Daniel Carl Rainer v. John Thornhill

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0974

DANIEL CARL RAINER

VERSUS

JOHN THORNHILL

CONSOLIDATED WITH

2019 CA 0975

DANIEL CARL RAINER AND ANITA HUGHES RAINER

VERSUS

JOHN EUGENE THORNHILL AND RICHIE, RICHIE, & OBERLE, L.L.P.
AND DALE JESSE THORNHILL, III AND MICHAEL SEAN RAINER

Judgment Rendered: MAY 1 12020

APPEALED FROM THE FIRST JUDICIAL DISTRICT COURT,
IN AND FOR THE PARISH OF CADDO
STATE OF LOUISIANA
DOCKET NUMBER 602, 392B, CONSOLIDATED WITH 604, 308B,

HONORABLE CRAIG O. MARCOTTE, JUDGE

Counsel of Record:

Murray R. Rogers Attorney for Plaintiffs/Appellants
Shreveport, Louisiana Daniel and Anita Rainer

Charles Vernon Richie Attorney for Defendants/Appellees
Shreveport, Louisiana John Eugene Thornhill and Richie,
Richie, and Oberle, LLP

BEFORE: McDONALD, THERIOT, and CHUTZ, JJ.

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McDonald, J.

This is an appeal from a judgment issued in the First Judicial District Court

in Caddo Parish.' The trial court judgment sustained an exception of no right of

action, found an exception of no cause of action and motion for summary judgment

moot, denied a motion to quash and for protective order as moot, ordered that

counsel for plaintiffs provide notice to all counsel of record of subpoenas issued

and provide copies of all documents received under subpoenas to all counsel of

record, denied motions to disqualify defendant' s attorney and his law firm, and

certified the judgment as a final judgment. After a thorough review, we affirm.

FACTS AND PROCEDURAL HISTORY

This is a consolidated case involving possessory and petitory actions, an

action for damages, and various related claims pertaining to an approximately 3. 5

acre parcel of land which is part of a larger, 14 -acre parcel of land located adjacent

to Providence Road in Caddo Parish.

In the first suit, filed on July 26, 2017, Daniel Carl Rainer ( Mr. Rainer) filed

an " EX PARTE PETITION FOR A TEMPORARY RESTRAINING ORDER"

against John Eugene Thornhill ( Mr. Thornhill), asserting that Mr. Thornhill was

attempting to remove him from the 3. 5 acre parcel of property which he had

possessed since 1984. He asked that Mr. Thornhill be ordered to halt his eviction

efforts, be instructed to contact him through his attorney, and be instructed to

inform Mr. Rainer' s counsel of his counsel' s contact information so that a

resolution to the dispute could be reached.'

All of the judges of the Second Circuit Court of Appeal recused themselves from the appeal. Thereafter,
on July 19, 2019, the Louisiana Supreme Court ordered that the matter be transferred to this court.
2 Mr. Thornhill later filed a motion to dismiss his petition without prejudice and the petition was
thereafter dismissed without prejudice by the trial court on August, 9, 2017.
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On August 7, 2017, Mr. Thornhill filed a motion for contempt and sanctions,

naming as defendant Murray Rogers, the attorney for Mr. Rainer, asserting abuse

of process, acts or omissions intended to obstruct or interfere with the orderly

administration of justice, and breaches of certifications of La. C. C. P. art. 863. On

August 21, 2017, Mr. Rainer filed a motion for sanctions against Vernon Richie

Mr. Richie), the attorney for Mr. Thornhill, asserting violations of the Code of

Civil Procedure and Rules of Professional Conduct.

On August 22, 2017, Mr. Thornhill filed a reconventional demand asserting

a possessory action, naming as defendants Mr. Rainer, his wife, Anita Hughes

Rainer, and Michael Sean Rainer (Mr. Rainer' s son). Mr. Thornhill alleged that the

Rainers' possession was precarious, and thus could not serve as a basis for

acquisitive prescription. Mr. Thornhill also sought a permanent injunction to keep

the Rainers and Michael Sean Rainer from trespassing, and asked for damages.

In response to the reconventional demand, on September 6, 2017, Mr. Rainer

filed exceptions of no cause of action, no right of action, improper joinder of

parties, and lack of jurisdiction. He also asked that the hearing on his exceptions

be continued until the court ruled on the motion to disqualify Mr. Richie, asserting

that if the motion to disqualify was granted, the exceptions would be moot.

