Opinion
NO. 22-CA-592
12-14-2023
Stanley R. PALOWSKY, III, Individually, and on Behalf of Alternative Environmental Solutions, Inc. v. Allyson CAMPBELL
COUNSEL FOR PLAINTIFF/APPELLANT, STANLEY R. PALOWSKY, III, INDIVIDUALLY AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. Joseph R. Ward, Jr., Covington COUNSEL FOR DEFENDANT/APPELLEE, ALLYSON CAMPBELL Jeffrey M. Landry, Lawrence W. Pettiette, Jr., Shreveport, Christopher G. Forester COUNSEL FOR DEFENDANT/APPELLEE, JUDGE H. STEPHEN WINTERS, JUDGE CARL V. SHARP, JUDGE BENJAMIN JONES, JUDGE J. WILSON RAMBO, AND JUDGE FREDERIC C. AMMAN Jon K. Guice, Monroe
ON APPEAL FROM THE FOURTH JUDICIAL DISTRICT COURT, PARISH OF OUACHITA, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE JEROME J. BARBERA, III, NUMBER 15-2179
COUNSEL FOR PLAINTIFF/APPELLANT, STANLEY R. PALOWSKY, III, INDIVIDUALLY AND ON BEHALF OF ALTERNATIVE ENVIRONMENTAL SOLUTIONS, INC. Joseph R. Ward, Jr., Covington
COUNSEL FOR DEFENDANT/APPELLEE, ALLYSON CAMPBELL Jeffrey M. Landry, Lawrence W. Pettiette, Jr., Shreveport, Christopher G. Forester
COUNSEL FOR DEFENDANT/APPELLEE, JUDGE H. STEPHEN WINTERS, JUDGE CARL V. SHARP, JUDGE BENJAMIN JONES, JUDGE J. WILSON RAMBO, AND JUDGE FREDERIC C. AMMAN Jon K. Guice, Monroe
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Stephen J. Windhorst
GRAVOIS; J.
1Stanley R. Palowsky, III, individually and on behalf of Alternative Environmental Solutions, Inc. ("AESI"), appeals two judgments of the trial court signed on August 15, 2022. One judgment granted the motion for summary judgment filed by Judge H. Stephens Winters, Judge Frederic C. Amman, and Judge Benjamin Jones, dismissing all claims against them, and granted the motion for summary judgment filed by Judge H. Stephens Winters, Judge Frederic C. Amman, Judge Benjamin Jones, Judge Carl V. Sharp and Judge J. Wilson Rambo on the issue of attorney’s fees only. The second judgment granted Allyson Campbell’s motion for summary judgment on the issue of attorney’s fees only. For the following reasons, we affirm the judgments of the trial court.
By order of the Louisiana Supreme Court dated December 15, 2022, this matter was transferred from the Second Circuit Court of Appeal to this Court.
On July 22, 2015, Mr. Palowsky filed an original Petition for Damages in the Fourth Judicial District Court, Parish of Ouachita, naming as defendant Allyson Campbell, a law clerk employed by the court. Mr. Palowsky alleged in the petition that Ms. Campbell, acting under color of law but outside the course and scope of her employment duties as a law clerk, caused him injury in another suit that Mr. Palowsky was a party to in the same court: Palowsky v. Cork, Docket No. 13-2059, Fourth Judicial District Court, Parish of Ouachita. Specifically, Mr. Palowsky alleged that Ms. Campbell "maliciously and intentionally harmed [Mr.] Palowsky and willfully violated his constitutionally-protected rights to both due process and access to courts in Palowsky v. Cork when she spoliated, concealed, removed, de- stroyed, shredded, withheld, and/or improperly ‘handled’ court documents such as memoranda of law, orders, pleadings, sealed court documents, and chamber copies of pleadings filed with the clerk and hand-delivered to the judge’s office," 2and Ms. Campbell "maliciously withheld and concealed documents and pleadings in the trial court as well as from the record that was sent to the Second Circuit Court of Appeal for its review of an application for supervisory writs filed by Cork." (Footnotes omitted.)
In the petition, Mr. Palowsky alleged that the following documents were withheld and concealed:
• AESI’s Opposition to Mr. Cork’s Motion to Strike Answer filed on January 13, 2014;
• Mr. Palowsky’s Memorandum in Support of his Motion to Clarify Protective Order filed on March 14, 2014;
• AESI’s Reply Memorandum to Clarify Language in Protective Order to Allow Proper Reporting of Crimes, Tax Fraud, Racketeering, and Conspiracy filed on June 24, 2014;
• AESI’s Opposition to Mr. Cork’s writ application filed on July 15, 2014;
• Mr. Palowsky’s Third Amending and Supplemental Petition and AESI’s Third Party Demand with attached order requesting leave to file same filed on August 13, 2014; and
• Mr. Palowsky’s and AESI’s Memorandum in Support of Motion to Recuse Judge J. Wilson Rambo.
Before Mr. Palowsky filed his original petition in the present matter, the judge assigned to handle the Cork case, Judge J. Wilson Rambo, recused himself. The Cork case was then reassigned to Judge Carl V. Sharp. Subsequently, the entire bench of the Fourth Judicial District Court recused itself, and an ad hoc judge was appointed by the Louisiana Supreme Court.
On July 31, 2015, Mr. Palowsky filed a First Supplemental, Amended, and Restated Petition for Damages. He named the following judges from the Fourth Judicial District Court as additional defendants: Chief Judge H. Stephens Winters, Judge Carl V. Sharp, Judge Benjamin Jones, Judge J. Wilson Rambo, and Judge Frederic C. Amman, hereinafter "the defendant judges." Therein, he asserted that Ms. Campbell’s actions constituted "fraud, conspiracy to commit fraud, abuse of process, destruction or concealment of public records, intentional infliction of emotional distress, and violation of his rights under the Louisiana Constitution to due process and access to courts." Further, Mr. Palowsky asserted that the 3defendant judges should be held liable in solido for the damages he suffered as a result of their "aiding and abetting [Ms.] Campbell by allowing her free rein to do as she pleased and then conspiring to conceal [Ms.] Campbell’s acts which compounded the adverse effects of her acts on [Mr.] Palowsky." He alleged that the defendant judges purposely concealed Ms. Campbell’s actions in order to maliciously defraud and harm him and deprive him of due process and access to the courts.
