Parish Nat. Bank v. Lane

• Decision Date: 06 April 1981
• Docket Number: No. 80-C-2443,80-C-2443
• Parties: PARISH NATIONAL BANK v. C. E. LANE.
• Court: Louisiana Supreme Court

Page 1282

397 So.2d 1282

PARISH NATIONAL BANK v. C. E. LANE.

No. 80-C-2443.

Supreme Court of Louisiana.

April 6, 1981.

Rehearing Denied May 18, 1981.

John N. Gallaspy, of Gallaspy & Paduda, Bogalusa, for defendant-relator.

Edward A. Griffis, of Talley, Anthony, Hughes & Knight, Bogalusa, for plaintiff-respondent.

DIXON, Chief Justice.

On February 4, 1980 plaintiff obtained a judgment against defendant on a promissory note in the amount of $6660 with interest, attorney fees and costs. Defendant did not pay the judgment, and plaintiff filed a motion for a judgment debtor examination. At this examination plaintiff learned that defendant's homesite consisted of 10.46 acres of land on the outskirts of Bogalusa. Mr. Lane could place no value on the property because it had not been recently appraised. He claimed a $15,000 homestead exemption and also some outstanding mortgages on the property. To determine whether there was any nonexempt value in the property available for seizure, the bank requested permission to photograph and measure the premises. (The homesite was a considerable distance from the public road and not visible from it because the acreage was wooded). Defendant refused to allow the bank to enter his property. The bank then filed a motion to inspect and view the property under C.C.P. 2451 and 1462. The motion specifically sought entry in and upon defendant's home and 10.46 acres of land for the purpose of inspecting, measuring, photographing and/or appraising the property. The district court granted the motion. The Court of Appeal refused writs, commenting: "We find no error in the ruling complained of." This court granted writs to consider whether C.C.P. 2451-2456 allow a judgment creditor not only to examine the judgment debtor and his books, papers and documents, but also permit him to come upon the judgment debtor's premises and into his home. We now affirm.

In his brief, defendant argues that entry would constitute an unreasonable invasion of privacy and would infringe on his constitutional right to be secure in his person and property. (Art. 1, § 5, La.Const. of 1974). He contends that C.C.P. 2451 merely mentions the discovery articles to indicate that a judgment debtor may be examined by means of the various procedures available for pretrial discovery, such as depositions, written interrogatories, etc. In his view, the reference is not intended to enlarge the scope of the examination. The bank believes that the wording of C.C.P. 2451 indicates that all discovery procedures mentioned in the Code of Civil Procedure are available to the judgment creditor. It notes that C.C.P. 1461 and 1462 authorize entry upon land or other property for the purpose of inspecting, measuring and surveying. The bank argues that as a judgment creditor it can legally seize the debtor's property and have it appraised and sold at a judicial sale, pursuant to C.C.P. 2291 and 2332, and should be permitted the lesser intrusion of inspection and appraisal before seizure. The bank further argues that the intrusion is not unreasonable. It claims that it does not intend to harass the defendant or to rummage through his possessions; it intends to observe the size and condition of the structures located on the property, as an appraiser would do for purposes of judicial sale. Finally, it argues that the right to privacy is not an absolute bar to entry and inspection of another's premises. Plaintiff adds that in this case appropriate due process safeguards, such as notice and a hearing, have been observed, and that defendant has sought no protective order from the court.

C.C.P. 2451 provides:

"In aid of execution the judgment creditor may examine the judgment debtor, his books, papers, or documents, upon any matter relating to his property, either as provided in Articles 1421 through 1515 or as provided in Articles 2452 through 2456." ¹

The article, sometimes characterized as a discovery device, is intended to assist creditors in executing their judgments by providing them a means to discover assets or property belonging to the debtor which may be subject to seizure. One court has declared that "... the nature of the statute requires its liberal interpretation in favor of the creditor in order to foster its obvious purpose and intent." Dunn & Bradstreet, Inc. v. Harrison, 289 So.2d 316, 317 (La.App. 1st Cir. 1973). Article 2451 was patterned on Rule 69(a) of the Federal Rules of Civil Procedure, specifically, according to the Official Revision Comment on C.C.P. 2451, to permit the use of depositions. Federal Rule 69(a) read in 1960, in pertinent part:

"... In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may examine any person, including the judgment debtor, in the manner provided in these rules for taking depositions or in the manner provided by the practice of the state in which the district court is held." ² (Emphasis added).

