The opinion
FRANK J. PANEPINTO, JR. AND JOHN A. NO. 23-CA-297
PANEPINTO
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
CECILE LAURIE PANEPINTO, DWAYNE
SMITH, SR., GENEVA FINANCIAL, LLC, STATE OF LOUISIANA
AND MORTGAGE ELECTRONIC
REGISTRATION SYSTEMS, INC.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 829-255, DIVISION "E"
HONORABLE FRANK A. BRINDISI, JUDGE PRESIDING
March 20, 2024
FREDERICKA HOMBERG WICKER
JUDGE
Panel composed of Judges Fredericka Homberg Wicker,
Marc E. Johnson, and Timothy S. Marcel
AFFIRMED
FHW
TSM
DISSENTS IN PART WITH REASONS
MEJ
COUNSEL FOR PLAINTIFF/APPELLANT,
FRANK J. PANEPINTO, JR. AND JOHN A. PANEPINTO
Harold E. Molaison
Justin E. Molaison
Jack E. Morris
COUNSEL FOR DEFENDANT/APPELLEE,
MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC.
Elizabeth C. Price
COUNSEL FOR DEFENDANT/APPELLEE,
EDDIE M. ENCALARDE, JR. AND ENCALARDE LAW FIRM, LLC
Alan W. Stewart
James H. Gibson
WICKER, J.
Plaintiffs appeal the trial court judgment granting Defendants’ exceptions of
no cause of action, dismissing Plaintiffs’ suit against them. For the following
reasons, we affirm the trial court judgment.
FACTUAL AND PROCEDURAL HISTORY
This litigation arises out of the sale of a property sold pursuant to a judgment
of possession rendered in an underlying succession suit. The facts and procedural
history in the underlying succession case were clearly set forth in this Court’s prior
opinion as follows:
On March 14, 2021, Frank Panepinto, Sr. (“Frank, Sr.”) passed away.
At the time of his death, he was married to Cecile Laurie Panepinto and
was survived by two children from a previous marriage, Frank
Panepinto, Jr. (“Frank, Jr.”) and John Panepinto.
On September 23, 2021, Cecile filed a “Petition to File and Execute
Notarial Testament and for Possession,” asking to be recognized as the
sole legatee of Frank, Sr.’s estate and to be placed into possession of
the entirety of the estate in full ownership. Cecile noted in her petition
that Frank, Sr.’s statutory will, dated June 28, 2004, provided:
To my wife, Cecile Laurie Panepinto, I give and bequeath
my entire estate, of whatever nature it consists, whether
separate or community, movable or immovable.
It is made clear that I bequeath unto my wife, Cecile Laurie
Panepinto, all funds on deposit and certificates of deposit
in any and all bank accounts, as well as our two vehicles
and household furnishings in our home at 1709 Lake
Salvador Drive, Harvey, Louisiana 70058.
Although the will was attached to the petition, Cecile did not mention
in her petition that the will also contained the following provision:
If my wife, Cecile Laurie Panepinto, sells the family home
at 1709 Lake Salvadro Drive, Harvey, Louisiana, she is to
pay my children, Frank J. Panepinto, Jr. and John A.
Panepinto, one-half (1/2) of the net proceeds.
On September 27, 2021, the trial court signed an order providing that
the will shall be filed and given the effect of probate. The trial court
also signed a judgment of possession on this same date, ordering that
Cecile be recognized as the only legatee named in Frank, Sr.’s will and
sending her into possession of the entirety of Frank, Sr.’s estate,
including the immovable property located at 1709 Lake Salvador Drive,
23-CA-297 1
in full ownership. The record does not reflect that Frank Jr. or John was
served with any pleadings or the judgment of possession in this matter.
On October 29, 2021, Frank, Jr. and John filed a motion for suspensive
appeal from the judgment of possession, which was granted by the trial
court on November 2, 2021. On January 24, 2022, Frank, Jr. and John
filed “Peremptory Exception of Nonjoinder of Parties Needed for Just
Adjudication on Behalf of Third-Party-Appellants Frank J. Panepinto,
Jr. and John A. Panepinto” in this Court.
Succession of Panepinto, 21-709 (La. App. 5 Cir. 9/13/22), 349 So.3d 1014, 1016.
On appeal, this Court granted the peremptory exception of nonjoinder and
found that Plaintiffs herein, John and Frank Panepinto, Jr., were parties necessary
for just adjudication in the underlying succession proceeding. This Court vacated
the trial court’s judgment of possession and remanded the matter to the trial court
for further proceedings. Id.
On June 14, 20221, Plaintiffs filed a separate action in the 24th Judicial
District Court by filing a “Petition for Conversion and Abuse of Process or
Declaratory Judgment” against Cecile Panepinto, Cecile’s attorney Eddie M.
