Francis Claybourn instituted a proceeding for the temporary interdiction of her husband, eighty-four-year-old Garrett Claybourn, alleging that he suffered from worsening dementia and other medical conditions that rendered him unable to care for himself. In her supporting affidavit, Mrs. Claybourn attested she learned that Mr. Claybourn transferred nearly $1 million in community funds to newly opened accounts, at least one of which was opened under the names of Mr. Claybourn and Ms. Finley as power of attorney. Mrs. Claybourn denied knowing Ms. Finley but opined that Ms. Finley was an attorney introduced to Mr. Claybourn by his caregiver and Ms. Finley’s former client, Melba Braud, who then encouraged Mr. Claybourn to hire Ms. Finley as his power of attorney, assisted him in transferring the community funds to the new accounts, and gave Ms. Finley unfettered access to them.

The trial court signed an order of temporary interdiction the same day the petition was filed, appointed Mrs. Claybourn temporary curator, and appointed attorney Kim Brooks to represent Mr. Claybourn.

Ms. Finley then filed a motion on Mr. Claybourn’s behalf, claiming to be his attorney and seeking both a temporary restraining order against the appointment of Mrs. Claybourn as curator and the dismissal of the interdiction proceeding based on fraud and ill practices. The trial court signed the order filed with Ms. Finley’s motion that ordered Mrs. Claybourn to show cause why the interdiction proceeding should not be dismissed but struck through the language granting the requested temporary restraining order.

Mr. Claybourn’s court-appointed attorney, Ms. Brooks, then filed an ex parte motion to nullify all powers of attorney executed by Mr. Claybourn prior to the order of temporary interdiction and to freeze the account opened in Mr. Claybourn’s and Ms. Finley’s names. The trial court granted the motion the same date it was filed and ordered both the removal of Ms. Finley’s name from the account and the termination of the power of attorney issued to Ms. Finley pending further orders.

Attorney John McLindon then filed a motion and order to substitute counsel of record, claiming that the court should discharge Ms. Brooks, as Mr. Claybourn had retained McLindon to represent him.

The trial court held a hearing on the motions relative to Mr. Claybourn’s legal representation. Ms. Finley, Mr. McLindon, Ms. Brooks, and Mrs. Claybourn and her counsel were present. The trial court first addressed Ms. Finley’s motions, stating the motions were dismissed and denied because Ms. Finley failed to follow proper procedure and file a motion to enroll as counsel of record.

Four days later, Ms. Finley filed an ex parte motion to enroll as counsel of record and for discharge of the court-appointed attorney pursuant to La. C.C.P. Article 4549(C). In the motion, Ms. Finley claimed to have been hired by Mr. Claybourn on the afternoon of February 22, 2021, although her representation of him had been discussed previously when they learned an interdiction proceeding would likely be filed. The order attached to Ms. Finley’s motion was stamped DENIED, with the following notation: “This motion is denied for several reasons. First and foremost, it is an improper ex parte motion under Uniform Rule 9.8(d) and C.C.P. article 963. Additionally, it is denied for the detailed reasons stated on the record on 3/5/21 in connection with the denial of Mr. McLindon’s similar motion to enroll and discharge Kim Brooks as the court appointed attorney for Mr] Claybourn. Moreover, the court is of the opinion, considering the previous motions filed in this matter and the rulings made by the court, that the present motion is filed in violation of C.C.P. art. 863(B) and therefore sets the matter for a hearing to determine if sanctions should not be imposed.” The trial court then issued an order setting a hearing for sanctions, which stated that it was issued on the court’s own motion “in light of previous rulings in this matter and considering all filings by Ms. Finley related to this proceeding.”

While the court of appeal affirmed this sanctions order, the Louisiana Supreme Court reversed:

“There is no requirement in the Louisiana Code of Civil Procedure that attorneys file a formal motion to enroll as counsel of record. Further, pursuant to Rule 9.12 of the Uniform Rules for District Courts, the first responsive pleading serves as a motion to enroll. As such, without reaching the merits of the underlying litigation, we find no valid grounds to sanction the applicant in this case. Therefore, the judgment of the district court is vacated, and this case is remanded for further proceedings.”

 

In re Claybourn, 2022-01280 (La. 11/16/22).