for damages for breach of bond ordinance, breach of fiduciary duty and unjust enrichment. The matter originated with a petition filed by Lillian Levee Lambert in which she seeks damages from the First National Bank of Commerce, for breach of bond ordinance/contract, breach- of fiduciary duty and for unjust enrichment. In a supplemental and amending petition, plaintiffs substituted Bank One Trust, N.A. (Bank One) as defendant. In the petition, Ms. Lambert alleges she is the usufructu-ary of a municipal bond in the principal amount of $20,000.00 originally purchased by her now deceased brother, Lucius Levee.

Bank One answered the petition and filed a third party demand against Donald Lambert, executor of the estate of Lucius Levee, for indemnity. Bank One also filed a motion for summary judgment that was denied by the trial court. That ruling was upheld by this Court and the Louisiana Supreme Court on supervisory writs. The matter proceeded to trial, after which the court rendered a judgment in favor of plaintiff, Lillian Levee Lambert, and against Bank One in the amount of $7,330.00 for interest from date of maturity of the bond until date of remittance of the principal amount.

FACTS

Lucius P. Levee purchased a “Series 1989 A” Municipal Bond in the principal amount of $20,000.00 with a maturity date of June 1,1994. The original Lbond certificate was issued on January 27, 1992. In accordance with the provisions of the bond Bank One, as trustee and paying agent, paid annual interest at the stated rate of 7% from the time of purchase in 1992 until its maturity date in 1994. When the bond matured the bank received the principal funds in the amount of $20,000.00 and held it in a non-interest bearing account.

Lucius Levee died on August 19, 1993. The succession was opened and Donald Lambert acted as testamentary executor. Mr. Lambert listed the bond, and its maturity date in the sworn descriptive list filed in the succession proceedings. The court entered a judgment of possession recognizing the executor and others as the residual legatees and put them in possession of estate assets, including the bond certificate at issue herein. The assets were subject to a usufruct in favor of Lillian Levee. Lambert, decedent’s sister and plaintiff herein.

The $20,000.00 principal funds received by the bank remained in the bank in a non-interest bearing account for five years. In September 1999, the bank escheated the unclaimed funds to the State in accordance with State Law. On December 15, 1999, the executor of the estate, Donald Lambert, wrote to the bank requesting remittance of the principal on the bond certificate. Upon receipt of the letter, the bank issued a check to the Estate of Lucius P. Levee in the amount of the principal $20,000.00 and subsequently recouped the funds from the State. Mr. Lambert sent a second letter demanding interest from date of maturity to date of remittance of the principal. The bank maintained no interest was due.

Whether the plaintiff is entitled to post-maturity interest is the subject of this lawsuit. Plaintiff, Ms. Lillian Lambert, as usufructuary of the bond, filed this action maintaining the bank owes interest on the principal funds from date of maturity. The bank counters that it has met all obligations as trustee on the bond and does not owe any further interest. After hearing the matter, the trial court rendered judgment in favor of plaintiff and against the bank in the amount of 14$7,330.00. In a subsequent judgment, the trial court dismissed the bank’s third party claim against the executor of the estate, Donald Lambert. Bank One brings this appeal.

In the reasons for judgment, the trial court stated:

This is not that complicated of a case. It’s the matter of a bond that matured and it was not redeemed, I want to use the word redeem on maturity by the bond holder, in this case the succession of the bond holder. I guess it’s unfortunate that this man died in 1993, the bond matures in '94, probably sat in a lawyer’s office until there was a Judgement (sic) of possession before the heirs probably ever saw it. So I don’t know who would have known whether or not the bond was matured or whether or not it would have been presented for payment. The question, that I really see, that is before this Court, is a matter of equity. Is it equitable for a financial institution to hold funds that belong to someone else for an extended period of time, and not at least pay them minimum of past (sic) book interest on this money. I know the banks have it deposited in the accounts that they are going to make money off of. They’re not in the business of losing money. The banks are in the business of making money. I’m not saying that they’re a bad guy. It just boils down to, you had his money. You made money off of it. I think that the chances are that you made money off of it were better then (sic) you lost money, and just looking at Article 10 in the Civil Code just balls (sic) down to equity and an unjust enrichment....