Encalarde, and the Encalarde Law Firm (hereinafter collectively ELF).2 In their
original petition, Plaintiffs alleged that Cecile sold the property at issue on October
8, 2021 for $398,000.00 without notice to Plaintiffs, and further, that Cecile failed
to subsequently give Plaintiffs their ½ of the net sale proceeds in accordance with
the decedent, Frank, Sr.’s, will.
1
Plaintiffs filed their original petition on June 14, 2022, but amended their petition to add additional
defendants, including ELF, on September 28, 2022.
2
Plaintiffs also filed suit against Dwayne Smith, the individual who purchased the property, Geneva
Financial, and MERS (Mortgage Electronic Services), the mortgage company and finance company that
provided a mortgage to Mr. Smith. As to MERS, Plaintiffs sought a declaratory judgment declaring the
sale to Mr. Smith and the related mortgage a nullity. In their petition, Plaintiffs pled their action against
MERS, Mr. Smith, and Geneva Financial in the alternative, seeking relief only in the event the trial court
determined Plaintiffs were not entitled to or awarded the ½ of the net proceeds from the sale. MERS also
filed an exception of no cause of action and an exception of nonjoinder of a party, asserting that the Clerk
of Court is a necessary party in any proceeding where plaintiffs seek to cancel a mortgage. The trial court
granted both exceptions. Plaintiffs appealed that judgment in favor of MERS in the instant appeal.
However, Plaintiffs have acknowledged that they have, since the filing of this appeal, received their ½ of
the net proceeds from the sale of the property in the underlying succession suit and, thus, their claims
against MERS are rendered moot. At oral argument, Plaintiffs’ counsel acknowledged that the only issue
presented to this Court on appeal at this time is the exception of no cause of action rendered in favor of
attorney Eddie Encalarde and the law firm, ELF, dismissing Plaintiffs’ claims against them.
23-CA-297 2
In their supplemental petition, Plaintiffs also asserted abuse of process
claims against ELF—contending that ELF’s filing of the petition for possession in
the underlying succession suit on behalf of their client, Cecile, without joining
Plaintiffs in the suit as conditional legatees was an abuse of legal process. They
further alleged that ELF had a wrongful or ulterior motive to exclude Plaintiffs
from the underlying succession suit and subsequent property sale. Plaintiffs
alleged that ELF initiated the suit to intentionally harm Plaintiffs. Plaintiffs sought
general and special damages including but not limited to mental anguish,
emotional distress, inconvenience and aggravation, and attorney fees and costs
incurred in the litigation.
On November 11, 2022, ELF filed an exception of no cause of action,
asserting that Plaintiffs could not state a cognizable abuse of process claim against
ELF. Specifically, ELF alleged that Plaintiffs failed to meet the heightened
pleading requirement to assert an abuse of process claim against an adversary’s
attorney participating in legal proceedings on a client’s behalf, and failed to allege
a factual basis to support a finding that ELF’s actions in filing the petition for
possession in the underlying succession suit were malicious with an intent to harm
Plaintiffs.
Following a hearing on the exception, the trial court granted ELF’s
peremptory exception of no cause of action, dismissing Plaintiffs’ claims against
ELF.3 This timely appeal followed.
LAW AND ANALYSIS
On appeal, Plaintiffs seek review of the trial court judgment granting ELF’s
exception of no cause of action as to Plaintiffs’ abuse of process claims and
3
On February 14, 2023, the trial court granted ELF’s exception of no cause of action. On April 21, 2023,
the trial court amended the judgment to include the necessary decretal language, granting ELF’s
exception of no cause of action and dismissing Plaintiffs’ claims against ELF.
23-CA-297 3
dismissing Plaintiffs’ petition against ELF.4 Plaintiffs contend that their petition
sufficiently states a cause of action for abuse of process against Cecile’s attorney
and his law firm, ELF. Alternatively, Plaintiffs contend that the trial court erred in
granting the exception of no cause of action without first allowing Plaintiffs the
opportunity to amend the petition pursuant to La. C.C.P. art. 934.5
In their first amended petition, Plaintiffs alleged that Encalarde, as Cecile’s
attorney, filed a “Petition to File and Execute Notarial Testament and for
Possession” in the underlying succession case praying that Cecile be recognized as
the sole legatee and placed in possession of the entirety of the decedent’s estate.
Plaintiffs further alleged that Encalarde “failed to disclose the existence of the
conditional legacies to Frank, Jr. and John in the Will.” They further alleged that
Encalarde “failed to serve or otherwise provide…notice of the Succession
proceeding, Petition for Possession, or Judgment of Possession” to Plaintiffs.
Further, in their amended petition, Plaintiffs alleged generally that the
“improper and irregular use of process in the Succession Proceeding was motivated
by an ulterior, wrongful motive and intent to sell the property without Court
authority and without delivering to Frank, Jr. and John their conditional joint
legacy of one-half of the net proceeds of the sale bequeathed to them in the Will.”
