Opinion
No. 2010 CA 1699.
March 25, 2011.
ON APPEAL FROM THE 19TH JUDICIAL DISTRICT COURT PARISH OF EAST BATON ROUGE, LOUISIANA DOCKET NO. 580,383, SECTION 25 HONORABLE WILSON E. FIELDS, JUDGE PRESIDING.
J. Peyton Parker, Jr., Baton Rouge, LA, Attorney for Plaintiff-Appellant, Herbert Roland Witty.
Martin E. Golden, Keogh, Cox Wilson, Ltd., Baton Rouge, LA, Attorney for Defendant-Appellee, Neal R. Elliott, Jr.
BEFORE: PARRO, GUIDRY, AND HUGHES, JJ.
Plaintiff, Herbert R. Witty, appeals the judgment of the trial court, sustaining the defendant's peremptory exception pleading the objection of no cause of action and dismissing Mr. Witty's petition, with prejudice. For the following reasons, we reverse the judgment and remand the matter to the trial court for further proceedings.
FACTUAL AND PROCEDURAL BACKGROUND
Mr. Witty was the defendant in a civil suit entitled " Fielding Chadwick Phillips, et al. v. Herbert R. Witty," number 39,853, which suit was consolidated with a probate proceeding entitled " Succession of Nita Marie LeBeau," probate number 17,268; both actions were pending in Pointe Coupee Parish in the Eighteenth Judicial District Court (collectively, the consolidated cases). The defendant in the underlying litigation that forms the basis for this appeal, Neal R. Elliott, Jr., was the attorney for Mr. Witty's opposition in these consolidated cases. Mr. Witty attempted to have the consolidated cases dismissed pursuant to a peremptory exception pleading the objection of res judicata, which was sustained by the trial court. However, the judgment was appealed to another panel of this court, which reversed the judgment and remanded the matter, with "all costs" assessed to Mr. Witty.
Mr. Witty's attorney subsequently received a bill from the Pointe Coupee Parish Sheriff's Office dated December 17, 2008, advising him that the costs associated with the consolidated cases totaled $3,495.58. However, on November 14, 2008, prior to the receipt of this bill by Mr. Witty's attorney and based solely on a receipt allegedly demonstrating the appeal costs advanced, Mr. Elliott sought and obtained a writ of fieri facias in the consolidated cases, seeking to seize Mr. Witty's interest as a legatee in a separate probate matter entitled " Succession of Murray G. LeBeau," probate number 41,184, in Pointe Coupee Parish in the Eighteenth Judicial District Court. Mr. Elliott did not notify Mr. Witty or his attorney prior to obtaining this writ of fieri facias, nor was a rule to tax costs filed in the consolidated cases pursuant to LSA-C.C.P. art. 1920.
According to the receipt, Mr. Elliott had advanced appeal costs in the amount of $3043.
Contending that the writ of fieri facias was prematurely and wrongfully issued, Mr. Witty filed a petition against Mr. Elliott for abuse of process. Mr. Elliott responded by filing a peremptory exception pleading the objections of res judicata and no cause of action. The trial court sustained the exception of no cause of action and dismissed Mr. Witty's petition, with prejudice. The objection of res judicata was dismissed as moot. It is from this judgment that Mr. Witty has appealed. Mr. Elliott has answered the appeal, seeking damages and attorney fees for frivolous appeal, as well as a reconsideration of the trial court's ruling on the exception of res judicata.
Mr. Elliott also filed a declinatory exception pleading the objections of insufficiency of service of process and lis pendens. Those objections were also denied as moot.
NO CAUSE OF ACTION
The purpose of the peremptory exception raising the objection of no cause of action is to determine the sufficiency in law of the petition. The exception is triable on the face of the petition. For the purpose of determining the issues raised by the exception, the well-pleaded facts in the petition must be accepted as true. Adams v. Owens-Corning Fiberglas Corp., 04-1296 (La. App. 1st Cir. 9/23/05), 921 So.2d 972, 975, writ denied, 05-2501 (La. 4/17/06), 926 So.2d 514; see LSA-C.C.P. arts. 927 and 931. Furthermore, the facts shown in any documents attached to the petition must also be accepted as true. See LSA-C.C.P. art. 853; Cardinale v. Stanga, 01-1443 (La. App. 1st Cir. 9/27/02), 835 So.2d 576, 578. The burden of demonstrating that no cause of action has been stated is on the party filing the exception. Home Distribution, Inc. v. Dollar Amusement, Inc., 98-1692 (La. App. 1st Cir. 9/24/99), 754 So.2d 1057, 1060.