In the second suit, filed on October 20, 2017, the Rainers filed a " PETITION

FOR POSSESSORY ACTION AND DECLARATORY JUDGMENT" regarding

the 3. 5 acre parcel of property. The Rainers prayed that they be declared the lawful

possessors of the property, that they be declared owners of the property by

acquisitive prescription, and that a mortgage between Mr. Thornhill and the law

firm representing him, Richie, Richie & Oberle, L.L.P. ( RR& O), which included

the disputed property, be declared null. As the Rainers cumulated their petitory

a]

and possessory actions in the same suit, they waived their possessory action.' The

Rainers named as defendants in the petitory action Mr. Thornhill and RR& O. The

Rainers named as defendants in the declaratory action Dale Jesse Thornhill, III,

Mr. Thornhill' s brother and Mr. Rainers' step -nephew) and Michael Sean Rainer.

On October 26, 2017, the Rainers filed a motion to disqualify Mr. Richie and

RR& O from representing Mr. Thornhill.' The motion alleged that Mr. Richie had

violated the Rules of Professional Conduct and that RR& O had taken a mortgage

on the property subject to the litigation, and thus, had made the firm' s attorneys

necessary material witnesses in the case.

After a hearing on October 30, 2017, the trial court signed a judgment on

March 16, 2018, which, in part, denied Mr. Thornhill' s motion for sanctions and

the Rainers' motion for sanctions and consolidated the suits.

On June 15, 20185 RR& O filed exceptions of no cause of action and no right

of action and a motion for summary judgment. On August 3, 2018, Mr. Thornhill

and RR& O filed a motion to quash subpoenas, a motion for a protective order, and

a motion for sanctions. A hearing was held on August 27, 2018, and judgment was

rendered in open court. The judgment was signed on October 2, 2018. It provides

in pertinent part:

THESE CONSOLIDATED MATTERS came before the Court
on August 27, 2018 on Peremptory Exceptions of No Cause of
Action and No Right of Action and/ or Motion for Summary
Judgment, filed by Richie, Richie & Oberle, L.L.P. Present were
a) C. Vernon Richie, Attorney at Law, representing John Eugene

Thornhill and Richie, Richie & Oberle, L.L.P.; ( b) Murray Rogers,

Attorney at Law, representing Daniel Carl Rainer and Anita Hughes
Rainer; and ( c) Rita K. Bacot, Attorney at Law, representing Michael
Sean Rainer. After evidence was adduced and argument was made,

3 The plaintiff may not cumulate the petitory and possessory actions in the same suit or plead them in the
alternative, and when he does so he waives the possessory action. La. C. C. P. art. 3657.
a An earlier motion to disqualify Mr. Richie and RR& O from representing Mr. Thornhill, based upon the
same facts, was filed on August 21, 2017. That motion was denied by the trial court in a judgment dated
November 27, 2017.
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the Court finds as follows:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that there be a judgment in favor of Richie, Richie & Oberle, L. L.P.
and against Daniel Carl Rainer and Anita Hughes Rainer granting the
Exception of No Right of Action dismissing the claims of the Rainers
against Richie, Richie & Oberle thus rendering the No Cause of
Action and Motion for Summary Judgment moot.

IT IS FURTHER ORDERED ADJUDGED AND DECREED
that the Motion to Quash and Protective Order are denied as moot
with the attorney for Daniel Carl Rainer and Anita Hughes Rainer
agreeing to provide counsel for Thornhill all documents received by
the[ m] pursuant to said subpoenas.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that counsel for Rainer will provide notice to all counsel of record
when issuing subpoenas with counsel for Rainer providing a copy of
all documents received from subpoenas to all counsel of record.

FURTHERMORE, IT IS ORDERED, ADJUDGED AND
DECREED [ that] all Motions to Disqualify filed in the consolidated
cases are DENIED.

IT IS FURTHER ORDER[ E] D, ADJUDGED AND DECREED
that this Judgment is certified as a final judgment for purposes of
immediate appeal, the Court finding that there is no reason for delay.
Emphasis added.)

The Rainers appealed that judgment. On appeal, they raise the following

assignments of error:

I. The trial court' s decision to deny appellants' motion to disqualify
appellee [ RR& O] and attorney [ Mr.] Richie constitutes an error in
law.

