Opinion
2014 CA 0811
03-11-2015
GLENN J. PATRICK AND SAMUEL E. CARVILLE v. JAMES H. DUPONT, DUPONT, DUPONT & DUPONT, LTD., A PROFESSIONAL LAW CORPORATION, STEPHEN PANEPINTO, PLAQUEMINE BANK & TRUST COMPANY, RICKY J. PATRICK, MELISA PATRICK AND J. PATRICK, INC., MACHINE PUMP & FABRICATION
J.E. Cullens, Jr. Edward J. Walters, Jr. Daryl J. Papillion Baton Rouge, Louisiana Baton Rouge, Louisiana Attorneys for Plaintiffs/Appellants Glenn J. Patrick and Samuel E. Carville Connell L. Archey Keith J. Fernandez Baton Rouge, Louisiana Attorneys for Defendants/Appellees James H. Dupont and Dupont, Dupont & Dupont, Ltd., A Professional Law Corporation Duris Lee Holmes Robert E. Kerrigan, Jr. Lafayette, Louisiana Attorneys for Defendants/Appellees Plaquemine Bank & Trust Company and Stephen Panepinto John B. Brumfield, Jr. Baton Rouge, Louisiana Attorney for Defendants/Appellees Melisa Patrick, and J. Patrick Inc., Machine Pump and Fabrication Ricky Patrick Plaquemine, Louisiana Pro Se Defendant/Appellee
NOT DESIGNATED FOR PUBLICATION
APPEALED FROM THE EIGHTEENTH JUDICIAL DISTRICT COURT IN AND FOR THE PARISH OF IBERVILLE STATE OF LOUISIANA
DOCKET NUMBER 71393
HONORABLE MARION F. EDWARDS, JUDGE J.E. Cullens, Jr.
Edward J. Walters, Jr.
Daryl J. Papillion
Baton Rouge, Louisiana
Baton Rouge, Louisiana
Attorneys for Plaintiffs/Appellants
Glenn J. Patrick and Samuel E.
Carville
Connell L. Archey
Keith J. Fernandez
Baton Rouge, Louisiana
Attorneys for Defendants/Appellees
James H. Dupont and Dupont, Dupont
& Dupont, Ltd., A Professional Law
Corporation
Duris Lee Holmes
Robert E. Kerrigan, Jr.
Lafayette, Louisiana
Attorneys for Defendants/Appellees
Plaquemine Bank & Trust Company
and Stephen Panepinto
John B. Brumfield, Jr.
Baton Rouge, Louisiana
Attorney for Defendants/Appellees
Melisa Patrick, and J. Patrick Inc.,
Machine Pump and Fabrication
Ricky Patrick
Plaquemine, Louisiana
Pro Se Defendant/Appellee BEFORE: McDONALD, CRAIN, AND HOLDRIDGE, JJ. McDONALD, J.
In this appeal, the plaintiffs challenge a judgment granting peremptory exceptions raising the objections of no cause of action and peremption.
FACTS AND PROCEDURAL HISTORY
This case involves protracted litigation among several parties originating from as far back as the year 2000. The complex factual and procedural history will not be recited in full here. Briefly, however, before 2000, Bayou Fabricators Machine and Pump, Inc. (Bayou Fabricators) was apparently owned by James Patrick, his brother, Glenn Patrick, and Samuel Carville. After James Patrick's death in February 2002, his interest in the company devolved to his children, Ricky Patrick and Melisa Patrick. As part of a settlement agreement intended to resolve a dispute regarding ownership, Ricky Patrick and Melisa Patrick bought out Glenn Patrick's interest and Samuel Carville's interest in Bayou Fabricators (which at the time had been renamed J. Patrick, Inc., Machine Pump & Fabrication (J. Patrick, Inc.)) for approximately $1 million. The settlement was finalized in May 2003. James H. Dupont, an attorney, had provided legal services to the company. In 2002, J. Patrick Inc. issued fifteen shares of stock to Mr. Dupont as compensation for this legal work.
On July 14, 2014, this Court granted a motion to place three related appeals, docketed under 2014 CA 0810, 2014 CA 0811, and 2014 CA 0812, before the same panel and on the same docket. The plaintiffs' appeal in 2014 CA 0810 is from a judgment in favor of the Patrick defendants; and, in 2014 CA 0812, is from a judgment in favor of the Bank defendants. Our opinions in those two related appeals are also handed down this day.
