Rosa Bernard Henry v. Precision Holdings, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

18-991

ROSA BERNARD HENRY

VERSUS

PRECISION HOLDINGS, LLC, ET AL.

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ON APPLICATION FOR SUPERVISORY WRITS FROM
THE FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2010-0237
HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and D. Kent Savoie,
Judges.

WRIT GRANTED AND MADE PEREMPTORY.

Joseph C. Giglio, Jr.
William E. Kellner
Liskow & Lewis, APLC
P. O. Box 52008
Lafayette, LA 70505-2008
(337) 232-7424
COUNSEL FOR DEFENDANTS/APPLICANTS:
Warren A. Perrin
Gerald C. deLaunay
Donald Landry

Sera H. Russell, III
Attorney at Law
P. O. Box 53866
Lafayette, LA 70505-3866
(337) 769-3260
COUNSEL FOR DEFENDANT/RESPONDENT:
Scott A. Dartez, APLC

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GREMILLION, Judge.

From the trial court’s denial of their exceptions of no cause of action, improper

joinder of parties, and improper use of summary proceedings, Applicants, Warren

Perrin, Donald Landry, and Gerald deLaunay, seek supervisory relief. For the

reasons that follow, we grant Applicants’ request for relief and make it peremptory.

FACTS

The underlying suit captioned above is an environmental-damages suit which

has been completely settled between the parties. The plaintiff in the underlying

action had been represented by several attorneys, including Respondent, Scott A.

Dartez, APLC. Mr. Dartez had been in a law partnership known as Perrin, Landry,

deLaunay, Dartez & Ouellet (the Firm), but he and another attorney left the Firm.

The parties to the partnership entered into a Partnership Termination Agreement.

Pursuant to the settlements reached in the underlying suit, $900,000.00 is to be paid

to the former members of the Firm.

Mr. Dartez filed a Motion for Division of Attorney’s Fees by Summary

Proceeding within the underlying suit, even though all claims from the original

action had been dismissed through the settlements. In this motion, Mr. Dartez

averred that the termination agreement “would mandate that the fees be divided as

follows. Nine percent to Mr. Perrin, nine percent to Mr. Landry, nine percent to Mr.

Delaunay [sic], and nine percent to Mr. Ouellet. This leaves a remainder of sixty-

four percent to go to Mr. Dartez.” The motion concludes, “WHEREFORE, SCOTT

A. DARTEZ, APLC[,] prays that the former members of his firm, WARREN

PERRIN, DONALD LANDRY, AND GERALD DELAUNAY be served with this

motion and that the Court set a hearing on a ‘Rule Docket’ for the resolution of this

matter.” As stated above, Applicants filed the exceptions of no cause of action, lack

of subject matter jurisdiction and improper joinder, and improper use of summary

proceedings. Following a hearing on these exceptions, the trial court denied them.

Applicants then filed a notice of intent to seek supervisory relief, followed by their

application.

ANALYSIS

The exception of unauthorized use of summary proceeding

The first argument advanced by Applicants is that summary proceedings are

inappropriate for disposition of the issues being raised by Respondent’s motion.

Applicants point out that in order to divide the attorney fees, the trial court must

interpret and apply the provisions of the termination agreement. Furthermore,

Applicants observe that Respondent seeks a declaratory judgment in his motion.

Applicants posit that declaratory judgment actions are by ordinary proceedings, not

summary proceedings. Citing La.Code Civ.P. art. 2592, Applicants assert that this

article provides an exclusive list of matters which can be tried by summary

proceedings, and this motion does not fit within those limited categories. Therefore,

Applicants ask that this court reverse the trial court’s denial of the exception of

improper use of summary proceedings and enter judgment granting this exception.

The transcript of the hearing on Applicants’ exceptions is provided to this

court as an exhibit to the writ application. During the discussions between counsel

and the trial court, the trial court expressed concern over the fact that in a prior

meeting in chambers, the trial court had been under the impression that Applicants

had filed or were going to file an action to decide the appropriate interpretation of

the termination agreement and obtain a judgment adjudicating the appropriate

division of attorney fees in all cases involving the Firm.

