author: AMY, Judge.

text:
    IN RE: ELEANOR PIERCE (MARSHALL) STEVENS LIVING TRUST In re: Eleanor Pierce (Marshall) Stevens Living Trust and Eleanor Pierce Stevens Revocable Gift Trust
    17-111
    17-112
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      See also 159 So.3d 1101.

      Hunter W. Lundy, Rudie R. Soileau, Jr., T. Houston- Middleton, IV, Daniel A. Kramer, Lundyj Lundy, Soileau & South, L.L.P., Post Office Box 3010, Lake Charles, LA 70602, (337) 439-0707, COUNSEL FOR OTHER/APPELLEE: Preston L. Marshall
    Kenneth Michael Wright, Kenneth Michael Wright, L.L.C., 203 West Clarence Street, Lake Charles, LA 70601, (337) 439-6930, COUNSEL FOR OTHER APPEL-LEE: Preston L. Marshall
    L.J. Hymel, Jr., Michael Reese Davis, Tim Hartdegen, Hymel Davis & Petersen, LLC, 10602 Coursey Boulevard, Baton Rouge, LA 70816, (225) 298-8118, COUNSEL FOR OTHER APPELLEE: Elaine Marshall
    Leslie J. Schiff, Schiff, Scheekman & White, Post Office Box 10, Opelousas, LA 70571-0010, (337) 942-9771, COUNSEL FOR OTHER APPELLEES: Bradley J. Trevino, Shayna Sonnier
    Scott J. Scofield, Robert E._ Landry, Phillip W. DeVilbiss, Peter J. Pohorelsky, Scofield, Gerard, Pohorelsky, Gallaugher & Landry, Post Office Drawer 3028, Lake Charles, LA 70602, (337) 433-9436, COUNSEL FOR OTHER APPELLEES: E. Pierce Marshall, Finley Hilliard
    Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.
   AMY, Judge.

I/The trial court rendered a 2013 judgment ordering the appellant, a former trustee of the subject trust to, among other things, deliver property of the trust and collect trust flies, records, and property held by himself as well as third-parties, including attorneys. Following the appellant’s production of certain items, the trust, through its current co-trustee, filed a rule for contempt, alleging that the appellant failed to satisfactorily comply with that underlying judgment. After extensive proceedings, the trial court found both a lack of compliance with the judgment and the appellant’s willful disregard in terms of-lack of compliance. Accordingly, the trial court entered a judgment of contempt, imposing costs and attorney fees as sanctions. The trial court ruling included the granting of a motion to compel and an order to comply with the prior order, as further delineated in the contempt ruling. The appellant filed this matter, seeking review of both the contempt ruling and the denial of a-motion to recuse filed during the proceedings. The appellee has filed motions to strike and to dismiss the - appeal. For the following reasons, we affirm the denial of the motion to recuse, but reverse the finding of contempt and the granting of the motion to compel.

Factual and Procedural Background

The contempt proceedings at issue follow a series of disputes arising from the administration of The Eleanor Pierce (Marshall) Stevens Living Trust. The record indicates that the Trust was created by Eleanor Stevens (formerly Marshall) in 1979 as a Louisiana Trust and that Finley Hilliard began serving as the sole Trustee in 2000. A certified public accountant, Mr. Hilliard and his firm rendered accounting services to the Trust, Ms] Stevens, various members of the Marshall family, and the Estate of Eleanor Pierce Stevens, following her 2007 death.

As discussed in a prior opinion of this court, and as reflected in the present record, the Trust was repeatedly amended, Ms. Stevens’ grandson, Preston Marshall |2was appointed as Trust Protector in 2006 and as Co-Trustee in 2009. See In Re: Eleanor Pierce (Marshall) Stevens Living Trust, 14-697 (La.App. 3 Cir. 2/18/15), 159 So.3d 1101. Following that appointment, and by a series of resignations, withdraw-ais, and related litigation, Preston, in his role as Trust Protector, ultimately removed Mr. Hilliard as Trustee/Co-Trustee of the Trust in 2013, Id. At the time of the proceedings now at issue, Preston served as both Trust Protector and Co-Trustee.

The determination of contempt now under review stems from litigation com--menced in April 2013 when Preston, as-Trustee, filed a “Petition for Instructions[] Regarding the Eleanor Pierce (Marshall) Stevens Living Trust and to Compel Delivery of'Trust- Records to Successor Trus-' tees.” Therein, Preston alleged that before removal as Trustee, Mr. Hilliard “retained-several law firms, including .Vamvoras, Schwartzenberg and Hinch, LLC, Rusty-Hardin & Associates, LLP, Hunter, Hunter & Sonnier (and its predecessor Hunter & Blazier, APLC), and Thompson & Knight LLP to represent the Trust in various matters, including the trial and appeal of the Federal Suit.” Preston alleged that he made “formal demand” upon |sMr. Hilliard and “upon several law firms he knew Hilliard retained to provide legal services to the Trust,-demanding that they produce the Trust’s files and records.”

Preston contended in the petition, how-, ever, that Mr. Hilliard “invoked privilege on behalf of the Trust, and only one firm [had] produced any documents” at that time. Citing La.Code Evid. art. 506(D), Preston asserted that any privilege to the documents belonged to the Trust, not to Mr. Hilliard, who was a former Trustee by that time. He alleg'ed, in turn, that “the law firms will not deliver the files without Hilliard’s consent or notice that he does not retain the -privilege on behalf of the Trust[,]” but that Mr. Hilliard had a continuing duty to deliver -such files to the successor Trustee(s). Therefore, Preston requested that the trial court issue instructions and an order, among other things,, that “[a]ll Trust property and powers are vested with him” and that he “is entitled to have control of the Trust’s legal files, records, pleadings, documents, communications, notes, and work product[.]” The petition further asked that Mr. Hilliard be ordered to “deliver all of the Trust’s legal files, records, pleadings, documents, communications, notes, and work product” to Preston. The petition also, requested that Mr. Hilliard be ordered to “contact all attorneys, accountants. and other professionals,” to “request the return of all Trust flies, records, pleadings, documents, communications, notes, and work product,” and to, finally, return all of such to Preston. Preston further requested an instruction and/or order that he “is. a current holder of any privilege related to [the] Trust’s legal flies, and may request and receive those files directly from the Trust’s legal representatives.”

RThe trial court conducted June 2013 hearings, during which various motions and petitions were argued, including. the Petition for Instructions, as well as a Petition for Intervention filed by E. Pierce Marshall, Jr., “individually, as Executor of the Estate of Eleanor Pierce (Marshall) Stevens, and as the provisional tutor of Megan Marshall, the ultimate beneficiary of the Megan Marshall Charitable Remain^ der Unitrust (“Intervenor”)[.]” The resulting judgment continued the motion to file that petition for intervention, the associated petition, and the Trust’s exceptions to the petition for intervention “without date, pending discovery[.]”

However, the judgment granted the Petition for Instructions and associated Motion to Compel Production of Trust Records.

By that July 22, 2013 judgment, the trial court ordered Mr. Hilliard to:

1. Deliver to his counsel all documents, records, communications and flies related in any way to the Trust, its current, or former Trustees, its assets, liabilities, or business (collectively, - the “Trust Records”) in his possession .with:in .ten,(10) days of the signing of this Judgment. Thereafter, .Finley Hilliard’s counsel will deliver these Trust Records to counsel for Preston within thirty (30) • days of the signing of this Judgment. In . the event a privilege,is claimed,.Finley Hilliard will deliver to the Court, for an in camera inspection, all documents for .which privilege is claimed and a Privilege Log meeting the requirements of Louisiana Code of Civil Procedure article 1424(C)- The Privilege Log will concurrently be delivered, to all counsel of record. .
■ 2. ■ Obtain, within ten (10) days of the signing of this Judgment, all Trust Records, original Trust files, and other Trust property from attorneys or other third parties who may hold them that were prepared or dated at any time within the last ten (10) years, including, without limitation, those in the possession of Vamvoras, Schwartzenberg and Hinch, LLC; Rusty Hardin <& Associates, LLP; Hunter, Hunter & Sonnier, L.L.C. (and its predecessor Hunter & Blazier, APLC); and Thompson & Knight LLP. Hilliard will demand delivery of the Trust Records from the holders and present a copy of this Judgment ordering such production.
3. Delivery, within thirty (30) days of the signing of this Judgment, to counsel for Preston Marshall all Trust Records, original Trust files, :and. other. Trust property obtained from attorneys and other third parties in response to the preceding paragraph, unless a privilege is claimed on a particular record, file or property in question. In the event a privilege is claimed, Finley Hilliard will deliver to the court, for an in camera inspection, all documents for which privilege is claimed and a Privilege Log meeting the requirements ■ of Louisiana ■ Code of Civil | ¿Procedure article 1424(C). The Privilege Log'will concurrently be delivered to all counsel of record.- " •
■ IT IS FURTHER ORDERED that, pursuant to Louisiana Code of Professional Conduct Rule’ 1.16(d), all attorneys possessing any Trust Records, Trust files, or Trust property are required and hereby ordered to deliver them, in their entirety, to Finley Hilliard upon request and upon Hilliard’s presentation of this Judgment. ’
IT IS FURTHER ORDERED that the documents and records will be subject to a reasonable protective order negotiated between the parties, which will not limit the ability of the Trustees -to use the documents or records for Trust related purposes.

