Grant v. Politz

• Decision Date: 27 February 1991
• Docket Number: No. 22137-CA,22137-CA
• Citation: 575 So.2d 915
• Parties: T.A. GRANT, III, Plaintiff, v. Nyle A. POLITZ, et al., Defendants. 575 So.2d 915
• Court: Court of Appeal of Louisiana — District of US

Page 915

575 So.2d 915

T.A. GRANT, III, Plaintiff, v. Nyle A. POLITZ, et al., Defendants.

No. 22137-CA.

575 So.2d 915

Court of Appeal of Louisiana,

Second Circuit.

Feb. 27, 1991.

Bruscato, Loomis & Street by Albert E. Loomis, III, Monroe, for plaintiff T.A. Grant, III.

Cook, Yancey, King & Galloway by Samuel W. Caverlee, Shreveport, for defendants Nyle Politz, et al.

Before NORRIS, HIGHTOWER and VICTORY, JJ.

HIGHTOWER, Judge.

In this suit for defamation and/or malicious prosecution, plaintiff, T.A. Grant, III, appeals the sustaining of exceptions of prematurity and no cause of action filed by an attorney and his law firm. We affirm.

FACTS

Plaintiff and his former wife, Suzanne Brunazzi Grant, during the existence of their community property regime, acquired interests in Primos Production ("Primos"), a closely held series of joint business ventures. He served, and has continued to serve, as managing partner of Primos.

After physically separating in August 1986, the couple later obtained a judgment of separation. In 1988, Mrs. Grant, through her attorney, Nyle Politz, filed suit against appellant and the other Primos investors. She alleged that actions by appellant as managing partner constituted mismanagement, misappropriation and conversion of funds attributable to her interest in the ventures. Averring that the defendants had refused to render an accounting, she prayed for such and for her share of any profits earned by the partnership's business operations. She further sought damages for tortious conversion of monies due.

Prior to receiving an answer, Politz filed an amending and supplemental petition on behalf of his client. That pleading deleted ¹ earlier allegations that appellant, the former husband, had secretly withdrawn $1,996,000 in profits attributable to the former community and deposited the funds into an account in his name. The amendments also removed claims both that Mrs. Grant had previously demanded an accounting and that the defendants had refused to provide such a financial report. While deletion of the original petition's final paragraph expunged Mrs. Grant's allegation of entitlement to monetary damages, her prayer for such relief remained unchanged.

Exactly a year after the amendment of the original petition, appellant filed the present action for malicious prosecution and/or defamation. It named Mrs. Grant, Politz and his law firm, as defendants, and averred that they had made allegations of misappropriation and conversion with malice and without previous reasonable inquiry. The lawyer and his firm responded with exceptions of prematurity and no cause of action, asserting that the proceedings in which the offending statements arose remained pending. In opposing the exceptions, appellant contended that the deletion of the allegations of "theft, misappropriation and fraud," coupled with the failure to reurge such assertions prior to the running of prescription, constituted an abandonment of those causes of action and a favorable termination allowing the present suit. Appellant further argued that Politz and his firm, not being parties to the underlying litigation, were not shielded by any requirement for termination of that proceeding.

After reviewing comprehensive briefs and hearing oral argument, the lower court sustained the exceptions upon finding that the original litigation had not terminated. Following dismissal of the present suit without prejudice, this appeal ensued.

DISCUSSION

The essential elements of malicious prosecution differ from those of defamation. See Young Oil Co. of Louisiana Inc. v. Durbin, 412 So.2d 620 (La.App. 2d Cir.1982); Caluda v. Western World Ins. Co., 539 So.2d 870 (La.App. 4th Cir.1989); Lees v. Smith, 363 So.2d 974 (La.App. 3d Cir.1978); Young v. Young, 232 So.2d 584 (La.App. 3d Cir.1970). Nevertheless, the two torts share the prerequisite that claims arising from allegations in another suit do not come into existence until the termination of the underlying action. Manuel v. Deshotels, 160 La. 652, 107 So. 478 (1926). See also Carnes v. Atkins Bros. Co., 123 La. 26, 48 So. 572 (1909); Weldon v. Republic Bank, 414 So.2d 1361 (La.App. 2d Cir.1982); Calvert v. Simon, 311 So.2d 13 (La.App. 2d Cir.1975).

Although conceding the pendency of his ex-wife's action, appellant maintains that he is not required to await termination of that entire proceeding. Rather, he contends, based on the deletions and his prescription argument, that causes of action for theft, fraud, and misappropriation have been terminated in his favor, and that this suffices for the bringing of the present suit. We disagree for three reasons.

