Penalber v. BlountPenalber v. Blount
John C. Miller, Joseph A. Schittone, Jr., Kantrow, Spaht, Weaver & Blitzer, Baton Rouge, for applicant.
James E. Kuhn, Asst. Dist. Atty., Denham Springs, Patrick W. Pendley, Plaquemine for respondents.
COLE, Justice.
In this wrongful seizure action, the trial court granted summary judgment in favor of the Livingston Parish Police Jury and against an attorney personally for the wrongful garnishment of oil and gas revenues
There is a clear distinction between malpractice claims based on negligence and claims based on intentional tort. We conclude an attorney can be held accountable to a non-client for intentional tortious conduct such as the knowing violation of a prohibitory statute, but no cause of action lies in favor of a non-client under theories of malpractice and negligence because the attorney owes no duty to the adversary of his client.2 The police jury, therefore, can maintain an action in intentional tort against the attorney under the allegations that he knowingly and intentionally seized police jury property in violation of express prohibitory law. However, the pleadings, affidavits and exhibits of record herein do not resolve all genuine issues of material fact relating to the attorney‘s intentional violation of the provisions prohibiting seizure of public assets and, therefore, we vacate the summary judgment and remand for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
Attendant to an automobile accident which occurred on a Livingston Parish road, Sherry Penalber Lewis (Penalber) obtained a judgment in 1980 against the Livingston Parish Police Jury (police jury) for the amount of $14,500.00, plus interest from date of judicial demand. After attempts at voluntary collection of the judgment proved unsuccessful, Penalber‘s attorney, Michael R. Connelly (Connelly), undertook coercive collection methods in order to execute the judgment. He instituted a judgment debtor examination which was set for hearing on July 15, 1982, but the police jury responded by motioning for a protective order, claiming “the assets of a police jury are not capable of being seized” and the police jury can “not properly be subject of [sic] a judgment debtor rule.” As a result, the judgment debtor examination was averted. Prior to signing the protective order, however, the trial court modified the language of the police jury‘s proposed order in the manner shown below:
IT IS ORDERED BY THE COURT, That the judgment debtor rule set for July 15, 1982 be cancelled only as to the assets of a police jury that are not capable of being seized.
Shortly after the protective order was issued, Connelly filed a petition for garnishment with annexed interrogatories, citing Amoco Oil Company as garnishee. An abeyance occurred thereafter until 1984 when Connelly filed additional garnishment pleadings, citing Amoco Production Company as garnishee; allegedly, without giving notice to the police jury. From answers to garnishment interrogatories, Connelly discovered
The police jury, on November 16, 1984, filed a petition against Penalber, Connelly and Amoco Production Company, claiming solidary liability for wrongful seizure of public funds in contravention of
Connelly answered the police jury‘s petition incorporating the peremptory exception raising the objections of no right of action and no cause of action. He asserted he owed no duty to the police jury. He subsequently motioned for summary judgment. Amoco and the police jury also motioned for summary judgment. Amoco eventually was dismissed as a party defendant on September 11, 1986.
In support of its motion for summary judgment, the police jury declared Connelly‘s judgment debtor examination was averted by the issuance of the protective order, premised on statutory and constitutional provisions which prohibit seizure of public assets for execution of judgment; that, nevertheless, subsequent to the issuance of the protective order, Connelly filed five petitions for garnishment with garnishment interrogatories from which he learned of Amoco‘s obligation to the police jury. The police jury claims Connelly then suggested to Amoco and to the court that a writ of fieri facias had been issued and served on Amoco when no writ had properly been obtained; that thereafter Connelly submitted to the court a judgment, which it signed, ordering Amoco to deliver certain funds to the sheriff; that Connelly eventually received the funds and deposited them into his client fund, disbursing a portion to Penalber.
The affidavits supporting the police jury‘s motion reveal that Linda M. Cockerham, an employee of the Clerk of Court, Parish of Livingston, found the record of this case did not contain a “Request for Notice or Return of Service of Notice by Michael R. Connelly or Sherry Penalber to the Livingston Parish Police Jury of the issuance of a writ of fieria [sic] facias nor of any seizure.” Further the pleadings did not “contain a certificate by the attorney that a copy of the pleadings had been mailed to all counsel of record.” James S. Sibley, President of the Livingston Parish Police Jury, stated in his affidavit, “[n]either affiant nor any other representative of Livingston Parish Police Jury has either been served with or received notice of any garnishment attempts by Sherry Penalber through her agent and attorney, Michael R. Connelly.” The police jury‘s exhibits did not contain a memorandum supporting the motion for a protective order or the transcript of the hearing on the motion.3
The judgment was signed April 14, 1986 and, on its heels, Penalber filed a motion seeking its nullity. She asserted she had “not [been] legally cited to appear, [had] never [been] served with any pleadings and [had] made no appearances” in the proceedings. Penalber‘s motion further declared she had no knowledge of the wrongful seizure proceedings until April, 1986 when she returned to Livingston Parish to collect her check from the Livingston Parish train derailment settlement fund and, while there, the Assistant District Attorney advised her about these proceedings.