The record contains no indication that either party sought review of the July 22, 2013, judgment. Rather, Mr. Hilliard, through counsel, sent a letter dated" the same day as the signing of the judgment to the delineated law firms requesting Trust documents. Thereafter, he delivered documents submitted by the law firms, as well as prepared privilege and" ownership logs for contested documents. Mr. Hilliard submits that he delivered as. many as 70,000 pages of documents and that the privilege and ownership logs entailed as many as 600 pages.

By August 21, 2013, Mr. Hilliard filed a ten-page “Notice of Compliance with Court Order” wherein he described his efforts to comply with the July 22, 2013 order, as well as description of and detail surrounding the documents and privilege logs related to the law firms’ production. On that same" date, Mr. Hilliard, Pierce, and |(¡Elaine Marshall, filed a thirteen-page “Certification of Joint Privilege Log and Assertion of Joint Interest Privilege^]” Each described their respective claims of ownership and privilege associated with the documents listed on the privilege and ownership logs. Mr. Hilliard denied that he had been given permission by third parties asserting ownership to deliver the subject documents.

The present iteration of this case was instituted on May 29, 2014, when the Trust, through Preston as Co-Trustee, filed a Rule for Contempt and Other Relief. Therein, the Trust represented that Mr. Hilliard failed to comply with the July 22, 2013, judgment. The motion particularly questioned lack of delivery of files from the law firm of Hunter, Hunter & Sonnier, LLC, which, the Trust asserted, had represented the Trust. The Trust, therefore, requested that the trial court find Mr. Hilliard in contempt and order him to pay attorney fees," reasonable expenses, and costs. Additionally, the Trust requested that the trial court declare that “Preston Marshall is Trust Protector, and Co-Trustee of the Living Trust and is entitled to the possession of all files of any lawyer who is, or has in the past performed legal services for the Living Trust.” Mr. Hilliard opposed the Rule for Contempt, detailing his efforts to gather and deliver files as ordered and further seeking the imposition of sanctions against Preston pursuant to La.Code Civ.P. art. 863.

The trial court heard the Rule for Contempt and Mr. Hilliard’s corresponding request for sanctions over twelve days of hearings. Following those hearings, but before the entering of judgment, Mr. Hilli-ard filed a motion to recuse Judge Michael Canaday, the trial judge presiding over this matter. By January 12, 2016 order, Judge Canaday referred the motion to re-cuse “to another judge of the Fourteenth Judicial District Court” pursuant to La. Code Civ.P. art. 165(B). The matter was subsequently |7assigned to Judge Robert Wyatt who ultimately denied the motion by May 10,2016 judgment.

Judge Canaday thereafter returned to the merits of the rule for contempt, finding Mr. Hilliard “in civil contempt of [the] Court for his failure to comply with the July 22, 2013, Court Order.” In doing so, and as addressed more fully below, the trial court made- factual findings regarding Mr. Hilliard’s efforts to comply with the order, his motivation in doing so' or not doing so, and the ownership of certain documents at issue. The trial court further directed Mr. Hilliard to comply with the July 22, 2013 order, as delineated in the judgment, and ordered Mr. - Hilliard to “pay all costs and reasonable attorneys’ fees related to the Motion to Compel and the Contempt Proceedings.” The trial court denied Mr. Hilliard’s request for the imposition of sanctions against Preston or his attorney. ■ ■ ■

Thereafter, Preston filed a motion to amend judgment, asserting that the initial judgment was ambiguous in the order that Mr. Hilliard turn over Trust documents. Following a hearing,,the trial court amended the judgment, ordering Mr.- Hilliard to “turn over all documents in his- possession that are Trust property to the Trustee, Preston Marshall, and further all documents deemed to be privileged or have multiple entity association in his possession to the Court for an in camera inspection, or in the alternative notify the Court that other entities are. believed to be. in possession of documents that may be Trust related.”

Mr. Hilliard appeals, assigning the following as error:

|J. , In granting a motion for contempt against a former Co-Trustee ordered to deliver to the current trustee documents belonging to the trust pursuant to La,R,S. 9:2069, the trial. court erred:
. (A) In finding that the former Co-Trustee .violated the- Order by not delivering documents belonging to non-par.ties or filing some-lawsuit or claim on bphalf. of the trust;. or in not notifying the trial court of speculation that a.non-party law firm might “possibly” -be withholding documents despite that law firm’s reasonable explanations concerning the actions it took.
'(B) In finding that the former Co-Trustee intended to defy the Order and disrespect the court without a justifiable excuse when the former Co-Trustee did in fact deliver all trust property, and went further to disclose to the trial court the legal and ethical obligations he had to respect the Constitutional rights of non-parties.
(C) In awarding attorney fees.-on a •motion for- contempt having nothing to do with discovery or any alleged violation of an order compelling discovery. Ill [sic]. In light of the'trial court’s concession that he engaged in numerous ex parte discussions with the attorney for a party, the lack of evidence of any exigent circumstances that required these ex parte discussions, and the trial court’s failure to disclose these ex parte discussions, the Recusal Judge erred in:
(A) Failing to grant the motion to recuse based upon the existence of reasonable grounds to question the trial court’s impartiality pursuant to Code of Judicial Conduct—Canon 3(C).
(B) Failing to find that the objective evidence, including the numerous ex parte contacts where no exigent, circumstances required them and the failure to disclose the same, established a bias on the part of the trial court.
(C)Failing to allow a party full and open■ discovery into.the undisclosed ex parte communications from which that party was excluded.

In response, Preston filed a motion to strike and a motion to dismiss appeal with this court, both of which were referred to the panel on the merits. We first turn to consideration of these motions.

InDiscussion

Motion to 'Strike and Motion to Dismiss

Both of Preston’s pre-submission motions concern Mr, Hilliard’s second assignment of error related to the trial court’s denial of the motion to recuse. In short, Preston notes that the order of apr peal granted to Mr. Hilliard was “from the final judgment rendered as to him in the above captioned case on July 25, 2016, and from the amended judgment rendered on August 26, 2016.” Thus, he suggests that the May Í0, 2016, . judgment of the denial of the motion to recuse may not be included in that order of appeal. Referencing La.Code Civ.P, art. 2083(C), Preston further notes that the denial of the motion to recuse is interlocutory and “is appealable only when expressly provided by law.” He thus contends that any “allegations and argument relating to [Mr. Hilliard’s] improper attempt to appeal the trial court’s denial of [Mr. Hilliard’s] Motion to Re-cuse” must be stricken from his brief. Preston continues this argument in the related Motion to Dismiss Improper Attempt to Appeal Trial Court’s Decision on Recusal,

However, “an interlocutory ruling is renewable on appeal of a final, appeal-able judgment in the case.” Louisiana High School Athletics Ass’n, Inc. v. State, 12-1471, p. 26 (La. 1/29/13), 107 So.3d 583, 603. See also Williams v. Besteomp, Inc., 15-761 (La.App. 3 Cir. 2/3/16), 185 So.3d 269, writ denied, 16-0385 (La. 4/15/16), 191 So.3d 1032. As Mr. Hilliard presents the merits of this matter as a final, appealable judgment pursuant to La.Code Civ.P. art. 1915(A), the denial of the underlying interlocutory ruling on the motion to recuse 'is reviewable upon consideration of that appeal. Accordingly, we deny Preston’s motion to strike and the motion to dismiss. We turn to consideration of the denial of the motion to recuse.

Motion to Recuse

As noted above, Mr. Hilliard filed the motion to recuse after the completion of hearings on the Rule for Contempt, but prior to the trial court’s ruling. Therein, Mr. 11 nHilliard alleged that he had become aware of e-mail communications between Preston and one of his attorneys indicating the occurrence of ex parte communications between that attorney and Judge Canaday during the earlier stages of the litigation. Suggesting that the communications were prohibited by Canon 3(A)(6) of the Louisiana Code of Judicial Conduct, Mr. Hilliard requested that Judge Canaday recuse himself either pursuant to Canon 3(C) of the Louisiana Code of Judicial Conduct or pursuant to La.Code Civ.P. art. 152(A). Alternatively, Mr. Hilliard alleged that counsel’s representations within the e-mail communications revealed bias requiring Judge Canaday’s recusal pursuant to La.Code Civ.P. art. 151(A)(4).

Judge Wyatt considered the matter upon referral and, following two days of hearings, denied the motion to recuse. He explained in reasons for ruling that upon consideration of testimony, and Mr.' Hilli-ard’s evidentiary submissions—e-mail and telephone records—“[tjhere was no showing of bias, prejudice or untoward interest in the cause of its outcome, no bias or prejudice toward or against any party to any extent such that [Judge Canaday] would be unable to conduct a fair and impartial proceeding.” Judge Wyatt wrote that, instead, “[tjhe number of contacts, and the nominal, inconsequential nature of those contacts, over a three-year period do not, at ieast for this cqurt, warrant either a recusal or cause for concern for any party in this matter.” Judge Wyatt’s denial was not disturbed on subsequent review. See In re: Eleanor Pierce (Marshall) Stevens Living Trust, 16-477, 16-478 (La.App. 3 Cir. 7/12/16) (an unpublished writ decision of this court), writ denied, 16-1527 (La. 11/18/16), 210 So.3d 282.

