Stallings v. W. H. Kennedy & Son, Inc.

• Decision Date: 01 October 1975
• Docket Number: No. 12693,12693
• Citation: 321 So.2d 411
• Parties: Conrad STALLINGS, Plaintiff-Appellant, v. W. H. KENNEDY & SON, INC., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 411

321 So.2d 411

Conrad STALLINGS, Plaintiff-Appellant, v. W. H. KENNEDY & SON, INC., Defendant-Appellee.

No. 12693.

Court of Appeal of Louisiana, Second Circuit.

Oct. 1, 1975.

Rehearing Denied Nov. 6, 1975.

Writ Granted Dec. 19, 1975.

Kidd, Katz & Strickler by Paul Henry Kidd, Monroe, George M. Strickler, Jr., New Orleans, for plaintiff-appellant.

Snellings, Breard, Sartor, Shafto & Inabnett by George M. Snellings, Jr., Monroe, Bridges, Young, Matthews & Davis by John A. Davis, III, Pine Bluff, for defendant-appellee.

Before BOLIN, HALL and MARVIN, JJ.

HALL, Judge.

Plaintiff, Conrad Stallings, a cotton farmer, appeals from a summary judgment rendered in favor of defendant, W. H. Kennedy & Son, Inc., a cotton buyer, dismissing plaintiff's suit for damages arising out of the 'impoundment' at a warehouse of plaintiff's cotton during the course of prior litigation between the parties concerning a forward sale contract. For the reasons expressed in this opinion, we affirm the judgment of the district court.

The essential allegations of plaintiff's petition can be summarized as follows:

(1) Defendant knowingly, willingly and in bad faith, caused the impoundment at a warehouse, from approximately December 15, 1973 until August 1, 1974, of 441 bales of cotton grown by plaintiff during 1973;

(2) Defendant caused the impoundment of plaintiff's cotton stored at the warehouse by (a) first writing a letter to the warehouse claiming ownership of the coton; (b) instituting suit against plaintiff and others seeking to compel delivery of the cotton grown by plaintiff and also cotton grown by others when defendant knew there was no contract between plaintiff and defendant, the record in the previous suit being made a part of the petition by reference; and (c) preventing plaintiff's removal of the cotton from the warehouse after defendant lost the previous suit by influencing other cotton buyers not to buy the cotton until defendant obtained a full release of plaintiff's claim for damages;

(3) On December 15, 1973, plaintiff could have sold the 441 bales of cotton, weighing approximately 500 pounds each, for $.85 per pound but when plaintiff was finally able to sell the cotton on or about August 1, 1974, he was able to receive only $.49 pound.

Plaintiff itemized his damages as follows:

                (1) Loss of $.36 per pound              $ 79,380.00
                (2) Storage and warehouse charges from     4,500.00
                      December 15, 1973 through August
                      1, 1974
                (3) Attorney's fees                       27,960.00
                                                        -----------
                                    TOTAL............   $111,840.00
                

Defendant filed an exception of no cause of action and motion for summary judgment contending that plaintiff's petition together with the record in the previous suit and together with affidavits filed in support of the motion for summary judgment, disclose there is no genuine issue of material fact and that plaintiff, as a matter of law, is not entitled to recover damages arising out of defendant's assertion of its alleged legal rights under the contract at issue in the previous suit. The affidavit of the president of the defendant corporation attached to the motion for summary judgment states that the previous suit was filed in complete good faith for the assertion of what defendant believed to be its lawful rights under the forward sale contract for the sale of plaintiff's 1973 cotton crop, that defendant acted throughout with and on the advice of counsel, that defendant was at no time motivated by any malice or ill will toward the plaintiff and that defendant did nothing to impede or retard shipment of the cotton following rendition of the judgment in the previous suit on June 7, 1974. An affidavit of one of defendant's attorneys declares that his firm advised and counseled defendant throughout the institution and prosecution of the previous suit and that he had no knowledge at any time of any malice or ill will on the part of defendant.