The bond at issue herein is a Louisiana Public Facilities Authority Health Facilities Revenue Refunding Bond (Sisters of Mercy Health System, St. Louis, Inc.) 1989 Series A, written pursuant to LSA-R.S. 9:2341-2347. The Indenture of Trust between the Louisiana Public Facilities Authority and the First National Bank of Commerce , as trustee was made part of the record. The bond issue was authorized for Mercy Hospital of New Orleans, a non-profit corporation, to refinance a debt of $20,825,000 used for renovations and improvements at the hospital. The bond issue included both series A and B bonds. As previously stated the bond at issue in this matter is a series A bond.

At trial Mr. Timothy Brennan, manager of the portfolio of bond issues for the bank, testified. He explained that, although the Indenture Trust Agreement is a contract between the issuing authority and the bank, it affects four primary parties: |sthe issuing authority, (Louisiana Public Facilities Authority); the obligated party, (Sisters of Mercy Health System, St. Louis, Inc.); the trustee under the Indenture, (the bank); and, the bondholder, (the Estate of Lucius Levee). The bank acts as a policing agent for the contract. The responsibility of the bank is to accept the payments of the obligated party and hold the funds for payment of interest as due, and payment of principal at presentment of items that mature, or to escheat the funds to the State if unclaimed after five years.

He further explained that the obligor is obligated to pay interest on the bond as provided for on the face of the bond. In the case of the Levee bond the interest was 7% until date of maturity, or June 1, 1994. The obligor was not obligated to pay interest beyond that date. The bank’s obligation was to receive the money from the obligor and remit any interest to the bondholder on the obligor’s behalf. The bank is under no obligation to pay interest or principal payments to any bondholder other than what is received by it from the obligor.

Mr. Brennan did state that the funds would be put into a general account at the bank and that it is the custom in the industry to use these obligated funds to earn interest on behalf of the bank. Mr. Brennan compared this account to that of a non-interest bearing checking account. Mr. Brennan stated that no notice was given to the bondholder regarding the date of maturity of the bond, although two notices were sent to Mr. Levee before the funds were escheated to the State.

It is clear from the Indenture of Trust agreement that the nature and extent of the security, as well as the rights, duties, and obligations of the parties, including the trustee and the bondholder, are a matter of contract, and expressly provided for in the agreement.

Each party cites the agreement for support. Plaintiff argues that the bank had an obligation to notify the Estate of the maturity date, and that its failure to do |fiso makes the bank liable for interest after the maturity date of the bond. Plaintiff cites Section 5.05 of the agreement that reads as follows:

Bonds shall be called for redemption by the Trustee as herein provided upon receipt by the Trustee at least sixty (60) days prior to the redemption date of a certificate of the Borrower signed by the Borrower Representative specifying the series, maturities and principal amount of Bonds to be called for redemption, the applicable redemption price or prices and the provision or provisions of the Indenture pursuant to which such Bonds are to be called for redemption. The provisions of the preceding sentence shall not apply to the redemption of Bonds pursuant to the sinking fund provided in Section 5.03 hereof and such Bonds shall be called for redemption by the Borrower or the Issuer. In case of every redemption, the Trustee shall cause notice of such redemption to be given by mailing a copy of the redemption notice by first class mail to the registered owners of Bonds designated for redemption, at their addresses as the same shall last appear upon the registration books, in each case not less than thirty (30) days prior to such redemption date.