Given this court’s prior consideration of the issue under review, we are mindful of the law of the case doctrine, a principle that relates to, in part, “the rule that an appellate court will ordinarily not reconsider its ' own- rulings of law on a subsequent |nappeal.” Arceneaux v. Amstar Corp., 10-2329, p. 14 (La. 7/1/11), 66 So.3d 438, 448 (quoting Petition of Sewerage and Water Bd. of New Orleans, 278 So.2d 81, 83 (La.1973)). Although the doctrine of the law of the ease is discretionary, it “should not be applied in cases of palpable error or where application would result in, injustice.” Id.

Following review of the record, as well as Mr. Hilliard’s argument on appeal, we again leave the trial -court’s denial of the motion to recuse undisturbed upon a finding of no palpable error. In his brief to this court, Mr. Hilliard suggests that recusal' was required in this matter pursuant to Canon 3(A)(6) and 3(C). Re-urging his argument from below, Mr. Hilliard argues that Judge Wyatt “applied an incorrect ‘actual bias’ standard[,]” but that “the proper standard for recusal is the objective standard set forth in Canon 3(C).”

As stated above, Canon 3(C) of the Louisiana Code of Judicial Conduct provides that: “A judge should disqualify himself or herself in a proceeding in which |12the judge’s impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule.” However, and without comment on the appropriateness of such a disqualification under the circumstances of this ease, the wording of the Canon indicates that it is directed to the ■ actions of the subject judge alone. Canon 3(C) pointedly indicates that “[a] judge should disqualify himself or herself’ or “shall disqualify himself or herself[.]” The text does not provide an independent basis for recusal of a judge by another judge. In addition to the wording of the Canon, jurisprudence supports this distinction as well. See W.G.T. v. E.A.A., 14-4 (La.App. 5 Cir. 9/10/14), 150 So.3d 339; Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, Inc., 07-1801 (La.App. 1 Cir. 8/29/08), 998 So.2d 107, writs denied, 09-0011, 09-0024 (La. 3/13/09), 5 So.3d 120, 120.

While Mr. Hilliard suggests that “[t]he Louisiana Supreme Court has held that the proper standard for recusal is the objective standard set forth in Canon 3(C)[,]” we find no such clear guidance in the succinct per curiam opinion he relies upon for that proposition. Instead, in Folse v. Transocean Offshore USA, Inc., 04-1069 (La. 5/7/04), 872 So.2d 467, the supreme court did not articulate a finding of error in the lower court’s ruling nor does the per curiam reflect the recusal matter under review. Rather, the supreme court simply reversed a denial of a motion to recuse and entered that ruling under its own authority. Id. In totality, the supreme court stated:

PER CURIAM.
Writ granted. The ruling of the trial court denying relators’ motion to recuse is reversed. Judge Pro Tempore Bruno is hereby recused. See Canon 3(C)- of the Code of Judicial Conduct (“[a] judge should disqualify himself or herself in a proceéding in which the judge’s impartiality might | ^reasonably be questioned ... ”). The case is remanded to the trial court for random reallotment to another judge.

Folse, 872 So.2d 467-68. Significantly, La. Const, art. 5, § 5(A) vests the supreme court with “general supervisory jurisdiction over all other courts.”. Given the supreme court’s unique authority in that regard, we do not find merit in the position that its brief per curiam language equates to a directive regarding the standard applicable to review of a ruling on a motion to recuse.

Instead, we turn to consideration of La.Code Civ.P. art. 151, which provides an exclusive list of mandatory grounds for the recusal of a judge. Slaughter v. Board of Sup’rs of Southern Univ., 10-1114 (La. App. 1 Cir. 8/2/11), 76 So.3d 465, writ denied, 11-2112 (La. 1/13/12), 77 So.3d 970. With regard to the assertion of bias and/or prejudice, Article 151 provides that:

A. A judge of any court, trial or appellate, shall be recused when he:
(4) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced'toward or against the parties or the parties’ ‘ attorneys oh any witness to such an extent that he would be unable to conduct fair and impartial proceedings.

Significantly, Article 151 “do[es] not include a ‘substantial appearance of the possibility of bias’ or even a ‘mere appearance of impropriety’ as causes for removing a judge from presiding over a given action.” Slaughter, 76 So.3d at 471. It instead requires a finding of actual bias or prejudice that is of a substantial nature, and not one based on merely conclusory allegations. Covington v. McNeese State Univ., 10-0250 (La. 4/5/10), 32 So.3d 223. Furthermore, and as a foundational point, it is important to recall that “[a] judge is presumed to be impartial;” Slaughter, 76 So.3d at 471. 14Thus, while we conclude that a court considering a motion to recuse directed at another judge may be informed by the contours of the Code of Judicial Conduct in its analysis of La.Code Civ.P. art. 151(A)(4), the reviewing judge’s ultimate inquiry continues to question the existence of bias, prejudice or interest in the cause or outcome under that Article.

In reasons for-ruling, Judge Wyatt rejected the motion for recusal, finding the contacts between Judge Canaday and Mr. Wright not to be “inconsequential” in nature, or, in some instances, unrelated to the proceedings involving the Trust. .He noted that he considered both “the multitude of admitted documents” and testimony presented at- the hearing before finding that the evidence whs “sorely lacking of any bias to call for the recusal of Judge Canaday.” To the contrary, Judge Wyatt found that “[tjhere was no showing of bias, prejudice or untoward interest in the cause of its outcome, no bias -or prejudice toward or against any party to any extent such that [Judge Canaday] would be unable to conduct a fair and impartial proceeding.”

Similarly, upon review of the record evidence, consideration of the parties’ arguments, and in light of the prior review by a panel of this court, we find Mr. Hilliard’s argument regarding.recusal to be "without merit. To the extent- that he contends that Judge Wyatt should have identified bias due to rulings that Mr. Hilliard I ^contends were favorable to Preston, we again leave Judge Wyatt’s ruling undisturbed. As noted by Judge Wyatt, and in addition to the fact that not all rulings within the course of litigation were favorable to Preston, “[a]ll rulings made by Judge Canaday were subjected-.to review.” See also David v. David, 14-999, p. 5 (La.App. 3 Cir. 2/4/15), 157 So.3d 1164, 1168 (explaining that: “Adverse, rulings' alone do not. show bias or prejudice.”), writ denied, 15-0494 (La. 5/15/15), 170 So.3d 968.

Neither .do we find merit in Mr. Hilliard’s alternative argument that Judge Wyatt erred in denying him “the right to conduct full arid open discovery.” He contends that the ability to conduct discovery was the only way for him “to learn exactly what took place in the undisclosed communications from which he was excluded.” However, a party seeking recusal “must ‘discover’ the grounds ori his 'own under either provision and then state them with particularity in writing ... before a recu-sal hearing, is warranted.” Louisiana State Bd. of Med. Exam’rs v. Golden, 94-0922, p. 2-3 (La.App. 4 Cir. 9/29/94), 645 So.2d 690, 691 (wherein the fourth circuit evaluated a motion to quash a deposition in an administrative proceeding, equating that, procedure to the Code of Civil Procedure articles on recusal and- explaining that: “Carried to its logical conclusion, [the mover]’s argument would subject judges and other'triers of fact to harassing and time consuming depositions every time any allegedly controversial issue came Up.”), writ denied, 95-0106 (La. 3/10/95), 650 So.2d 1184. See also Johnson v. Louisiana Dep’t of Labor, Office of Workers’ Comp., 98-0690 (La.App. 1 Cir. 5/14/99), 737 So.2d 898.

Having found no merit in Mr. Hilliard’s assignment regarding recusal,.we turn to consideration of his arguments regarding the contempt proceeding.

Contempt

Burden of Proof

Mr. Hilliard first, contends that the trial court employed the incorrect burden of proof in evaluating, the Rule for Contempt. The trial court’s judgment indicates that it | ¶ fifound Mr. Hilliard to be “in civil contempt of this Court for his failure to comply with the July 22, 2013, Court Order.” However, Mr. Hilliard argues that the trial court found him to be in criminal contempt, thus necessitating a higher burden of proof.

Louisiana Code of Civil Procedure Article 221 provides that' “[a] contempt of court is any act or omission tending to obstruct or interfere with the orderly administration of justice, or to, impair the dignity of the court or respect for its authority.” In this instance, the trial court found Mr. Hilliard to have violated Article 221 due to “a willful disregard to [the] July 22, 2013 Order[.]” The trial court specifically found that Mr. Hilliard violated La. Code Civ.P. art. 224, which states, in part, that:

Any of the following acts constitutes a constructive contempt of court:
(2) Wilful disobedience of any lawful judgment, order, mandate, writ, or process of the court[.]

