STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2021 CA 0433

CRAIG STEPHEN DOUGHERTY

VERSUS

SHIRENE RHAJAH DOUGHERTY

Judgment rendered: MAR 2 9 2022

On Appeal from the Twenty -Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana No. 2016- 14375

The Honorable Dawn Amacker, Judge Presiding

Jeffrey Walter Bennett Attorneys for Plaintiff/Appellant River Ridge, Louisiana Craig Stephen Dougherty Andrew Tillman Lilly New Orleans, Louisiana

Georgia Kobos Thomas Attorneys for Defendant/ Appellee Rebecca Gilson Shirene Rhajah Dougherty Hammond, Louisiana

BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ.

u4tl 1 rPnrnws HOLDRIDGE, J.

This appeal concerns a post -nuptial agreement to terminate the legal regime,

the denial of a motion for new trial as to a consent judgment concerning the partition of community property, and the imposition of sanctions pursuant to La. C. C. P. art. as a consequence for the filing of the motion for new trial. Finding error, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

Craig Stephen Dougherty and Shirene Rhajah Dougherty were married in 2010. On October 18, 2016, Mr. Dougherty filed a petition for divorce pursuant to La. C. C. art. 102 and for incidental relief, including that the parties' community

property be partitioned pursuant to La. R.S. 9: 2801.

On January 11, 2017, the parties filed in the district court a " CONSENT

JUDGMENT ON SEPARATION OF PROPERTY AND POST -NUPTIAL AGREEMENT" (" Consent Judgment"). In the Consent Judgment, the district court

dismissed Mr. Dougherty' s divorce petition with prejudice.' The parties stated that

they had reconciled and wanted to terminate the legal regime and to create a separate property regime. They stated that they were judicially partitioning their community property. The parties agreed to own the family home in indivision and any improvements or amounts contributed to that property out of separate funds were to be accounted for if the property was sold. The Consent Judgment was signed by each party before a notary on December 20, 2016, and December 27, 2016. The

district court signed the Consent Judgment on January 17, 2017.

Mr. Dougherty filed a second petition for divorce pursuant to La. C. C. art. 102 on May 12, 2017. Ms. Dougherty responded by filing an answer and reconventional

On July 24, 2018, Mr. Dougherty filed a " PETITION TO PARTITION COMMUNITY PROPERTY AND FOR SETTLEMENT OF ALL CLAIMS" pursuant to La. R.S. 9: 2801. 3 On March 14, 2019, Mr. Dougherty filed a sworn detailed descriptive list, and on August 1, 2019, he filed a rule to show cause why his sworn detailed descriptive list should not be deemed to constitute a judicial determination of the community assets and liabilities. On December 17, 2019, the

district court signed a judgment making the hearing officer recommendations a final judgment of the court; those recommendations included the dismissal with prejudice of Mr. Dougherty' s rule to show cause as to his sworn detailed descriptive list .4 On February 21, 2020, Mr. Dougherty filed an " ARTICLE 1972( 1)

MOTION FOR NEW TRIAL," seeking a new trial as to the 2017 Consent

Judgment.' In the motion for new trial, Mr. Dougherty alleged that the Consent Judgment was improperly approved by the district court because the property partition was not subsequent to or in conjunction with a judgment terminating the legal regime under La. R.S. 9: 2802. 6 He alleged that the part of the Consent

Jeffrey Bennett once again represented Mr. Dougherty after he was substituted as counsel of record on December 30, 2019.

Judgment terminating the legal regime did not satisfy the requirements of La. C. C. art. 2329' for such a matrimonial agreement, citing Radcliffe 10, L.L.C. v. Burger, 2016- 0768 ( La. 1/ 25/ 17), 219 So. 3d 296, 299. Therefore, he alleged that the post-

nuptial marriage contract was a nullity and could not be the basis for a judgment in conjunction with or subsequent to the property partition, making the entire Consent Judgment " without effect."

Mr. Dougherty alleged that the motion for new trial was timely under La. C. C.P. arts. 19138 and 19749 because notice of the signing of the Consent Judgment was not mailed to him, such that the delays for filing a motion for new trial did not start running. Instead, notice of the signing of the Consent Judgment was sent to Jeffrey Bennett and Ms. Dougherty' s counsel on January 18, 2017. Mr. Bennett had

represented Mr. Dougherty when his first petition for divorce was filed and when he signed the Consent Judgment. However, Mr. Bennett had filed a motion to withdraw

as counsel on January 10, 2017. 10 The district court granted the motion to withdraw on January 17, 2017, which is the same date it signed the Consent Judgment.

Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.

Pursuant to La. C. C. P. art. 1913( D), "[ t] he clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed."

In opposition to the motion for new trial, Ms. Dougherty filed a " Peremptory Exception of Prescription and No Cause of Action[.]" Ms. Dougherty alleged that the motion for new trial was not timely filed because notice of the Consent Judgment to Mr. Dougherty was not required under La. C. C. P. art. 1913, and

therefore, the time period under La. C. C. P. art. 1974 had expired and the motion for

new trial was prescribed. She alleged that the motion for new trial failed to state a

cause of action because the Consent Judgment was a valid agreement. Ms.

Dougherty averred that the motion for new trial was not based on law, but rather was retaliatory and filed only to needlessly increase the cost of litigation[.]" Ms.

Dougherty asserted that Mr. Dougherty and his counsel should be sanctioned under La. C. C.P. arts. 863 and 864 and ordered to pay her actual attorney' s fees and court costs.

The district court held a hearing on May 22, 2020, and then signed a judgment on June 16, 2020, wherein it granted Ms. Dougherty' s peremptory exception raising the objection of no cause of action, denied the peremptory exception raising the objection of prescription as moot, denied Mr. Dougherty' s motion for new trial, and granted the request for sanctions in part and " continued" the request in part to fix the

amount of sanctions at a hearing on September 15, 2020. 11 Thereafter, on November 19, 2020, the district court issued a judgment awarding Ms. Dougherty sanctions against Mr. Dougherty in the amount of $5, 500. 00 as attorney' s fees and $ 447. 81 as

costs incurred by Ms. Dougherty in responding to the motion for new trial.

G On December 18, 2020, Mr. Dougherty sought a devolutive appeal from the November 19, 2020 judgment and the June 16, 2020 judgment. 12 Mr. Dougherty raises three assignments of error: that the district court erred by granting Ms. Dougherty' s peremptory exception raising the objection of no cause of action, abused its discretion by denying his motion for new trial, and abused its discretion in sanctioning him for filing the motion for new trial. Ms. Dougherty answered the instant appeal to seek additional attorney' s fees and costs for the work " associated with this Appeal and any other Appeal in this matter[.]" DISCUSSION

Answer to the Appeal

This court, ex proprio motu, issued a rule to show cause on the timeliness of Ms. Dougherty' s answer. Louisiana Code of Civil Procedure article 2133( A)

provides that an appellee " must file an answer to the appeal ... not later than fifteen

days after the return day or the lodging of the record whichever is later." In this

appeal, the return date was March 24, 2021, the record was lodged on April 27, 2021, and the answer was not filed until June 25, 2021. Therefore, the answer was not

timely filed within the fifteen -day period after the lodging of the record, which was later than the return date, and we dismiss it.13 Standard of Review

The district court' s discretion in ruling on a motion for new trial is great, and its decision will not be disturbed on appeal absent an abuse of that discretion.

Guidry v. Millers Casualty Insurance Co., 2001- 0001 ( La. App. 1 Cir. 6/ 21/ 02), 822 So. 2d 675, 680. A district court' s determination regarding the imposition of sanctions pursuant to La. C. C. P. art. 863 is subject to the manifest error or clearly wrong standard of review. Landry v. Landry, 2021- 0337 (La. App. 1 Cir. 10/ 8/ 21), 331 So. 3d 351, 356, writ denied, 2022- 00044 ( La. 3/ 2/ 22), So. 3d . Once the

district court finds a violation of La. C. C. P. art. 863 and imposes sanctions, the determination of the type and/ or the amount of the sanction is reviewed on appeal

utilizing the abuse of discretion standard. Id. Motion for New Trial

Mr. Dougherty contends that the district court erred in denying his motion for new trial by granting the peremptory exception raising the objection of no cause of action. Louisiana Code of Civil Procedure article 1972( 1) provides that a new trial

shall be granted, upon contradictory motion of any party, when the verdict or judgment appears clearly contrary to the law and the evidence.