Further, Mr. Palowsky alleged that Ms. Campbell had a history of destroying and/or concealing court documents, and that the defendant judges have covered up such actions to protect Ms. Campbell. He specifically alleged that in 2012, an attorney, Cody Rials, made a complaint to Judge Sharp that Ms. Campbell withheld and/or shredded his proposed judgment in a suit he had pending in the Fourth Judicial District Court. The case was entitled Davidson vs. Davidson, case number 2008-2124. As part of an investigation into the matter, both Judge Sharp in 2012 and subsequently Judge Jones in 2014 interviewed an "eyewitness," later revealed to be Joey Grassi, who heard Ms. Campbell state that she "took great pleasure in shredding [Mr. Rials’ proposed] judg- ment." Mr. Palowsky alleged in the amended petition that the defendant judges’ "affirmative acts" to cover up Ms. Campbell’s "felonious conduct amounts to misprision of a felony."
In response to the First Supplemental, Amended, and Restated Petition, both Ms. Campbell and the defendant judges filed peremptory exceptions of no cause of action based on judicial immunity, and motions to strike allegations found in specifically enumerated paragraphs of the petition as redundant, immaterial, impertinent, and/or scandalous. The trial court struck numerous paragraphs from the petition and granted the exceptions of no cause of action on the basis of absolute judicial immunity, dismissing Mr. Palowsky’s suit against Ms. Campbell and the defendant judges with prejudice. On appeal, the First Circuit Court of 4Appeal found that the trial court incorrectly struck some, but not all, of the paragraphs from the First Supplemental, Amended, and Restated Petition. Additionally, the First Circuit reversed the granting of the exception of no cause of action as to Ms. Campbell and affirmed the granting of the exception of no cause of action as to the defendant judges. Palowsky v. Campbell, 16-1221 (La. App. 1 Cir. 4/11/18), 249 So.3d 945, 959-60.
In a per curiam opinion, the Louisiana Supreme Court reversed the First Circuit’s judgment insofar as it dismissed Mr. Palowsky’s claims against the defendant judges. In all other regards, the judgment of the First Circuit was affirmed. Palowsky v. Campbell, 184105 (La. 6/26/19), 285 So.3d 466, 467, reh’g denied, 18-1105 (La. 9/6/19), 278 So.3d 358, and cert. denied sub nom. Winters v. Palowsky, — U.S. —, 140 S.Ct. 2570, 206 L.Ed.2d 499 (2020).
Subsequently, after remand back to the Fourth Judicial District Court, the trial court ruled that La. C.E. art. 519 is applicable to the depositions of the defendant judges and granted a protective order regulating discovery in this matter, including not allowing discovery related to the subject matter contained in the allegations that were stricken from Mr. Palowsky’s petition. Mr. Palowsky sought supervisory review of the trial court’s judgment, and this Court denied the writ application. Palowsky v. Campbell, 21-279 (La. App. 5 Cir. 8/26/21), 327 So.3d 589, writ denied, 21-1428 (La. 11/23/21), 328 So.3d 74.
On October 15, 2020, Mr. Palowsky filed a Second Supplemental and Amended Petition for Damages, asserting an additional cause of action against Judge Jones. In response, the defendant judges filed an exception of no cause of action, arguing that the actions taken by Judge Jones as alleged in the amended petition are entitled to the protections of absolute judicial immunity. The trial court sustained the exception of no cause of action, and this Court affirmed the ruling on appeal. Palowsky v. Campbell, 21-358 (La. App. 5 Cir. 3/30/22), 337 So.3d 567.
In a Third Supplemental and Amended Petition filed on March 15, 2021, Mr. Palowsky named the defendant judges’ insurer as a defendant; however, because the insurer was incorrectly identified, Mr. Palowsky later filed a Fourth 5Supplemental and Amended Petition to correctly name Columbia Casualty Company as a defendant.
On April 16, 2021, Ms. Campbell filed a motion for summary judgment, asserting that she is entitled to judgment as a matter of law since there is no evidence that she mishandled any documents in the Cork case and there is no statutory or contractual basis for Mr. Palowsky’s claim for attorney’s fees.
On that same date, the defendant judges filed a motion for summary judgment, arguing that Mr. Palowsky cannot meet his burden of proof that Ms. Campbell destroyed or mishandled court documents and that the defendant judges engaged in any conspiracy, cover-up, aiding and abetting, or misprision of such actions. In the motion, the defendant judges argued that Mr. Palowsky never filed five out of the six allegedly missing pleadings, and Judge Rambo, while presiding over the Cork case, received and had the benefit of all documents presented by Mr. Palowsky. The defendant judges argued that there is no evidence that there was any conspiracy or "meeting of the minds" between the defendant judges and Ms. Campbell to cover up or conceal any alleged document mishandling. They asserted that Mr. Palowsky’s speculation and unsubstantiated allegations are insufficient to create a genuine issue of material fact, and accordingly, they were entitled to judgment as a matter of law. Additionally, the defendant judges argued that Mr. Palowsky has no statutory or contractual basis for his claim for attorney’s fees.
In a combined opposition to both motions for summary judgment, Mr. Palowsky argued that though there may not be direct evidence to show that Ms. Campbell destroyed court documents in the Cork case, there is circumstantial evidence that would lead a fact finder to conclude that she destroyed and/or mishandled the documents, causing delays in the Cork case, and that the defendant judges concealed her actions. Mr. Palowsky argued that there is evidence that Ms. 6Campbell had access to the Cork file, that she previously mishandled court documents, and that the defendant judges have protected her. Regarding attorney’s fees, Mr. Palowsky argued that he asserted a claim of abuse of process, which allows for attorney’s fees. Additionally, though he did not specifically plead entitlement to attorney’s fees under 42 U.S.C. § 1988(b), Mr. Palowsky argued that he is still entitled to attorney’s fees since he alleged violations of his constitutional rights to due process and access to courts.
Thereafter, the defendant judges filed a reply to the opposition to the motions for summary judgment and objected to and moved to strike the affidavit of Sedric Banks, provided in support of Mr. Palowsky’s opposition to the motions for summary judgment. The defendant judges also filed a "Motion to Strike Affidavits in Support of Plaintiff’s Motion in Opposition to Defendants’ Motion for Summary Judgment and Motion for Costs," seeking to strike the affidavits of Mr. Palowsky and Mr. Banks attached in support of Mr. Palowsky’s opposition to the motions for summary judgment.
Both the reply to the opposition to the motions for summary judgment and the motion to strike are not part of this designated appellate record; however, they are part of the companion writ application, 22-C-589. It appears that a reply to the opposition to the motions for summary judgment was also filed by Ms. Campbell; however, that reply was not made part of this appellate record and is not in the companion writ application.