With regard to the issue posed by Mr. Hilliard concerning classification of the contempt as civil or criminal, the. supreme court has explained:

A contempt of court proceeding is either criminal or civil, which is. determined by what the court primarily seeks to accomplish by . imposing sentence. Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). In a criminal contempt proceeding, the court seeks to. punisb a person for disobeying a court order, whereas in a civil contempt proceeding, the court seeks to force a person into compliance with a court order. State in the Interest of R.J.S., 493 So.2d [1199] at 1202 and n7 [(La.1986)] (citing Shillitani, 384 U.S. at 364, 86 S.Ct. 1531).

Dauphine v. Carencro High Sch. 02-2005, pp. 14-15 (La. 4/21/03), 843 So.2d 1096, 1107-08. See also Billiot v. Billiot, 01-1298 (La. 1/25/02), 805 So.2d 1170. As noted by Mr: Hilliard, criminal contempt,'which is a crime, must' be proven “beyond a 117reasonable doubt of every fact necessary to constitute the contémpt charge.” Dauphine, 843 So.2d at 1108. Civil contempt, however, is proven by a preponderance of the evidence. Paradise Rod & Gun Club, Inc. v. Roy O. Martin Lumber Co., Inc., 14-1184 (La.App. 3 Cir. 4/1/15), 160 So.3d 626.

On review, we find merit in Mr. Hilli-ard’s assertion that the trial court’s ruling was,, by result, in the nature of punishment and, therefore, constituted criminal contempt. Certainly, the trial court’s finding of “willful disregard’-’ to the underlying order is in keeping with a finding of contempt pursuant to La.Code Civ.P. art. 224(2), which instructs that “[wjilful disobedience of any lawful judgment, order, mandate, writ, or process of the court” constitutes constructive contempt- of court.

The contempt ruling ordered Mr. Hilli-ard to “comply with the July 22, 2013, Court order as more specifically delineated in this order.” Thereafter, the judgment ordered Mr. Hilliard to:

turn over all documents in his possession that are Trust property to the Trustee, Preston Marshall, and further all documents deemed to be privileged or have multiple entity association in his possession to the Court for an in camera inspection, or in the alternative notify the Court that other entities are believed to be in possession of documents that may be Trust related.

However, and although it was accompanied by the trial court’s ruling on a motion to. compel, the trial court imposed no “sentence” or fine as a method of ensuring compliance with the further delineated order. The judgment instead, simply ordered Mr. Hilliard to. “pay all costs and reason: able attorneys’ fees related to the Motion to Compel and the Contempt .proceedings.” See, e.g., Clark v. G.B. Cooley Service, 35,675, p. 15 (La.App. 2 Cir. 4/5/02), 813 So.2d 1273, 1283 (wherein the second circuit explained that “[wjhen a determinate sentence is rendered without setting conditions for the contemnor to avoid the sentence imposed or purge himself from it, hsthe punishment is criminal in nature and cannot be imposed unless constitutional protections are applied in the contempt proceeding.”).

This view of the judgment as punitive in nature is in keeping with the Rule for Contempt which contained Preston’s allegations regarding Mr. Hilliard’s compliance, or lack thereof, with the July 22, 2013, judgment and a subsequent October 2, 2013, order. Preston requested therein that the trial court issue a rule to show cause to Mr. Hilliard why he “should not be found in contempt of [sic] and punished accordingly!.]” The rule provided a request for “such relief to which [the Trust] is entitled,” but specifically, attorney fees, reasonable expenses and costs. The rule itself contained no specific request for compliance with the underlying orders.

Given both the purported prayer of the Rule and the ultimate imposition of attorney fees and costs without a mechanism for facilitating compliance with the underlying orders, we conclude that, although characterized as a finding of civil contempt, the trial court’s order was punitive in result and, therefore, constituted criminal contempt.

Reference to the trial court’s judgment indicates that it arrived at a finding of civil contempt by application of the preponderance of the evidence burden of proof. However, given our determination regarding the punitive result of the judgment, such an application was erroneous. As the imposition of an erroneous burden of proof is a legal error, de novo-review of the material facts is required. See Tracie F. v. Francisco D., 15-1812 (La. 3/15/16), 188 So.3d 231. We turn to that review.

Rule for Contempt—De Novo Review

As noted above, the Trust, through Preston, asserted in the Rule for Contempt that Mr. Hilliard failed to comply with the July 22, 2013 judgment, particularly as it related to the delivery of files from the law firm of Hunter, Hunter & Sonnier, LLC, stating:

| ^Notwithstanding the statements to the contrary contained in “Hilliard’s” Notice of Compliance with Court Order filed on August 21, 2013, as of January ■ 10, 2014, neither “Hilliard”, nor anyone acting on his behalf has delivered any files or privilege log from Hunter, Hunter & Sonnier, LLC, despite the fact that it is admitted in this matter that Hunter, Hunter & Sonnier, LLC and its predecessor firms have represented the Living Trust. There is little doubt that “Hil-liard” has not complied with the Court’s Order.

The Trust further referenced the trial court’s order of October 2, 2013, which pertained to the production of the files of Rusty Hardin & Associates, and asserted that Mr. Hilliard and his counsel “have not complied with this order either.”

In addition to. these assertions of noncompliance, the Trust claimed that:

[BJecause of the refusal to provide to the Living Trust its files, including litigation files, this Court is'asked to declare and affirm that Preston Marshall is Trust Protector, and Co-Trustee of the Living Trust and is entitled to the possession of all files of any lawyer who is, or has in the past performed legal services for the Living Trust.

This attention for a distinct declaration of entitlement to possession—within the Rule for Contempt—is expanded upon in the Trust’s Proposed Findings of Fact and Conclusions of Law, submitted in support of the Rule for Contempt. Therein the Trust advanced theories of ownership of various documents as well as conclusions of law that it felt supported its argument. In fact, it is this, expansive pursuit of the 1 apcontempt proceeding—and the fact that the proceedings adapted to that construct—that proved challenging in this case.

As pursued, a claim of constructive contempt under La.Code Civ.P. art. 224(2) inquires whether there was a “[w]ilful disobedience” of the subject order/judgment.. While acknowledging that the trial court has discretion in whether to find a person guilty of;constructive contempt, the supreme court has. explained that “a finding that a person wilfully disobeyed a court order in violation of La.Code of Civil Proc. art. 224(2) must be based on a finding that the accused violated an order of the court ‘intentionally, knowingly, and purposefully, without justifiable excuse.’” Lang v. Asten, Inc., 05-1119, p. 1 (La. 1/13/06), 918 So.2d 453, 454 (quoting, in part, Brunet v. Magnolia Quarterboats, Inc., 97-187, p. 10 (La.App. 5 Cir. 3/11/98), 711 So.2d 308, 313, writ denied, 98-0990 (La. 5/29/98), 720 So.2d 343). The burden of proving the contemptuous behavior rests with the moving party. Chauvin v. Chauvin, 46,365 (La.App. 2 Cir. 6/22/11), 69 So.3d 1192; Fleming v. Armant, 12-43 (La.App. 5 Cir. 5/31/12), 97 So.3d 1071. Similarly, when specifically addressing contempt within the criminal context, the supreme court has found' that willful dis-obediencé requires “an intent to defy the authority of the court,” Dauphine, 843 So.2d at 1108.

In consideration of this standard, we find that the record before this court, indicates that the Trust failed in its burden of proving willful disobedience, whether pursued as either civil or criminal contempt. Rather, given that the contempt proceedings spanned over the course of multiple hearing dates and produced the sizeable record now before the court, it is clear that much remained unresolved regarding the parameters of the July 22, 2013, judgment.

| ^Reference to the judgment-indicates that it stated broadly that Mr. Hilliard was to deliver to his counsel (who was ordered to deliver in turn to the court) “all documents, records, communications and files related in any way to the Trust, its current or former Trustees, its assets, liabilities, or business” in his possession. (Emphasis added.) The judgment thereafter referred to this expansive definition, as the “Trust Records[.]” Additionally, and as excerpted above, the judgment provided for the delivery of these “Trust Records” not only from Mr. Hilliard, but “all Trust Records, original Trust files, and other Trust property” from representative law firms as well as third parties. In those instances where “privilege” was claimed, the judgment provided for the delivery of the subject items and privilege logs for in camera inspection.

- Mr. Hilliard thereafter delivered tens of thousands of pages of documents as well as various privilege and ownership logs. However, the Rule for Contempt was provoked due, in part, to the very claims of privilege and ownership that seemingly arose from the July 22, 2013 judgment’s conflation of the concepts “related” to the Trust and its various : entities with “Trust Records[.]” The latter term, alone, would seem to imply property of the Trust.