II. The trial court erred in denying appellant' s motion for sanctions
against appellee [ RR& O], attorney [ Mr.] Richie, and appellee [ Mr.]

Thornhill.

III. The trial court' s decision to grant exceptions of appellees [ RR& O]
and [ Thornhill thereby dismissing appellants' tort claims for
Mr.]

recovery from alleged [ tortious] acts constitutes an error in law.

IV. The trial court' s decision to deny appellants' exceptions to

possessory claims of appellee [ Mr.] Thornhill constitutes an error in
law.

RR& O filed an answer to the appeal, maintaining that in the event the
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judgment sustaining the exception of no right of action is reversed by this court,

either in whole or in part, the motion for summary judgment should be granted and

the claims asserted by the Rainers against RR& O should be dismissed, with

prejudice, at the Rainers' cost. RR& O also filed a motion to strike assignments of

error numbers two and four, asserting that those assignments of error were not

addressed by the limited appeal. The motion to strike was denied by the Second

Circuit Court of Appeal on June 11, 2019. 5

ASSIGNMENT OF ERROR NUMBER TWO

In assignment of error number two, the Rainers maintain that the trial court

erred in denying a motion for sanctions against RR& O, Mr. Richie, and Mr.

Thornhill. Mr. Thornhill and RR& O maintain that the motion for sanctions was

denied by the trial court in an earlier judgment and cannot be addressed in this

limited appeal. The Rainers' motion for sanctions was denied in a March 16, 2018

interlocutory judgment. The only judgment appealed by Mr. Rainer is the October

21 2018 judgment.

In general, when an unrestricted appeal is taken from a final judgment

determinative of the merits, the appellant is entitled to seek review of all adverse

and prejudicial interlocutory judgments, in addition to review of the final

judgment. Carrollton Presbyterian Church v. Presbytery of South Louisiana

of the Presbyterian Church ( USA), 2011- 0205 ( La. App. 1 Cir. 9/ 14/ 11), 77

So. 3d 975, 978- 979, writ denied, 2011- 2590 ( La. 2/ 17/ 12), 82 So. 3d 285, cert.

denied, 568 U.S. 818, 133 S. Ct. 150, 184 L.Ed.2d 32 ( 2012). This is not an

unrestricted appeal taken from a final judgment determinative of the merits of the

5 In denying the motion to strike, the Second Circuit Court of Appeal stated " This Court renders
judgments that are just, legal, and proper upon the record upon appeal; it does not consider issues which
were not ruled upon by the trial court. See La. C.C. P. art. 2164 and U. R.CA. Rule 1- 3. Accordingly, the
motion to strike is denied as unnecessary."

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case. The appeal herein is restricted to the merits of the rulings in the October 2,

2018 judgment sustaining the exception of no right of action and denying the

motion to disqualify Mr. Thornhill' s counsel. Thus, this assignment of error is not

properly before us on appeal.

ASSIGNMENT OF ERROR NUMBER FOUR

In assignment of error number four, the Rainers maintain that the trial court

erred in denying their exceptions to the possessory claims made in the

reconventional demand filed by Mr. Thornhill. While there was discussion of the

Rainers' exceptions to Mr. Thornhill' s reconventional demand at the hearing, the

judgment on appeal does not address the Rainers' exceptions, and the record before

us does not contain a judgment addressing the Rainers' exceptions to Mr.

Thornhill' s reconventional demand.' Thus, this assignment of error is not properly

before us on appeal.

ASSIGNMENT OF ERROR NUMBER ONE

In assignment of error number one, the Rainers maintain that the trial court

erred in denying their motion to disqualify RR& O and Mr. Richie. The Rainers

alleged two grounds for disqualification. First, disqualification as potential

witnesses in the case, and second, disqualification for violation of the Rules of

Professional Conduct.

We first address the issue of disqualification of an attorney who is a potential

witness in a case. The Rules of Professional Conduct, Rule 3. 7, provides:

a) A lawyer shall not act as advocate at a trial in which the lawyer is
likely to be a necessary witness unless:

1) the testimony relates to an uncontested issue;

It is the responsibility of the appellants to designate the record on appeal, and the inadequacy of the
record is imputable to them. La. C. C. P. art. 2128; Niemann v. Crosby Development Company, L.L.C.,
2011- 1337 ( La. App. 1 Cir. 5/ 3/ 12), 92 So. 3d 1039, 1044.
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2) the testimony relates to the nature and value of legal services
rendered in the case; or

3) disqualification of the lawyer would work substantial hardship on
the client.

b) A lawyer may act as advocate in a trial in which another lawyer in the
lawyer's firm is likely to be called as a witness unless precluded from
doing so by Rule 1. 7 or Rule 1. 9.