An abuse of process claim originates from the common law and is
recognized under our jurisprudence as a compensable tort under La. C.C. art. 2315.
Palowsky v. Campbell, 22-592 (La. App. 5 Cir. 12/14/23), — So.3d —, 2023 WL
4
As stated above, the assignments of error related to the judgment in favor of MERS are rendered moot
by Plaintiffs’ acknowledgment that they have received the net sale proceeds and that their claims against
MERS were only pled in the alternative should the court have determined that they are not entitled to
their ½ share of the net proceeds. Courts are not empowered to render advisory opinions on moot or
abstract issues of law. Id. Floyd v. E. Bank Consol. Fire Prot. Dist. for Par. of Jefferson, 09-780 (La.
App. 5 Cir. 4/13/10), 40 So.3d 160, 163, writ denied sub nom. Floyd v. E. Bank Consol. Fire Prot. Dist.
For the Par. of Jefferson, 10-1094 (La. 9/3/10), 44 So.3d 689.
5
La. C.C.P. art. 934 provides:
When the grounds of the objection pleaded by the peremptory exception may be removed by amendment
of the petition, the judgment sustaining the exception shall order such amendment within the delay
allowed by the court. If the grounds of the objection raised through the exception cannot be so removed,
or if the plaintiff fails to comply with the order to amend, the action, claim, demand, issue, or theory shall
be dismissed.
23-CA-297 4
8637837, citing Mini–Togs, Inc. v. Young, 354 So.2d 1389 (La. App. 2 Cir.1978).
The tort of abuse of process involves the misuse of a process whereby a party
attempts to obtain some result not proper under law. No Drama, LLC v. Caluda,
15-211 (La. App. 5 Cir. 10/14/15), 177 So.3d 747, 751; Stark v. Eunice Superette,
Inc., 457 So.2d 291 (La. App. 3 Cir.1984). An abuse of process claim has two
essential elements: (1) the existence of an ulterior purpose and (2) a willful act in
the use of the process not proper in the regular prosecution of the proceeding. No
Drama, LLC, 177 So.3d at 751. In other words, generally, Plaintiffs must
demonstrate that the Defendant employed a legal process for an improper reason
and with an ulterior purpose or motive. Palowsky, supra.
Specifically concerning a claim for abuse of process against an adversary’s
attorney, the Louisiana Supreme Court has stated:
Louisiana subscribes to the traditional, majority view that an attorney
does not owe a legal duty to his client’s adversary when acting in his
client's behalf. A non-client, therefore, cannot hold his adversary’s
attorney personally liable for either malpractice or negligent breach of
a professional obligation. The intent of this rule is not to reduce an
attorney's responsibility for his or her work, but rather to prevent a
chilling effect on the adversarial practice of law and to prevent a
division of loyalty owed to a client. Penalber v. Blount, 550 So.2d 577
(La. 1989). Although Penalber re-affirmed the basic premise that an
attorney acting on behalf of his client may not be sued by an adversary
based on negligence or malpractice, that case did allow a cause of action
against an attorney based on intentional tort:
Intentionally tortious actions, ostensibly performed for a client’s
benefit, will not shroud an attorney with immunity. Consequently, even
though an attorney does not generally owe a duty to his client’s
adversary, under the broad ambit of LSA–C.C. art. 2315, an attorney
may be held personally accountable for his intentional tortious
conduct....
* * *
Of course, identifying an intentional tort in the context of an attorney’s
actions may be more difficult than identifying a traditional intentional
tort. It is clear that the mere filing of a lawsuit, even if the suit appears
meritless on its face, is not enough, since the attorney may be simply
the instrument through which the client invokes judicial determination.
Spencer v. Burglass, 337 So.2d 596 (La. App. 4th Cir.1976), writ
denied, 340 So.2d 990 (La. 1977). Rather, we believe it is essential for
the petition to allege facts showing specific malice or an intent to harm
23-CA-297 5
on the part of the attorney in persuading his client to initiate and
continue the suit.
Montalvo v. Sondes, 637 So.2d 127, 130 (La. 1994); see also McDonald v. Bowen,
54,798 (La. App. 2 Cir. 11/16/22), 351 So.3d 914, 919.