The bank argues that the above cited section of the Indenture Trust is inapplicable since it governs redemption of the bonds by the issurer, prior to maturity. We agree. A comprehensive review of Section 5 of the Indenture Trust shows that it is entitled “Redemption Of Bonds.” The first part of Section 5 states:

The Series 1989 A Bonds are not subject to optional redemption prior to maturity but the Series 1989 A Bonds are subject to extraordinary redemption upon the occurrence of certain events as provided in Section 5.02 hereof. In such events, the Series 1989 A Bonds shall be subject to redemption by the Issuer, in whole at any time or, in certain circumstances, in part (in integral multiples of $5,000) on any interest payment date, at a redemption price equal to the principal amount thereof and accrued interest to the redemption date.

Section 5.02 provides:

The Series 1989 A Bonds and Series 1989 B Bonds are also redeemable by the Issuer upon the written direction of the Borrower in whole at any time, or with respect to redemption pursuant to subsection (1) of this Section 5.02 in part on any interest payment date, at a redemption price equal to the principal amount of each Series 1989 A Bond and each Series 1989 B Bond redeemed plus accrued interest to the redemption date, without premium in the event that (1) any Property shall have been damage, destroyed or condemned (or sold under the threat of condemnation) to such an extent that, as determined by the Governing Board of the Borrower (taking into account any business interruption insurance), the revenue-producing capability of the Co-Obligated Group as a whole will be 17materially impaired for a period of not less than six (6) consecutive months and, In the absence of the redemption of bonds, the interests of the Bondholders would be materially adversely affected or (2) any member of the Co-Obligated Group is required or ordered, by legislative, judicial or administrative action of the United States or the State, or any agency, department or subdivision thereof, to operate any of its facilities in a manner inconsistent with the stated goal, purposed, philosophies and policies of the Co-Obligated Group or in contravention of the Ethical and Religious Directives, including administering medical treatment and permitting surgical procedures, and such legislative, judicial or administrative action is applicable to such member of the Co-Obligated Group because the Borrower is a party to the Loan Agreement or by any other reason relating to the Co-Obligated Group being a party to the financing through the issuance of Bonds by the Issuer; provided that if less than all of the Series 1989 A Bonds or the Series 1989 B Bonds are to be redeemed under this Section, the Group Representative shall, prior to such redemption, determine that such redemption will not prejudice the interests of the Holders of Bonds which will remain Outstanding.

It is clear that this section, which requires notice to the bondholder, refers to redemption of bonds on a date other than the date of maturity shown on the face of the bond. There is no notice requirement of maturity date for Series A Bonds. Thus, we are not persuaded by plaintiffs argument that the bank breached the agreement, and its fiduciary duty, by failing to notify plaintiff or the Estate of the maturity date of the bond.

In support of its position, the bank cites Section 3.09, which reads in pertinent part as follows:

In the event any Bonds shall not be presented for payment when the principal thereof becomes due, either at maturity or at the date fixed for redemption thereof or otherwise, if funds sufficient to pay such Bonds shall have been made available to the Trustee for the benefit of the owner thereof, all liability of the Issuer to the owner thereof for the payment of such Bond, as the case may be, shall forthwith cease, determine and be completely discharged, and thereupon it shall be the duty of the Trustee to hold such fund or funds, without liability to the owner of such Bond for interest thereon, for the benefit of the owner of Bond, as the case may be, who shall thereafter be restricted exclusively to such fund or funds, for any claim of whatever nature on his part under this Bond Indenture or on, or with respect to, said Bond, (emphasis added)

We find that the above cited section of the Indenture Trust agreement is clear, and is dispositive of this matter. Accordingly, we find the bank was not|sobligated to pay post-interest on the bond, which was in the physical possession of the plaintiff, or the Estate. Therefore, we find that plaintiff has not proven the cause of action alleged in her breach of contract/fiduciary duty claim.