The Rainers sought to disqualify the entire RR& O law firm based upon their

contention that two of the lawyers in the firm could be called as witnesses in the

case. Should either or both of those two lawyers be called to testify at the trial,

others members of the firm would still be allowed to act as counsel in the case,

assuming they are not precluded from doing so by Rule 1. 7 or Rule 1. 9. Rules of

Professional Conduct, Rule 3. 7( a) & ( b). Thus, we find no merit to this argument.

Next we address the Rainers' assertion that Mr. Richie should be

disqualified as counsel for Mr. Thornhill and RR& O based upon Mr. Richie' s

alleged violation of the Rules of Professional Conduct, Rule 1. 8( i). The Rules of

Professional Conduct, Rule 1. 8 provides that:

i) A lawyer shall not acquire a proprietary interest in the cause of
action or subject matter of litigation the lawyer is conducting for a
client, except that the lawyer may:

1) acquire a lien authorized by law to secure the lawyer's fee or
expenses; and

2) contract with a client for a reasonable contingent fee in a civil
case.

Mr. Thornhill executed " An Act of Mortgage to Secure Present and Future

Obligations" in favor of RR& O on August 7, 2017 to secure payment of legal fees

owed to RR& O. The act of mortgage encumbered fourteen acres of land,

including that portion of the property in dispute in this case. A special mortgage

given over property the mortgagor does not own is established when the property is

subsequently acquired by the mortgagor. La. C. C. art. 3292. A conventional

mortgage may be established to s. ecure performance of any lawful obligation, even

one for the performance of an act. La. C. C. art. 3293. If the trial court were to

ultimately find that the disputed acreage did not belong to Mr. Thornhill, the

mortgage would not have attached to that portion of the acreage. Thus, we find no

merit to this argument. Further, we note that the mortgage was released as to the

disputed acreage by a Partial Release of Mortgage on August 23, 2017 by Mr.

Richie and RR& O.

After review, we find no error in the trial court' s decision to deny the motion

to disqualify Mr. Richie and RR& O. This assignment of error has no merit.

ASSIGNMENT OF ERROR NUMBER THREE

In assignment of error number three, the Rainers maintain that the trial court

erred in sustaining the exceptions of no right of action filed by RR& O and

dismissing the Rainers' abuse of process claim against RR& O. The objection of no

right of action tests whether the plaintiff who seeks relief is the person in whose

favor the law extends a remedy. Generally, an action can only be brought by a

person having a real and actual interest that he asserts. La. C. C. P. art. 681.

Denham Homes, L.L.C. v. Teche Fed. Bank, 2014- 1576 ( La. App. 1 Cir.

9/ 18/ 15), 182 So. 3d 108, 120.

The essential elements of an abuse of process claim are: ( 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- 291.

In their brief, the Rainers claim an abuse of process by Mr. Richie in filing a

motion for contempt and sanctions on August 7, 2017. That motion for contempt

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and sanctions was filed against Murray Rogers, the attorney for the Rainers. Thus,

even if the filing of the motion for contempt and sanctions were somehow an abuse

of process, it would not give the Rainers a right of action for abuse of process

against RR& O. The only other action referred to in the Rainers' brief as an abuse

of process is the mortgage taken by RR& O on the property at issue. Even if,

arguendo, the filing of a mortgage by RR& O, which was given by Mr. Thornhill to

RR& O to secure payment of RR& O' s legal fees, could be considered a part of the

legal process in this case, the mortgage was released before the hearing on the

exception of no right of action.

Thus, after de novo review, we find no right of action by the Rainers for an

abuse of process claim against RR& O. This assignment of error has no merit.

ANSWER TO THE APPEAL

RR& O answered the appeal, maintaining that if this court reversed the trial

court judgment sustaining the exception of no right of action, this court should

grant summary judgment in its favor. As we are affirming the trial court judgment,

the answer to the appeal is moot.

DECREE

For the foregoing reasons, the trial court judgment is affirmed. The answer

to the appeal is denied as moot.

AFFIRMED; ANSWER TO APPEAL DENIED.

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