More than eight years later, on March 8, 2012, the plaintiffs, Glenn Patrick and Samuel Carville, filed the instant suit alleging they were fraudulently induced to divest their ownership in Bayou Fabricators at an artificially low price after being deceived as to the true value of the company via a scheme implemented by the defendants, Ricky Patrick, Melisa Patrick, and J. Patrick, Inc., (Patrick defendants); James Dupont and Dupont, Dupont & Dupont, Ltd. law firm (Dupont defendants); and Stephen Panepinto and Plaquemine Bank & Trust Company (Bank defendants). Specifically, the plaintiffs allege that, shortly after James Patrick died, the Patrick defendants retained attorney James Dupont, who arranged a meeting at which he, Ricky Patrick, and Stephen Panepinto, president of the Plaquemine Bank & Trust, met at the bank and agreed among themselves (and Melisa Patrick later agreed) to divert income properly payable to Bayou Fabricators into certain unauthorized accounts, which would then be accessible by the Patrick defendants.
The suit alleged that to hide the unauthorized diversion of funds, Mr. Dupont and the Patrick defendants created "warranty files" within Bayou Fabricator's business records, which falsely indicated that certain work was performed at no charge as "warranty" work, when in fact, payment had actually been received for the work and deposited into the unauthorized bank accounts set up by Mr. Panepinto at Plaquemine Bank & Trust, rather than deposited into Bayou Fabricator's business account (warranty scheme). According to the plaintiffs, as a result of the warranty scheme, the defendants were able to fraudulently deflate Bayou Fabricator's income, convert business income into cash for their personal benefit, and deceive them into "walking away from their business" and selling their interests in Bayou Fabricators at a deflated price.
In their original and amended petitions, the plaintiffs allege that they first learned of the warranty scheme "on or after approximately June 1, 2011," when Ricky Patrick confessed the details to Glenn Patrick and Samuel Carville. The plaintiffs made claims of fraud, conspiracy, violation of the Louisiana Unfair Trade Practices Act, La. R.S. 51:1401, et seq., negligent misrepresentation, and unjust enrichment/detrimental reliance.
On May 23, 2012, the Dupont defendants filed a peremptory exception raising the objection of no cause of action, asserting that the petition failed to state a cause of action because the plaintiffs sued to rescind a settlement without first tendering the amount they received pursuant to the settlement. On June 22, 2012, the Dupont defendants filed a second peremptory exception raising the objection of no cause of action, asserting that the allegations were not sufficient to state a cause of action against Mr. Dupont as an attorney sued by a non-client.
While the Dupont defendants' first exception raising the objection of no cause of action asserted that the petition failed to state a cause of action because the plaintiffs sued to rescind a settlement without first tendering the amount they received pursuant to the settlement, we note that the Dupont defendants were not a party to the settlement.
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On September 14, 2012, plaintiffs filed their first amended, supplemental and restated petition for damages, restating the original allegations, and alternatively pleading rescission of the underlying release agreements, which they maintained were induced by the illicit conduct, misrepresentations, and fraud of the defendants. Plaintiffs also asserted that they were not required to tender the amount received by them in the settlement, due to the defendants' fraud.
On September 24, 2012, the Dupont defendants filed an exception of peremption as to the amended and restated petition, asserting that the amended petition should be stricken as it was perempted by La. R.S. 9:5605, the Louisiana attorney malpractice statute. The Dupont defendants maintained that as the plaintiffs' original petition asserted that they learned of the facts of the case on June 1, 2011, and the amended petition was filed on September 19, 2012, the one-year preemptive period of 9:5605 applied, and the amended petition, which was preempted, did not relate back to the filing of the original petition.
The Dupont defendants' exceptions of no cause of action were argued on January 4, 2013, and taken under advisement by Ad Hoc Judge Anne Simon. The Dupont defendants' exception of peremption was heard on February 8, 2013, and taken under advisement by Judge Simon. Judge Simon was later recused from the case.
On July 18, 2013, there was a hearing on the Dupont defendants' exception of peremption and the exception of no cause of action before Ad Hoc Judge Marion F. Edwards. After the hearing, the trial court gave reasons for judgment finding that La. R.S. 9:5605 perempted the claims in the amended petition against the Dupont defendants. On August 8, 2013, the trial court rendered judgment granting the Dupont defendants' exceptions of no cause of action as to the original petition and granting the Dupont defendants' exception of peremption as to the amended petition. The judgment also denied the plaintiffs leave to further amend either petition, finding that the grounds upon which the exception of peremption was granted could not be removed by amendment, and further, the judgment dismissed all claims against the Dupont defendants, with prejudice. The plaintiffs have appealed that judgment.
