Blanchard v. Blanchard, 2012 CA 0106
| Decision Date | 31 December 2012 |
| Docket Number | 2012 CA 0106 |
| Parties | KATHI BLANCHARD v. HENRY JOSEPH BLANCHARD |
| Court | Court of Appeal of Louisiana — District of US |
On Appeal from The Family Court of the
Parish of East Baton Rouge, Louisiana
Docket No. 165,698, Division "C"
Honorable Charlene Charlet Day, Judge Presiding
Benn Hamilton
Baton Rouge, LA
Attorney for
Plaintiff-Appellant/Defendant-in-
Reconvention
Kathi Blanchard
Scotty E. Chabert, Jr.
Baton Rouge, LA
Attorney for
Defendants-Appellees/Plaintiffs-in-
Reconvention
Henri M. Saunders and
Dominick M. "Rusty" Bianca
BEFORE: PARRO, HUGHES, AND WELCH, JJ.
Kathi Blanchard appeals a judgment dismissing her claims against Henri M. Saunders and Dominick M. Bianca, the attorneys who represented her ex-husband, Henry Joseph Blanchard, in a maritime personal injury suit. For the following reasons, we vacate in part, reverse in part, render in part, and remand with instructions to transfer a portion of this matter to the Nineteenth Judicial District Court.
In April 2008, Kathi Blanchard (Kathi) asked attorney Benn Hamilton to handle a divorce and community property settlement for her and her estranged husband, Henry Joseph Blanchard (Henry). The couple had worked out and agreed to all the details of their divorce and needed someone to formalize the documents and take their case before the court. The parties eventually obtained a divorce and entered into a voluntary settlement of community property and an agreement as to final spousal support.1 Henry had been injured in a maritime accident and agreed that one-third of his personal injury settlement would be paid to Kathi as final spousal support within fifteen days after he received those proceeds. On June 3, 2008, The Family Court judge signed a judgment of divorce incorporating this agreement, as follows:
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that, within fifteen (15) days of HENRY JOSEPH BLANCHARD'S settlement or compromise of his personal injury claims, he shall cause to be made by his personal injury attorney, representative or other agent to KATHI BLANCHARD a final one-time payment of spousal support in the amount of thirty-three and one-third (33 1/3%) per cent of his personal injury settlement.
The judgment of divorce also included provisions for Henry to pay Kathi final periodic spousal support in the amount of $500 per month, to continue until he settled his maritime personal injury claim and paid her one-third of the settlement; this payment would constitute a final payment of spousal support.
Kathi and Henry also filed a "Compromise, Release and Community PropertySettlement," which included the following paragraph:
NOW THEREFORE for and in consideration of the sum of thirty-three and one-third (33 1/3) per cent of any and all proceeds to be paid to HENRY JOSEPH BLANCHARD for personal injuries sustained by him, KATHI BLANCHARD settles and compromises her claim for final spousal support.
On or about April 11, 2011, Henry settled his maritime personal injury claim for $500,000. His attorneys, Saunders and Bianca, computed and deducted the fees, expenses, and advances incurred during the pendency of the suit and presented Kathi with a check in the amount of $24,481.24, which purportedly represented her one-third of the net proceeds. They also gave her a client disbursement sheet showing all case expenditures, loans, cash advances, and litigation expenses.
Kathi disagreed with the attorneys' computation of the net proceeds and, on May 26, 2011, filed in The Family Court a petition seeking a declaratory judgment, as well as to enforce the divorce judgment and community property settlement, to object to the calculation of her portion of the settlement proceeds, and to question and contest certain expenses included in the settlement computations. Her petition also claimed past-due spousal support, contempt of court, attorney fees, and court costs from Henry. She named as defendants her ex-husband and his two personal injury lawyers. Her petition asked the court to define and declare her rights under the divorce judgment and compromise, release, and community property settlement rendered and filed in The Family Court. She claimed Saunders and Bianca used an improper method of computing her one-third share of Henry's personal injury settlement, claiming she and Henry had agreed that her portion would be one-third of the gross settlement amount. She also claimed certain deductions were erroneous and/or were advances made to Henry designed to reduce her portion of the settlement. She deposited the check for $24,481.24 in the registry of the court and asked for a rule to show cause against Henry, Saunders, and Bianca.
