8.2 IFP Risks

Depositions are not the only cost an IFP litigant may face following a final judgment. As La. C.C.P. art. 5186 specifies, accrued court costs are not eliminated; they are just delayed.1  Thus, a day in court is assured, but an IFP litigant may still be responsible for court payments.2  In litigation involving an IFP litigant, whoever is cast in judgment is responsible for the court costs, before any other payments.3  If the IFP litigant is unsuccessful and is not able to pay fees at the conclusion of the case, the clerk of court can assure payment through a judicial lien made recording an affidavit detailing the costs in the mortgage records.4

Courts can struggle to allocate fees to the unsuccessful party. For one, although La. C.C.P. art. 1920 permits a court to assign fees “as it may consider equitable,”5  this more general provision gives way to the more specific IFP statutes.6  Costs, therefore, are assigned based on success, not equity. Determining which litigant is successful, however, can prove challenging. In Hirstius v. Cleco Corp., an IFP litigant prevailed on a contempt of court proceeding, with the trial court awarding him damages and ordering the removal of cable equipment from a utility pole on his property.7  The plaintiff appealed, however, because not all the equipment was removed, as some belonged to another company.8  The First Circuit affirmed the trial court’s ruling, meaning the IFP litigant both won (at trial) and lost (on appeal).9  In assigning the costs, the appellate court determined that as success was split so should the fees and divided them equally between the parties.10

Divorce actions also demand careful analysis of “success.” When one party has IFP status, court fees are not split, as in a regular divorce proceeding.11  Rather, courts look to which party’s motion is granted to determine the successful party.12  Further, even a slight error in recording can improperly shift fees to an IFP litigant in a divorce suit. In Yarls v. Yarls, the Fourth Circuit reversed the trial court’s division of fees between the parties.13  Although the trial court granted a default judgment to the IFP litigant, the court incorrectly styled the judgment as a “divorce between the parties” and, accordingly, divided the fees between the parties.14  The appellate court clarified that the IFP litigant was the “prevailing party in the confirmation of the default, and the judgment should have been entered in her favor,” thus removing her liability for court costs.15

• 1La. C.C.P. art. 5186 (“An account shall be kept of all costs incurred by a party who has been permitted to litigate without the payment of costs, by the public officers to whom these costs would be payable.”).
• 2Id.; see also Cariere v. The Kroger Store, 52,846, p. 6 (La. App. 2 Cir. 8/14/19), 276 So. 3d 1150, 1154 (“Although not liable for the advancement of costs or as they accrue, an indigent party may ultimately be responsible for the cost of an unsuccessful lawsuit.”).
• 3La. C.C.P. art. 5186 (“If judgment is rendered in favor of the indigent party, the party against whom the judgment is rendered shall be condemned to pay all costs due such officers, who have a privilege on the judgment superior to the rights of the indigent party or his attorney.”).
• 4Id. If an IFP litigant is able to pay the fees immediately, the litigant can avoid having the lien filed in the mortgage records. See Brownell v. Brownell, 2000-1803 (La. App. 3 Cir. 10/3/01), 799 So. 2d 587.
• 5La. C.C.P. art. 1920.
• 6See Herigodt v. Town of Golden Meadow, 2020-0752, pp. 16–17 (La. App. 1 Cir. 2/22/21), 321 So. 3d 1004, 1016 (discussing the interplay between Articles 1920 and 5181–88).
• 7Hirstius v. Cleco Corp., 2019-1637, p. 2 (La. App. 1 Cir. 6/4/21), 327 So. 3d 518, 519.
• 8Id. at 520.
• 9Id.
• 10Id.
• 11See Stapleton v. Stapleton, 2005-1035, p. 1 (La. App. 3 Cir. 2/1/06), 922 So. 2d 1234, 1235.
• 12See Ford v. Ford, 2009-1494, p. 2 (La. App. 4 Cir. 2/24/10), 32 So. 3d 989, 990 (“In the present case, the divorce judgment entered on Ms. Ford’s motion to confirm the default was rendered against Willie Ford, III; thus, Willie Ford, III should have been condemned to pay all costs of the proceedings.”).
• 13Yarls v. Yarls, 2009-1173, p. 3 (La. App. 4 Cir. 1/27/10), 30 So. 3d 1101, 1102.
• 14Id. at 1101 (internal quotations omitted).
• 15Id. at 1102.