We note that in ruling for the plaintiff in this matter, the trial court did not find breach of contract or fiduciary duty. Rather, it used principles of equity and unjust enrichment. In Baker v. Maclay Properties Co., 94-1529 (La.1/17/95), 648 So.2d 888, 897, the Louisiana Supreme Court set forth the following factors necessary to establish unjust enrichment: 1) there must be an enrichment; 2) there must be an impoverishment; 3) there must be a connection between the enrichment and resulting impoverishment; 4) there must be an absence of “justification” or “cause” for the enrichment and impoverishment; and, 5) there must be no other remedy at law available to plaintiff.

LSA-C.C. art.2055 provides that, in the articles concerning conventional obligations or contracts, equity “is based on the principles that no one is allowed to take unfair advantage of another and that no one is allowed to enrich himself unjustly at the expense of another.” We find that, in this case neither the principles of unjust enrichment nor equity support a ruling for the plaintiff. The Indenture Trust agreement is clear and needs no interpretation. Further, the bond was in the physical possession of the Estate and the maturity date is clearly marked on its face. Therefore, there was a justification for the bank’s placement of the un-remitted principal funds in a non-interest bearing account until escheatment to the State.

For the foregoing reasons the judgment of the trial court is reversed and judgment is entered in favor of defendant, Bank One.

REVERSED.

      . Now Bank One.


author: |,MARION F. EDWARDS, Judge. h DALEY, J.,

text:
    Sabrina ALOMBRO v. Darryl ALFORTISH.
    No. 02-CA-1081.
    Court of Appeal of Louisiana, Fifth Circuit.
    April 29, 2003.
    Rehearing Denied June 9, 2003.

      Brenda Braud, John Braud, Independence, LA, and A. Bruce Netterville, Gret-na, LA, for Appellant.
    Gregory G. Gremillion, Gretna, LA, for Appellee.

      Panel composed of Judges JAMES L. CANNELLA, THOMAS F. DALEY and MARION F. EDWARDS.
   |,MARION F. EDWARDS, Judge.

Appellant Sabrina Alombro appeals a judgment denying recusal and imposing sanctions under La. C.C.P. Art. 863 in favor of appellee Daryl Alfortish. Alfortish has answered the appeal and requested additional attorney fees on appeal. We affirm the underlying judgment and grant attorney fees as discussed herein.

The present case involves prolonged and bitter domestic litigation between Alombro and Alfortish, concerning custody, visitation, and support of their minor child, Alexandra Alfortish. The parties never married, but lived together for approximately 13 years, until February 2000. On February 15, 2000, Alombro filed a Petition for Domestic Abuse Protection, and a Temporary Restraining Order against Alfortish. Alombro was awarded temporary custody of Alexandra and use of the family residence, of which residence Alfortish was the sole owner. The parties subsequently entered into a consent judgment whereby joint custody was awarded with Alombro as the primary physical custodian. Under that agreement, Alfortish would pay child support and certain expenses. In addition, Alombro was lato have use and occupancy of the residence until September 30, 2000. Injunctions against Alfortish were dismissed.

Both parties filed numerous motions and rules, including rules for contempt, change of custody, and changes in child support, and discovery was ongoing. Pertinent to this appeal, in several judgments rendered on January 30, 2002, the trial court granted in part and denied in part Alombro’s Motion To Compel Discovery, and dismissed her rules for change of custody and for an increase in child support. A rule to decrease support filed by Alfortish in April 2001 remained viable. On February 28, 2002, Alombro filed a Motion To Fix Time For Filing Writ Application from the judgment relative to discovery, and appealed the judgments dismissing her custody and support rules. She also filed a rule for contempt for Alfortish’s failure to pay Alexandra’s medical expenses.