On August 9, 2022, the trial court held a hearing on both motions for summary judgment. The trial court first addressed both Ms. Campbell’s and the defendant judges’ objections to the exhibits attached in support of Mr. Palowsky’s opposition to the motions for summary judgment. Regarding the defendant judges’ objections, the trial court found that Mr. Palowsky’s affidavit and the police report attached to Mr. Palowsky’s affidavit were inadmissible. The trial court struck Mr. Banks’ affidavit except for his statements regarding his delivery of the Cork documents to Judge Rambo’s office. As it relates to Ms. Campbell’s objections, the trial court found the following exhibits inadmissible: anything already stricken 7from the First Supplemental, Amended, and Restated Petition; the depositions of Judge Sharon March- man, B.J. Graham, and Samuel Hanna; portions of Devin Jones’ deposition; the affidavits of Mr. Jones and Mr. Palowsky; and the affidavit of Mr. Banks, except for the parts discussing his delivery of Cork documents to Judge Rambo.
Following arguments by all parties, the trial court granted the defendant judges’ motion for summary judgment as to Judge Jones, Judge Winters, and Judge Amman, dismissing the action against them. As to Judge Sharp and Judge Rambo, the motion for summary judgment was granted only as to Mr. Palowsky’s claim for attorney’s fees. The trial court partially granted Ms. Campbell’s motion for summary judgment on the issue of attorney’s fees.
In its oral reasons for judgment, the trial court discussed each defendant judge. Ultimately, the trial court found that Mr. Palowsky failed to submit any evidence that Judge Winters, Judge Jones, or Judge Amman conspired with each other or with any other person, judge, or participant to conceal or cover-up any alleged acts committed by Ms. Campbell. Additionally, the trial court found there was no genuine issue of material fact as to Mr. Palowsky’s claim for attorney’s fees, and the defendants were entitled to judgment as a matter of law. The court noted that there was no statutory basis for attorney’s fees, and Mr. Palowsky had not properly plead a claim for abuse of process. Moreover, the court noted that in addition to Mr. Palowsky’s waiver that he was not seeking any claims under federal law, there was no factual basis in this case to seek violations of either the United. States or Louisiana Constitutions.
Two separate final judgments were signed on August 15, 2022. Mr. Palowsky now appeals both judgments, arguing that the trial court erred in granting the defendant judges’ motion for summary judgment and dismissing the claims 8against Judge Winters, Judge Amman and Judge Jones, and erred in granting both motions for summary judgment on the issue of attorney’s fees.
On December 16, 2022, Judge Sharp and Judge Rambo filed a writ application with this Court, Docket No. 22-C-589, seeking supervisory review of the trial court’s denial of their motion for summary judgment. The writ application has been designated a companion case to this appeal.
LAW
A motion for summary judgment is a procedural device used to avoid a full-scale trial when there is no genuine issue of material fact. Bell v. Parry, 10-369 (La. App. 5 Cir. 11/23/10), 61 So.3d 1, 2. The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966 (A)(2). Under La. C.C.P. art. 966 (D)(1), the initial burden is on the mover to show that no genuine issue of material fact exists. If the moving party will not bear the burden of proof at trial, the moving party must point out only that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action, or defense. Id. The nonmoving party must then produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id. If the nonmoving party fails to do so, summary judgment should be granted. Babino v. Jefferson Transit, 12-468 (La. App. 5 Cir. 2/21/13), 110 So.3d 1123, 1125.
"In ruling on a motion for summary judgment, the judge’s role is not to evaluate the weight of the evidence or to determine the truth of the matter, but instead to determine whether there is a genuine issue of triable fact. All doubts should be resolved in the non-moving party’s favor." Larson v. XYZ Ins. Co., 16-745 (La. 5/3/17), 226 So.3d 412, 416.
[1, 2] A fact is "material" when its existence or nonexistence may be essential to the plaintiff’s cause of action under the applicable theory of recovery. 9 Alexander v. Parish of St. John the Baptist, 12-173 (La. App. 5 Cir. 10/16/12), 102 So.3d 904, 909, writ denied, 12-2448 (La. 1/11/13), 107 So.3d 617. Facts are material if they potentially insure or preclude recovery, affect a litigant’s ultimate success, or determine the outcome of the legal dispute. Id.
[3] When a motion for summary judgment is made and supported as provided in La. C.C.P. art. 967, an adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in La. C.C.P. art. 967, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. La. C.C.P. art. 967 (B); Pelitire v. Rinker, 18-501 (La. App. 5 Cir. 4/17/19), 270 So.3d 817, 827, mt denied, 19-798 (La. 9/17/19), 279 So.3d 378. Mere conclusory allegations, improbable inferences, and unsupported speculation will not support a finding of a genuine issue of material fact. Sears v. Home Depot, USA, Inc., 06-201 (La. App. 4 Cir. 10/18/06), 948 So.2d 1219, 1228, writ denied, 06-2747 (La. 1/26/07), 948 So.2d 168. Even if contained in a deposition, such inferences, allegations, and speculation are not sufficient to satisfy the opponent’s burden of proof. Id.
[4] Appellate courts review a judgment granting or denying a motion for summary judgment de novo. Robinson v. Otis Condominium Ass’n, Inc., 20-359 (La. App. 5 Cir. 2/3/21), 315 So.3d 356, 361, writ denied, 21-343 (La. 4/27/21), 314 So.3d 837. Under this standard, we use the same criteria as the trial court in determining if summary judgment is appropriate: whether there is a genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Parquet v. Louisiana HomeCare of Lutcher, L.L.C., 21-451 (La. App. 5 Cir. 3/30/22), 337 So.3d 1002, 1009, reh'g denied (Apr. 20, 2022), writ denied, 22-802 (La. 9/20/22), 346 So.3d 801.
[5–7] 10Circumstantial evidence is evidence of a fact or set of facts from which the existence of the fact to be determined may reasonably be inferred. Hanks v. Entergy Corp., 06-477 (La. 12/18/06), 944 So.2d 564, 578. When a party in a civil matter relies upon circumstantial evidence in order to prove his case by a preponderance of evidence, that evidence, taken as a whole, must exclude every other reasonable hypothesis with a fair amount of certainty, but it need not negate all other possible causes. Brown v. Evans Harvey Corp., 14-590 (La. App. 5 Cir. 4/15/15), 170 So.3d 244, 249; Lacey v. Louisiana CocaCola Bottling Co., Ltd., 452 So.2d 162 (La. 1984). Circumstantial evidence may be used to defeat a motion for summary judgment. Tomlinson v. Landmark Am. Ins. Co., 15-276 (La. App. 4 Cir. 3/23/16), 192 So.3d 153, 159.
