GUIDRY, J.
In this tutorship proceeding, Kimberly Jones Williams appeals a judgment of the district court granting her motion for sanctions against Tom Caruso and awarding her $4,000.00. Mr. Caruso answered the appeal. For the reasons that follow, we affirm the district court's judgment.
On July 31, 2010, Deanne Nicole Forbes died leaving two minor children, SDF and MBJ.
Thereafter, on September 1, 2010, Mrs. Williams, through her then counsel, Eric Oliver Person, filed a Petition to File Statutory Will, which was assigned docket number 2010-30692 in Division "H" of the Twenty-Second Judicial District Court (22nd JDC). On the same date, Mrs. Williams also filed a Petition for Appointment and Qualification of Tutor by Will, which was assigned docket number 2010-30693 in Division "C" of the 22nd JDC. By order dated September 2, 2010, Mrs. Williams was appointed as tutrix of SDF.
At the time Mrs. Williams obtained the order appointing her as tutrix of SDF, SDF and MBJ were living with their maternal grandmother, Darnell Mitchell, in Slidell, Louisiana. With the assistance of St. Tammany Parish Sheriff's Office personnel, Mrs. Williams presented the order appointing her as tutrix of SDF to Bayou Woods Elementary School, and she obtained physical custody of both children. Thereafter, Mrs. Williams brought the children to New Orleans, where she and Mrs. Boswell lived.
On October 8, 2010, Ms. Mitchell, through her counsel, Tom Caruso, filed a Petition for Appointment as Provisional Tutor, which was assigned docket number 2010-30804 in Division "B" of the 22nd JDC. By order of the same date, Ms. Mitchell was appointed as provisional tutrix of both SDF and MBJ. Thereafter, Ms. Mitchell used the order to remove the children from New Orleans and return them to Slidell.
After SDF was removed from her custody, Mrs. Williams obtained new counsel and filed an Ex Parte Motion for Immediate Return of Physical Custody on October 26, 2010, which was assigned docket number 2010-16747 in Division "L" of the 22nd JDC. This motion was subsequently denied, and the matter was consolidated with the succession proceeding pending in Division "H" of the 22nd JDC.
Thereafter, Mrs. Williams filed a Motion to Vacate Order Appointing and Confirming Provisional Tutor and Request for Sanctions in the tutorship proceeding pending in Division "B" of the 22nd JDC. In her motion, Mrs. Williams sought to vacate the October 8, 2010 order appointing Ms. Mitchell as the provisional tutrix of both children. The motion was subsequently denied, and the matter was ordered to be consolidated with the succession proceeding pending in Division "H" of the 22nd JDC. Mrs. Williams sought review of this judgment by filing an application for supervisory review in this court, and by order dated November 19, 2010, this court granted the writ in part and vacated the October 8, 2010 order confirming Ms. Mitchell as tutrix of SDF.
On November 9, 2010, Ms. Mitchell and Ronnie Burton, the alleged father of SDF, filed a Petition for Nullity, which was assigned docket number 2010-30804 in Division "H" of the 22nd JDC. This petition sought to have the September 2, 2010 order appointing Mrs. Williams as the testamentary tutrix of SDF declared null. However, service of this petition was attempted, but not made, and no further action was taken on the petition.
On November 15, 2010, Ms. Mitchell filed an exception to Mrs. Williams' motion to vacate, which was pending supervisory review in this court. On the same date, Ms. Mitchell and Mr. Burton filed a Petition for Appointment as Natural Tutor and Petition for Appointment as Legal Tutor and for Custody in Division "H" of the 22nd JDC, which was set for hearing on January 20, 2011.
Following a hearing on November 19, 2010, on Mrs. Williams' motion to vacate and Ms. Mitchell's exception to that motion, Division "H" of the 22nd JDC granted the motion to vacate as it pertained to the appointment of Ms. Mitchell as tutrix of MBJ, on the basis of improper venue. The district court, however, denied and dismissed as moot Ms. Mitchell's exception to the motion to vacate as to SDF in light of this court's November 19, 2010 writ action.
On January 19, 2011, Mrs. Williams filed a number of exceptions to the Petition for Appointment as Natural Tutor and Petition for Appointment as Legal Tutor and for Custody, renewed her motion for sanctions against Ms. Mitchell, and sought sanctions against her attorney, Mr. Caruso, in accordance with La. C.C.P. art. 863. The matter was set for hearing on February 17, 2011.
Thereafter, the parties appeared at the January 20, 2010 and February 17, 2010 hearings on Ms. Mitchell and Mr. Burton's petition for appointment as natural tutor and Mrs. Williams' exceptions thereto; however, both hearings were continued. On March 30, 2011, the parties appeared again for a hearing on Mrs. Williams' exceptions, at which time Mr. Caruso notified the court that he was dismissing the Petition for Appointment as Natural Tutor and Petition for Appointment as Legal Tutor and for Custody filed on behalf of Ms. Mitchell and Mr. Burton. The petition was ultimately dismissed by order dated April 11, 2011.
On June 27, 2011, and February 2, 2012, Division "H" of the 22nd JDC conducted a hearing on Mrs. Williams' motion for sanctions. Following the hearing, the district court signed a judgment granting Mrs. Williams' motion for sanctions against Mr. Caruso and awarding her $4,000.00. Mrs. Williams now appeals from this judgment, asserting that the district court erred in limiting its finding of sanctionable conduct to only one pleading and in awarding her only $4,000.00. Additionally, Mr. Caruso filed an answer to the appeal, asserting that the district court erred in finding any sanctionable conduct occurred and by awarding any sum to Mrs. Williams.