In the interim, on February 14, 2002, Alombro filed another rule for change of custody, increase in child support, and protection under the Family Violence Act. On February 15, the trial court referred this rule to the Domestic Commissioner. On April 11, 2002, the hearing officer heard both Alfortish’s Rule for Decrease and Al-ombro’s Rule For Increase, and as a result, reduced the interim child support. Custody was not determined. Alombro filed an objection to this ruling and requested an evidentiary hearing in the district court, which hearing was set for April 25, 2002. On April 24, the eve of the scheduled hearing, Alombro filed an Ex-Parte Motion to Recuse Judge JoEllen Grant and on April 25, she filed a “Motion To Stay Proceeding For Lack of Subject Matter Jurisdiction; To Set Aside The Order Of The Domestic Commissioner and Incorporated Memorandum.” In that motion, Alombro alleged that the trial court was without jurisdiction concerning the issues of child support, visitation, and custody because of the appeal taken in February. Judge Grant denied the ex parte motion to recuse Lherself, and referred the matter for reallotment. The record indicates that on April 25, all matters were held open pending the ruling on the recu-sal.

On May 1, 2002, the recusal motion was heard and denied, and the trial court granted sanctions under La. C.C. P. art. 868. The court ordered payment of attorney fees and costs as the result of the filing of the motion to recuse against Al-ombro and her attorney in solido. Counsel for Alfortish was ordered to present to opposing counsel an affidavit certifying the amount of attorneys fees and costs incurred as a result of the filing of the motion to recuse. On June 7, 2002, a hearing on the traversal of the fees, costs, and sanctions was held, following which the court cast judgment against Alombro and her attorney in the amount of $8,102.15, with interest from date of judgment. Alombro has appealed these judgments.

The Motion To Recuse alleged that Judge Grant’s husband was “a neighbor and very close personal friend of Kenneth Alfortish, the Defendant’s brother, for many years.” The pleading stated that Darryl Alfortish developed a friendship with Mr. Grant, and stated to third parties that this friendship would affect the outcome of his case; that this friendship was emphasized to the judge in court proceedings; and that prior rulings by the judge prevented Alombro from conducting meaningful discovery. Other occurrences were detailed which (apparently) were intended to demonstrate the bias of the trial court.

Another family matter involving Alomb-ro’s son Christopher Alombro and Alfortish had been filed and allotted to Judge Grant’s division, and in that case, a nearly identical Motion to Recuse was filed.

At the hearing before Judge McCabe, to whom the recusal matters were re-allotted, Alombro testified that when she informed Alfortish in February that she would seek a change in custody and child support, Alfortish replied that his brother |Bwas “good friends” with Mr. Grant, and “it would be taken care of.” Christopher and Alfortish’s secretary, Maria Benoit, told her Alfortish had said the same thing to them. Alombro felt that certain rulings by Judge Grant were unfair, and that Alfortish had several times urged his counsel to mention Kenneth Alfortish. In the past, Alombro had met members of the Grant family in the Alfortish home or in public. Alombro claimed there was videotape depicting the Alfortish and Grant families growing up together, but she did not have a copy of this tape. On cross-examination, Alombro testified that she had no personal information that Alfortish had ever been to Mr. Grant’s home, although she had been in the home of Kenneth Alfortish with Grant family members. She stated that she decided to ask her attorney to recuse Judge Grant a couple of weeks before the support hearing.

Mr. Grant testified that he had never met Darryl Alfortish prior to the date of the hearing. He met Kenneth Alfortish on one occasion since moving to Kenner in 1979. Mr. Grant was not a friend of Al-fortish, and they had never spent time with each other. No one contacted him in connection with the proceedings prior to being called in the recusal matter. Mr. Grant’s son and the son of Kenneth Alfortish had been friends, Mr. Grant’s former wife was a friend of Kenneth’s wife.

Darryl Alfortish testified that he did not tell anyone that his brother had influence with Judge Grant, and that Kenneth did not know Mr. Grant.

Christopher Alombro testified that approximately one year prior to the recusal hearing, Alfortish stated that he “had connections with the Grants” and that “everything is going to be taken care of.”

Maria Benoit, formerly a secretary at Alfortish’s Westside Fence Company, testified that Kenneth Alfortish told her he would talk to Mr. Grant about Darryl’s case, “and he’ll have his wife, who is a judge, take care of it.” Darryl told her on numerous occasions that he would get matters “taken care of’, naming Judge Grant | Bin particular. She informed Alombro of this a few months prior to the recusal hearing. Ms. Benoit admitted on cross-examination that she was fired and that criminal charges were pending against her.