ANALYSIS
ASSIGNMENT OF ERROR NUMBER ONE
In his first assignment of error, Mr. Palowsky argues that the trial court erred in finding that he failed to submit any evidence that Judge Jones, Judge Winters, and Judge Amman concealed or conspired to conceal Ms. Campbell’s alleged acts.
Evidentiary Ruling
To begin, Mr. Palowsky argues that the trial court abused its discretion when it refused to consider the deposition of Judge Marchman, portions of Mr. Banks’ affidavit, portions of Mr. Jones’ deposition, and Mr. Jones’ affidavit.
[8] In support of his opposition to the motions for summary judgment, Mr. Palowsky included the affidavit of Mr. Banks, who served as counsel for Mr. Palowsky in the Cork case and in the present litigation. In the affidavit, among other things, Mr. Banks stated that he personally delivered four of the alleged missing documents described in the petition to Judge Rambo’s office. The defendant judges objected to the affidavit arguing that under Rule 3.7 of the Louisiana Supreme Court Rules of Professional Conduct, lawyers are generally 11disqualified as witnesses in their own causes, except under extraordinary circumstances. Even if allowed under such a rule, the defendant judges argued that part of the affidavit is based on hearsay and contains matters that are irrelevant to claims in this matter. In its oral ruling, the trial court found that Mr. Banks’ testimony regarding his delivery of the Cork pleadings to Judge Rambo is admissible, while the remaining part of the affidavit is inadmissible. The trial court found that Mr. Banks’ statements regarding the delivery of the Cork pleadings were based on personal knowledge, were an integral part of the case, and not allowing those statements would prove a substantial hardship on Mr. Palowsky. On appeal, Mr. Palowsky asserts that Mr. Banks’ affidavit was based on his personal knowledge in accordance with La. C.C.P. art. 967, and the court erred in excluding his additional testimony.
[9] Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. La. C.C.P. art. 967(A). "Personal knowledge" means something the witness actually saw or heard, as distinguished from what he learned from some other source. Hibernia Nat’l Bank v. Rivera, 07-962 (La. App. 5 Cir. 9/30/08), 996 So.2d 534, 539.
Rule 3.7 of the Louisiana Supreme Court Rules of Professional Conduct prohibits a lawyer from acting as an advocate at a trial in which the lawyer is likely to be a necessary witness except under certain circumstances. It provides, in pertinent part:
(a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
12(3) disqualification of the lawyer would work substantial hardship on the client.
[10] Part of the general "advocate-witness rule" is that counsel should avoid appealing as both advocate and witness except under extraordinary circumstances. Franklin Credit Mgmt. Corp. v. Gray, 07-1433 (La. App. 4 Cir. 1/14/09), 2 So.3d 598, 603, writ denied, 09-476 (La. 4/17/09), 6 So.3d 795. Rule 3.7 has been considered in summary judgment proceedings. See Franklin, supra; Adcock v. Ewing, 45,949 (La. App. 2 Cir. 1/26/11), 57 So.3d 434, 441.
In this matter, the trial court found that the admission of parts of Mr. Banks’ affidavit wherein he attested that he hand delivered certain missing Cork documents to Judge Rambo’s office was not a violation of Rule 3.7. We agree. However, Mr. Palowsky has not shown how barring Mr. Banks’ other statements would create a substantial hardship for him such that his testimony should be allowed under Rule 3.7 of the Louisiana Supreme Court Rules of Professional Conduct. Notwithstanding this finding, we also note that many of Mr. Banks’ statements are not based on personal knowledge and are irrelevant to the matter before us. Accordingly, we find no error in the trial court’s ruling in this regard.
[11] Mr. Palowsky also objects to the trial court’s ruling that found part of Mr. Jones’ deposition inadmissible, as well as his affidavit. In Mr. Jones’ deposition, he discussed a time when Judge Winters called him after his recusal from the Cork case, to inquire if he would serve as a law clerk to the ad hoc judge appointed to the case. In its oral ruling, the trial court ruled that it would only consider this part of Mr. Jones’ deposition. In his affidavit, found to be inadmissible, Mr. Jones attached a copy of text messages he sent to Judge Marchman and messages he exchanged with Ms. Campbell via Facebook Messenger. On appeal, Mr. Palowsky argues that both Mr. Jones’ deposition and his affidavit are based on his, personal knowledge and should not have been excluded. Upon review, we find no error in 13the trial court’s ruling regarding Mr. Jones’ deposition. The remaining parts of Mr. Jones’ deposition concern issues that are irrelevant to the matter at issue and also contain inadmissible hearsay. Upon review of his affidavit, because the text messages to Judge Marchman were discussed during his testimony regarding his phone call with Judge Winters, we will consider his affidavit regarding the text messages in this appeal. In all other regards, we find the trial court did not err in excluding the affidavit.
[12] Finally, Mr. Palowsky argues the trial court erred when if failed to consider the entirety of Judge Marchman’s deposition. Mr. Palowsky argues that Judge Marchman has personal knowledge related to the allegations against Ms. Campbell in both the Davidson case and the Cork case since she served on the personnel committee. The trial court excluded Judge Marchman’s deposition because it found that she repeated several times that she had no personal knowledge of any of the allegations and because there was hearsay regarding matters which were previously stricken.
Parts of Judge Marchman’s deposition were submitted by Mr. Palowsky and the defendant judges. Judge Marchman served as a judge on the Fourth Judicial District Court since 2000, and at some point during her tenor, she began serving on the personnel committee. However, she testified that she recused herself from any open investigations of Ms. Campbell in 2014. Regarding the Cork case, she stated that she never looked at the suit record and does not know which documents are alleged to be missing. She stated she has no personal knowledge of Ms. Campbell shredding, removing, secreting, or mishandling any document in the litigation. She does not know the reason for the missing records, but testified that she did not believe it was an issue with the Clerk’s office. No judge who is a defendant in this case ever told her that Ms. Campbell destroyed the documents. She was never asked to cover up for Ms. Campbell.