A counter-affidavit by plaintiff declares than an employee of defendant told another person defendant's case against him was a loser and that defendant knew it could not win but had to go forward because they had made a claim with the warehouse. The affidavit further states defendant gave notice to the warehouse in December, 1973, when it knew it had no claim to the cotton and defendant's announced intentior was to starve plaintiff to death, that is, tie up his cotton indefinitely in the warehouse and force him to sell defendant the cotton at defendant's price. The affidavit further states that after judgment was rendered in the previous suit, defendant refused to release the cotton unless plaintiff would sign a release of his claim for damages and plaintiff was only able to sell the cotton after the ninety day period for appealing had run.

The record in the previous suit reveals that on January 24, 1973, plaintiff signed a document which purported to be a contract to sell to defendant all of the cotton to be produced by him during the 1973 crop year on certain property in Morehouse Parish. On August 27, 1973, plaintiff's attorney advised defendant that plaintiff denied there was a valid contract and, therefore, did not intend to deliver any cotton to defendant. On September 13, defendant's attorneys advised plaintiff's attorney that defendant expected plaintiff to fulfill and perform the contract and had instructed the attorneys to institute such action as may be appropriate to that end.

On December 10, 1973, defendant's attorneys wrote a letter to Louisiana Cotton Warehouse Co. Inc., where plaintiff's cotton was stored, advising the warehouse that the cotton production of plaintiff for the year 1973 was under contract of sale to defendant. The letter states that its purpose is to notify the warehouse of the claims to ownership and possession of the cotton and advises that should any conflicting claim be presented to the warehouse it may wish to consult its own attorneys as to such legal measures it might wish to take. The letter calls attention to LSA-R.S. 54:1 et seq., and particularly sections 17 and 18 thereof pertinent to rights of warehousemen confronted with adverse claims.

Kennedy filed suit against Stallings on December 19, 1973, seeking specific performance of the forward sale contract. Stallings denied the validity but not the execution of the contract. A jury returned a verdict in favor of Stallings on June 7, 1974, rejecting Kennedy's demand for specific performance. The instant damage suit was filed on September 17, 1974.

In granting the summary judgment, the district court in written reasons for judgment, analyzed the basic issue as follows:

'Whatever name or descriptive characterization may be applied to plaintiff's instant suit, it is clear that the basic factual complaint is: defendant claimed it had a contract for plaintiff's cotton but didn't; that pursuant to this claim, defendant sought to compel him to deliver his cotton by filing suit; that in connection with the suit, defendant prevented him from selling his cotton until August 1, 1974.'

The district court held:

'The 'impoundment' of the cotton which plaintiff claims is the foundation of this suit was merely the result of defendant's efforts to assert its good faith claim based on the signed document and advice of competent counsel. Such actions do not give rise to claims for damages. New Orleans Land Co. v. Slattery, 145 La. 256, 82 So. 215; Hurwitz v. Lotz, 172 La. 27, 133 So. 351; Patterson v. Lumberman's Supply Co., (La.App.), 167 So. 471; Loeb v. Johnson, (La.App.), 142 So.2d 518; Blanchard v. Employers Liability Assurance Corp., (La.App.), 197 So.2d 386.'

On appeal, plaintiff contends primarily that the district court erred in treating this action as a suit for malicious prosecution and in holding that in order to recover plaintiff would have to show defendant's previous suit was filed without probable cause and in bad faith. Plaintiff contends this suit is not one for malicious prosecution of the previous specific performance suit but is a suit for damages for the loss caused by the unnecessary impoundment of plaintiff's cotton. Plaintiff contends he is entitled to damages without proof of malice or lack of probable cause. Plaintiff further contends that even if it is necessary for plaintiff to show these elements in order to recover, plaintiff has alleged facts constituting bad faith and lack of probable cause and there is a genuine issue of material fact in this regard.

This is an action ex delicto and recovery in the case must of necessity be based on ...