We initially note that a peremptory exception raising the objection of no cause of action is not the proper pleading with which to oppose a motion for new trial. The purpose of the peremptory exception raising the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition. Terrebonne Parish Consolidated

Government v. Louisiana Department of Natural Resources, 2021- 0486 ( La. App. 1 Cir. 12/ 30/ 21), So. 3d As used in the context of the

peremptory exception, a " cause of action" refers to the operative facts which give

rise to the plaintiff' s right to judicially assert the action against the defendant. Id.

Likewise, a peremptory exception raising the objection of prescription is not the proper pleading with which to oppose a motion for new trial. A party urging a peremptory objection raising the objection of prescription has the burden of proving facts to support the exception unless the petition is prescribed on its face. Worm v.

Berry Barn, LLC, 2020- 1086 ( La. App. 1 Cir. 10/ 21/ 21), 322 So. 3d 86, 88.

Because the peremptory exceptions raising the objections of no cause of action and prescription pertain to petitions, and not to motions for new trial, they were not the appropriate procedure to use to challenge Mr. Dougherty' s motion for new trial. 14 While Ms. Dougherty and the district court erred in considering her opposition to the motion for new trial as a peremptory exception raising the objections of no cause of action and prescription, the caption of a pleading does not control. See

Armstrong v. ARCCO Company Services, Inc., 2021- 0131 ( La. App. 1 Cir.

10/ 18/ 21), 331 So. 3d 939, 942. Rather, courts are obligated to look through the

caption of pleadings in order to ascertain their substance. Id. Every pleading is to

be so construed as to do substantial justice, and regardless of the parties'

interpretation of the caption of a party' s pleading, courts will look to the import of a pleading and will not be bound by its title. Id. See also La. C. C. P. art. 865.

Therefore, we will consider the arguments raised in Ms. Dougherty' s exceptions as an opposition to the motion for new trial. 15

In ruling on the matter before it, the district court in its reasons for judgment stated that La. C. C. P. arts. 1913 and 197416 did not " apply to an uncontested case

submitted by consent of the parties" and then granted the peremptory exception raising the objection of no cause of action and determined that the peremptory exception raising the objection of prescription was moot. However, the

jurisprudence has recognized that a lack of the prerequisite consent for a consent

2013- 1211 ( La. App. 1 Cir. 11/ 13/ 14), 2014 WL 5878933 at * 5 ( unpublished), writ

denied, 2015- 0041 ( La. 4/ 2/ 15), 163 So.3d 793; Diez v. Diez, 2011- 1569 ( La. App. Cir. 2/ 10/ 12), 2012 WL 602405 at * 4, writ denied, 2012- 0822 ( La. 5/ 2/ 2012), 88

So. 3d 448. Therefore, the district court abused its discretion in concluding that the motion for new trial provisions did not apply to a consent judgment.

In his motion for new trial, Mr. Dougherty contended that the Consent Judgment was contrary to the law and evidence because it was without legal effect as the post -nuptial marriage contract contravened the requirements of La. C. C. art.

2329. See Radcliffe, 219 So. 3d at 299. In Radcliffe, the supreme court found that

the failure to file a joint petition to terminate the parties' community property

regime, pursuant to La. C. C. art. 2329, resulted in a relative nullity as defined by La. C. C. art. 2031. 17 Id. at 297. Mr. Dougherty alleged in his memorandum in support of the motion for new trial, " Judgments approving matrimonial agreements must

result from a joint petition and the consequences of the parties' failure to proceed in this manner [ are] that [ the] resulting judgment[ s] are nullities," citing Radcliff, Id. at 301. Ina footnote in his memorandum in support of the motion for new trial, Mr.

Dougherty stated that " the new trial request [ was] a better use of the [ district court' s] resources than a nullity action." Ms. Dougherty contends that the parties could partition their existing community and sign a post -nuptial marital contract without court approval because a petition for divorce had been filed and the parties had not

reconciled when they signed the Consent Judgment, relying on La. R.S. 9: 384( A)."

Mr. Dougherty' s allegations in his motion for new trial raise the issue of whether the Consent Judgment was a nullity. The parties were free during their marriage to modify or terminate their legal regime with a matrimonial agreement, which is " a contract establishing a regime of separation of property or modifying or

terminating the legal regime." See La. C. C. art. 2328. As contracts, matrimonial

agreements are governed by the general rules of conventional obligations. See La.