14In her deposition, Judge Marchman testified about certain things she was told by Ms. Hartt and Jerry Jones, as well as information that was previously stricken from the case. Upon review, we find that because what Judge Marchman was told by Ms. Hartt and Jerry Jones is not factual support based on personal knowledge, it should be excluded. Further, any information previously stricken from this case will not be considered. The remainder of the deposition will be considered by this Court in our analysis below. Motion for Summary Judgment
On appeal, Mr. Palowsky contends that he presented sufficient evidence that creates genuine issues of material fact that Judge Jones, Judge Winters, and Judge Amman conspired to conceal, or cover-up Ms. Campbell’s actions.
[13] A court’s determination of whether a genuine issue of material fact exists requires reference to the applicable substantive law. Neville v. Redmann, 22-175 (La. App. 5 Cir. 12/31/22), 356 So.3d 568, 575, denied, 23-126 (La. 4/4/23), 358 So.3d 861.
[14] In this matter, Mr. Palowsky claimed in the First Supplemental, Amended, and Restated Petition that the defendant judges "aid[ed] and abet[ted] [Ms.] Campbell by allowing her free rein to do as she pleased and then conspire[d] to conceal [Ms.] Campbell’s acts which compounded the adverse effects of her acts on [Mr.] Palowsky."
Mr. Palowsky also claimed in his amended petition that the defendant judges’ affirmative acts to cover up Ms. Campbell’s felonious conduct amounts to a "misprision of a felony." Importantly to note, the misprision of a felony statute was specifically repealed by the Legislature in 1942, per the recommendation of the reporter. See Official Reporter’s Comment – 1950 to La. Rev. Stat. Ann. § 14:131. See also, State v. Jackson, 344 So.2d 961 (La. 1977), disavowed on other grounds by State v. Chism, 436 So.2d 464 (La. 1983).
Additionally, absent a conspiracy, Louisiana law does not recognize a distinct cause of action for aiding and abetting. Guidry v. Bank of LaPlace, 94-1758 (La. App. 4 Cir. 9/15/95), 661 So.2d 1052, 1057, writ denied, 95-2498 (La. 1/5/96), 666 So.2d 295, and writ denied, 95-2490 (La. 1/5/96), 666 So.2d 295, and writ denied, 95-2477 (La. 1/5/96), 666 So.2d 296.
[15–18] 15La. C.C. art. 2324 provides that "[h]e who conspires with another person to commit an intentional or willful act is answerable, in solido, with that person for the damage caused by such act." Louisiana law does not have an independent cause of action for civil conspiracy. Haygood v. Dies, 48,485 (La. App. 2 Cir. 11/20/13), 127 So.3d 1008, 1013, writ denied, 13-2955 (La. 2/28/14), 134 So.3d 1177. Rather, the actionable element of a conspiracy claim is not the conspiracy itself; rather it is the tort that the conspirators agreed to commit and actually commit, in whole or in part, causing plaintiff’s injury. Monroe v. McDaniel, 16-214 (La. App. 5 Cir. 12/7/16), 207 So.3d 1172, 1179. To recover under a theory of civil conspiracy, a plaintiff is required; to provide evidence of the requisite agreement between the parties to commit the tortious act which caused the plaintiff’s injury. Payne v. Stanley, 53,773 (La. App. 2 Cir. 3/3/21), 316 So.3d 104, 112, writ denied, 21-480 (La. 5/25/21), 316 So.3d 445. The jurisprudence. clearly requires, a meeting of the minds or collusion between the parties for the purpose of committing wrongdoing. Stephens v. Bail Enforcement of La., 96-809 (La. App. 1 Cir. 2/14/97), 690 So.2d 124, 131, writ denied, 97-585 (La. 4/18/97), 692 So.2d 454; Crowder v. Morris, 98-673 (La. App. 3 Cir. 10/28/98), 721 So.2d 972, 973.
[19, 20] A conspiracy may be proven by circumstantial evidence. Khoobehi Properties, L.L.C. v. Baronne Dev. No. 2, L.L.C., 19-278 (La. App. 5 Cir. 12/18/19), 288 So.3d 224, 233. Proof of a conspiracy can be by actual knowledge of both parties or overt actions with another, or can be inferred from the knowledge of the alleged co-conspirator of the impropriety of the actions taken by the other co-conspirator. Payne, 316 So.3d at 112.
On appeal, Mr. Palowsky asserts that he presented evidence that the defendant judges took affirmative steps to conceal Ms. Campbell’s destruction of the docu- ments and that this evidence created genuine issues of material fact.
16 Judge Amman
[21] In support of their motion for summary judgment, the defendant judges presented the affidavit of Judge Amman. In his affidavit, Judge Amman stated that he served as a judge on the Fourth Judicial District Court from 2010 until he retired effective December 31, 2020. According to Judge Amman, Ms. Campbell previously served as his judicial law clerk. At no point did he ever direct Ms. Campbell to destroy or mishandle court documents, nor did he ever condone, sanction, or allow her to destroy, conceal, or mishandle any court documents. He never observed her shred, destroy, or mishandle court documents in any manner. He stated that he never concealed or covered up any alleged destruction or mishandling of court documents by Ms. Campbell or any employee of the Fourth Judicial District Court, and he never refused to review or investigate any complaints of alleged document destruction, concealment, or mishandling by Ms. Campbell or any other employee. He did not agree with Ms. Campbell to commit any illegal act, engage in any injurious conduct, or cause injury to Mr. Palowsky. He never agreed with Ms. Campbell to nor did he ever intend to defeat, delay, hinder or otherwise impair the claims asserted on behalf of Mr. Palowsky in the Cork case.
Though the affidavit does not specify when Ms. Campbell served as his law clerk, it appears undisputed that Judge Amman did not work on the Cork case.
In support of his opposition, Mr. Palowsky submitted Laura Hartt’s deposition. Ms. Hartt first worked as the Deputy Court Administrator for the Fourth Judicial District Court and then worked as the Court Administrator from April 2014 until April 2015. In August 2014, Mr. Banks made a complaint to Ms. Hartt that Judge Rambo was not getting his documents in the Cork case. She brought the issue to the personnel committee but did not personally investigate any 17further. Judge Jones investigated the matter, and it was determined that the issues were caused by a change in the filing process in the Clerk of Court’s office.
Ms. Hartt testified that she never heard Judge Amman threaten anyone regarding the "Palowsky matter." When asked if Judge Amman ever told her how she should do things or conduct matters "in this case," she responded that while she was serving as the court administrator, Judge Amman asked her "not to ever ask [Ms. Campbell] any pointed questions that would box her into a certain response." Ms. Hartt took that to mean "to take it easy on her." Ms. Hartt stated that when this conversation took place, "there were multiple issues we were discussing regarding Ms. Campbell, the bulk of which we are not discussing today."