In ruling on an exception of no cause of action, the court must determine whether the law affords any relief to the claimant if he proves the factual allegations in the petition and attached documents at trial. Home Distribution, 754 So.2d at 1060. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. LSA-C.C.P. art. 931. When a petition is read to determine whether a cause of action has been stated, it must be interpreted, if possible, to maintain the cause of action instead of dismissing the petition. Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated. Brister v. GEICO Ins., 01-0179 (La. App. 1st Cir. 3/28/02), 813 So.2d 614, 617.
According to Mr. Witty's petition, Mr. Elliott's actions in obtaining the writ of fieri facias amounted to an abuse of process. The tort of abuse of process 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. 1st Cir. 9/22/00), 768 So.2d 287, 290-91. In his petition, Mr. Witty alleges that Mr. Elliott's ulterior purpose was to seize Mr. Witty's interest in the Succession of Murray G. LeBeau and that he attempted to do so by obtaining a writ of fieri facias without a money judgment, which is a process not proper in the regular prosecution of the proceeding.
The petition noted that the writ of fieri facias had been requested based on nothing more than a judgment assessing court costs against Mr. Witty, without any monetary amount specified. In addition, the petition alleged that Mr. Elliott had relied solely upon the receipt showing the appeal costs he had allegedly advanced in requesting the writ of fieri facias, as not even the bill from the Pointe Coupee Parish Sheriff's Office had been sent to Mr. Witty's counsel at the time the writ of fieri facias was requested. The bill from the sheriff, the receipt, the request for the writ, and the writ of fieri facias were attached to the petition as exhibits.
A judgment for the payment of money may be executed by a writ of fieri facias directing the seizure and sale of property of the judgment debtor. LSA-C.C.P. art. 2291. It is undisputed that no money judgment had been rendered against Mr. Witty prior to the issuance of the writ of fieri facias at Mr. Elliott's request. Nevertheless, Mr. Elliott contends that Mr. Witty's petition fails to state a cause of action because the underlying action has not been terminated in his favor. Specifically, Mr. Elliott argues that because he did not have an attorney-client relationship with Mr. Witty, the only causes of action that could possibly arise from his conduct in this matter are certain intentional torts. See Penalber v. Blount, 550 So.2d 577, 582 (La. 1989). According to Mr. Elliott, Mr. Witty has attempted to comply with the parameters of Penalber by alleging the tort of abuse of process in his petition; however, Mr. Elliott contends that the petition fails to state a cause of action at this time, because a necessary prerequisite to bringing an action against opposing counsel for conduct in litigation is that the underlying litigation must have been terminated in favor of the party bringing the current action.
In support of this position, Mr. Elliott relies on Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 131-32, which did note the prerequisite of a specific requirement in certain cases that the underlying litigation be terminated in favor of the party asserting the current action. However, in Waguespack, 768 So.2d at 291-92, this court determined that, unlike claims of defamation and malicious prosecution, a claim for abuse of process may be asserted prior to the termination of the litigation in which the allegations were made. Accordingly, we conclude that the trial court improperly found that Mr. Witty's petition failed to state a cause of action for abuse of process.
RES JUDICATA
The doctrine of res judicata is an issue and claim preclusion device found in both federal law and state law. The purpose of res judicata in both federal and state law is essentially the same — to promote judicial efficiency and final resolution of disputes by preventing needless relitigation. Mandalay Oil Gas, L.L.C. v. Energy Development Corp., 01-0993 (La. App. 1st Cir. 8/4/04), 880 So.2d 129, 135, writ denied, 04-2426 (La. 1/28/05), 893 So.2d 72. The party raising the objection of res judicata bears the burden of proving the essential facts to support the objection. Diamond B. Construction Co., Inc. v. Department of Transportation and Development, 02-0573 (La. App. 1st Cir. 2/14/03), 845 So.2d 429, 435.