C. C. arts. 1906- 2057. Because matrimonial agreements are " given a special

designation" in the civil code, they are nominate contracts, subject also to the special rules in the title on matrimonial regimes. La. C. C. arts. 1914- 16, 2325- 2437.

Louisiana Civil Code article 2329 imposes procedural limitations on a spouse' s

ability to implement a matrimonial agreement during the marriage. In Radcliffe, the supreme court considered the legal effect of the failure to file a joint petition in

compliance with La. C. C. art. 2329. See 219 So. 3d at 300. " A contract is null when

the requirements for its formation have not been met." La. C. C. art. 2029. The two

types of nullities provided for in the civil code are absolute nullities, governed by La. C. C. art. 2030, and relative nullities, governed by La. C. C. art. 2031. The

supreme court in Radcliffe, 219 So. 3d at 301, determined that the failure to file a

joint petition makes the matrimonial agreement relatively null. Louisiana Civil Code article 2031 defines a relatively null contract as follows: A contract is relatively null when it violates a rule intended for the protection of private parties, as when a party lacked capacity or did not give free consent at the time the contract was made. A contract that is only relatively null may be confirmed.

A contract is absolutely null when it violates a rule of public order, as when the object of a contract is illicit or immoral. A contract that is absolutely null may not be confirmed.

Absolute nullity may be invoked by any person or may be declared by the court on its own initiative.

Relative nullity may be invoked only by those persons for whose interest the ground for nullity was established, and may not be declared by the court on its own initiative.

The supreme court concluded that La. C. C. art. 2329 was designed to address the

capacity and free consent of the parties at the time the matrimonial agreement was made and established a rule intended for the protection of private parties in that it

serves to protect a less worldly, economically vulnerable spouse from an

overreaching spouse. Radcliffe, 219 So. 3d at 301. See also La. C. C. art. 2031.

If timely filed, a motion for new trial may be an acceptable procedural vehicle for asserting the nullity of a judgment. Harriss v. Archives Grill, LLC, 51, 298

La. App. 2 Cir. 4/ 5/ 17), 217 So. 3d 1203, 1210 n. 8. See also Dupont v. Canella,

2010- 2172 (La. App. 1 Cir. 8/ 3/ 11), 2011 WL 3328709 at * 2. In this case, the district court considered the exception raised by Ms. Dougherty and ruled upon the objection of no cause of action.

Clearly, the district court abused its discretion in denying Mr. Dougherty' s motion for new trial on a peremptory exception raising the objection of no cause of action. In ruling on the exception the district court appears to have found that the motion for new trial was timely filed. We find that the district court' s

judgment is legally incorrect and remand. On remand, the district court must

determine if Mr. Dougherty' s motion for new trial was timely filed under La. C. C.P. arts. 1913 and 1974 and then determine if the Consent Judgment is a nullity under Radcliffe and La. C. C. arts. 2030, 2031, 2329. Mr. Dougherty' s assignments of error numbers one and two have merit.

Sanctions

We must now determine whether the district court erred in imposing sanctions upon Mr. Dougherty. Louisiana Code of Civil Procedure article 863 provides, in pertinent part:

A. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name.....

B. [T] he signature of an attorney or party shall constitute a certification by him that he has read the pleading, and that to the best of his knowledge, information, and belief formed after reasonable inquiry, he certifies all of the following: 1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.

2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.

3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable

opportunity for further investigation or discovery.

4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

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 the amount of the reasonable expenses incurred because of the filing of the pleading, including reasonable attorney fees.

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.

Accordingly, under La. C. C. P. art. 863, there is an affirmative duty imposed on attorneys and litigants to make an objectively reasonable inquiry into the facts and the law. Landry, 331 So. 3d at 856. Mr. Dougherty' s motion for new trial raises a valid legal argument. In determining whether an attorney has breached that affirmative duty, the district court should test the signer' s conduct by inquiring what was reasonable to believe at the time the pleading was submitted. Id. Louisiana

Code of Civil Procedure article 863 does not empower a district court to impose

sanctions simply because a particular argument or ground for relief is subsequently found to be unjustified; failure to prevail does not trigger an award of sanctions. Id.

