Penalber v. Blount

• Decision Date: 23 October 1989
• Docket Number: No. 89-C-1071,89-C-1071
• Citation: 550 So.2d 577
• Parties: Sherry PENALBER v. Kirby BLOUNT and Livingston Parish Police Jury. 550 So.2d 577
• Court: Louisiana Supreme Court

Page 577

550 So.2d 577

Sherry PENALBER v. Kirby BLOUNT and Livingston Parish Police Jury.

No. 89-C-1071.

550 So.2d 577

Supreme Court of Louisiana.

Oct. 23, 1989.

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 belonging to the police jury. The garnishment was effected to satisfy a judgment against the police jury rendered in favor of the attorney's client. However, it violated LSA-Const. Art. 12, Sec. 10(C) and LSA-R.S. 13:5109(B)(2). ¹ We granted a writ to consider whether a negligence or an intentional tort action can lie in favor of a non-client against an attorney for such a wrongful seizure and if so whether, on the showing made, summary judgment was proper.

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 Amoco Production Company held police jury assets consisting of mineral lease royalties. He submitted a judgment and obtained an order on October 16, 1984, requiring Amoco to deliver $30,545.13 to the Sheriff of Livingston Parish. Of that sum, $29,593.37 was disbursed to Connelly and $951.76 was retained by the court for its costs. Connelly then remitted $15,636.69 to Penalber and kept the remainder as his fees and costs.

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 LSA-R.S. 13:5109 and LSA-Const. Art. 12, Sec. 10. The petition asserts defendants "knew full well of the constitutional prohibitions against seizure of public assets for satisfaction of a Judgment." It charges that with full knowledge of these prohibitions, the defendants participated in seeking and obtaining public funds immune from seizure; both Connelly and Penalber benefited from the illegal seizure; and the procedural requirements for issuance of a writ of fieri facias and for notice and service were not followed. The petition also claimed, "[h]ad the defendants or any of them notified the petitioner of the actions being taken in this proceeding either by service or notice to counsel of record, then appropriate action could have been taken through the Courts to prohibit the illegal procedure, thereby negating the damages caused by the wrongful seizure." The police jury prayed for judgment in its favor for the amount seized, $29,593.37 plus $951.76, and for additional damages in the amount of $20,000.

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

On March 26, 1986, the trial court rendered judgment on the several motions pending, finding the garnishment null because under LSA-Const. Art. 12, Sec. 10(C) and LSA-R.S. 13:5109 public funds cannot be seized to satisfy a judgment and because the police jury never received notice that its property was being seized in contravention of LSA-C.C.P. Art. 2293. Connelly and Penalber were ordered to return the $30,545.13 wrongfully seized and to pay legal interest, but were not ordered to pay damages for lost use of the revenues or attorney's fees.

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...