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Lucien v. Carter

Court of Appeals of Louisiana, First Circuit

May 31, 2018

ROBERT L. LUCIEN, SR. A/K/A ROBA, INC
v.
ATTORNEY ROBERT J. CARTER AND HIS INSURERS, ABC INSURANCE COMPANY

          On Appeal from the Twenty-First Judicial District Court In and for the Parish of St. Helena State of Louisiana No. 23, 133 The Honorable Elizabeth P. Wolfe, Judge Presiding

          Robert L. Lucien, Sr. New Orleans, LA Plaintiff/Appellant Proper Person

          Robert J. Carter Greensburg, LA Attorney for Defendant/Appellee Robert J. Carter

          BEFORE: HIGGINBOTHAM, HOLDRIDGE AND PENZATO, JJ.

          HOLDRIDGE, J.

         Plaintiff, Robert L. Lucien, Sr., appeals a judgment sustaining a declinatory exception raising the objections of improper service and improper citation and a peremptory exception raising the objection of no right of action in favor of defendant, Robert J. Carter, and dismissing the lawsuit with prejudice. For the following reasons, we affirm the judgment in part, reverse the judgment in part, and amend the judgment to dismiss the lawsuit without prejudice.

         FACTUAL AND PROCEDURAL HISTORY

         On June 6, 2016, Mr. Lucien filed a petition seeking damages for wrongful seizure of property against Mr. Carter, an attorney who represented property owners James B. and Mona Lackman Courtney in a lawsuit filed against the Courtneys by Mr. Lucien's company, Roba, Inc. According to the allegations of the petition, Mr. Lucien and his company purchased more than 60 acres of property from the Courtneys in 1980. The Courtneys later sold a plot of land to another purchaser, who erected a road across property Mr. Lucien claimed he owned, spurring the first lawsuit filed by Mr. Lucien against the Courtneys. The Courtneys were represented by Mr. Carter in that lawsuit; however, in a second lawsuit filed by Mr. Lucien against the Courtneys to correct title, Mr. Carter no longer represented the Courtneys. Mr. Lucien alleged that at some point in the litigation, Mr. Carter filed a demand for attorney's fees, court costs, and reimbursement against Mr. Lucien, obtained judgments from the 21st Judicial District Court, and obtained a writ of seizure and sale for Mr. Lucien's property, causing it to be advertised and set for Sheriffs sale. Mr. Lucien filed a petition to declare the judgments obtained by Mr. Carter to be null and void. The request for relief was denied by the trial court. Thereafter, Roba, Inc. appealed the judgment of the trial court dismissing the nullity action and awarding Mr. Carter attorney's fees.

         In Roba, Inc. v. Courtney, 2014-1091 (La.App. 1st Cir. 8/28/15)(unpublished), another panel of this court reversed the judgment in favor of Mr. Carter, finding that Mr. Carter was not a party to the lawsuit. This court remanded the matter to the trial court for further proceedings.

         In the instant lawsuit, Mr. Lucien asserted claims for damages against Mr. Carter based on Mr. Carter's actions in allegedly filing unlawful pleadings, obtaining an unlawful writ of seizure and sale of Mr. Lucien's property, and obtaining an illegal judgment against Mr. Lucien for which he did not have standing to obtain. Specifically, Mr. Lucien sought to recover: (1) damages for emotional distress; (2) reimbursement of all legal fees and costs paid to two different attorneys hired to defend the unlawful judgments as well as costs for expenses incurred therein; (3) damages for humiliation as a result of the unlawful seizure of his property; (4) damages for civil rights violations under 42 U.S.C. 1983; and (5) punitive damages.

         In the June 6, 2016 petition, Mr. Lucien asked that Mr. Carter be served at a post office box in Greensburg. On December 19, 2016, more than six months after the lawsuit was filed, Mr. Lucien provided the Clerk of Court with another address for Mr. Carter at 23 S. Main Street D in Greensburg. On December 27, 2016, the St. Helena Parish Sheriffs Office served Mr. Carter with citation.

         On December 29, 2016, Mr. Carter filed a declinatory exception raising the objections of improper service and insufficiency of citation. He alleged that although the petition was filed by Mr. Lucien on June 6, 2016, proper service was not requested until December 27, 2016, more than ninety days after the petition had been filed, in violation of La. C.C.P. art. 1201(C). Mr. Carter also filed a peremptory exception raising the objection of no right of action, in which he asserted that Mr. Lucien was not a party to the lawsuit brought by Roba, Inc. against the Courtneys, and therefore, had no right of action to file this lawsuit against Mr. Carter. Finally, Mr. Carter sought to recover attorney's fees and costs under La. C.C.P. art. 863 for having to file the exceptions when the petition was "factually unsound."

         Following a hearing, the trial court granted Mr. Carter's declinatory and peremptory exceptions raising the objections of improper service and improper citation and no right of action, dismissing the lawsuit with prejudice. In written reasons for judgment, the trial court explained that it granted the declinatory exceptions upon finding that the mailing of a document for service of process to a post office is insufficient, improper service.[1] The court further stated that it agreed Mr. Lucien did not have a valid cause of action against Mr. Carter. Lastly, the trial court declined to award Mr. Carter attorney's fees for having to defend the claim through the exceptions, but did order that Mr. Lucien pay all costs of the proceedings.

         Mr. Lucien appealed, asserting that the trial court erred in ruling that he did not have a right of action for unlawful seizure and in ruling that his request for service and citation was insufficient. Mr. Carter ...


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