The rule's terminology aroused some dispute as to whether judgment creditors were limited to taking depositions or could use all the discovery devices provided by the federal rules. ³ To eliminate this uncertainty and to assure that all discovery procedures provided in the rules, not just discovery via the taking of depositions, could be used in execution, ⁴ the rule was amended in 1970 to read, in part:

"... In aid of the judgment or execution, the judgment creditor or his successor in interest when that interest appears of record, may obtain discovery from any person, including the judgment debtor, in the manner provided in these rules or in the manner provided by the practice of the state in which the district court is held." (Emphasis added).

This amended version of the rule clearly entitles the judgment creditor in federal court to use the full panoply of federal discovery devices provided by Rules 26-37, or to obtain discovery in the manner provided by the state in which the federal district court sits. ⁵ He may take oral depositions, submit written interrogatories and requests for admissions, and compel the production of documents and records to the same extent as is permitted during the progress of an action and subject to the same safeguards against abuse.

Since our article is essentially based upon the federal rule, the federal courts' interpretations of the source rule would be a persuasive, though not controlling, guide to the intended scope of the article. Madison v. Travelers Insurance Co., 308 So.2d 784 (La.1975); Kay v. Carter, 243 La. 1095, 150 So.2d 27 (1963). Cases and commentators indicate that judgment creditors have in fact been able to compel the production of documents under Rules 69(a) and 34. However, our examination of the jurisprudence has not produced any case in which a judgment creditor sought entry upon land under Rule 69(a) and 34.

Nevertheless, we believe that entry upon the debtor's property is permissible under the particular circumstances before us here. Since the bank has the right to seize and appraise the property, it does not seem a substantial infringement to permit a limited inspection of the property prior to seizure. Where the debtor can place no value on the land, justice is not substantially impaired by permitting the judgment creditor to examine and appraise the property prior to seizure rather than after seizure. Defendant is free to seek any protective order from the court establishing the conditions and scope of the inspection. ⁶

Entry under the particular circumstances of this case does not constitute an unreasonable invasion of privacy. The right to privacy, first defined by Samuel Warren and Louis Brandeis as the "right to be let alone," ⁷ has been recognized by our courts since 1905. In that year, this court declared that: "Every one who does not violate the law can insist upon being let alone (the right of privacy)...." Itzkovitch v. Whitaker, 115 La. 479, 482, 39 So. 499, 500 (1905). Later decisions held that violation of the right was a tort under C.C. 2315. Pack v. Wise, 155 So.2d 909 (La.App.3d Cir. 1963); Quina v. Robert's, 16 So.2d 558 (La.App.Orl.1944). The Louisiana Constitution adopted in 1974 specifically states that: "Every person shall be secure in his person, property, communications, houses, papers, and effects against unreasonable searches, seizures, or invasions of privacy...." La.Const. of 1974, Art. 1, § 5. ⁸

The right of privacy protects varied interests from invasion. Among the interests protected is the individual's right to be free from unreasonable intrusion into his seclusion or solitude, or into his private affairs. This includes the right to be free of unwarranted intrusion into his own quarters. ⁹ However, the right to privacy, like other personal rights, may be lost in many ways by express or implied waiver or consent, or by a course of conduct which prevents its assertion. ¹⁰ Moreover, the right is not absolute; it is qualified by the rights of others. The right of privacy is limited by the state's reasonable exercise of the police power. Arrested persons may be fingerprinted; searches and seizures authorized by warrants based on probable cause are permissible. Zoning laws and environmental controls may restrict the use of private property. Premises may be inspected to determine if they are in compliance with safety and health regulations.

The right of privacy is also limited by society's right to be informed about legitimate subjects of public interest. Individuals involved in civil litigation may be compelled to give evidence which tends to embarrass them or to produce documents of a confidential nature. A debtor's right of privacy is subject to the creditor's right to take reasonable steps to collect his debt. The creditor's actions may result in some invasion of the debtor's privacy, but the debtor will be held to have a cause of action only if the steps taken are unreasonable and oppressive, or expose the debtor to...