The Rules of Professional Conduct establish minimum standards for the
ethical conduct of attorneys not only in their relations with their own clients, but
with adversaries, opposing attorneys, the public, and the courts. Yet, the Louisiana
Supreme Court has stated that “it cannot be seriously contended that the breach of
an ethical duty to a client’s adversary, absent malice, creates an actionable duty
enforceable in tort.” See Montalvo v. Sondes, 637 So.2d at 130. Similarly, it is
plain that an attorney’s breach of a rule imposing a duty relating to the general
public would not, absent very unusual circumstances, vest a non-client with a
delictual cause of action against an attorney. See Teague v. St. Paul Fire & Marine
Ins. Co., 06-1266 (La. App. 1 Cir. 4/7/09), 10 So.3d 806, 824, writ denied, 09-1030
(La. 6/17/09), 10 So.3d 722; Spencer v. Burglass, 337 So.2d 596 (La. App. 4th
Cir.1976), writ denied, 340 So.2d 990 (La. 1977). A litigant who sues his
adversary’s attorney must show that the attorney acted with a specific malice or
intent to personally inflict direct harm upon his client’s adversary and with full
knowledge that his conduct would cause such harm. In re Succession of Carroll,
46,327 (La. App. 2 Cir. 7/20/11), 72 So.3d 384, 389, writ not considered, 11-1844
(La. 11/4/11), 75 So.3d 912.
Moreover, mere evidence of procedural error does not establish an abuse of
process claim. Samuel v. Remy, 15-0464 (La. App. 1 Cir. 8/31/16), writ denied, 16-
1785 (La. 11/29/16), 211 So.3d 387. Rather, absent a showing of willful abuse
through an illegal, improper, or irregular use of process, there is no cause of action
for abuse of process. Id. In this case, Plaintiffs’ petitions alleged that ELF, while
representing Cecile, filed a petition for possession for the purpose of placing Cecile
23-CA-297 6
in possession of the decedent’s entire estate, including the immovable property at
issue. Although this Court on appeal in the succession proceeding determined that
Plaintiffs should have been joined as conditional legatees and necessary parties for
adjudication, the actual legal process of filing a petition for possession in the 24 th
Judicial District Court in an effort to put Cecile into possession of the property
was, in fact, a proper legal process with, ultimately, a proper outcome of placing
Cecile into possession of the decedent’s property.
We therefore agree with the trial court and find that Plaintiffs cannot state a
cognizable abuse of process claim against their adversary’s attorney, ELF, under
the alleged facts in this case.6 Accordingly, we affirm the trial court’s April 21,
2023 judgment.
AFFIRMED
6
Upon review of the amended petition, we further find that under the facts as alleged in this case, the
grounds for the exception cannot be removed and, thus, the trial court correctly granted the exception of
no cause of action in favor of ELF without permitting Plaintiffs to amend their petition to state a cause of
action.
23-CA-297 7
FRANK J. PANEPINTO, JR. AND JOHN NO. 23-CA-297
A. PANEPINTO
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
CECILE LAURIE PANEPINTO,
DWAYNE SMITH, SR., GENEVA STATE OF LOUISIANA
FINANCIAL, LLC, AND MORTGAGE
ELECTRONIC REGISTRATION
SYSTEMS, INC.
JOHNSON, J., DISSENTS IN PART WITH REASONS
I, respectfully, dissent in part from the majority opinion. While I agree the
trial court properly held that Plaintiffs, Frank J. Panepinto, Jr. and John A.
Panepinto, failed to state a cause of action for abuse of process in their petition
against defendants Eddie Encalarde, Jr. and Encalarde Law Firm, I disagree with
the conclusion that Plaintiffs should not be permitted an opportunity to amend
their petition to state a cognizable abuse of process claim.
A petition should not be dismissed for failure to state a cause of action,
unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of any claim which would entitle him to relief. Industrial Companies,
Inc. v. Durbin, 02-665 (La. 1/28/03), 837 So.2d 1207. Every reasonable
interpretation must be accorded the language of the petition in favor of
maintaining its sufficiency and affording the plaintiff the opportunity of
presenting evidence at trial. Id.
In this matter, the majority opinion makes impermissible factual
determinations on the appropriateness of the defendants’ actions, rather than
focusing on whether the law affords Plaintiffs a remedy based on the facts
alleged in the pleading. It does not appear beyond a doubt that Plaintiffs cannot
prove any set of facts to support their claim. See, Durbin, supra. Because the
23-CA-297 8
opinion identifies deficiencies in the petition that could potentially be cured, I
would allow Plaintiffs the opportunity to amend their petition, as required by La.
C.C.P. art. 934.
23-CA-297 9
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
MARCH 20, 2024 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-297
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE FRANK A. BRINDISI (DISTRICT JUDGE)
HAROLD E. MOLAISON (APPELLANT) JACK E. MORRIS (APPELLANT) JUSTIN E. MOLAISON (APPELLANT)
CHARLES V. CUSIMANO, III (APPELLEE) ELIZABETH C. PRICE (APPELLEE) ALAN W. STEWART (APPELLEE)
JAMES H. GIBSON (APPELLEE) RYAN M. MCCABE (APPELLEE)
MAILED
NO ATTORNEYS WERE MAILED