To impose sanctions, a trial court must find that one of the affirmative duties imposed by La. C.C.P. art. 863 has been violated.
Article 863 imposes an obligation on litigants and their attorneys to make an objectively reasonable inquiry into the facts and law; subjective good faith will not satisfy this duty of reasonable inquiry. The article does not empower a trial 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. Article 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.
In determining whether to impose sanctions on an individual for violating the mandates of Article 863, a trial court should avoid using the wisdom of hindsight and should test the signer's conduct by inquiring what was reasonable to believe at the time the pleading was filed.
In the instant case, Mrs. Williams asserted that Mr. Caruso and Ms. Mitchell violated the provisions of La. C.C.P. art. 863 in filing the aforementioned pleadings. From our review of the record, we find no error in the trial court's decision not to impose sanctions on Ms. Mitchell
According to the record, Ms. Mitchell stated that prior to the filing of the Petition for Appointment as Provisional Tutor, she was not provided with any documentation indicating that Mrs. Williams had authority to remove the children from her custody. After the children's removal, Ms. Mitchell stated that she contacted both the St. Tammany Parish Clerk of Court and the New Orleans City Court Clerk of Court to determine by what authority the children were removed from her custody, and she was only given a copy of the succession proceeding. Ms. Mitchell brought the succession papers to Mr. Caruso, who also contacted the St. Tammany Parish Clerk of Court and the St. Tammany Parish School Board to determine if a tutorship proceeding had been filed prior to filing the Petition for Appointment as Provisional Tutor. Accordingly, we find no error in the trial court's determination that a reasonable inquiry was made before the petition was filed and that the certification of this pleading was not otherwise made in violation of Article 863.
Additionally, with regard to the Petition for Nullity, the record indicates that Mr. Caruso filed the petition, which challenged the testamentary designation of tutors for Ms. Forbes' minor children and sought to nullify the September 2, 2010 order appointing Mrs. Williams as tutrix of SDF. Service of the petition was attempted, but not made, and no further action has been taken by either party with regard to this pleading. Considering the evidence in the record, we find no error in the trial court's determination that the certification of this pleading was not made in violation of Article 863.
With regard to the Exception to Motion to Vacate filed on November 15, 2010, which asserted that Mrs. Williams had failed to join an indispensable party in accordance with La. C.C.P. art. 641, the record indicates that prior to the filing of this pleading, a previous order of Division "L" of the 22nd JDC had stated that Ronnie Burton was an indispensable party to the determination of the custody of SDF. Mr. Caruso stated at the hearing on the motion for sanctions that he relied on this previous statement in filing his exception, since Mr. Burton was not noticed in the motion to vacate. From our review of the record, we find no error in the trial court's determination that the certification of this pleading was not made in violation of Article 863.
Further, in reviewing Mrs. Williams' request for sanctions with regard to the motion for new trial filed after the court rendered judgment in favor of Mrs. Williams, vacating the order appointing and confirming Ms. Mitchell as provisional tutrix of SDF and MBJ, the court noted that this motion was denied ex parte and required no action by Mrs. Williams. After considering the testimony and evidence presented at the hearing, the trial court determined that the certification of this pleading was not made in violation of Article 863. From our review of the record, we find no error in the trial court's determination.
Finally, we also find no error in the trial court's decision to impose sanctions on Mr. Caruso for violating the mandates of Article 863 in filing the November 15, 2010 Petition for Appointment as Natural Tutor and Petition for Appointment as Legal Tutor and for Custody. The record demonstrates, and Mr. Caruso admits, that at the time he filed this petition, he was aware that Mrs. Williams had been appointed as tutrix of SDF by order dated September 2, 2010. Additionally, though Mr. Caruso contends that he filed this pleading based upon his belief that the tutorship proceeding filed by Mrs. Williams was irregular, he had previously filed a Petition for Nullity in that tutorship proceeding on November 9, 2010, which addressed these same concerns. Accordingly, considering the evidence in the record, we find no error in the trial court's determination that Mr. Caruso failed to make a reasonable inquiry into the facts and the law, and that the petition was presented for the purpose of delay and to needlessly increase the cost of litigation, so as to warrant the imposition of sanctions.
After finding Mr. Caruso violated Article 863 in filing this pleading, the trial court awarded Mrs. Williams $4,000.00 in sanctions against Mr. Caruso. Louisiana Code of Civil Procedure article 863(D) provides that once the court determines that the provisions of the article have been violated, it shall impose "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." Four factors that must be considered in setting an amount of sanctions are: 1) the conduct being punished or sought to be deterred by the sanction; 2) the expenses or costs caused by the violation of the rule; 3) whether the costs or expenses were reasonable as opposed to self-imposed, mitigatable, or the result of delay in seeking court intervention; and 4) whether the sanction is the least severe sanction adequate to achieve the purpose of the rule under which it was imposed.
The trial court noted in its reasons for judgment that as a result of the filing of this petition, Mrs. Williams filed a number of exceptions and appeared for hearings on three separate occasions before Mr. Caruso voluntarily dismissed the petition. After the court reviewed the billing records introduced into evidence in connection with the attorney's fees incurred as a result of the filing of this petition, the trial court awarded Mrs. Williams sanctions in the amount of $4,000.00. From our review of the record, and considering the factors as detailed above, we find no abuse of the trial court's discretion in setting this amount.
For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal are assessed equally between Kimberly Jones Williams and Tom Caruso.
