APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT,
ORLEANS PARISH NO. 2018-06034, DIVISION "L-6"
Honorable Kern A. Reese, Judge
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
composed of Judge Terri F. Love, Judge Roland L. Belsome,
Judge Joy Cossich Lobrano, Judge Regina Bartholomew-Woods,
Judge Dale N. Atkins
F. Love Judge.
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.
BACKGROUND AND PROCEDURAL HISTORY
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
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.
OF NO CAUSE OF ACTION
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).
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.
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
… 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 ...