Thompson v. Harrington, 99-571.
| Decision Date | 13 October 1999 |
| Docket Number | No. 99-571.,99-571. |
| Citation | 746 So.2d 652 |
| Parties | Kenneth Earl THOMPSON and Mala Bourg Thompson, Plaintiffs-Appellees, v. Gerald W. HARRINGTON, as Clerk of Court and Ex-Officio Recorder, for the Parish of Allen, State of Louisiana, and Omni Insurance Company, Defendants-Appellants. |
| Court | Court of Appeal of Louisiana — District of US |
Daniel G. Brenner, Alexandria, for Kenneth Earl Thompson, et ux.
Scott Gerard Vincent, New Orleans, for Gerald W. Harrington, Clerk of Court, et al.
BEFORE: THIBODEAUX, PETERS and GREMILLION, Judges.
The Clerk of Court of Allen Parish, Gerald W. Harrington, original defendant and third-party plaintiff, was sued by Kenneth and Mala Thompson for improperly indexing a previously recorded mortgage on property which they purchased. Harrington third-partied the attorney for the Thompsons, K. Ray Rush, and his professional liability insurer, Coregis Insurance Company, alleging negligence by Rush and seeking contribution or indemnity from Rush. Harrington appeals a judgment of the trial court granting an Exception of No Cause of Action to Rush and Coregis Insurance Company. We affirm the granting of the exception in favor of Rush and against Harrington.
We must decide:
1) whether a third party malpractice action may be brought against an attorney where there is no attorney-client relationship between the third-party plaintiff and the attorney; and
2) whether a third-party claim against the attorney for indemnity and contribution may properly be maintained.
The Clerk of Court of Allen Parish, Gerald W. Harrington (hereinafter "Harrington"), improperly indexed the mortgage of Mr. and Mrs. Rufus McDaniel during the recordation process in 1997 after the McDaniels executed a mortgage on their property in 1996. Subsequently, in December of 1997, the property was sold by the McDaniels to Mr. and Mrs. Kenneth Thompson. The Thompsons retained an attorney, K. Ray Rush, to search the title and provide a title opinion on the property to determine all encumbrances, liens, or mortgages recorded against it. Due to the indexing of the mortgage under "McC" rather than under "McD," the property appeared to be unencumbered by the McDaniels' mortgage.
The Thompsons brought claims against the McDaniels for fraud and against Harrington for failing to properly index the mortgage recorded by the McDaniels. Harrington third-partied Rush for failing to discover the McDaniel mortgage and for failing to have the mortgage paid off before disbursing the proceeds of the sale to the Thompsons. The McDaniels also third-partied Rush. The mortgagee sued the McDaniels and the Thompsons for the balance due and seized the property. Before the sheriff's sale, the mortgage was apparently paid off by Rush, who received an assignment of the mortgage and the mortgage note.
In response to both third-party demands, Rush filed an Exception of No Cause of Action, which was granted by the trial court. Only Harrington appealed. The decisive issue now before this court is whether the trial court erred in granting Rush's Exception of No Cause of Action as to Harrington. For the reasons set forth below, we affirm the trial court's granting of the exception in favor of Rush and against Harrington.
LAW AND DISCUSSION
The Clerk of Court of Allen Parish, Gerald W. Harrington, contends that the trial court erred in granting the Exception of No Cause of Action filed by attorney Ray Rush and his professional liability carrier, Coregis Insurance Company. We find no reversible error in the trial court's ruling. The third-party action of Harrington alleges negligence on the part of Rush in failing to detect the improperly indexed mortgage, in failing to conduct a proper search of the mortgage records, and for disbursing the proceeds of the sale without first paying off the mortgage of the McDaniels. All of these alleged failures arose during Rush's representation of the Thompsons, who retained him to certify clear title to the property they were purchasing. Therefore, Harrington is attempting to assert a malpractice cause of action against Rush for negligently handling the Thompsons' affairs. Harrington fails, however, to assert the most essential element of a malpractice cause of action, which is an attorney-client relationship.
The function of the peremptory exception of no cause of action is to test the legal sufficiency of the plaintiffs petition, and to determine whether the law provides a legal remedy to anyone under the factual allegations, taken as true, that arise on the face of the petition. See Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La.1993); Kahn v. Jones, 95-259 (La.App. 3 Cir. 11/2/95); 664 So.2d 700. In order to state a cause of action, the plaintiff must allege facts supporting the elements of his claim. See White v. White, 93-1389 (La.App. 3 Cir. 6/15/94); 641 So.2d 538, writs denied, 94-2456, 94-2467 (La.12/19/94); 648 So.2d 402; Guilbeaux v. Times of Acadiana, Inc., 94-1270 (La.App. 3 Cir. 8/9/95); 661 So.2d 1027, writ denied, 95-2942 (La.3/29/96); 670 So.2d 1238. In the present case, we particularly expect to see the major element of the claim Harrington is asserting against Rush.