Yvonne Benavides, a cousin of Alfortish, testified that she never told Alombro of any statements made by Alfortish relative to Judge Grant, and never heard him make any such remarks. Benavides’ daughter, Lisa Ebright, testified that several months before the hearing, Mr. Alfortish told her that Kenneth and Mr. Grant went to a country club together, “and that’s when he told me about Judge Grant, that it was a piece of cake.” At the time of the hearing, Ms. Ebright was in parish prison, and testified that Alombro’s counsel had recently offered her a home when she was released.

A transcript of the recusal motion heard by Judge Grant was admitted into evidence without objection. In that transcript, Judge Grant stated that she did not know Mr. Alfortish, and that she has never spent time with him. The parties also stipulated that if Kenneth Alfortish were to be called, he would testify that he had no conversation with Ms. Benoit about the case.

The trial court found no basis for recus-ing Judge Grant, in that there was no showing of any influence whatsoever over either the Judge or her husband. The court further determined that any “small amount of discovery or just inquiry” would have revealed that Mr. Grant and Mr. Alfortish were not friends or neighbors, and granted the attorney fees and costs, along with penalties, under La. C. C.P. art. 863 against both Alombro and her attorney in solido.

In her first Assignment of Error, Al-ombro urges that the court was without jurisdiction over issues of custody and child support during pendency of the appeal taken on February 28, 2002, and accordingly, any action taken by the court on the issue of child support afterward, “including but not limited to the motion to recuse Judge Grant in that claim” was null and void. This allegation is specious at best, |7since it is obvious that the issue of recusal was not a matter under review on appeal. Even if this allegation had a basis in law, we fail to see its relevance to the present appeal, which is from the judgments rendered by Judge McCabe. To the extent that Alombro attempts to appeal any custody or support judgments, no such judgments are before us.

Alombro does not challenge the denial of the Motion to Recuse, but rather urges that she should not have been sanctioned under C.C. P. art. 863. That article provides in pertinent part:

B. Pleadings need not be verified or accompanied by affidavit or certificate, except as otherwise provided by law, but the signature of an attorney or party shall constitute a certification by him that he has read the pleading; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact; that it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.
D. If, upon motion of any party or upon its own motion, the court determines that a certification has been made in violation of the provisions of this Article, the court shall impose upon the person who made the certification or the represented party, or both, an appropriate sanction which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, including a reasonable attorney’s fee.
E. A sanction authorized in Paragraph D shall be imposed only after a hearing at which any party or his counsel may present any evidence or argument relevant to the issue of imposition of the sanction.

La.C.C.P. Art. 863 imposes an obligation upon litigants and their counsel who sign a pleading to make an objectively reasonable inquiry into the facts and the law; subjective good faith will not satisfy the duty of reasonable inquiry. A violation of any one of the duties imposed in the article fatally infects the entire certification.

|/fo decide whether sanctions are appropriate, a court must consider these factors in determining whether a litigant and his counsel made the required reasonable factual inquiry:
1. Time available to the signor or investigation;
2. Extent of the attorney’s reliance on the client for factual support for pleadings;
3. Feasibility of prefiling investigation;
4. Whether the signing attorney accepted the case from another attorney;
5. Complexity of factual and legal issues;
6. The extent to which development of factual circumstances underline the claim required discovery.

A trial court’s determination of whether to impose sanctions will not be reversed unless it is manifestly erroneous or clearly wrong.