Henry did not file any responsive pleadings to Kathi's petition. Saunders andBianca answered the petition and filed a reconventional demand against Kathi for filing a frivolous lawsuit, malicious prosecution, defamation, and intentional and negligent infliction of emotional distress. They also raised declinatory exceptions raising the objections of improper venue, lack of jurisdiction over the person of the defendants, and lack of jurisdiction over the subject matter of the action. In addition, they raised dilatory exceptions raising the objections of improper cumulation of actions and/or improper joinder of parties, and peremptory exceptions raising the objections of no cause of action and no right of action.
After a hearing on the exceptions on September 6, 2011, at which evidence was presented and Kathi testified, the court denied the exceptions of improper venue, lack of subject matter jurisdiction, and improper cumulation of actions, and granted the exceptions of lack of personal jurisdiction, improper joinder of parties, no cause of action, and no right of action. The judgment, which was signed September 23, 2011, dismissed with prejudice all claims against Saunders and Bianca and was designated as a final, appealable judgment. Kathi appealed the judgment; Saunders and Bianca answered the appeal, seeking an award of damages, attorney fees, and court costs for frivolous appeal, pursuant to LSA-C.C.P. art. 2164. Because it was clear that Kathi was owed at least the amount deposited in the registry of the court, the trial court ordered that those funds be released to her.
Kathi presents the following issues for review: (1) Is a professional attorney-client relationship always necessary in order to justify a lawsuit against an adversary's lawyer; (2) What are the legal standards for the exceptions of no cause of action and no right of action and how do they differ; and (3) What is the legal function of a petition for declaratory judgment and was it appropriate in this case?
Based on certain provisions concerning declaratory judgments, Kathi argues that she is an interested party with the right to seek a declaration and definition of thejudgment in which she compromised her claim for final spousal support by agreeing to accept one-third of Henry's personal injury settlement proceeds. See LSA-C.C.P. arts. 1871 and 1872.2 Under Article 1880,3 she joined the other parties, Saunders and Bianca, who were responsible for computing the amount of that payment, claiming their joinder was mandatory as parties who have an interest in or who would be affected by the declaratory judgment.
With reference to the exception raising the objection of no cause of action, she claims the well-pleaded facts of her petition set out a legal claim against Saunders and Bianca, as they were the ones who computed the ultimate amount that would be paid to her under the settlement, and she asserts they committed factual and legal errors in making those computations. She also accuses them of making "living expense" payments to Henry for a lavish lifestyle that was not necessary and contends that these payments were intended to reduce her ultimate share of the proceeds. Regarding the exception of no right of action, she asserts that she is the only person to whom the law grants the cause of action stated in her petition.
Saunders and Bianca claim that they had no contractual or other agreement with Kathi, and her claims are solely against her ex-husband, whose duty it was to "cause to be made" to Kathi a payment constituting one-third of his settlement proceeds. Theyfurther claim that they owe her no duty. Because they felt the stipulated judgment of divorce lacked clarity, Saunders sent a letter to Kathi's attorney, confirming that the "final, one-time payment" of spousal support from Henry's settlement proceeds would be based on his "net recovery, after factoring in attorney's fees and litigation expenses," rather than on his gross recovery. They assert that by signing and returning the letter, a copy of which was admitted into evidence at the hearing, Hamilton agreed that this was his and his client's understanding of the judgment.
Ultimately, their argument is that any cause of action stated in Kathi's petition is against her ex-husband, acknowledging that if she has a cause of action, then she is the person who has the right to bring it against him. However, because they were not parties to the stipulations between Kathi and Henry, her right of action is not against them.
In their answer to the appeal, Saunders and Bianca claim they are entitled to damages for a frivolous appeal, because Kathi and her attorney represented to the court that they believed she was entitled to one-third of the gross settlement proceeds, when the letter signed and returned by Hamilton clearly acknowledged that the agreement was as to one-third of the net proceeds.
A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South. Inc., 616 So.2d 1234, 1238 (La. 1993). The function of an exception that raises...
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