This search for the contours of the underlying judgment is seen not only by the extensive hearings, but by the evidence adduced. In determining whether Mr. Hil-liard complied with the order of the judgment, the trial court heard testimony from three expert witnesses who offered opinions regarding: tax and trust law (as well as attorney/client privileges in trusts and estates); Texas estate and probate; as well as wills, trusts, estate and probate within Texas law and application of those items to taxation issues. That expert testimony probed legal issues regarding the ownership of ■ the subject documents claimed by entities beyond Mr. Hilliard and/or .the Trust, -

Resolution of this ownership question was seemingly integral not only to the trial court’s finding of willful disregard on the part of Mr. Hilliard, but was reflected |aaby factual determinations within the judgment of contempt. Yet again, privilege and ownership of the subject documents was contested by people and entities not party to the suit. In particular, and as referenced above, Pierce, in various capacities, maintained a petition of intervention that the trial court continued to ' defer pending determination of the contempt matter, while Elaine Marshall claimed ownership and privilege over documents held by one of the law firms.

Notwithstanding any animus that the trial court may have appreciated between Mr. Hilliard, Preston, and Pierce, the multifaceted nature of the task presented to Mr. Hilliard undercuts the argument of willful disregard. Rather, Mr. Hilliard was held to a standard of interpreting the July 22, 2013 judgment and then, as a former Trustee, wresting items “related” to the Trust from law firms and legal entities that claimed ownership and privilege to those very items. While he was an experienced CPA and longtime Trustee with knowledge of the Marshall and Stevens affairs, he was held to this exacting standard as a layperson. In order to resolve the same interrelated legal issues as to production facing Mr, Hilliard, the trial court was able to consider multiple days of testimony, volumes of exhibits, and expert opinion regarding the laws of multiple jurisdictions. After our own review, we conclude that Preston failed to meet his burden of proving willful disregard.

Undoubtedly, property that could have fit the broad description of the initial judgment was not turned over by Mr. Hil-liard, and, further, the record reflects much of the trial court’s observations regarding the friction between the individual actors in this matter. However, the breadth and lack of clarity in the initial judgment, as well as the. sophistication of the legal issues invoked at the contempt proceedings preclude, on [ 2athis evidence, a finding that Mr. Hilliard’s actions or inac-tions were “ ‘intentionally, knowingly, and purposefully, without justifiable excuse.’” Lang, 918 So.2d at 454 (quoting Brunet, 711 So.2d at 313). While testifying, Preston, as mover and current Trustee, denied knowledge of the identity of the items at issue. We are mindful too, that contempt proceedings are .to “be strictly construed, and the policy of our law does not favor extending their scope.” Capital City Press, L.L.C. v. Louisiana State Univ. Sys. Bd. of Supervisors, 13-1803, 13-1804, p. 7 (La. App. 1 Cir. 12/30/14), 168 So.3d 669, 674. See also Lacombe v. Randy Thenot Constr., 94-822 (La.App. 3 Cir. 12/7/94), 647 So.2d 531.

We similarly point out that many of these same issues, particularly regarding the pending claims of ownership and privilege, are applicable to the reversal of the motion to compel that the trial court granted in conjunction with the contempt ruling. Whether the Trust, through its current Co-Trustees, pursues further production of subject documents is a remedy distinct from pursuing that course through the contempt proceedings against Mr. Hilliard, as the former trustee. See Barnett v. Barnett, 15-766, p. 14 (La.App. 5 Cir. 5/26/16), 193 So.3d 460, 470 (explaining that “[c]ontempt proceedings are designed for the vindication of the dignity of the court rather than for the benefit of a litigant.”), writ denied, 16-1205 (La. 10/10/16), 207 So.3d 406. See also Lacombe, 647 So.2d 531.

For these reasons, we find merit in Mr. Hilliard’s arguments regarding the application of the burden of proof in this matter and, upon de novo review, reverse both the trial court’s ruling of contempt as well as granting of the motion to compel.

[^DECREE

For the foregoing reasons, the trial court’s denial of the motion to recuse is affirmed. The Judgment of July 25, 2016, and the Amended Judgment of August 26, 2016, are reversed to the extent they granted the Rule for Contempt and the Motion to Compel, including the order that the appellant, Finley Hilliard, “pay all costs and reasonable attorneys’ fees related to the Motion to Compel and the Contempt Proceedings.” The judgments are affirmed to the extent they denied the request for sanctions filed by the appellant—Finley Hilliard. Costs of this proceeding are assessed to the appellee, The Eleanor Pierce (Marshall) Stevens Living Trust, through its Trustee, Preston Marshall.

AFFIRMED IN PART. REVERSED IN PART.

      . Mr. Hilliard’s status and Preston’s authority-as Trust Protector remained- contested until this court's ruling in In Re: Eleanor Pierce (Marshall) Stevens Living Trust, 159 So.3d 1101.

      . .Patrick,Wright also served as Co-rTrustee.

      . Louisiana Revised Statutes 9:2233(A) provides that:1 . - ■ ’ -
      A. trus.tee, a beneficiary, or a settlor in an ordinary or a summary proceeding may apply to the proper court for instructions concerning the trust instrument, the interpretation of the instrument,- or the administration of the trust. An order of a proper court issued pursuant to such an application shall be full authority to act in accordance thereunder, and a trustee shall.be fully protected from all claims of any person who has or who may subsequently acquire an interest in the trust properly.

      . The Petition references United States of America v. Robert S. MacIntyre, Individually, and as Temporary Administrator of the Estate of James Howard Marshall II, el al, a suit in the United States District Court for .the Southern District of Texas wherein the government sought unpaid gift taxes from the Trust as well as the Estate. Mr. Hilliard, as Trustee of The Eleanor Pierce (Marshall) Stevens Living Trust, and Pierce Marshall, Jr., as the Executor of the Eleanor Pierce Stevens Estate, were named as defendants in their respective capacities. While the Trust provided certain costs associated with its own appeal of that federal matter, tire Trust’s ability and/or-willingness, to provide individual representation of - Mr. Hilliard and Pierce was a- matter of contention between the involved parties.

      .Discussing the “Lawyer-client privilege!!,]” La.Code Evid. art. 506 provides that:
      D. Who may claim privilege. The privilege may be claimed by the client, the client's agent or legal representative, or the successor, trustee, or similar, representative of a client that is a corporation, partnership, unincorporated association, or other organization, whether or not in existence. The person who was the lawyer or the lawyer's representative at the time of the communication is presumed to have authority to claim the privilege on behalf of the client, former client, or deceased client.

      . The letter reads:
      Our firm represents Finley L. Hilliard, the former Co-Trustee of the Eleanor Pierce (Marshall) Stevens Living Trust, in connection with litigation pending concerning the trust in Louisiana, Recently, Preston Marshall filed a Petition for Instructions demanding that Mr. Hilliard obtain and produce the legal files of the Trust in the possession of its attorneys. I have attached hereto a Judgment signed by the Louisiana 14th Judicial District Court wherein the court has ordered Mr1. Hilliard to obtain from your office any and all legal files in your possession relating to your representation of the Living Trust within ten days.
      Accordingly, please forward to my office any and all file material in your possession concerning your representation- of the Living Trust within ten days of July 22, 2013, If you have any questions, please do not hesitate to contact me.

      . Elaine is identified in the record as Pierce and Preston’s mother.

      . Titled, in part, “Selection of judge to try motion to recuse[,]” and applicable to courts having two or more judges, La.Code Civ.P. art. 155(B) provides: “B. In a district court having more than two judges, the motion to recuse shall be referred to another judge of the district court for trial through the random process of assignment in accordance with the provisions of Code of Civil Procedure Article 253.1.”

      . Judge Canaday issued both an initial judgment signed on July 25, 2016 and an amended judgment of August 26, 2016. The latter document was entered upon Preston’s motion and assertion that the initial judgment contained ambiguous language regarding the delivery of documents.

      . The judgment ordered “that Preston Marshall file a Rule to Show Cause for a contradictory hearing to determine the costs-and attorneys fees.”

      . The initial, July 26, 2016, judgment ordered that: "Finley Hilliard turn over to the Court all documents in his possession that are Trust property to the Trustee, Preston Marshall[.]”

      . The supreme court further explained that:
      Among reasons assigned for application of the policy are: the avoidance of indefinite relitigation of the same issue; the desirability of consistency of the result in'the same litigation; and the efficiency, and the essential fairness to both sides, of affording a single opportunity for the argument and decision of the matter at issue.

        Arceneaux, 66 So.3d at 448 (quoting Petition of Sewerage and Water Bd, 278 So.2d at 83).

      . Canon 3(A)(6) provides, in part, that:
      Except as permitted by law, a judge shall not permit private or ex parte interviews, arguments or communications designed to influence his or her judicial action in any case, either civil or criminal. A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice, and affords the parties reasonable opportunity to respond. Where circumstances require, ex parte communications are authorized for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits, provided the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication.

      . Canon 3(C) provides:
      A judge should disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned and shall disqualify himself or herself in a proceeding in which disqualification is required by law or applicable Supreme Court rule. In all other instances, a judge should not recuse himself or herself.

      .At the time of the 2004 ruling in Folse, the Louisiana Code of Civil Procedure had not yet been amended to its present iteration. Louisiana Code of Civil Procedure Article 151(B) provided at that time that: "A judge of any court ... may be recused when he: .... (5) Is biased, prejudiced, or interested in the cause or its outcome or biased or prejudiced toward or against the parties or the parties’ attorneys to such an extent that he would be unable to conduct fair and impartial proceedings.” (Emphasis added.)