Applying the appropriate factors to the present matter, and viewing the testimony in its most favorable light, it is clear that Alombro knew for years of the (vague) relationship between the Grant and Alfortish families. The statements attributed to Alfortish had been made to, or revealed to Alombro, weeks, and sometimes months, before she filed her motion on the eve of the support hearing. There was no explanation from either Alombro or her attorney as to the timing of the Motion. Further, the trial judge correctly noted that inquiry could reasonably and easily have been made prior to filing the recusal. Even a superficial investigation would have revealed the dim and distant acquaintanceship between the Judge, her husband, and Alfortish’s brother.

The tenuous and feeble nature of the allegations is difficult to ignore. Beyond the claims of influence, the Motion to Re-cuse outlined certain actions taken by Al-ombro’s counsel and by the district court. The fact that Judge Grant rescinded an order for a continuance, which Alombro’s counsel had signed by another division, was within her discretion, inasmuch as opposing counsel had not Uagreed to any continuance, and there was ample time for Alombro to present the motion to the proper court. Alombro also referred vaguely to certain rulings that prevented her from taking depositions and completing discovery. To the extent that Alomb-ro’s counsel relied on the unsupported statements of her client, such reliance does not reheve her counsel of the duty to make reasonable inquiry into the facts, and do not give rise to a “reasonable belief” that Judge Grant was unduly influence by a relative of Mr. Alfortish. Finally, we note that Ms. Braud was attorney of record for at least one year prior to filing this motion, ample time in which to acquaint herself with the behavior and relationships of these parties.

Considering the facts and circumstances of this case, we find no error in the imposition of sanctions under C.C.P. art. 863.

We note, although Alombro does not make such argument, that under La. C.C.P. art. 863, no sanctions can be imposed unless there is a hearing first, although the article does not provide a requirement for notice of such a hearing to be given. In the present case, we have not found a written motion filed by Alfortish requesting sanctions prior to April 29, 2002. Rather, the motion was made orally at the recusal hearing and granted. We agree with the First Circuit that due process requires reasonable notice in these cases. Such notice would not have to be in writing and actual notice would be sufficient. Since the manner of notice is not specified, appearing and acquiescing in the proceedings may waive such notice. In the present case, neither Alombro nor her attorney ever urged to the trial court a lack of adequate notice of the hearing, nor did either request a continuance or additional time to prepare for the hearing. Further, subsequent to the determination that sanctions would be awarded, Alombro and her attorney were notified of a Rule to Show Cause why legal fees and costs should not be awarded in the amount set forth by Alfortish’s attorney, and a hearing on this matter was Imheld. The facts of the case show that both Alombro and her attorney had the requisite notice under C.C.P. 863(E).

Finally, Alombro alleges that the court erred in awarding $3,102.15 because an indistinguishable portion of the attorney fees was incurred in conjunction with other matters. Alfortish’s attorney was required to, and did, submit a detailed statement of the time expended on the recusal matter along with his affidavit. Counsel for Alombro was given the opportunity to traverse the statements.

Once the court determines that sanctions are appropriate the trial court has considerable discretion as to the type and severity of sanctions to be imposed.

Four factors have evolved which must be considered in arriving at an appropriate sanction award. They are: (1) what conduct is being punished or is sought to be deterred by the sanction? (2) What expenses or costs were caused by the violation of the rule? (3) Were the costs or expenses “reasonable” as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention? (4) Was the sanction the least severe sanction adequate to achieve the purpose of the rule under which [it] was imposed?

Louisiana Code of Civil Procedure article 863 authorizes an award of “reasonable” and not necessarily actual attorney fees. The goal to be served by imposing sanctions is not wholesale fee shifting, but correction of litigation abuse. On review of the detailed statement submitted by Alfortish’s attorney as well as his testimony on that statement at the hearing, we find no abuse of the court’s discretion. The attorney was obliged to spend a significant amount of time in preparation for the recusal matter, and the amount awarded was sufficiently supported by the evidence and, applying the Brown factors, is not unreasonable under the circumstances.

