Kenneth E. Castle v. Harry Castle

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-271

KENNETH E. CASTLE

VERSUS

HARRY CASTLE, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, DOCKET NO. 2010-3306-B
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE

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JAMES T. GENOVESE
JUDGE

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Court composed of Billy Howard Ezell, J. David Painter, and James T. Genovese,
Judges.

AFFIRMED.

Maurice L. Tynes
4839 Ihles Road
Lake Charles, Louisiana 70605
(337) 479-1173
COUNSEL FOR PLAINTIFF/APPELLEE:
Kenneth E. Castle

W. Thomas Barrett, III
3401 Ryan Street, Suite 307
Lake Charles, Louisiana 70605
(337) 474-7311
COUNSEL FOR DEFENDANT/APPELLANT:
Harry Castle

Charles M. Kreamer
Allen & Gooch, A Law Corporation
2000 Kaliste Saloom Road, Suite 400
Post Office Box 81129
Lafayette, Louisiana 70598-1129
(337) 291-1390
COUNSEL FOR DEFENDANT/APPELLEE:
John Pohorelsky

Emmett C. Sole
Stockwell, Sievert, Viccellio, Clements & Shaddock
Post Office Box 2900
Lake Charles, Louisiana 70602
COUNSEL FOR DEFENDANT/APPELLEE:
Castle Real Estate, Inc.

GENOVESE, Judge.

Defendant/Cross Claimant, Harry Castle, appeals the judgment of the trial

court granting an exception of no cause of action in favor of Defendant in Cross

Claim, John Pohorelsky, dismissing his cross claim. For the following reasons, we

affirm.

FACTS AND PROCEDURAL HISTORY

In September of 2005, Kenneth Castle filed suit against his brother, Harry

Castle, seeking an accounting of the income and expenses associated with jointly

owned immovable property (the underlying litigation). The underlying litigation

was ultimately settled pursuant to a Receipt and Release dated June 24, 2009, and a

Joint Motion and Order of Dismissal dated June 25, 2009. Kenneth Castle was

represented by an attorney, John Pohorelsky, in the underlying litigation.

A subsequent lawsuit (the current litigation) was instituted on June 24, 2010,

by Plaintiff, Kenneth Castle (Kenneth), against Defendant, Harry Castle (Harry),

asserting his entitlement to a further accounting for 2007, 2008, and 2009.1

Kenneth also named his former attorney, John Pohorelsky (Attorney Pohorelsky),

in the current litigation, alleging malpractice.2

In response to the current litigation, Harry filed an exception of res judicata

based upon the prior settlement and Receipt and Release in the underlying

litigation. The trial court denied Harry‟s exception of res judicata on September

29, 2011.

On September 23, 2010, Harry filed a cross claim against Attorney

Pohorelsky for indemnification of any amounts he may be cast in judgment in the

1
Castle Real Estate, Inc. was also named as a defendant; however, the claims against this
defendant are not relevant to the present appeal and are not addressed herein.
2
Attorney Pohorelsky filed an exception of no cause of action and an exception of
improper cumulation to Kenneth‟s claims; however, the trial court‟s rulings on these exceptions
are not relevant to the present appeal and are likewise not addressed.

current litigation. Attorney Pohorelsky responded with an exception of improper

cumulation and an exception of no cause of action. The trial court granted the

exception of no cause of action, finding that due to the lack of an attorney-client

relationship, Harry failed to state a cause of action against Attorney Pohorelsky. 3

Therefore, the trial court signed a judgment July 27, 2012, granting Attorney

Pohorelsky‟s exception of no cause of action and granting Harry additional time to

amended his cross claim to include intentional tort allegations.

On July 12, 2012, Harry supplemented and amended his cross claim against

Attorney Pohorelsky. Attorney Pohorelsky filed a second exception of no cause of

action and an exception of peremption. The exception of no cause of action was

granted by the trial court, and a judgment consistent therewith was signed

November 7, 2012.

Harry appeals from the November 7, 2012 judgment of the trial court

granting Attorney Pohorelsky‟s exception of no cause of action and its denial of his

exception of res judicata. For the following reasons, we affirm.

ASSIGNMENT OF ERROR

On appeal, Harry asserts that the trial court erred in denying his exception of

res judicata relative to Kenneth‟s claim for an additional accounting in the main

demand. Additionally, Harry asserts error in the trial court‟s grant of Attorney

Pohorelsky‟s exception of no cause of action which dismissed his cross claim.

LAW AND DISCUSSION

At the outset, we acknowledge that the first assignment of error raised by

Harry addresses the trial court‟s denial of his exception of res judicata. Although

Harry addresses this contention in his brief to this court, he failed to seek review of

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The trial court noted that “in memoranda to the [c]ourt, both sides seem to agree that
Harry Castle must allege an intentional tort against [Attorney] Pohorelsky to state a cause of
action.”
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the September 29, 2011 judgment denying his exception by means of a supervisory

writ. Additionally, the present motion and order for appeal seeks a devolutive

appeal only from the November 7, 2012 judgment in favor of Attorney Pohorelsky

dismissing Harry‟s cross claim. Accordingly, the ruling of the trial court denying

Harry‟s exception of res judicata is not properly before this court and is not

considered herein.

Harry also asserts error in the trial court‟s grant of Attorney Pohorelsky‟s

exception of no cause of action. We find no merit to this contention.