First of all, "cause of action" is not synonymous with "action." Trahan v. Liberty Mutual Ins. Co., 314 So.2d 350 (La.1975); National Surety Corp. v. Standard Accident Ins. Co., 247 La. 905, 175 So.2d 263 (1965); Hayes v. Muller, 243 So.2d 830 (La.App. 3d Cir.1971), writ refused, 258 La. 215, 245 So.2d 411 (1971). In Hope v. Madison, 192 La. 593, 188 So. 711 (1939), our Supreme Court stated:

A cause of action is an act on the part of a defendant which gives rise to a plaintiff's cause of complaint; 'the existence of those facts which give a party a right to judicial interference in his behalf'; 'the situation or state of facts which entitles a party to sustain an action'.

An "action" is "a demand for the enforcement of a legal right." LSA-C.C.P. Art. 421; see also Comment (a). An "action," although initiated, may or may not state a cause of action. Hayes, supra. And, as previously discussed, the present suit cannot be instituted before termination of the original action, i.e., the original suit or proceeding.

Secondly, when reasonably construed, the remaining allegations of the original petition continue to set forth facts that may prove supportive of causes of action enumerated by appellant.

Misappropriation occurs when one wrongfully uses entrusted property of another. See Louisiana State Bar Association v. Haylon, 250 La. 651, 198 So.2d 391 (1967); Ware & Wingate Co., Inc. v. Wingate, 495 So.2d 1334 (La.App. 3d Cir.1986). Fraud is misrepresenting or suppressing the truth for the purpose of gaining an unfair advantage, or causing another a loss or inconvenience. LSA-C.C. Art. 1953. Theft is the misappropriation or taking of anything of value belonging to another, without his consent or by means of fraudulent conduct, practices or representations, with the intent to permanently deprive the other of the object of the misappropriation or taking. LSA-R.S. 14:67. Actually, Mrs. Grant never used the term "theft" in her petition, but made reference to "tortious conversion," which occurs when one wrongfully commits any act of dominion over the property of another in denial of or inconsistent with the owner's rights. See Security Home Mortgage Corp. v. Bogues, 519 So.2d 307 (La.App. 2d Cir.1988); Miller v. Harvey, 408 So.2d 946 (La.App. 2d Cir.1981); Theriac v. McKeever, 405 So.2d 354 (La.App. 2d Cir.1981).

Arguably, the original allegations, which depicted appellant moving $1,996,000 from the Primos account to one in his own name and refusing to render Mrs. Grant an accounting, set forth causes of action sounding in misappropriation, fraud, and tortious conversion. More importantly, even after the amending deletions, the remaining assertions allege acts by appellant which would constitute the wrongful taking of profits attributable to Mrs. Grant's interest. Thus, it cannot be said with certainty that any previously stated causes of action have indeed been abandoned.

Thirdly, contrary to appellant's argument, prescription runs against actions rather than causes of action. Hayes, supra. Indeed, irrespective of whether a petition sets forth a cause of action, it will interrupt prescription if it can be characterized, as termed by LSA-C.C.P. Art. 421, a "pleading presenting the demand." Batson v. Cherokee Beach and Campgrounds, 530 So.2d 1128 (La.1988). And, of course, that interruption continues as long as the suit pends. Id. Furthermore, with the enactment of the Code of Civil Procedure, our courts have shown increasing liberality in permitting amendments not only to amplify the allegations of the original petition, but also to alter the substance of the demand. Giron v. Housing Authority of City of Opelousas, 393 So.2d 1267 (La.1981).

Accordingly, in sustaining the exceptions, the trial court committed no error in relying on the fact that the prior action or proceeding had not terminated. That resolved, we next consider whether appellees, the lawyers, are shielded by the rule requiring that the underlying suit be concluded.

Appellant relies on Lescale v. Joseph Schwartz Co., 116 La. 293, 40 So. 708 (1906), in support of his contention that Mrs. Grant's lawyer and the law firm, not being parties to the other litigation, cannot assert the previously discussed prerequisite. That reliance is misplaced.

The court in Lescale, merely held that the termination rule could not apply where the defamed person was not a party to the underlying litigation. Such an exception does not apply here, however, where the allegedly offended individual, Mr. Grant, indeed is a party to the other action. See Manuel, supra. Under such circumstances, as an essential element of establishing a cause of action against counsel for litigants, a plaintiff must show a resolution of the predicate proceedings. See Caluda, supra.

Appellant finally contends that, unless he is allowed to bring his action against appellees at this time, his claim will prescribe. We again disagree. His cause of action does not even accrue until the conclusion of the underlying litigation. Manuel, supra; Carnes, supra. See also Union Service & Maintenance v. Powell, 393 So.2d 94 (La.1980).

CONCLUSION

For the foregoing reasons, the judgment of the trial court is affirmed, all costs being assessed against appellant.

AFFIRMED.

APPENDIX

The following paragraphs and prayer of the original...