Thereafter, Penalber, with benefit of new counsel of record, answered the police jury‘s wrongful seizure petition urging affirmative defenses of extinguishment of the obligation and set off. She also filed a third party demand against Connelly for reimbursement for any sums Penalber might be condemned to pay, costs and attorney‘s fees. Connelly responded by asserting a third party reconventional demand for indemnity or contribution from Penalber in the amount of $15,636.69, the amount which she acknowledged receiving.
On September 11, 1986, the trial court cancelled its April 14, 1986 judgment. The motions for summary judgment filed by the police jury, Penalber and Connelly were then heard on October 20, 1986. Oral reasons were assigned on that date and judgment was signed on April 27, 1987, decreeing Penalber and Connelly solidarily liable for the full sum of $29,262.63, with legal interest from date of judicial demand. Penalber‘s motion was granted only to the extent that Connelly was ordered to pay her $13,625.94, with legal interest from the date her petition was filed until paid. Her affirmative defenses were denied. Connelly‘s peremptory exception and his motion were denied and both he and Penalber were cast for all court costs.
Penalber and Connelly both entered timely appeals, but Penalber‘s appeal was dismissed due to her failure to file a brief. Uniform Rules, Court of Appeal, Rule 2-12.7. Judgment against her is now final.
In Connelly‘s appellate brief, he conceded the wrongfulness of his seizure of police jury assets, but continued asserting his objection of no cause of action and, alternatively, the error of adjudging him solidarily liable. He did not appeal the judgment on Penalber‘s third party demand.
The Court of Appeal affirmed the trial court‘s judgment, 542 So.2d 108 (La.App. 1st Cir.1989).4 The panel majority found Maise v. Demarest, 483 So.2d 1193 (La. App. 4th Cir.1985), writ den., 488 So.2d 690 (La.1986), more analogous to the situation under suit than C & V Gravel, Inc. v. Maco Constr. Corp., 465 So.2d 938 (La.App. 2d Cir.1985). Accordingly, it held that although an attorney may not generally owe a duty to an adverse litigant, where he affirmatively violates the Louisiana Constitution and statutory law by seizing property belonging to a public body, a cause of action can be stated and an attorney can be
We granted certiorari, 545 So.2d 1044 (La.1989), to consider Connelly‘s primary contention that, as an attorney, his client‘s adversary cannot maintain a cause of action against him for the actions he ostensibly undertook in his client‘s behalf.
CAUSE OF ACTION
Connelly argues, even if he violated a statutory or constitutional duty owed to the public or the court, no negligence or malpractice cause of action against him personally arose on behalf of the adverse litigant. To support his contention, he cites C & V Gravel, Inc. v. Maco Constr. Corp., supra; McReynolds v. Kruse, 440 So.2d 791 (La. App. 1st Cir.1983), writ den., 444 So.2d 1241 (La.1984); Lowe v. Continental Ins. Co., 437 So.2d 925 (La.App. 2d Cir.1983), writ den., 442 So.2d 460 (La.1983), cert. den., 466 U.S. 942, 104 S.Ct. 1924, 80 L.Ed.2d 470 (1984); and Spencer v. Burglass, 337 So.2d 596 (La.App. 4th Cir.1976), writ den., 340 So.2d 990 (La.1977).
Through the peremptory exception raising the objection of no cause of action, the legal sufficiency of a petition is tested. For purposes of ruling on the objection, no evidence may be introduced to support or controvert the exception; the court must accept all factual allegations of the petition as true; and sustain the objection only if no remedy is afforded under the allegations asserted.