Alfortish has filed an Answer to this appeal, requesting additional attorney fees for a frivolous appeal. Rule 2-19 of the Uniform Rules — Courts of Appeal It provides, “The court may award dam-

ages for frivolous appeal in civil cases as provided by law.” Damages for a frivolous appeal are awarded pursuant to La.Code Civ.P. art. 2164, which states:

The appellate court shall render any judgment which is just, legal, and proper upon the record on appeal. The court may award damages for frivolous appeal; 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.

An appeal is not automatically deemed frivolous simply because it lacks merit. La. C.C.P. art 2164, is penal in nature and must be strictly construed. It provides that an appellate court may award damages for frivolous appeal when there is no serious legal question, when the appeal is taken solely for the purpose of delay, or when it is evident that appellant’s counsel does not seriously believe in the position he advocates.

We do not find that the present matter meets the requirements of a frivolous appeal, and therefore we decline to award additional attorney fees.

For the foregoing reasons, the judgments are affirmed. Alombro is assessed all costs of appeal.

AFFIRMED.

DALEY J., dissents with reasons,

h DALEY, J.,

dissenting with reasons.

I respectfully dissent from the trial court’s affirmance of the award of sanctions in this case. The majority affirms the award of sanctions and states in pertinent parts,

To the extent that Alombro’s counsel relied on the unsupported statement of her client, such reliance does not relieve her counsel the duty to make reasonable inquiry into the facts, and do not give rise to a “reasonable belief’ that Judge Grant was unduly influenced by a relative of Mr. Alfortish.

The record at the recusal hearing in this matter clearly establishes that not only Sabrina Alombro, but also her son, Christopher Alombro, Maria Benoit, who was secretary and worked with Darryl Alfortish, and Lisa Ebright, a cousin of Mr. Alfortish, all testified under oath that either the defendant in this matter, Darryl Alfortish, or his brother, Kenneth Alfortish, made public statements that they were able to affect the outcome of this litigation due to a relationship with the trial judge’s family. Such testimony gives rise to a reasonable belief that the filing of a motion to recuse is warranted.

While I agree with Judge McCabe’s finding that the recusal of Judge Grant was not warranted in this case because there was no proof of actual improper influence, I disagree with the majority’s finding that sanctions are appropriate.

The imposition of sanctions in this case when non-parties testify under oath of statements of inappropriate influence creates a chilling affect on any ^allegation of impropriety no matter what’s its basis and is unwarranted in this case.

For these reasons I respectfully dissent and would reverse the award of sanctions in this case.

      . Christopher Alombro has similarly appealed. Alombro v. Alfortish, 02-CA-1082.

      . Goldbach v. Atchley, 01-616 (La.App. 5 Cir. 11/27/01), 801 So.2d 1217.

      . Connelly v. Lee 96-1213 (La.App. 1 Cir. 5/9/97), 699 So.2d 411, writ denied 97-2825 (La. 1/30/98) 709 So.2d 710.

      . Goldbach, supra, citing Armond v. Fowler, 96-398 (La.App. 5 Cir. 11/26/96), 694 So.2d 358, 361.

      . Goldbach, supra.

      . See Lee v. Woodley, 615 So.2d 349, (La.App. 1 Cir.1993), writ denied 618 So.2d 411 (La.1993).

      . Id.

      . Armond v. Fowler, supra.

      . Dubois v. Brown 2001-0816 (La.App. 1 Cir. 5/10/02), 818 So.2d 864, writ denied 2002-1654 (La. 10/14/02), 827 So.2d 421.

      . Dubois v. Brown, supra, citing Butler v. Reeder, 98-484 (La.App. 5 Cir. 12/29/98), 728 So.2d 888, 895, writs denied, 99-1026, 99-1035 (La.5/28/99), 743 So.2d 673, 674.

      . Id.

      . LePrettre v. Progressive Land Corp. 2001-1660 (La.App. 3 Cir.6/19/2002), 820 So.2d 1240

      . Johnson v. Drury 01-833 (La.App. 5 Cir. 12/12/01), 806 So.2d 694