The function of the peremptory exception of no
cause of action is to question whether the law extends a
remedy to anyone under the factual allegations of the
petition. Fink v. Bryant, 01-0987, p. 3 (La.11/29/01),
801 So.2d 346, 348. The peremptory exception of no
cause of action is designed to test the legal sufficiency of
the petition by determining whether the plaintiff is
afforded a remedy in law based on the facts alleged in the
pleading. Id., pp. 348-349. No evidence may be
introduced to support or controvert the objection that the
petition fails to state a cause of action. Id. The exception
is triable on the face of the papers and for the purposes of
determining the issues raised by the exception, the well-
pleaded facts in the petition must be accepted as true. Id.
Because the exception raises a question of law and the
trial court‟s decision is based only on the sufficiency of
the petition, the appellate court reviewing the judgment
should subject the case to a de novo review. Id.

Becnel v. Grodner, 07-1041, pp. 2-3 (La.App. 4 Cir. 4/2/08), 982 So.2d 891, 894.

Additionally, to withstand an exception of no cause of action, the cross claim must

set forth the material facts upon which the cause of action is based. Legal or

factual conclusions, absent facts which support such conclusions, are insufficient.

Vermilion Hosp., Inc. v. Patout, 05-82 (La.App. 3 Cir. 6/8/05), 906 So.2d 688;

Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127. Therefore, accepting

the facts as alleged in Harry‟s cross claim to be true, we must determine whether

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the law affords any remedy to Harry based upon his allegations against Attorney

Pohorelsky.

The jurisprudence is clear that “an attorney does not owe a legal duty to his

client‟s opposing party when acting on behalf of his client. A non-client, therefore,

cannot hold the attorney of his opponent personally liable for malpractice or

negligent breach of a professional obligation.” Arledge v. Hendricks, 30,588, p. 5

(La.App. 2 Cir. 6/26/98), 715 So.2d 135, 139, writ denied, 98-2015 (La. 11/20/98),

728 So.2d 1287 (citing Montalvo, 637 So.2d 127). However, a non-client can

assert a claim against an attorney based upon an intentional tort. Penalber v.

Blount, 550 So.2d 577 (La.1989). Quoting Penalber, our supreme court has

further stated:

Although Penalber re-affirmed the basic premise that an attorney
acting on behalf of his client may not be sued by an adversary based
on negligence or malpractice, that case did allow a cause of action
against an attorney based on intentional tort:

Intentionally tortious actions, ostensibly performed for a
client‟s benefit, will not shroud an attorney with
immunity. Consequently, even though an attorney does
not generally owe a duty to his client‟s adversary, under
the broad ambit of LSA-C.C. art. 2315, an attorney may
be held personally accountable for his intentional tortious
conduct. . . .

[Penalber,] 550 So.2d at 582.

Montalvo, 637 So.2d at 130. Recognizing that “identifying an intentional tort in

the context of an attorney‟s actions may be more difficult than identifying a

traditional intentional tort[,]” the supreme court opined that “it is essential for the

petition to allege facts showing specific malice or an intent to harm on the part of

the attorney in persuading his client to initiate and continue the suit.” Id.

Therefore, “[f]or a petition to state a cause of action against an opponent‟s

attorney, the petition must allege facts showing, on the part of the attorney, specific

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malice or an intent to „cause direct harm‟ in persuading his client to initiate and

continue the suit.” Arledge, 715 So.2d at 139 (quoting Montalvo, 637 So.2d at

130).

In the instant case, Harry‟s First Amended and Supplemental Cross Claim

alleges:

Exhibit HC-5[4] clearly and unequivocally evidences a deceptive
and duplicitous pattern and practice of John Pohorelsky of
simultaneously actively seeking a settlement and resolution of the
Prior Litigation with Harry while informing his client, Kenneth,
additional litigation could thereafter be brought against Harry
following resolution of the Prior Litigation for the same accounting
issues addressed in the Prior Litigation.

....

The simultaneous deceptive misrepresentations of John
Pohorelsky to Harry and Kenneth contain untrue statements of
material facts and omit to state material facts required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading.

....

The intentional deceptive acts of John Pohorelsky in actively
withholding material facts from his communication to Harry as well
as in preparation of the Settlement Documents, has resulted in Harry‟s
incurring needless defense costs in the instant proceedings. John
Pohorelsky should be compelled to indemnify Harry for his costs of
defense and any other amounts which he may be called upon to pay in
the instant proceedings.

Having fully reviewed the assertions set forth in Harry‟s cross claim, we

agree with Attorney Pohorelsky that all these allegations and the documents

attached to the cross claim “demonstrate[] is that what an attorney and his client

talk about during settlement negotiations is different from what the same attorney

and his opposing counsel talk about during settlement negotiations.” This

demonstration of the adversarial nature of our legal system does not amount to an

4
Exhibit HC-5 consists of over fifty pages of documents including emails and letters
produced by Kenneth, most of which were communications between Kenneth and his then
attorney, Attorney Pohorelsky, during the course of the underlying litigation.
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intentional tort by an attorney against a non-client in the course of litigation. These

documents evidence the tactical discussions between Attorney Pohorelsky and his

client, Kenneth, that included settlement options and potential risks involving

same. In fact, these documents contain discussions between Kenneth and Attorney

Pohorelsky pertaining to whether the settlement perfected a release of liability for

any further accounting after 2006, which was the very issue raised by Harry in his

exception of res judicata. Even accepting the allegations as true, the cross claim

clearly lacks any allegations of specific malice on the part of Attorney Pohorelsky

or an intent to cause direct harm to Harry.

Based upon the foregoing, we conclude that the cross claim fails to allege

facts sufficient to state a cause of action against Attorney Pohorelsky for an

intentional tort. Accordingly, we find no error in the trial court‟s grant of Attorney

Pohorelsky‟s exception of no cause of action dismissing the claims asserted against

him by Harry.

DECREE

For the reasons assigned, we affirm the judgment of the trial court granting

the exception of no cause of action in favor of John Pohorelsky and dismissing the

claims of Harry Castle against John Pohorelsky with prejudice. The costs of this

appeal are assessed to Harry Castle.

AFFIRMED.

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