Louisiana subscribes to the traditional, majority view that an attorney does not owe a legal duty to his client‘s adversary when acting in his client‘s behalf. See C & V Gravel, Inc. v. Maco Constr. Corp., supra; Spencer v. Burglass, supra; McReynolds v. Kruse, supra; Lowe v. Continental Ins. Co., supra; Olympia Roofing Co., Inc. v. City of New Orleans, 288 So.2d 670 (La.App. 4th Cir.1974), writ den., 292 So.2d 244 (La.1974), 61 A.L.R.4th 443 (1988); cf. Deville v. Zaunbrecher, 401 So.2d 643 (La.App. 3d Cir.1981), reh. den. A non-client, therefore, generally cannot hold his adversary‘s attorney personally liable for either malpractice or negligent breach of a professional obligation. The intent of this rule is not to reduce an attorney‘s responsibility for his or her work, but rather to prevent a chilling effect on the adversarial practice of law and to prevent a division of the loyalty owed a client. See C & V Gravel, Inc. v. Maco Constr. Corp., supra.
An attorney‘s duty is to zealously represent his client. To accomplish this obligation, adversarial counsel must not be hampered by fear of personal liability for negligently injurying his client‘s opponent. The attorney‘s paramount duty is to his client. As such, not even the Rules of Professional Conduct create actionable duties for negligent injury of a client‘s adversary or negligent breach of professional obligations which might run in favor of his client‘s adversary. See Spencer v. Burglass, supra.
Based upon these allegations of fact, which for purposes of ruling on the objection are accepted as true, the police jury correctly advocates that Connelly‘s peremptory exception cannot be sustained. The petition asserts Connelly knew he was violating prohibitory laws when he seized public assets. The petition disclaims notions of Connelly‘s good faith noncompliance of the prohibitory provisions. Instead, it alleges intentional, even calculated, misconduct performed for both Connelly and his client‘s benefit, causing direct harm to the adverse litigant. Intentionally tortious actions, ostensibly performed for a client‘s benefit, will not shroud an attorney with immunity. Consequently, even though an attorney does not generally owe a duty to his client‘s adversary, under the broad ambit of
The basic difference between an intentional tort and a negligent act is briefly explained in Bazley v. Tortorich, 397 So.2d 475 (La.1981). A more recent treatment of the subject matter is found in Caudle v. Betts, 512 So.2d 389 (La.1987). Numerous authorities and commentaries are cited and the opinion notes:
The intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm. Restatement (Second) of Torts, American Law Institute § 13, (comment e) (1965). Rather it is an intent to bring about a result which will invade the interests of another in a way that the law forbids. The defendant may be liable although... honestly believing that the act would not injure the plaintiff.... W. Prosser and W. Keeton, The Law of Torts, § 9 (5th ed. 1984).
We conclude the allegations made by the police jury, taken as true, constitutes conduct which states a cause of action within the ambit of intentional tort law.
Finding the petition for wrongful seizure states a cause of action against Connelly does not end our inquiry. We must now examine the motion for summary judgment together with its pleadings, affidavits and exhibits to ascertain whether the trial court properly determined the police jury is entitled to judgment as a matter of law.
A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show there is no genuine issue of material fact and the mover is entitled to summary judgment as a matter of law.
The burden of proof is on the mover to establish there are no genuine issues of material fact. A “fact” is material if its existence or nonexistence may be essential to plaintiff‘s cause of action under the applicable theory of recovery. Facts are “material” if they potentially insure or preclude recovery, affect a litigant‘s ultimate success, or determine the outcome of the legal dispute. The burden is exacting. American Bank & Trust Co. v. Vinson, 528 So.2d 693 (La.App. 2d Cir.1988).
To prevail on its motion, then, it is essential for the police jury to establish Connelly‘s violation of
Nevertheless, exhibits such as the transcript of the hearing on the motion for a protective order were not introduced. Nor were affidavits, depositions, answers to interrogatories or admissions introduced to establish Connelly‘s intent or knowledge. As a result, the police jury failed to meet its exacting burden and is not entitled to summary judgment as a matter of law.
Accordingly, we sustain the lower courts’ denial of Connelly‘s peremptory exception raising the objection of no cause of action. However, the summary judgment in favor of the police jury is vacated and the case is remanded for further proceedings.5 Assessment of costs is reserved pending final judgment on the merits.
AFFIRMED IN PART; VACATED IN PART; AND, REMANDED.
LEMMON, J., concurs.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
I am of the opinion that no cause of action can be maintained against Connelly because an attorney owes no duty to his client‘s adversary when acting in his client‘s behalf. Finding such a duty would have a chilling effect on the adversarial practice of law and cause a division of