      . See also In re Free, 16-0434, p. 2 (La. 6/29/16), 199 So.3d 571, 574 (wherein the supreme court explained, within a disciplinary context, that: “Pursuant to its supervisory authority over all lower courts, this court adopted the Code of Judicial Conduct, effective January 1, 1976, which supplements the Constitution's substantive grounds for disciplinary action against a judge. Violations of the Canons of the Code of Judicial Conduct, without more, may serve as the basis for the disciplinary action provided for by La. Const. art. 5, § 25(C).”).

      . By contrast, we note that La. Const, art. 5, § 10 provides, in part, that a court of appeal "has supervisory jurisdiction over cases which arise within its circuit[,]" (Emphasis added.)

      .We note, here, that Mr. Hilliard filed a pre-argument brief informing this court of - an unpublished writ decision rendered by the fifth circuit, in which the panel referenced Folse, 872 So.2d 467 in its review of the denial of a motion to recuse. See Succession of O’Krepki, 17-152 (La.App. 5 Cir. 6/7/17)(an unpublished writ decision). However,' we observe that, while referencing Folse in a footnote, the fifth circuit began its analysis by citing to La.Code Civ.P. art. 151(A)(4), as well as the requirement of “bias or prejudice of a substantial nature.” Id. at 3 (citing Couvillion v. Couvillion, 00-143 (La.App. 5 Cir. 9/26/00), 769 So.2d 747, writ denied, 00-3185 (La. 1/12/01), 781 So.2d 562).

      . Both Mr. Wright and Judge Canaday testified at the recusal hearing, The. record is silent as to the mechanism by which Mr. Hilliard was permitted to either issue a subpoena to or call the latter as a witness. See La.Code Evid. art, 605 (providing that: "The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point."); La. Code Evid. art. 605, cmt. (providing, in part, that: “The Article is designed to operate in conjunction with the provisions on recusation). See also La.Code Evid. art. 519(A) (providing that "[njeither a subpoena nor a court order shall be issued to -a judge ... to appear or testify in any civil ,., proceeding, ... unless, after a contradictory hearing, it has been determined that the information sought is not protected from disclosure by the judicial deliberative process privilege, and all of the following; .... (2) The purpose of seeking the information is not to harass the judge, nor for. the mere purpose of seeking recusal of the judge,’’), (Emphasis added.)

      . Article 221 further instructs that: "Con-tempts of court are two kinds, direct and constructive.” The present matter involves a complaint of constructive contempt, whereas a direct contempt of court "is one committed in the immediate view and presence of the court and of which it has personal knowledge, or a contumacious failure to comply with a subpoena or summons, ‘ proof of service of which appears of record." La.Code Civ.P. art. 222. Louisiana Code of Civil Procedure Article 224 defines constructive contempt of court simply as.“any contempt other than a direct one.”

      . Although assessment of attorney fees was deferred for later proceedings, the quantum of those fees may prove significant as this matter presents to this court with twenty-nine volumes of record, seventeen volumes of exhibits, and the records from prior appeals.

      . The Order of October 2, 2013 provided that:
      IT IS HEREBY ORDERED that Finley Hilliard immediately comply , with all production requests as required by this Court’s July 22, 2013 Judgment, including all Rusty Hardin files in Finley Hilliard’s possession, excluding only a privilege log representing the common interest privilege asserted by third parties in Rusty Hardin’s ELEANOR PIERCE (MARSHALL) STEVENS LIVING TRUST files.
      IT IS FURTHER ORDERED that Finley Hilliard supplement that production with any corrupted files and any and all other Trust'records from Rusty Hardin as soon as possible, but no later than Monday, August 26, 2013.

      . By way of example, we point out that, after noting the directive of the July 22, 2013 judgment, the Trust explained that the Hunter Firm "delivered a letter to Hilliard outlining the basis for the Hunter Firm’s denial of production of Living Trust files and claiming a privilege in favor of the Estate over such files[,]” that “Shayna Sonnier, as representative of the Hunter Firm, testified that, because the Living Trust made an Internal Revenue Code Section 645 election for Federal tax purposes, the Living Trust became a’part of and was subsumed by the Estate, thereby forming the basis of the Estate’s claimed privilege over Living Trust Files[,]” and that Ms. Stevens “executed a Last Will and Testament in accordance with Texas law” and therein, "designated the Living Trust as the residuary legatee of her remaining assets at the time of her death. This 'pour over’ provision names Finley Hilliard, in his capacity as Trustee of the Living Trust, as the residuary legatee of her estate.” The Trust ultimately asserted that "the Living Trust is the owner of the files at issue herein. As such, Preston, in his capacity as current co-trustee of the Living Trust,.is entitled to possession of the original Living Trust files.” As an alternative’ to its demand for the production of documents, it asserted that “the files at issue are not in any way subject to a privilege claim in favor of the Estate. As such, Preston, as co-trustee of the Living Trust/is entitled to possess copies of the original documents at issue.”

      . For example, the judgment referenced Ms. Stevens’ Estate's tax returns, a matter over which the Estate claimed a privilege, and resulted in a factual finding that:
      Eleanor Pierce (Marshall) Steyens Estate tax returns are based on property assets and liabilities of the Trust, and they are clearly jointly owned and necessary for the record history of both, But because the contents of the tax returns are related to trust activities as well as record keeping, the Court feels the tax returns have greater connection to the Trust than they do to the Estate.

      . On extensive questioning, Preston answered "I don’t know” when asked if he was seeking documents from "the files of J Howard Marshall, II or his estate”; "J Howard Marshall, II's living trust”; "[a]ny charitable foundations or trust related to J Howard Marshall, II”;. "the Hunter Firm's representation of E Pierce Marshall, Sr[.]”; "the Hunter Firm’s file for it’s representation of E Pierce Marshall, Sr.’s estate”; “the Hunter file related to its representation of charitable foundations or trusts related to E Pierce Marshall, Sr[.]”; "related to the Hunter Firm’s representation of MarOpCo, Inc[.]”; "files from the Hunter Finn’s representation, the Hunter Firm’s file for representing MarOpCo, Trof, Inc. or Idzig, LLC”; "the Hunter Firm’s files for representing Elaine Marshall”; or "files related to Elaine Marshall as the executor of E Pierce Marshall’s estate[.]”


source: Caselaw Access Project

author: CONERY, Judge. Savoie, J.,

license: Public Domain

text:
    Jake CHIMENTO v. KDM ELECTRIC OF ALEXANDRIA, et al.
    17-146
    Court of Appeal of Louisiana, Third Circuit.
    10/04/2017

      Donna U. Grodner, Grodner & Associates, 2223 Quail Run, B-l, Baton Rouge, Louisiana 70808, (225) 769-1919, COUNSEL FOR PLAINTIFF/APPELLANT: Jake Chimento
    Joshua P. Monteleone, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, L.L.P., Post Office Box 1786, Shreveport, Louisiana 71166-1786, (318) 221-1800, COUNSEL FOR DEFENDANTS/APPELLEES: The Standard. Fire Ins. Co., KDM Electric of Alexandria. LLC
    Court composed of John D. Saunders, John E. Conery, and D. Kent Savoie, Judges.
   CONERY, Judge.

| plaintiff, Jake Chimento, appeals the December 22, 2016 judgment of the trial court dismissing all claims against the remaining defendant KDM Electric of Alexandria, LLC (KDM), and its insurer, The Standard Fire Insurance Company (Standard), with prejudice and at Mr. Chimen-to’s cost. For the following reasons, we affirm.,

FACTS AND PROCEDURAL BACKGROUND

Mr. Chimento filed suit on May 20, 2013, claiming he suffered a heart attack and injuries resulting from electrocution and a subsequent fall from a ladder on Septem-' ber 25, 2012, while working for KDM as an inmate assigned to the Rapides Parish Work Release Center. He named the State of Louisiana, Department of Corrections (DOC), Sheriff William Earl Hilton, as the administrator of the Rapides Parish work release program, KDM, his employer, and its insurer, Standard.

Mr. Chimento also filed a 1008 Disputed Claim for Compensation against KDM on July 13, 2013 seeking workers’ compensation benefits as a result of the same accident. The Worker’s Compensation Judge (WCJ) gave oral reasons for ruling on October 26, 2016, and a formal judgment was issued by the WCJ on November 9, 20l6. The WCJ’s judgment, which found in favor of KDM and Standard, is also' on appeal by Mr. Chimento before this panel, docketed as CA—17-147, and will be addressed in a separate opinion.

|2On October 29, 2014, KDM filed its original motion for summary judgment. KDM also filed identical'motions for sum-, mary judgment on May 8, 2015, and May 2, '2016. KDM claimed that Mr. Chimento’s negligence claims against both'KDM and its insurer, Standard,-were barred by the exclusivity provisions of • the Louisiana Workers’ Compensation Act. KDM’s motion was supported by jurisprudence from this circuit in the case of Lee v. State, ex rel. Dep’t of Pub. Safety & Corr., 10-1013 (La.App. 3 Cir. 3/30/11), 60 So.3d 106, unit not considered, 11-914 (La. 6/17/11), 63 So.3d 1030. Lee involved not only an injury, but the death of an inmate while he was working in a work release program in Webster Parish, Louisiana.