The plaintiffs make the following assignments of error.
1. The trial court's ruling that plaintiffs failed to state a viable intentional tort claim against the Dupont Defendants is clear legal error.
2. The trial court's finding that plaintiffs failed to state a cause of action against the Dupont Defendants pursuant to Penalber v. Blount, 550 So.2d 577 (La. 1989), and its progeny is clear error.
3. The trial court's ruling that the Amended Petition is preempted is clear legal and manifest error.
4. The trial court's ruling that La. R.S. 9:5605 applies to plaintiffs' claims against the Dupont Defendants is clear legal error.
5. By failing to apply the fraud exception set forth in La. R.S. 9:5605(E), the trial court committed clear legal error.
6. The trial court's finding that plaintiffs knew or should have known of the defendants' fraudulent conspiracy either in June 2011 or prior to March 8, 2011, is contradictory, clearly wrong, and manifestly erroneous.
7. The trial court's finding that the Dupont Defendants met their burden of proof on their exception of peremption and/or prescription is contradictory, clearly wrong and manifestly erroneous.
8. By refusing to grant plaintiffs leave to amend their petition to cure any objection made by the Dupont Defendants' pursuant to La. C.C.P. art. 934, the trial court committed clear legal error.
ASSIGNMENTS OF ERROR NUMBERS 3, 4, 5, AND 7
In these assignments of error the plaintiffs assert that the trial court erred in: ruling that the amended petition was perempted; ruling that La. R.S. 9:5605 applies to the plaintiffs' claims against the Dupont defendants; and alternatively, erred in failing to apply the fraud exception set forth in La. R.S. 9:5605(E) in the event that La. R.S. 9:5605 did apply, and further, that the trial court erred in finding that the Dupont defendants met their burden of proof on the exception of peremption.
LAW AND DISCUSSION
THE EXCEPTION OF PEREMPTION
The Louisiana Malpractice Statute, La. R.S. 9:5605, provides:
A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and peremptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
(Emphasis added.)
The statute in Subsection A states that the action for damages must arise out of an engagement to provide legal services. The statute was not designed to protect every action of every attorney simply because the attorney was practicing law at the time the act or omission was committed. Such application would be unjust and lead to unreasonable results. Broussard v. F.A. Richard and Associates, Inc., 1998-1167 (La. App. 3 Cir. 3/17/99), 732 So.2d 578, 583, writ denied, 1999-1048 (La. 6/4/99), 744 So.2d 625.
As there was no attorney-client relationship between Glenn Patrick and Mr. Dupont or Samuel Carville and Mr. Dupont, we find that La. R.S. 9:5605 does not apply to the facts of this case. Furthermore, even if La. R.S. 9:5605 did apply to the non-client suit in this case, subsection E carves out an exception for fraud, which is the action brought by the plaintiffs in this case. Broussard, 732 So.2d at 585.
We find that the trial court committed legal error in determining that La. R.S. 9:5605 and its preemptive period applied to the facts of this case. Thus, we reverse the trial court judgment granting the exception of peremption.
ASSIGNMENTS OF ERROR NUMBERS 1, 2, AND 8
In these assignments of error the plaintiffs assert that the trial court erred in: ruling that the plaintiffs failed to state a cause of action against the Dupont defendants; ruling that the plaintiffs failed to state a viable intentional tort claim against the Dupont defendants; and, in refusing to grant the plaintiffs leave to amend their petition to cure any objection made by the Dupont defendants pursuant to La. C.C.P. art. 934.
LAW AND DISCUSSION
THE EXCEPTION OF NO CAUSE OF ACTION
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall be dismissed. La. C.C.P. art. 934.
In reviewing a trial court's ruling sustaining an exception of no cause of action, the appellate court should subject the case to de novo review because the exception raises a question of law and the trial court's decision is based only on the sufficiency of the petition. Simply stated, a petition should not be dismissed for failure to state a cause of action unless it appears beyond doubt that the plaintiff can prove no set of facts in support of any claim which would entitle him to relief. Kinchen v. Livingston Parish Council, 2007-0478 (La. 10/6/07), 967 So.2d 1137, 1138, citing Fink v. Bryant, 2001-0987 (La. 11/28/01), 801 So.2d 346, 349.