Furthermore, La. C. C. P. art. 863 is intended to be used only in exceptional

circumstances; where there is even the slightest justification for the assertion of a legal right, sanctions are not warranted. Berthelot v. Berthelot, 2017- 1331 ( La.

App. 1 Cir. 7/ 18/ 18), 254 So. 3d 730, 735; Carrollton Presbyterian Church v.

Presbytery of South Louisiana, 2014- 1214 ( La. App. 1 Cir. 3/ 9/ 15), 172 So. 3d 1, 8, writ denied, 2015- 0682 ( La. 5/ 22/ 15), 171 So. 3d 257.

The district court in its reasons for judgment stated that there was not the slightest justification for the assertion of the legal right requested in this case," and

described Mr. Dougherty' s argument as " specious ... at best." The district court also

stated that because the motion for new trial was filed so long after the Consent Judgment was signed, that Mr. Dougherty filed it to harass.

The motion for new trial in this case had a rule to show cause attached

whereby the district court set the matter for hearing on March 24, 2020. It is well

settled that a motion for new trial does not necessarily require a contradictory hearing. First Bank and Trust v. Fitness Ventures, L.L.C., 2017- 0475 ( La. App. Cir. 12/ 6/ 17), 2017 WL 6031783 at * 4 ( unpublished). Had the district court

determined that the motion for new trial was filed to harass, cause unnecessary delay, or needless litigation, or was frivolous, it could have denied the motion without

setting the matter for and holding a hearing. By setting the matter for hearing, the district court indicated that the motion could have merit.

We find the district court was manifestly wrong in awarding sanctions. This

court has held that the filing of a suit that is later determined to be prescribed, without more, is insufficient to warrant the imposition of sanctions under La. C. C. P. art. 863.

Mid -South Fire Protection, Inc. v. Happy Haven Homes, Inc., 2009- 0611 ( La.

App. 1 Cir. 6/ 11/ 10), 2010 WL 2342821 at * I ( unpublished) ( on rehearing). As is

clear from our discussion of the motion for new trial, Mr. Dougherty was justified in raising the argument that the Consent Judgment was relatively null. The district

court did not consider the merits of Mr. Dougherty' s claims. While they may ultimately be found to have no merit, he raised a valid contention that the post- nuptial marital contract in the Consent Judgment is relatively null because the parties did not file a joint petition and did not comply with La. C. C. art. 2329. See

Radcliffe, 219 So. 3d at 301. The district court erred in concluding that exceptional circumstances existed in this case to justify the imposition of sanctions as there was more than the " slightest justification for the assertion of a legal right." See Landry, So. 3d at 356. Mr. Dougherty' s motion for new trial raises a valid legal argument that the judgment in question may be a nullity. Moreover, nothing in the record demonstrated that Mr. Dougherty filed the motion for new trial to harass Ms. Dougherty. Therefore, the district court was manifestly erroneous in imposing sanctions in this case because the legal rights asserted in the motion for new trial

were justified.20 Mr. Dougherty' s third assignment of error has merit.

CONCLUSION

We reverse that part of the June 16, 2020 judgment granting Shirene Rajah Dougherty' s peremptory exception raising the objection of no cause of action, denying Craig Stephen Dougherty' s motion for new trial, and granting the request for sanctions. We reverse the November 19, 2020 judgment awarding Shirene Rajah Dougherty sanctions in the amount of $5, 500. 00 as attorney' s fees and $ 447. 81 as

costs.

We remand for the district court to hold an evidentiary hearing on the motion for new trial filed by Craig Stephen Dougherty. On remand, the district court must

determine if Mr. Dougherty' s motion for new trial was timely filed under La. C. C. P. arts. 1913 and 1974 and determine if the Consent Judgment is a nullity under Radcliffe 10, L.L.C. v. Burger, 2016- 0768 ( La. 1/ 25/ 17), 219 So. 3d 296, 299, and

La. C. C. arts. 2029, 2030, 2331. We dismiss the answer to appeal filed by Shirene Rajah Dougherty. Costs of this appeal are to be paid by Shirene Rajah Dougherty.

REVERSED AND REMANDED; ANSWER TO APPEAL DISMISSED.