Grant v. Anderson, 331 So. 2d 862

Grant v. Anderson

331 So. 2d 862 | La. Ct. App. | 1976

Lead Opinion

MARVIN, Judge.

In Grant v. Anderson, 306 So.2d 853 (La.App. 2d Cir. 1975), we held a purported sale of a truck from Mr. Anderson to Ms. Grant to have been a simulation and reversed a money judgment for damages awarded to Ms. Grant.

Before this court rendered its opinion reversing the judgment below awarding her damages, Ms. Grant caused a writ of fieri facias to issue in execution of the judgment against real estate owned by Ms. Anderson. This was done at a time when the judgment was not final and executory. The sheriff seized property under the writ. Ms. Anderson then sued Ms. Grant to dissolve the seizure and for damages, including attorney fees for dissolving the writ of fi fa. The lower court dissolved the writ and awarded Ms. Anderson $500 damages and $350 attorney fees. Ms. Grant appeals. We affirm.

Appellant does not contest the premise that damages may be due when a writ of fi fa wrongly issues and when property is seized thereunder.

Appellant contends (1) that Ms. Anderson did not meet the burden of proving damages for inconvenience or embarrassment, and (2) that in the absence of statutory or legislative authority, attorney’s fees cannot be assessed against her.

*863Here, the writ issued, the property was seized by the sheriff, and notice of the seizure was printed in the legal news publication which was sent to more than 50 law firms, lending institutions and realtors in the area in which plaintiff resided and sometimes worked. Appellant’s first contention addresses itself more properly to the issue of quantum. See Escat v. National Bank of Commerce, 256 So.2d 786, 787 (La.App. 4th Cir. 1972), first appeal.

Escat, on the second appeal, 284 So.2d 832 (La.App. 4th Cir. 1973), answers appellant’s second contention. Our earlier decision and reasoning in Gunn v. Credit Service Corporation, 46 So.2d 628 (La.App. 2d Cir. 1950) were cited there with approval. We see no reason here not to follow the reasoning in Gunn and we hold that attorney fees are recoverable for the dissolution of a wrongful seizure under a writ of fieri facias.

The amount awarded as attorney fees is also contested on appeal because there was no testimony below on which to base the award. Our recent case of James, Robinson, Felts & Starnes et al. v. Powell, 303 So.2d 229 (La.App. 2d Cir. 1974), answers this contention. We recognized there that the trial court should employ its own knowledge of the value of legal services and determine the award of attorney fees even in the absence of expert testimony. This is especially true when the services are performed by the attorney under the court’s eyes as they were here.

The amounts awarded as damages and as attorney fees were less than the amounts sued for in each respective instance.

Finding no error below, and at appellant’s cost, judgment is

AFFIRMED.

Rehearing

ON APPLICATION FOR REHEARING

Before BOLIN, PRICE, HALL, MARVIN and JONES, JJ. PER CURIAM

On application for rehearing, appellant takes issue with the statement in the opinion that appellant “does not contest the premise that damages may be due when a writ of fifa wrongly issues and when property is seized thereunder.”

The basis for this statement comes from the syllabus of appellant’s brief on the original appeal. There appellant said:

“1. ... A party grieved by wrongful seizure of his property is entitled to recover not only the special damages caused him thereby, but also general damages for embarrassment, humiliation, mental anguish and the like . . .

* * * * * *

“3. . . . As a general rule a prevailing party is not entitled to recover attorney fees in the absence of contract or specific statutory authority . . .

“4. . . . We see no reason why a party who is the victim of an unlawful seizure should be penalized by being denied the right to recover the attorney fees which he incurs as a result of the wrongful action of the seizing party .

“5. . . . The Appellant creditor correctly points out that the prevailing party is not allowed to recover his attorney fees, in the absence of contract or statutes expressly authorizing him to do so. (citations omitted) Although statutory provisions do permit the allowance of attorney fees for dissolution of improper seizures under writs of attachment, sequestration or injunction Articles 3506 and 3608, we can find none authorizing the imposition of such damages for dissolution of the wrongful seizure under a writ of fieri facias.”

(Citations omitted);

In any event, what was said in the original opinion regarding the allowance of attorney fees where a writ of fifa wrongly issues and property is seized thereunder is *864also applicable to the award of damages. See Escat v. National Bank of Commerce, 284 So.2d 832 (La.App. 4th Cir. 1973) and authorities cited therein.

The thrust of appellant’s argument is that there is no statutory or legislative authority for allowing either damages or attorney’s fees in such cases. Escat on the second appeal, rejected this contention and expressly noted:

“. . . our courts have been consistent in awarding damages for wrongful seizure . . . under the writ of fieri facias . . .”

284 So.2d 832, 835.

Application for rehearing is denied.