In Louisiana, the general principles governing res judicata are set forth in LSA-R.S. 13:4231, which provides as follows:
Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction of occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.
Under LSA-R.S. 13:4231, all of the following elements must be satisfied for res judicata to preclude a second action: (1) the judgment is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the second suit existed at the time of the final judgment in the first litigation; and (5) the cause or causes of action asserted in the second suit arose out of the transaction or occurrence that was the subject matter of the first litigation. Burguieres v. Pollingue, 02-1385 (La. 2/25/03), 843 So.2d 1049, 1053.
According to Mr. Elliott, Mr. Witty's current petition for damages is barred by res judicata because the identical issue was decided against him by the trial court in the consolidated cases. After Mr. Elliott requested and obtained the writ of fieri facias, Mr. Witty filed a pleading in the consolidated cases entitled, "Rule to Show Cause Motion to Quash [Writ] of Fieri Facias and Injunctive Relief," seeking to have the writ of fieri facias recalled and vacated, among other relief. Mr. Witty's motion was denied by judgment rendered on February 10, 2009, and signed on July 1, 2009. No appeal was ever taken from this judgment, and Mr. Elliott claims it is now final. It is this judgment that Mr. Elliott asserts has preclusive effect on Mr. Witty's current petition for damages.
Mr. Elliott acknowledges that this was an interlocutory judgment, but he contends that the judgment could have been appealed when the appeal of the consolidated cases was before this court. We do not have the record of the consolidated cases before us; therefore, we do not address the issue of whether the judgment on this motion was an interlocutory or final judgment. Furthermore, considering our resolution of the issue of the "identity of parties" requirement, the finality of the judgment is not necessary to the resolution of the application of the doctrine of res judicata to this matter.
As noted above, all five elements must be satisfied for res judicata to preclude a second action. The third of these elements is that the parties in each suit must be the same. More specifically, there must be an "identity of parties" before the doctrine of res judicata can be used to preclude a subsequent suit. See Burguieres, 843 So.2d at 1054. This requirement does not mean that the parties must have the same physical identity, but that the parties must appear in the same capacities in both suits. Id.
This position is further supported by LSA-C.C.P. art. 531, which provides: When two or more suits are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first suit dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the suits, but the first final judgment rendered shall be conclusive of all.
In the matter before this court, the requirement that there be an "identity of parties" has not been satisfied. Although Mr. Witty and Mr. Elliott are both parties to the current petition for damages, the same was not true of the consolidated cases. While Mr. Witty was a defendant in the consolidated cases, Mr. Elliott appeared in those matters only as the attorney of record for the plaintiffs. Therefore, there is no identity of parties in the two actions, and the doctrine of res judicata is inapplicable.
We are aware that Mr. Elliott was named as a defendant in the "Rule to Show Cause Motion to Quash [Writ] of Fieri Facias and Injunctive Relief" filed on behalf of Mr. Witty in the consolidated cases. In that pleading, Mr. Witty sought damages and sanctions against Mr. Elliott and his clients for requesting the writ of fieri facias without the issuance of a money judgment. However, while LSA-C.C.P. art. 863(D) authorizes the imposition of sanctions under certain circumstances, upon the motion of any party or upon the court's own motion, the Article does not authorize the award of damages upon any such motion. Furthermore, summary proceedings are not authorized for the trial of an action for damages. See LSA-C.C.P. art. 2592. Accordingly, Mr. Witty's earlier motion to quash the writ of fieri facias did not authorize a right of action for damages against Mr. Elliott, and that issue was not litigated between the parties. Therefore, LSA-R.S. 13:4231(3) is not applicable to bar the instant suit for damages against Mr. Elliott.
Because we have decided the issues on the main appeal in favor of Mr. Witty, Mr. Elliott's claims for damages and attorney fees in his answer to the appeal are denied.
DECREE
Accordingly, the judgment of the trial court granting the peremptory exception pleading the objection of no cause of action and dismissing the plaintiff's petition is reversed, and this matter is remanded to the trial court for further proceedings. All costs of this appeal are assessed to Neal R. Elliott, Jr.