In Penalber v. Blunt, 550 So.2d 577 (La. 1989), the court held that a non-client generally cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation. The intent of this rule is not to reduce an attorney's responsibility for his or his work, but rather to prevent a chilling effect on the adversarial practice of law and to prevent a division of the loyalty owed a client. Penalber, 550 So.2d at 581. Further, the court held that intentionally tortious actions, ostensibly performed for a client's benefit, will not shroud an attorney with immunity. Consequently, even though an attorney does not owe a duty to his client's adversary, under the broad ambit of La. C.C. art. 2315, an attorney may be held personally accountable for his intentional tortious conduct. Penalber, 550 So.2d at 582. However, it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney. Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 130.
In East Baton Rouge Parish Sewerage Commission v. Banks, 2009-0107 (La. App. 1 Cir. 4/1/10), 2010 WL 1253631, writ denied, 2010-1025 (La. 9/3/10), 44 So.3d 690, (unpublished) an attorney was sued by non-client plaintiffs, the East Baton Rouge Parish Sewerage Commission and the Parish of East Baton Rouge (collectively the Parish), for knowingly and intentionally withdrawing funds from the registry of the court and giving them to his client without authority to do so. The attorney in Banks asserted that any duty he owed in connection with the funds he received was owed only to his clients and not to the Parish. East Baton Rouge Parish Sewerage Commission, 2010 WL 1253631, at *5. The court found that the attorney was accountable to the Parish, a non-client, for his intentional tortious conduct. East Baton Rouge Parish Sewerage Commission, 2010 WL 1253631,*5.
The court must accept the well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo, 637 So.2d at 131, citing Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234 (La. 1993), and Kuebler v. Martin, 578 So.2d 113 (La. 1991).
In their petition, the plaintiffs assert that Mr. Dupont advised and directed Ricky Patrick, Melisa Patrick, and J. Patrick, Inc., "to cash checks that should have been deposited into the business accounts" of Bayou Fabricators, which resulted in the true value of Bayou Fabricators "being grossly deflated and not accurately reported to plaintiffs prior to their decision to sell their ownership interests" in Bayou Fabricators. Further, the petition asserts that Mr. Dupont "arranged and directed" a meeting with Mr. Panepinto, Ricky Patrick, Melisa Patrick and himself at Plaquemine Bank, at which time the parties agreed among themselves to open "unauthorized bank accounts" for the purpose of "deceiving, misleading, and fraudulently inducing plaintiffs" to have an "erroneous impression of the financial condition of the business" so that the plaintiffs would "sell their ownership interests in the business at an artificially low price."
The petition asserts that Mr. Dupont advised and directed Ricky Patrick and Melisa Patrick to negotiate company checks in the amount of $450,000.00 through "unauthorized bank accounts" not associated with Bayou Fabricators "in order to allow defendants to use these funds for their own personal or professional benefit—all to the detriment of [the plaintiffs]." The petition further asserts that Mr. Dupont directed Ricky Patrick, Melisa Patrick, and J. Patrick, Inc., to create "warranty files" to "manipulate the business records" of Bayou Fabricators "to make it appear that the business was not actually paid" for the warranty work, when in fact the payments were converted into cash used by defendants "for their personal benefit," and to deceive and mislead the plaintiffs into "walking away from their business and selling their shares in Bayou Fabricators . . . at a deflated price."
Having examined the petition, we find that the petition does allege facts sufficient to show specific malice or an intent to harm the plaintiffs on the part of Mr. Dupont, and we find that the trial court committed legal error in granting the exception of no cause of action. We reverse the judgment granting the exception of no cause of action.
ASSIGNMENT OF ERROR NO. 6
In this assignment of error, the plaintiffs assert that, in the alternative, even if the peremptive periods of La. R.S. 9:5605 somehow apply to preclude plaintiffs' fraud claims, then the date of discovery relied upon by the trial court to preclude the plaintiffs' amended petition (either in June 2011 or prior to March 8, 2011) is manifestly wrong. As we have found that La. R.S. 9:5605 does not apply to the plaintiffs' claims against the Dupont defendants, we need not address this alternative argument by the plaintiffs.
While the Dupont defendants assert in their brief that the finding by the trial court that the plaintiffs knew of their claims shortly before March 8, 2011, in ruling that the case against the Bank defendants was prescribed, also ends the case as to all other defendants, the Dupont defendants did not appeal the judgment, nor did they answer the appeal. Thus, the issue of prescription is not properly before this court in this appeal.
CONCLUSION
For the foregoing reasons, the judgment granting the exception of peremption is reversed, the judgment granting the exception of no cause of action is reversed, and the matter is remanded to the trial court for further proceedings. Costs of this appeal are assessed against the Dupont defendants.
JUDGMENTS REVERSED, MATTER REMANDED.