The panel of this circuit in Lee granted the DOC’s motion for summary judgment and cited the case of Rogers v. La. Dep’t of Corr., 43,000 (La.App. 2 Cir. 4/30/08), 982 So.2d 252, writ denied, 08-1178 (La. 9/19/08), 992 So.2d 931. More particularly, the Rogers court stated the following in its analysis of the issue of the status of an inmate working in a work release program:

[Louisiana Revised . Statutes] 15:711 authorizes the work release program for certain inmates and specifies that it is to be administered by the sheriff of the parish where the inmate is. housed. Work release inmates are not deemed to be employees of the state, but are considered the employees of their private employer and are entitled to workers’ compensation benefits.

Id. at 257.

KDM submitted in support of its motion for summary judgment a- document entitled, “LOUISIANA DEPARTMENT OF PUBLIC SAFETY CORRECTIONS EMPLOYER’S TRANSITIONAL WORK PROGRAM' AGREEMENT,” in which KDM acknowledged that, “Any Department of Public Safety and Corrections ^offenders in my employ -will be. covered by my insurance, and/or workmen’s compensation insurance ’as required by law, including vehicle - insurance when, being transported - to and .from the job.” Additionally, KDM provided the- “OFFENDER TRANSITIONAL . WORK PROGRAM AGREEMENT,” signed by Mr. Chimento on June 14, 2012, accepting his job with; KDM under the terms of the work release program.

KDM further submitted in support of its motion for summary judgment the deposition of Mr. Chimento wherein he testified that he had been employed by KDM since February 21, 2011, as an electrician’s helper at the rate' of $8.25 per hour and 'received his paycheck directly from KDM. Therefore, based on the documentation submitted in support' of KDM’s initial motion for summary judgment, there is ho issue of fact that Mr. Chimento was considered an employee of KDM by virtue of both the jurisprudence of this circuit and the terms, of his employment with KDM.

The record before ■ this court demonstrates that the other two defendants, the DOC and Sheriff Hilton, also filed motions for summary judgment in this case. Those motions, as well as all discovery, were stayed by agreement of all counsel pending a decision on the writ to the supreme court in the case of Perkins v. Roy O. Martin Lumber Co., LLC, 15-571 (La.App 3 Cir. 4/6/16), 189 So.3d 531. Writs were eventually denied in Perkins v. Roy O. Martin Lumber Co., LLC, 16-862 (La. 6/17/16), 192 So.3d 764.

The Perkins case also involved a claim by an inmate housed in the Rapides Parish Work Center who was injured while working for a private employer in conjunction with a work release program. The Perkins panel determined that the plaintiff was an employee of the private employer in that case, MARTCO. Further,. |4the panel affirmed the trial court’s judgment granting summary judgment in favor of both the DOC and Sheriff Hilton, but reversed the sanctions sought by Sheriff Hilton and awarded by the trial court against the Plaintiff’s attorney, who is also the attorney of record in this case.

The 'panel in Perkins reversed the trial court’s imposition of sanctions against plaintiff’s counsel as 'requested by Sheriff Hilton in the amount of $10,142.40, finding that although' “[pjlaintiffs counsel was somewhat stubborn in pursüing claims against the Sheriff and DOC after' her client’s deposition was taken, she sincerely believed the merit of her position,” Id., at 539. As previously stated, writs .were denied m Perkins, 192 So.3d 764.

Correspondence in the record in this case reflects that counsel for KDM believed that counsel for Mr. Chimento had agreed to dismiss KDM with prejudice and at Mr. Chimento’s cost based on the agreement of all counsel to postpone the June 27, 2016 hearing on the motions for summary judgment .filed on behalf of all defendants and a cross-motion for summary judgment filed on behalf of the plaintiff,, pending the ruling by the supreme court in Perkins. KDM’s assertion is supported by its May 20, 2016 letter to Mr. Chimento’s counsel wherein KDM agrees to stay the June 27, 2016 hearing on all motions for summary judgment in exchange for the agreement of Mr. Chimento’s counsel to also dismiss KDM with prejudice and at Mr. Chimento’s cost should the supreme court deny writs in Perkins.

Counsel for KDM also sent correspondence to the trial court on May 25, 2016, addressing Mr. Chimento’s request for a continuance of the June 27, 2016 hearings. Counsel for KDM advised the trial court that Mr. Chimento’s counsel had agreed that if the writ was denied in Perkins, she would dismiss the DOC and | ¡¡Sheriff Hilton. However, according to Mr. Chimento, no such agreement had been made with KDM, and counsel for KDM sought legal clarification from Mr. Chimento’s counsel of any issues-that distinguished KDM from the other two defendants. As there had been no response from Mr. Chimento’s counsel, KDM continued to oppose any continuance of the hearings fixed for June 27,2016.

Mr. Chimento’s counsel responded to KDM’s May, 20, 2016. letter on June 1, 2016, acknowledging that KDM will not agree to the continuance of the June 27, 2016 hearing unless KDM is also dismissed from the suit, along with the DOC and Sheriff Hilton, should the supreme court deny the writ in Perkins,

We are in receipt of your letter dated May 23, 2016 in which you agree to a stay of this matter on the condition that no further discovery is attempted or conducted and that' we immediately dismiss our claims against KDM with prejudice at our costs, in the event Writs are denied in the Perkins matter. (emphasis added.)

The second paragraph of the June 1, 2016 correspondence also stated:

We agree that no further discovery will be attémpted or conducted. If Writs are denied in the Perkins matter, we will immediately dismiss our claims against the Sheriff and the State through the Department of Corrections without prejudice, each party bearing its own costs.
' Please advise if- these terms are agreeable to each of you. Your professional courtesies in this matter aré •greatly appreciated.

The June 1, 2016 letter from Mr. Chi-mento’s counsel is immediately followed in the record by a June 2,- 2016 letter to the trial court from counsel for KDM, referencing KDM’s May 25, 2016 letter to the trial court opposing the continuance of the June 27, 2016 hearings on all motions for summary judgment. Counsel for KDM advised the trial court:

| (¡Plaintiffs counsel has now agreed to dismiss all claims against all defendants, including KDM and The Standard Fire ' Insurance Company, in the event her Writs to the • Louisiana Supreme Court in a similar matter are denied (Exhibit B). Therefore, KDM, along with all parties, consents to the requested continuance of the June 27 hearing date.

The record reflects that there is no correspondence from counsel for Mr. Chimen-to to dispute the claim by counsel for KDM that an agreement had been reached between the parties. Further, had counsel for Mr. Chimento not agreed to dismiss KDM and Standard, it is clear from KDM’s May 25, 2016 letter to the trial court that KDM would have maintained its objection to the continuance of the June 27, 2016 hearings.

The Louisiana Supreme Court denied the writ in Perkins on June 16, 2016, and subsequently both the DOC and Sheriff Hilton were dismissed from the underlying lawsuit on August 31, 2016, leaving KDM and is insurer Standard as the only remaining defendants. Thereafter, a series of correspondence and e-mails was exchanged between counsel for KDM and counsel for the plaintiff regarding the dismissal of KDM and Standard from the case based on KDM’s agreement to postpone the June 27, 2016 hearing on the motions for summary judgment.

Eventually, on October 4, 2016, KDM filed a motion to compel dismissal, or in the alternative a .rule to show cause to refix its motion for summary judgment. The trial court signed an order on October 5, 2016, setting a rule to show cause .on October 31, 2016, for hearing on KDM’s motion to compel ■ dismissal, and KDM’s request for costs and expenses, including attorney fees for the additional litigation involved in resolving the dispute .between the parties over the dismissal of KDM.

|7Pue to a death in her family, Mr. Chi-mento’s counsel was unable to be present at the hearing set for October 31, 2016. In lieu of the hearing, the trial court held' a conference call with both counsel “to discuss the issues and asked that the attorneys submit information to the'court in lieu of a formal hearing.” The trial court, in its written reasons issued December 2, 2016, referenced its discussion with counsel during the telephone conference that Mr. Chimento was “also pursuing recovery through worker[s]’ compensation,” and held:

The Court has now reviewed the memorandums along with information concerning a pending claim within workers’ compensation that take note of the concerns of OSHA compliance. The issue before the Court is whether the claims filed by the plaintiff should be dismissed based upon assertions that the matter would be dismissed following the Perkins writ decision.
The Court has now reviewed the record of this matter along with post[-]trial briefs submitted in the worker[s]’ compensation file. Part of the evidence reviewed and discussed with the attorneys is the exchange of letters between the parties prior to previous hearings set before this court.
This case has been set before this Court on previous occasions with each continuance being granted based upon action within another case that had similar facts and circumstances. The Perkins matter has now received notice that the Writ was denied. The plaintiff is also pursuing recovery through worker[s]’ compensation. As discussed at the time of the conference call, the Court is of the opinion that Mr. Chimento’s claims are appropriately within workers’ compensation jurisdiction, and it appears from the Post-Trial Briefs that all issues were raised including any OSHA compliance, therefore Chimento’s suit within the 9th Judicial District Court should be dismissed.

