Teche Electric Supply, Inc. v. D.W. William, Inc.

780 So. 2d 474, 2001 La. App. LEXIS 70, 2001 WL 83557
CourtLouisiana Court of Appeal
DecidedJanuary 31, 2001
DocketNo. 00-1139
StatusPublished

This text of 780 So. 2d 474 (Teche Electric Supply, Inc. v. D.W. William, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Teche Electric Supply, Inc. v. D.W. William, Inc., 780 So. 2d 474, 2001 La. App. LEXIS 70, 2001 WL 83557 (La. Ct. App. 2001).

Opinion

h SULLIVAN, Judge.

Teche Electric Supply, Inc. appeals a judgment dissolving a writ of attachment that it obtained against D.W. Williams, Inc. and Daniel Williams, individually, in an attempt to collect on an open account. For the following reasons, we reverse and remand.

Discussion of the Record

In its petition, Teche Electric alleged that Defendants failed to pay for $100,146.27 in electrical supplies that D.W. Williams, Inc. had purchased for use primarily in two construction projects in Lake Charles, Louisiana, one for the Calcasieu Parish School Board and the other for an automobile dealership. The petition further alleged that a writ of attachment was necessary because Defendants were liquidating business assets with the intent to defraud creditors and because Mr. Williams was leaving this country to take a job in Nigeria. Upon issuance of the writ, Teche Electric seized several vehicles and other equipment from D.W. Williams, Ine.’s place of business on January 21, 2000.

At the hearing on Defendants’ motion to dissolve the writ, Mr. Williams testified about his business activities before the seizure. He admitted that he had been replaced by other electrical contractors on both the school board and the automobile dealership projects and that he had laid off employees hired for these jobs. He acknowledged that he had offered to sell all of his business tools and equipment to other contractors, such as Scott Montgomery and Willie Newlin, and that he had pursued a job prospect with an oil company in Nigeria. He also admitted that approximately one week before the seizure, on January 11 and 12, 2000, he ran an ad in local newspaper that stated, “Contractor selling all tools and trucks” and “going out of business.” The ad did not identify “D.W. Williams, Inc.” as the contractor that | ¡.placed it, and it did not include D.W. Williams, Inc.’s regular business telephone number, which had already been disconnected.

At the hearing, Mr. Williams testified that he was “downsizing” his business by selling off unnecessary items, but that he still had contracts pending that could have been completed but for Teche Electric’s seizure of his tools and equipment. He noted, in particular, a contract with Shay Construction Company from which he predicted a profit of $125,000.00. He explained that he used the words “going out of business” in his ad because he wanted to attract upper-end contractors rather than “garage-salers.” The sale of equipment from that ad brought in approximately $52,000.00, of which $41,000.00 is on deposit with his attorney to pay his creditors.

Mr. Williams also testified that between June and November of 1999, he received over $300,000.00 for work performed on the automobile dealership project. With each payment on that job, he signed an affidavit certifying that “all labor, materials and service furnished ... have been paid in full.” However, Mr. Williams admitted that he did not. pay Teche Electric or some other suppliers with the funds received from that job. On December 16, 2000, D.W. Williams, Inc. tendered a check for $4,267.70 for payment on its account with Teche Electric, but that check was returned twice for insufficient funds. Mr. Williams estimated that he owed approximately $200,000.00 to other suppliers.

After Mr. Williams’ testimony, counsel for Teche Electric attempted to call Scott Montgomery to the stand, explaining that [476]*476Mr. Montgomery would testify that Mr. Williams offered to sell him everything else on his lot on the date of the seizure because he was going to Nigeria the following week. The trial court accepted that, if called, Mr. Montgomery would so testify, but found that this information would | shave no impact on its decision. The trial court then held the seizure to be improper under the totality of the circumstances, finding that Mr. Williams did not try to secret his assets, as he placed the proceeds from the sale of substantial property with his attorney, and that the items seized were exempt from seizure as the tools of Mr. Williams’ trade.

On appeal, Teche Electric argues that the trial court erred (1) in ruling that Teche Electric did not prove the grounds for attachment under La.Code Civ.P. art. 3541; (2) in applying the “tools of the trade” exemption from seizure to a corporate defendant; and (3) in limiting Teche Electric’s evidence and refusing to allow it to call additional witnesses.

Opinion

La.Code Civ.P. art. 3541 provides in part (emphasis added):

A writ of attachment may be obtained when the defendant:
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(2) Has granted a security interest under Chapter 9 of the Louisiana Commercial Laws (R.S. 10:9-101, et seq.), or has mortgaged, assigned, or disposed of his property or some part thereof, or is about to do any of these acts, with intent to defraud his creditors or give an unfair preference to one or more of them;
(3) Has converted or is about to con-veH his property into money or evidences of debt, with intent to place it beyond the reach of his creditors;
(4) Has left the state permanently, or is about to do so before a judgment can be obtained and executed against him; or ....

Teche Electric first argues that the trial court erred in finding that it failed to prove that grounds for attachment existed at the time of the seizure. We can readily discuss whether the requirements of paragraph (4) above have been met. In Matthews v. Byford, 240 So.2d 765 (La.App. 2 Cir.1970), the court dissolved a writ attachment that had issued based solely on the defendant’s statement that he would be moving out of state, notwithstanding the plaintiffs justified belief in the statement. In Safety Finance Service, Inc. v. Nevett, 270 So.2d 260 (La.App. 4 Cir.1972), the court found that a newspaper report of the defendant, a professional football player, being traded to another team would not support an attachment, in light of the defendant’s testimony that a knee injury placed the trade in doubt. In the present case, Mr. Williams admitted that he pursued a job opportunity in Nigeria and that he told others he would be going to that country. However, at trial he testified that he was not hired for that position. We find no error in the trial court’s finding that Teche Electric faded to prove that Mr. Williams was “about to [leave the state permanently] before a judgment can be obtained and executed against him” as required by paragraph (4) of Article 3541.

To sustain an attachment under the grounds italicized above in paragraph (2), the plaintiff must prove a “specific intent to defraud.” American Steel Bldg. Co. v. Brezner, 158 So.2d 623, 626 (La.App. 3 Cir.1963), citing Douglas Pub. Serv. Corp. v. Leon, 196 La. 735, 200 So. 21 (1941). In Douglas, 196 La. at 741, 200 So. at 22-23, the court discussed the requirements of both paragraphs (2) and (3) when it explained the element of intent as follows:

The intent is the principal ingredient of the cause of action. In order to prove fraudulent intent, the acts and declarations of the debtor, as well as the surrounding circumstances, may be shown, since intent, which is subjective, can only be proved by objective signs. It is well settled that an actual fraudulent intent must exist on the part of the [477]*477debtor.

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Bluebook (online)
780 So. 2d 474, 2001 La. App. LEXIS 70, 2001 WL 83557, Counsel Stack Legal Research, https://law.counselstack.com/opinion/teche-electric-supply-inc-v-dw-william-inc-lactapp-2001.