Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Musa v. Musa

Court of Appeals of Louisiana, Fourth Circuit

April 3, 2019

LUIS MUSA
v.
SHELLEY AUDETTE MUSA AND BERNADETTE R. LEE

          APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2018-06034, DIVISION "L-6" Honorable Kern A. Reese, Judge

          Nancy J. Marshall Andrew J. Baer DEUTSCH KERRIGAN, L.L.P. COUNSEL FOR DEFENDANT/RELATOR, BERNADETTE R. LEE

          Vincent J. Booth BOOTH & BOOTH, APLC COUNSEL FOR PLAINTIFF/RESPONDENT, LUIS MUSA

          Court composed of Judge Terri F. Love, Judge Roland L. Belsome, Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods, Judge Dale N. Atkins

          Terri F. Love Judge.

         This application for supervisory review arose from divorce proceedings. The husband filed suit against his estranged wife's lawyer contending that she intentionally coerced his estranged wife into breaching an agreement to sell community property. The attorney filed an exception of no cause of action, which the trial court denied. We find that the trial court erred by denying the exception of no cause of action and remand for amendment. The writ is granted in part, denied in part, and remanded.

         FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         Respondent, Luis Musa, filed a petition for damages in which he named as defendants: Shelley Musa (Mr. Musa's estranged wife) and Bernadette Lee, (relator and Ms. Musa's divorce attorney). In the petition for damages, Mr. Musa alleged that Attorney Lee wrongfully filed a notice of lis pendens and induced Ms. Musa to breach an agreement to sell property (the "Derby Place property") that belonged to the community of acquets and gains existing between Mr. Musa and Ms. Musa. Mr. Musa alleged that, as a result of Attorney Lee's legal advice, despite having previously entered into the agreement to sell, Ms. Musa refused to execute the act of sale to transfer the Derby Place property to a third party buyer on the date of the closing.

         Attorney Lee filed an exception of no cause of action, contending that the claims set forth in Mr. Musa's petition were premised on her actions as counsel for Ms. Musa. Attorney Lee asserted that Louisiana law does not recognize a cause of action against adversarial counsel under the facts alleged in his petition for damages. Mr. Musa opposed the exception, arguing that Attorney Lee's actions were malicious and, thus, a cause of action was recognized under Louisiana jurisprudence. Following a hearing, the trial court rendered judgment, denying the exception.

         EXCEPTION OF NO CAUSE OF ACTION

         A peremptory "exception of no cause of action raises a question of law," and a court of appeal reviews the district court's ruling de novo. Ocwen Loan Servicing, LLC v. Porter, 18-0187, p. 3 (La.App. 4 Cir. 5/23/18), 248 So.3d 491, 495. "The function of the peremptory exception is to have the plaintiff's action declared legally nonexistent, or barred by effect of law, and hence this exception tends to dismiss or defeat the action." La. C.C.P. art. 923. The "ʻfocus in an exception of no cause of action is on whether the law provides a remedy against the particular defendant.'" Hershberger v. LKM Chinese, L.L.C., 14-1079, p. 3 (La.App. 4 Cir. 5/20/15), 172 So.3d 140, 143 (quoting Badeaux v. Southwest Computer Bureau, Inc., 05-0612, 05-719, p. 6 (La. 3/17/06), 929 So.2d 1211, 1216-17; Oakville Community Action Group v. Plaquemines Parish Council, 05-1501, p. 4 (La.App. 4 Cir. 9/27/06), 942 So.2d 1152, 1155).

         "This Court's de novo review is limited to reviewing the four corners of the petition to determine whether on its face the petition states a cause of action." Boyd v. Cebalo, 15-1085, p. 2 (La.App. 4 Cir. 3/16/16), 191 So.3d 59, 61. We accept "all well-pleaded facts in the petition as true for purposes of determining the issues raised by an exception of no cause of action." Id. "The mover bears the burden of proving that the petition states no cause of action; and our de novo review does not take into consideration whether the party will be able to prevail on the merits." Id. A plaintiff may not merely state legal or factual conclusions in the petition without setting forth facts that support the conclusions. Bibbins v. City of New Orleans, 02-1510, p. 5 (La.App. 4 Cir. 5/21/03), 848 So.2d 686, 691.

         "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." Montalvo v. Sondes, 93-2813, pp. 3-4 (La. 5/23/94), 637 So.2d 127, 130. "A non-client, therefore, cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation." Id., 93-2813, p. 4, 637 So.2d at 130. The Supreme Court recognized in Montalvo v. Sondes that the intent of the rule disallowing a non-client's claim against his adversary's attorney for negligence or malpractice was "to prevent a chilling effect on the adversarial practice of law and to prevent a division of loyalty owed to a client." Id. The Supreme Court clarified, however, that while an attorney acting on behalf of his client may not be sued by his client's adversary for negligence or malpractice, a cause of action may exist against an attorney for his intentional tortious conduct. Id. The Supreme Court explained 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. Rather, we believe it is essential for the petition to allege facts showing specific malice or an intent to harm on the part ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.