The trial court signed an order granting RDM’s motion to compel dismissal on December 2, 2016. The trial court further stated, “[pjlaintiffs claims are actively and appropriately being resolved within the jurisdiction of worker[s]’ compensation.” A final judgment was issued on December 22, 2016, dismissing all of Mr. Chimento’s claims with prejudice and assessing him with the costs of |8court. It is from the December 22, 2016 judgment that Mr. Chi-mento has timely appealed.

ASSIGNMENT OF ERROR

Mr. Chimento assigns the following error on appeal:

The Trial court erred in finding Mr. Chimento’s June 2, 2016, letter containing a counter offer was an acceptance of an offer/demand made by KDM on May 23, 2016. An order enforcing settlement was legal error based upon the erroneous error of fact.

LAW AND DISCUSSION

Standard of Review

In Hayes Fund for First United Methodist Church of Welsh, LLC v. Kerr-McGee Rocky Mountain, LLC, 14-2592, p. 8 (La. 12/8/15), 193 So.3d 1110, 1115-16, the supreme court reiterated the duty of appellate courts in a manifest error review and stated in pertinent part:

In all civil cases, the appropriate standard for appellate review of factual determinations is the manifest error-clearly wrong standard, which precludes the setting aside of a trial court’s finding of fact unless that finding is clearly wrong in light of the record reviewed in its entirety. Cenac v. Public Access Water Rights Ass’n, 02-2660, p. 9 (La. 6/27/03), 851 So.2d 1006, 1023. Thus, a reviewing court may not merely decide if it would have found the facts of the ease differently. Hall v. Folger Coffee Co., 03-1734, p. 9 (La. 4/14/04), 874 So.2d 90, 98. Rather in reversing a trial court’s factual conclusions with regard to causation, the appellate court must satisfy a two-step process based on the record as a whole: there must be no reasonable factual basis for the trial court’s conclusion, and the finding must be clearly wrong. Stobart v. State through Dept. of Transp. and Development, 617 So.2d 880, 882 (La.1993).
This test requires a reviewing court to do more than simply review the record for some evidence, which supports or controverts the trial court’s findings. The court must review the entire record to determine whether the .trial court’s finding was clearly wrong or manifestly erroneous. Parish Nat. Bank v. Ott, 02-1562, pp. 7-8 (La. 2/25/03), 841 So.2d 749, 753-54. The issue to be resolved on review is not whether the judge or jury was right or wrong, but whether the kludge’s or jury’s factfinding conclusion was a reasonable one. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989); Canter v. Koehring Co., 283 So.2d 716, 724 (La. 1973).

Errors of law, however, are reviewed de novo. Foti v. Holliday, 09-93 (La. 10/30/09), 27 So.3d 813. Accordingly, when reviewing an issue of law, we “render [ ] judgment based on the record without deference to the legal conclusions of the lower courts.” Id. at 817

Mr. Chimento’s Assignment of Error

Mr. Chimento argues that the trial court erred in finding “Mr. Chimento’s June 2, 2016 letter containing a counter offer was an acceptance of an offer/demand made by KDM on May 23, 2016.” As previously explained, KDM’s letter of May 20, 2016, referenced as May 23, 2016, by counsel for Mr. Chimento, contained KDM’s offer to consent to the stay of the motions for summary judgment fixed for June 27, 2016, if Mr. Chimento would dismiss KDM and Standard with prejudice' and at his costs should the supreme court deny writs in Perkins. KDM also agreed to allow Mr, Chimento to reserve his claim for workers’ compensation.

Counsel for Mr, Chimento argues,that the first paragraph of the June 1, 2016 letter, referenced as June 2, 2016, in the assignment of error to this court, was not an acceptance of KLM’s “offer/demand,” and the trial court erred “in finding the parties had reached a settlement.” Again, that the first paragraph of that letter clearly stated “and that we immediately dismiss our claims against KDM with prejudice at our costs, in the event Writs are denied in the Perkins matter.” (emphasis ours.) Counsel for Mr. Chimento asserts that her argument is bolstered by the wording of the second paragraph of her letter that she only intended to hndismiss the DOC and Sheriff Hilton if the supreme court denied the writ in Perkins, notwithstanding the clear wording in the first paragraph quoted above. ;

Moreover, KDM’s June 2, 201 6- correspondence to the trial court reflects the parties had reached ah agreement, as discussed in both KDM’s May 20, 2016 letter, and reiterated: in the'first paragraph of Mr. -Chimento’s June *1, 2016 letter that KDM and Standard would be dismissed if the writ in Perkins was denied by the supreme court. Therefore, the quid pro quo was that KDM and Standard would withdraw their objection to Mr. Chimen-to’s request for a continuance of the June 27, 2016 hearings on all motions for summary judgment until after the supreme court’s- ruling in Perkins.'

As previously stated, there is nothing in the record to indicate that counsel for Mr. Chimento objected or disagreed with KDM’s representations to the trial court in its June 2, 2016 letter until the motion .to compel dismissal was filed by KDM and Standard. The Louisiana Supreme Court had .ruled against Mr. Chimento’s legal position .in Perkins, and the June 27, 2016 hearing dates had. long since passed. Clearly, under the law, Mr. Chimento was to be considered an employee of KDM and the tort suit against KDM, was not legally proper.

Thus, the trial court did not err in finding that counsel for both parties had reached an agreement that Mr. Chimento would dismiss KLM and Standard if the supreme court denied the writ in Perkins. Therefore, the trial court correctly granted the motion of KDM and Standard to compel dismissal of all of Mr. Chimento’s claims in this case with prejudice and at his costs, with a reservation of his right to pursue his workers’ compensation claims.

^CONCLUSION

For the foregoing reasons, the trial court’s judgment dated December 22, 2016, is affirmed in its entirety, granting the motion to compel dismissal, assessing all court costs, and dismissing with prejudice all claims in this proceeding made by plaintiff, Jake Chimento, against KDM Electric of Alexandria, LLC, and its insurer The Standard Fire Insurance Company. All costs of this appeal are assessed to the plaintiff, Jake Chimento.

AFFIRMED.

Savoie, J, concurs and assigns reasons.

Savoie, J.,

concurs and assigns reasons.

hi concur with the majority’s decision to affirm the trial court’s dismissal of this matter; however, in my opinion, dismissal is proper due to the exclusive jurisdiction granted to the workers’ compensation court. See La.Const. art. 5, § 16.

Appellant’s brief focuses solely on whether the parties had agreed to a dismissal in the event the Perkins writ was denied. However, the trial court’s written reasons do not specifically make such a finding, noting only that certain correspondence relied upon by KDM was “important.” Instead, the trial court’s judgment of dismissal states, “Plaintiffs claims are actively and appropriately being resolved within the jurisdiction of workers compensation.” Appellant does not address the issue of jurisdiction.

While the record before us is somewhat unclear as to whether the trial judge considered KDM’s motion for summary judgment, which sought dismissal on jurisdictional grounds, at the same time that it considered KDM’s motion to compel dismissal, a court has a duty to examine whether it has subject matter jurisdiction, even if the issue had not been raised by the parties. Boudreaux v. State, Dept. of Transp. and Development, 2001-1329 (La. 2/26/02), 815 So.2d 7. On. the face of the petition, this matter falls within the exclusive jurisdiction of the workers’ compensation court in light of La.Const. art. 5, § 16 and the ruling in 2Perkins, 189 So.3d 531; therefore, the district court lacks jurisdiction, and the issue of the whether the parties had reached an agreement to dismiss this case is moot.

      .On August 31, 2016, the trial court granted a joint motion of dismissal without prejudice, with each party bearing its own costs, submitted by Mr. Chimento and the State of Louisiana Department of Corrections (DOC). Alsó on August 31, 2016, the trial court issued judgment granting a joint motion of dismissal with prejudice, with Mr. Chimento bearing all costs, filed by Mr. Chimento and Sheriff William Earl Hilton.

      . Mr. Chimento initially named Travelers Insurance Company as the insurer of KDM and Standard was later substituted as the proper party defendant.

      . The motions for summary judgment, all other motions filed, and actions taken by KDM in this case wei'e also on behalf of its insurer Standard.

      . Although the June 1, 2016 letter references correspondence dated May 23, 2016 from counsel for KDM, the, letter in question is actually dated May 20, 2016.

      . Although the trial court did not specifically refix KDM’s motion for summary judgment, it is clear that it had reviewed the record which contained KDM's motion for summary judgment, as well as the post-trial briefs submitted in Mr. Chimento’s workers’ compensation case.

      . As previously stated, the letter of KDM was dated May 20, 2016.

      . Perkins v. Roy O. Martin Lumber, Co., LLC, 15-571 (La.App. 3 Cir. 4/6/16), 189 So.3d 531, writ denied, 16-862 (La. 6/17/16), 192 So.3d 764.