STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-991
ROSA BERNARD HENRY
VERSUS
PRECISION HOLDINGS, LLC, ET AL.
**********
ON APPLICATION FOR SUPERVISORY WRITS FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2010-0237 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
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
2 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.
2 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.
3 (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.
Free access — add to your briefcase to read the full text and ask questions with AI
STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-991
ROSA BERNARD HENRY
VERSUS
PRECISION HOLDINGS, LLC, ET AL.
**********
ON APPLICATION FOR SUPERVISORY WRITS FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2010-0237 HONORABLE THOMAS R. DUPLANTIER, DISTRICT JUDGE
SHANNON J. GREMILLION JUDGE
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
2 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.
2 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.
3 (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
4 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.