[22] Upon review, we do not find that this one statement alone from Ms. Hartt creates a genuine issue of material fact regarding the claims against Judge Amman. Ms. Hartt explained that when Judge Amman told her to "take it easy" on Ms. Campbell, they were discussing a number of issues involving Ms. Campbell, "the bulk of which" were not being discussed in Ms. Hartt’s deposition. No evidence was put forth about what Judge Amman knew at that time related to any of the allegations against Ms. Campbell. Improbable inferences and unsupported speculation will not support a finding of a genuine issue of material fact. Sears, 943 So.2d at 1228. Upon review of this evidence, we find that Mr. Palowsky failed to put forth factual support sufficient to establish that he will be able to meet his burden of proof at trial that Judge Amman conspired with Ms. Campbell or anyone else to conceal or cover up any document destruction.
Judge Winters
[23] In support of their motion for summary judgment, the defendant judges presented the affidavit of Judge Winters. Therein, he stated that he served as a judge on the Fourth Judicial District Court since 2004 and served as Chief Judge 18from January 1, 2015 until December 31, 2016. Ms. Campbell never worked as his law clerk, and she never worked under his direction. He never witnessed Ms. Campbell destroy, shred, secret, or mishandle any court document in any manner. Further, he never assisted or encouraged Ms. Campbell or any employee of the Fourth Judicial District to destroy, conceal, or mishandle any court document. He has not concealed or covered-up any alleged document destruction and never refused to review or investigate any complaints of court document destraction or mishandling. He never agreed with Ms. Campbell to commit any illegal act, engage in any injurious conduct, or cause injury to Mr. Palowsky. Finally, he never agreed with Ms. Campbell to defeat, delay, hinder, or otherwise impair the claims asserted by Mr. Palowsky in the Cork matter.
Mr. Palowsky opposed the motion for summary judgment with evidence of a phone call between Judge Winters and attorney Devin Jones to discuss Mr. Jones serving as the law clerk for the ad hoc judge assigned to the Cork case. In his deposition, Mr. Jones stated that he received a call from Judge Winters on May 7, 2016. During the call, Judge Winters inquired if Mr. Jones wanted to do "some law clerk work" for the ad hoc judge on the Cork case. Judge Winters did not advise him of the nature of the case. Judge Winters explained to Mr. Jones how the work would occur and that it could be done remotely. Judge Winters explained to Mr. Jones that he would be "researching for the judge" and told Mr. Jones "[w]hatever law we find, that’s -- that’s what the judge would use to make the ruling." Mr. Jones declined the job. When questioned about text messages he sent to Judge Marchman about the phone call, Mr. Jones explained that when he received the call, he did not know that Judge Winters and the rest of the defendant judges were recused from the Cork case. When he found out about the recusals, he thought it was an "odd call." Mr. Jones testified that Judge Winters never implied or advised e outcome of the case. Judge Winters 19explained the course of the work, which required him to find the law for the judge and "that’s how the judge would rule." Judge Winters did not tell him to do anything inappropriate during the call. He did not file any complaint against Judge Winters with respect to the call.
In Judge Winters’ deposition, he stated that he did not recall calling any local attorney to ask if he would assist the ad hoc judge in the Cork case. However, he later testified that he may have called someone from the "Natchitoches" area to assist. He stated that if an ad hoc judge requested assistance, he would help the judge find assistance. Judge Winters also testified that he never investigated the allegations of missing documents in the Cork case since he was not on the personnel committee and was never asked to investigate. He did not recall Judge Jones’ investigation, but he did recall that the result was that no documents were destroyed.
Julie Cunningham, who served as Deputy Court Administrator since February 2014, testified in her deposition that it was her understanding that "we’re required to provide the ad hoc with whatever assistance they may need," including finding them a law clerk if necessary.
Finally, Mr. Palowsky supported his opposition to Judge Winters’ motion for summary judgment with the deposition of Judge Marchman. Judge Marchman testified that while Judge Winters served as Chief Judge, he denied public records requests made for such things as personnel and human resource files. She also stated specifically that she was not aware of any document destruction on Judge Winters’ part. Further, no judge who is a defendant in this case ever told her that Ms. Campbell destroyed any documents.
Upon review of this evidence, we find that Mr. Palowsky failed to put forth factual support sufficient to establish that he will be able to meet his burden of proof at trial that Judge Winters conspired with Ms. Campbell or anyone else to 20conceal or cover up any alleged document destruction. Mr. Palowsky presents testimony that Judge Winters called Mr. Jones to inquire if he would serve as law clerk for the ad hoc judge on the Cork case in 2016 and also testimony that he denied public records requests for personnel and human resource files. We find that this evidence does not create a genuine issue of material fact concerning whether Judge Winters and Ms. Campbell conspired to cover-up any document destruction.
Judge Jones
[24] In support of their motion for summary judgment, the defendant judges presented the affidavit of Judge Jones. In his affidavit, Judge Jones stated that he served as a judge on the Fourth Judicial District Court from September 25, 1992 until he retired on December 31, 2014. Following retirement, he served as Supernumerary Judge pro tempore of the Fourth Judicial District Court beginning March 1, 2015 through August 31, 2015. He was continuously reappointed to that position following his initial term. On March 1, 2015, he began serving as the court’s Judicial Administrator. During both his time as a trial court judge and as a judge pro tempore, he never destroyed, concealed, or mishandled any court documents; never participated in the destruction of any court documents; and never provided any assistance to any party in conducting any scheme to destroy or mishandle court documents.
In 2014, Judge Jones was asked to, investigate a complaint by Cody Rials that in 2012, his proposed judgment in the Davidson case was tampered with and not presented to the presiding judge, Judge Sharp. As part of his investigation, Judge Jones interviewed Joey Grassi regarding a statement Ms. Campbell made to him in 2012. He also spoke with Judge Sharp, who informed Judge Jones that he had received and reviewed the proposed judgment. With this information, Judge Jones was satisfied that no documents had been kept from the court, and his review 21was complete. He stated that he had no need to continue the investigation. He was assured that there was no evidence that any document was destroyed, shredded, or mishandled by Ms. Campbell.
In his affidavit, Judge Jones stated that in 2014, Ms. Hartt informed him of a complaint by Mr. Banks that not all documents filed in the Cork case on behalf of Mr. Palowsky were being brought before Judge Rambo. To investigate, Judge Jones spoke with the Clerk of Court and Judge Rambo, who assured him that he had received all of the documents filed on behalf of Mr. Palowsky. It was determined that Judge Rambo was provided with all the documents he needed to handle the Cork case.