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Louisiana Code of Civil Procedure Article 2592 reads:
Summary proceedings may be used for trial or disposition of the
following matters only:

(1) An incidental question arising in the course of judicial
proceedings, including the award of and the determination of
reasonableness of attorney fees.

(2) An application for a new trial.

(3) An issue which may be raised properly by an exception,
contradictory motion, or rule to show cause.

(4) An action against the surety on a judicial bond after
judgment has been obtained against the principal, or against both
principal and surety when a summary proceeding against the principal
is permitted.

(5) The homologation of a judicial partition, of a tableau of
distribution or account filed by a legal representative, or of a report
submitted by an auditor, accountant, or other expert appointed by the
court; and an opposition to any of the foregoing, to the appointment of
a legal representative, or to a petition for authority filed by a legal
representative.

(6) A habeas corpus, mandamus, or quo warranto proceeding.

(7) The determination of the rank of mortgages, liens, and
privileges on property sold judicially, and of the order of distribution of
the proceeds thereof.

(8) The original granting of, subsequent change in, or
termination of custody, visitation, and support for a child; support for a
spouse; injunctive relief; support between ascendants and descendants;
use and occupancy of the family home or use of community movables
or immovables; or use of personal property.

(9) An action to compel an accounting at termination of
parental authority; and an action to seek court approval to alienate,
encumber, or lease the property of a minor, to incur an obligation of a
minor, or to compromise the claim of a minor.

(10) An action to annul a probated testament under Article
2931.

(11) An action to enforce the right to a written accounting
provided for in R.S. 9:2776.

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(12) An action for dissolution or specific performance of a
compromise entered pursuant to Article 1916(B) or by consent
judgment.

(13) All other matters in which the law permits summary
proceedings to be used.

In the motion, Respondent acknowledged that each former member of the

Firm is entitled to a portion of the fee. Therefore, Applicants correctly assert that

the current disagreement in this matter is not “[a]n incidental question arising in the

course of judicial proceedings, including the award of and the determination of

reasonableness of attorney fees.” The original action is an environmental-damage

suit. The award of attorney fees is not at issue, as no party or attorney in this

litigation suggests that the portion to be paid to The Firm is in contention. To the

contrary, as pointed out by Applicants, the dispute features attorneys who were never

parties to this litigation grappling over the proper division of the fee—the total

amount of which is not in dispute—based on the partnership termination agreement.

The facts distinguish this case from cases in which the disagreement between

counsel centers around the proper division of the fee earned when one attorney

withdrew and then filed an intervention to protect his interest in the attorney fees.

See, e.g., Lawrence v. Wynne, 598 So.2d 1293 (La.App. 4 Cir.), writ denied, 604

So.2d 969 (La.1992). As pointed out by Applicants, none of the individual members

of the Firm became parties to this suit. Accordingly, Applicants are correct that this

is not an incidental matter arising within the course of this suit. For the same reason,

this is not “[a]n issue which may be raised properly by an exception, contradictory

motion, or rule to show cause” because these attorneys were never parties to this suit.

Additionally, no other action set forth in Article 2592 has any application to the facts

of the instant matter. As pointed out by Applicants, the list in Article 2592 has been

held to be exclusive. See State, Dep’t of Highways v. Lamar Advert. Co. of

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Louisiana, Inc., 279 So.2d 671 (La.1973). The trial court erred in denying this

exception, and we grant Applicants’ request for relief and make it peremptory.

An exception of unauthorized use of summary proceeding is a dilatory

exception. La.Code Civ.P. art. 926. Louisiana Code of Civil Procedure Article

933(B) provides:

When the grounds of the other objections pleaded in the dilatory
exception may be removed by amendment of the petition or other action
by plaintiff, the judgment sustaining the exception shall order plaintiff
to remove them within the delay allowed by the court; and the action,
claim, demand, issue or theory subject to the exception shall be
dismissed only for a noncompliance with this order.

Accordingly, the matter is dismissed without prejudice, as no amendment can cure

the defect created by filing this matter within the underlying suit and attempting to

litigate the fee dispute by summary proceeding.

Having maintained the exception of unauthorized use of summary proceeding

and dismissed Respondent’s action against Applicants, this court need not address

Applicants’ exceptions of no cause of action or improper joinder of parties.

WRIT GRANTED AND MADE PEREMPTORY.

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