Warren v. Bergeron

636 So. 2d 1013, 1994 WL 140915
CourtLouisiana Court of Appeal
DecidedApril 8, 1994
DocketCA 93 0899
StatusPublished
Cited by2 cases

This text of 636 So. 2d 1013 (Warren v. Bergeron) 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
Warren v. Bergeron, 636 So. 2d 1013, 1994 WL 140915 (La. Ct. App. 1994).

Opinion

636 So.2d 1013 (1994)

Eleanor Faye WARREN, et al.
v.
Ned A. BERGERON, et al.

No. CA 93 0899.

Court of Appeal of Louisiana, First Circuit.

April 8, 1994.
Rehearing Denied May 18, 1994.

J. Minos Simon, Lafayette, for plaintiffs-appellants, Eleanor Faye Warren, et al.

Robyn F. Moss, Houma, for defendant-appellee, B.W.B. Controls, Inc.

Gerald F. Lofaso, Houma, for defendant-appellee, Charley J. Schrader, Jr.

Ned A. Bergeron, defendant-appellee, in pro. per.

Roy Neal, Sr., in pro. per.

Elton A. Darsey, Houma, for defendant-appellee, Jerry J. Larpenter, Sheriff of Terrebonne Parish.

*1014 Kenneth Watkins, Houma, for defendant-appellee, Ray J. Chaisson and B.W.B. Controls, Inc.

Eldon R. Harrall, Jr., Houma, for defendant-appellee, Charley J. Schrader, Jr.

Before LOTTINGER, C.J., and CRAIN and LeBLANC, JJ.

CRAIN, Judge.

The primary issue before us is whether a Revocatory Action may be used to annul a security device consisting here of an act of pledge securing a legitimate debt of past and future attorney fees, the advancement of costs, and legal expenses owed by an insolvent debtor/obligor to his attorney. We adopt the factual findings of the trial judge as stated in his written reasons for judgment.

Plaintiffs, judgment creditors by virtue of a civil suit for damages against Ned Bergeron, seek to revoke a pledge of stock which Mr. Bergeron made in favor of Charley J. Schrader, Jr. and Schrader and Harrall, A Professional Law Corporation to secure the payment of legal fees. Plaintiffs contend that the pledge was executed by Mr. Bergeron in an attempt to give an unfair preference to one creditor over another and that this preference is subject to revocation under the Louisiana Civil Code Articles governing revocatory actions.
Ned Bergeron and George Warren were the owners of BWB Controls, Inc. On February 8, 1987, George Warren was shot and killed. Ned Bergeron was arrested on July 4, 1987 and charged with having engaged in a conspiracy to kill Mr. Warren. Mr. Schrader and his law firm were hired by Mr. Bergeron to defend him against potential civil suits which would be brought against him by Mr. Warren's survivors. Mr. Bergeron and Mr. Schrader agreed that Mr. Schrader's fee would be based on an hourly rate plus expenses. Mr. Schrader and his firm began investigating the facts before any suit was filed. Shortly after August of 1987, Plaintiffs filed a RICO suit in federal court in which they also asserted a pendent state claim for wrongful death. Among others, they sued Mr. Bergeron. Mr. Schrader represented several defendants in the suit along with Mr. Bergeron. In December of 1987, Plaintiffs filed a wrongful death suit in state court naming Mr. Bergeron as a defendant. Mr. Schrader and his firm handled the defense of that suit. For some time both suits were pending but, eventually, the RICO suit was dismissed. Initially, the fees Mr. Bergeron was incurring were being paid but, by the spring or summer of 1989, Mr. Bergeron was having difficulty paying for Mr. Schrader's services due to a cash flow problem. Mr. Schrader wrote to Mr. Bergeron in June of 1989 and told him that he'd have to stop representing Mr. Bergeron because of the nonpayment of his fees. Mr. Bergeron told him that he couldn't hire another lawyer and asked him to continue handling the case. Mr. Schrader agreed to continue handling the case. Mr. Schrader agreed to continue representing Mr. Bergeron if he would pledge his stock in BWB to secure payment of the fees. Mr. Bergeron agreed and physically delivered the stock in pledge to Mr. Schrader sometime before July 1, 1989. At that time the pledge agreement was strictly oral. As the trial date of the state suit approached, Mr. Schrader decided that it would be best to reduce their agreement to writing. On October 23, 1989, several days before the trial of the wrongful death suit began, Mr. Bergeron signed a collateral pledge note in the amount of $150,000.00, payable on demand, with interest at the rate of 12% per annum, which contained a provision for 25% attorneys fees if the note should be placed in the hands of an attorney for collection. Mr. Bergeron also execute [sic] a pledge agreement. The agreement was actually a collateral pledge agreement. It recited that the note executed was not for a specific debt but was given to secure the payment of Mr. Bergeron's attorneys fees, earned and to be earned, advances made and to be made and court costs and other expenses paid or to be paid for various legal work done and to be done for and in representation of Mr. Bergeron, particularly but not limited to legal work in the lawsuits brought against Mr. Bergeron by Eleanor Faye Warren et al in the Federal *1015 and State courts. The October pledge agreement was not notarized because Eldon Harrall, the notary Mr. Schrader expected to use, was unavailable on the day the agreement was signed. Shortly after the pledge agreement was signed, Mr. Schrader and two members of his office staff traveled to Lafayette for the trial of the wrongful death suit. The trial lasted until November 18, 1989 when the jury returned a verdict against Mr. Bergeron in the amount of $4,600,000.00. On November 20, 1989, Mr. Schrader had Mr. Bergeron execute the pledge agreement in authentic form. A new instrument was prepared, identical in substance to the October 23, 1989 act. Although signed on November 20, 1989, it bore an effective date of October 23, 1989. The promissory note Mr. Bergeron signed on October 23, 1989 was paraphed for identification with the pledge agreement executed on November 20, 1989, Mr. Bergeron and his wife entered into a separation of property agreement on November 20, 1989 by which they divided their BWB stock equally. On November 21, 1989, Mr. and Mrs. Bergeron delivered the new stock certificates to Mr. Schrader and executed a document confirming that the stock was held in pledge by Mr. Schrader and his law firm. Mr. Schrader continued to represent Mr. Bergeron throughout the course of the appeal of the jury verdict, although he did not bill for those services rendered. The jury verdict of $4,600,000.00 was reduced on appeal to $3,048,676.00 by judgment of the Third Circuit Court of Appeal dated April 16, 1992. Prior to the judgment's becoming final, Plaintiffs began efforts to ensure collection. They invoked a judgment debtor proceeding against Mr. Bergeron during the course of which they discovered that Mr. Bergeron had pledged his stock to his attorney. They then instituted a garnishment proceeding which they converted to a revocatory action by an amended petition filed on September 17, 1990 wherein they sought to revoke the pledge.

The trial judge concluded that pursuant to Louisiana Civil Code Articles 2036 to 2043, the Revocatory Action was not available to annul the pledge at issue. From the judgment in favor of defendants Schrader and his law firm, plaintiffs appeal alleging as a sole assignment of error, the refusal of the district court to revoke the pledge because it increased Bergeron's insolvency and/or constituted fraud. No evidence was presented and no claim is made that the promissory note was not for a just debt.

Plaintiffs contend that in brief the promissory note as well as the act of pledge should be annulled because they increased Bergeron's insolvency and/or these acts constitute fraud thus supporting a revocation of the entire transaction. In the "Supplemental Memorandum in Support of Plaintiffs' Revocatory Action", plaintiffs stated that:

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