Judge Jones stated in his affidavit that he never assisted or encouraged Ms. Campbell or any employee of the Fourth Judicial District Court to destroy or mishandle documents in any manner, and he never condoned, sanctioned, or allowed Ms. Campbell to destroy or otherwise mishandle court documents in any manner. He never concealed or covered up any alleged document destruction by Ms. Campbell or any other court employee. He never refused to investigate or review any complaints of alleged document destruction and investigated all complaints that Ms. Campbell allegedly destroyed, concealed, or mishandled court documents. Based on his investigation, he never discovered any evidence that Ms. Campbell actually destroyed or mishandled any court documents. He never agreed with Ms. Campbell to commit any illegal act or engage in any injurious conduct at any time, specifically to Mr. Palowsky. He never intended to or agreed with Ms. Campbell to defeat, delay, hinder or impair the claims asserted by Ms. Palowsky in the Cork case.
In Joey Grassi’s deposition, he related that he had a conversation with Ms. Campbell at Trio’s Bar & Grill in October 2012.
He had known prior to that night that Ms. Campbell and Mr. Rials had gotten into a "verbal altercation" on the 22phone regarding a case. In conversation with Ms. Campbell, he "poked the bear a little bit" and mentioned that he heard that they had gotten "into it." She asked if he knew Mr. Rials, and he replied that he "couldn’t stand the son-of-a-b****." He then stated that Ms. Campbell started discussing the issue she had on the phone with Mr. Rials. She finished the conversation with Mr. Grassi by stating that "she took great pleasure in shredding his judgment." Mr. Grassi informed both Judge Sharp and Mr. Rials about their conversation. In August 2014, he received a call from Judge Jones, who told him they were taking the allegations seriously, and he was investigating the matter.
Ms. Hartt testified in her deposition that Judge Jones was assigned to investigate the allegations in the Cork case. She did not have knowledge of what he did to investigate the matter. To her knowledge, there was no written document produced regarding Judge Jones’ investigation. In a letter dated September 11, 2014, she wrote to Mr. Banks regarding the allegations and investigation and stated that it was determined that a change in the filing process in the Clerk of Court’s office explained why Judge Rambo wasn’t receiving timely filings.
On appeal, Mr. Palowsky argues that the evidence he presented shows that Judge Jones’ inaction following his Davidson investigation and his Cork investigation contributed to document destruction in the Cork case. In his deposition, Judge Jones stated that he investigated the allegations in the Davidson matter in 2014 because he was the senior judge at the time and was asked to investigate. As part of the investigation, Judge Jones interviewed Mr. Grassi who told him what he knew: that he was at a "club" when Ms. Campbell told him something like that she delighted in shredding a judgment. When questioned if he believed Mr. Grassi, Judge Jones responded, "I believe, yes, that he was telling the truth when he said he heard [Ms. Campbell] say that she shredded documents – delighted in shredding." He did not talk to Ms. Campbell during his investigation 23in 2014 because he talked to the presiding judge, Judge Sharp. During their conversation, he specifically asked Judge Sharp whether there were any missing documents, and Judge Sharp responded that there were no missing judgment or documents. He took that as the truth and ended his investigation. When allegations arose in the Cork matter, he was senior judge on the court and was asked to investigate. Her conferred with Ms. Hartt and met with Judge Rambo. Judge Rambo informed him that there were no missing filings that should have come to him in connection with his decision in the case.
Judge Sharp recalled Judge Jones’ 2014 investigation. Judge Jones called him, and he
According to Ms. Campbell, she was never contacted by Judge Jones in 2014 about the allegations in the Davidson case. She wrote to Judge Jones on March 12, 2015 because she wanted a statement placed in her personnel file that said that she did not have anything to do with any allegations in the Cork matter.
Judge Marchman stated in her deposition that she never personally talked to Mr. Rials or Mr. Grassi about Ms. Campbell. What she knows about the allegations in the Davidson case comes from hearing about it while on the personnel committee. She said that when the results of the Davidson investigation and the Cork investigation were announced to the personnel committee, Judge Jones said that no documents were "shredded." She thought this was "very contrived," and that the personnel committee was very careful in its wording.
Mr. Palowsky also presented the deposition of Dana Benson, the Clerk of Court, who testified to a missing pleading in the Cork. case. When questioned about an October 23, 2014 entry in the Clerk of Court’s ledger regarding Mr. Palowsky’s Memorandum in Support of his Motion to Recuse, Ms. Benson stated that since the pleading was filed and paid for, it should be in the record. When asked if she knew why it was not in the record, she could not say why.
[25, 26] A conspiracy claim requires proof of more than negligence; it requires either "intentional or willful" conduct. La. C.C. art. 2324. This "arguably means 24something less than intent, but more than negligence." Thomas v. N. 40 Land Dev., Inc., 04-0610 (La. App. 4 Cir. 1/26/05), 894 So.2d 1160, 1177-78 citing Frank L. Maraist and Thomas C. Galligan, Louisiana Tort Law § 2-5 (1996). In proving a conspiracy claim, Louisiana courts require an agreement between the parties, and "that the agreement between the actors involved in a conspiracy must be an agreement as to the intended outcome or result of their acts." Walker v. American Honda Motor Co., 93-1659 (La. App. 3 Cir. 6/1/94), 640 So.2d 794, 797, writ denied, 94-1741 (La. 10/7/94), 644 So.2d 644.
Upon review, we find that Mr. Palowsky has not put forth any evidence of an agreement between Judge Jones and Ms. Campbell to conceal her alleged actions and harm Mr. Palowsky. Nor can an agreement be inferred from the evidence presented. Mr. Palowsky’s argument that Judge Jones’ inaction following his investigation in Davidson and Cork contributed to the destruction of documents in Cork is merely speculative and will not support a finding of a genuine issue of material fact. See Sears, 943 So.2d at 1228.