We find that Harrington's third-party petition fails to state a cause of action for malpractice against Rush because it fails to assert the attorney-client relationship essential to the malpractice cause of action. See Stewart v. St. Frances Cabrini Hosp., 96-1167 (La.App. 3 Cir. 6/11/97); 698 So.2d 1; Vallier v. Louisiana Health Systems, Inc., 98-834 (La.App. 3 Cir. 12/9/98); 722 So.2d 418, writ denied, 99-62 (La.2/26/99); 738 So.2d 587. Even if we assume, arguendo, that Harrington's third-party petition states a claim for simple negligence under La.Civ.Code art. 2315, the negligence alleged stems from malpractice, and Harrington does not have standing to assert a malpractice cause of action against Rush. Therefore, allowing Harrington to amend his pleading under La.Code Civ.P. art. 934 would be futile. The right to amend is not so absolute as to permit same when such amendment would constitute a vain and useless act. Sanders v. Gore, 95-660 (La.App. 3 Cir. 7/10/96); 676 So.2d 866, writ denied, 96-2072 (La.11/15/96); 682 So.2d 762; see also La. Code Civ.P. art. 934.
Harrington argues that an exception of no cause of action is not the proper procedural vehicle for the exception asserted by Rush, and that the proper vehicle is an exception of no right of action. As stated above, Harrington failed to state a cause of action for malpractice. Hence, the exception of no cause of action was a proper procedural vehicle. Notwithstanding, we find that the substance of Mr. Rush's exception asserts an exception of no cause of action and an exception of no right of action, and that his failure to draft and title two separate exceptions is of no effect in this case. We can treat the pleading as urging both exceptions. See Sanders, 676 So.2d 866. More specifically, the exception of no right of action is a separate and distinct exception. It determines whether the petitioner belongs to the particular class to which the law grants a remedy for the particular harm alleged. Arcadian Corp. v. Olin Corp., 97-174 (La. App. 3 Cir. 6/18/97); 698 So.2d 9. Its function is to terminate the suit brought by one who has no judicial right to enforce the right asserted in the lawsuit. Kahn, 664 So.2d 700. In other words, can this plaintiff assert this particular cause of action?
Notwithstanding the title of the exception filed by Rush, the substance of the exception asserts that Harrington has no right of action against him. The exception of Rush specifically asserts that any claims against him or his malpractice insurer for damages "arising from Mr. Rush's handling of the Thompson real estate closing belong to his clients, Kenneth Earl Thompson and Mala Bourg Thompson, and not to third party plaintiffs [Harrington]." The fact that a pleading is captioned or styled as one of no cause of action wherein its substance addresses the right of a party to bring the action is of no consequence because the substance of the pleading controls. Every pleading shall be construed so as to do substantial justice. La.Code Civ.P. art. 865. The caption of the pleading does not control; rather, the court is obligated to determine the substance of the pleading. Smith v. Cajun Insulation, Inc., 392 So.2d 398 (La.1980).
Directly on point is Smith v. Succession of Trattler, 96-225 (La.App. 5 Cir. 9/18/96); 681 So.2d 961, where the court concluded that the defendants' exceptions should have been labeled as one of no right of action in addition to one of no cause of action since the pleadings challenged the plaintiffs' right to bring the action as well as opposed the existence of a cause of action. There the court relied upon La. Code Civ.P. art. 865 and addressed the exception as if it had been titled an exception of no right of action. Moreover, the appellate court can on its own motion notice a lack of standing to bring suit and can bring on its own motion an exception of no right of action, even if the exception was not expressly urged by the party. La. Code Civ.P. art. 927. In this case, we find that the exception of no right of action was properly pled in substance under the title of an exception of no cause of action.
In order to determine whether an exception of no right of action should be granted in this case, the above definition of no right of action must be read in conjunction with the requirements for establishing a claim for legal malpractice. In order for a plaintiff to establish a prima facie case for recovery in a claim for malpractice, he must prove:
that he and the defendant entered into an attorney/client relationship,
2) that the attorney was guilty of negligence or professional impropriety in his relationship...
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