Conclusion
Accordingly, upon our de novo review, in light of the foregoing, because Mr. Palowsky has failed to show that he can meet his burden of proof at trial that Judge Winters, Judge Amman, and Judge Jones conspired to conceal Mr. Campbell’s actions, we find that the trial court correctly granted the motion for summary judgment filed by Judge Winters, Judge Amman, and Judge Jones, dismissing all claims filed by Mr. Palowsky against them.
informed Judge Jones of what occurred in 2012. ASSIGNMENT OF ERROR NUMBER TWO
In his second assignment of error, Mr. Palowsky argues that the trial court erred in granting both motions for summary judgment on the issue of attorney’s fees. He argues that attorney’s fees are available for a claim of abuse of process, and he presented evidence of abuse of process by showing that Ms. Campbell 25removed court documents in the Cork suit to his detriment. He also argues that because there is evidence that documents remain missing, he has established that there has been a violation of his rights under the constitution to due process and access to courts. Further, though he has not specifically plead entitlement to attorney’s fees under 42 U.S.C. § 1988, he argues that he can still be awarded attorney’s fees pursuant to this statute when the, allegations show entitlement thereto.
[27] Under Louisiana law, attorney’s fees are recoverable only where specifically authorized by statute or contract. Hoffman v. 21st Century North America Ins. Co., 14-2279 (La. 10/2/15), 209 So.3d 702, 707; Garden Lakes Condominium Homeowners Ass'n, Inc. v. Perrier, 10-1016 (La. App. 5 Cir. 5/24/11), 66 So.3d 1147, 1148; LaRocca v. Louisiana Motor Vehicle Common, 22-197 (La. App. 5 Cir. 5/10/23), 364 So.3d 1246, 1269.
[28] Mr. Palowsky asserts that though he did not specifically plead entitlement to attorney’s fees for actions enforceable under 42 U.S.C. § 1988(b), he should be awarded attorney’s fees since the facts and evidence presented would support such recovery. Citing Celcog, L.L.C. v. Perkins, 54,254 (La. App. 2 Cir. 5/18/22), 340 So.3d 1259, writ denied, 22-959 (La. 11/1/22), 349 So.3d 9, and cert. denied sub nom, — U.S. —, 143 S.Ct. 1004, 215 L.Ed.2d 139 (2023) and Hughes v. Livingston Parish Sch. Bd., 459 So.2d 10 (La. App. 1 Cir. 10/9/1984), writ denied, 462 So.2d 1250 (La. 1985), Mr. Palowsky argues that he sufficiently asserted a claim factually 26based on the Louisiana Constitution’s Due Process Clause which convers "rights, privileges or immunities" within the meaning of 42 U.S.C. § 1983. Because he alleged sufficient facts that if proven would constitute a violation of federal law, he argues that the trial court erred in granting summary judgment on his claim for attorney’s fees. However, a significant difference between the jurisprudence cited by Mr. Palowsky and the present case is that, in the present ease, Mr. Palowsky clearly stated in his First Supplemental, Amended, and Restated Petition that he sought "no relief under any federal law" at the time., Accordingly, given this clear assertion, we find that Mr. Palowsky is not entitled to attorney’s fees under any federal law.
42 U.S.C.A. § 1988(b) provides:
In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, the Religious Freedom Restoration Act of 1993, the Religious Land Use and Institutionalized Persons Act of 2000, title VI of the Civil Rights Act of 1964, or section 12361 of Title 34, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.
It is noted that Mr. Palowsky filed a motion for leave to file a fifth supplemental and amending petition after the judgments were signed on the motions for summary judgment. Mr. Palowsky sought to amend paragraph 87 of his First Supplemental, Amended, and Restated Petition to state: "Plaintiffs seek all relief available under the facts alleged under Louisiana and Federal law including the United States Constitution." The trial court denied Mr. Palowsky’s motion. He sought supervisory review of the trial court’s judgment, and this Court denied his writ application. See Palowsky v. Campbell, 23-C-61 (La. App. 5 Cir. 12/14/23) (unpublished writ disposition).
[29] Mr. Palowsky also argues on appeal that he is entitled to attorney’s fees for his claim of abuse of process since attorney’s fees are an item of compensatory damages in an abuse of process case. He claims that the removal of records by court officials and/or employees from his pending case to his detriment qualifies as a perversion of the legal process and an abuse of process. Also, Mr. Palowsky avers that an abuse of process occurred when Judge Sharp, while already recused from the case, allegedly placed sealed envelopes into the Cork record and then sent the contents of the letter to his attorney, Steve Scheckman.
In his fifth supplemental and amending petition, Mr. Palowsky also sought to add allegations regarding the sealed envelopes and their placement into the record.
[30–33] An abuse of process claim originates from the common law and is recognized under our jurisprudence as a compensable tort under La. C.C. art. 2315. See Mini-Togs, Inc. v. Young, 354 So.2d 1389 (La. App. 2 Cir.1978). The tort of 27abuse of process involves the misuse of a process whereby a party attempts to obtain some result not proper under law. No Drama, LLC v. Caluda, 15-211 (La. App. 5 Cir. 10/14/15), 177 So.3d 747, 751; Stark v. Eunice Superette, Inc., 457 So.2d 291 (La. App. 3 Cir.1984). An abuse of process claim has two essential elements: (1) the existence of an ulterior purpose and (2) a willful act in the use of the process not proper in the regular prosecution of the proceeding. Waguespack, Seago and Carmichael v. Lincoln, 99-2016 (La. App. 1 Cir. 9/22/00), 768 So.2d 287, 290-91. An abuse of process, occurs when the actor employs a legal process in a manner that although technically correct, is for a wrongful and malicious purpose to obtain an unjustifiable end or an object that it was not the purpose of the particular process employed to effect. Foster v. Bias, 22-329 (La. App. 1 Cir. 12/22/22), 358 So.3d 520, 536, writ denied, 23-90 (La. 3/28/23), 358 So.3d 503.
Upon review, we find that Mr. Palowsky has not presented any evidence of a "willful act in the use of the process not proper in the regular prosecution of the proceeding." He does not assert in his petition nor does he provide evidence that either Ms. Campbell or the defendant judges employed a legal process for an improper reason. As such, whether or not attorney’s fees are attributable to an abuse of process claim, because there is no evidence of any abuse of process, there is no basis to assert a claim for attorney’s fees. This assignment of error is without merit.
The parties dispute whether a claim for abuse of process is an exception to the well-settled rule in Louisiana that attorney’s fees are not allowed except where authorized by statute or contract. However, because we find that there is no evidence of abuse of process, we pretermit any discussion regarding whether attorney’s fees are warranted in such a matter.
DECREE
For the foregoing reasons, the judgments of the trial court granting the motion for summary judgment as to Judge Amman, Judge Winters, and Judge Jones and dismissing the claims against them, and granting motions for summary 28as to Ms. Campbell and all the defendant judges on the issue of attorney’s fees are affirmed.
AFFIRMED