United States District Court, E.D. Louisiana
ANNIE SLOAN INTERIORS, LTD.
TIMOTHY R.W. KAPPEL, ET AL
ORDER AND REASONS
ANN VIAL LEMMON UNITED WES DISTRICT JUDGE.
IS HEREBY ORDERED that defendants'
Motion to Dismiss for Failure to State a
Claim (Rec. Doc. 8) is DENIED.
matter presents another conflict related to Annie Sloan
Interiors, Ltd. v. Jolie Design & Decor, Inc.,
17-CV-11767 (E.D. La.). In the instant suit, Annie Sloan
Interiors, Ltd. ("ASI") is suing its former
attorney, his firm, and his insurance company, for breach of
fiduciary duty and malpractice. Briefly, in this case, ASI
contends that attorney Timothy Kappel breached his duty to it
by representing Jolie Design & Decor, Inc.
("JDD") and Jolie Home, LLC ("Jolie
Home") in an attack on the CHALK PAINT®
trademark (based on genericness), when he had previously
represented ASI in registering and defending the trademark.
ASI also alleges that Kappel committed malpractice by
"breach[ing] the fiduciary duties of care,
communication, and loyalty owed ASI." Cmplt. ¶ 62.
Specifically, the Complaint references the following
Louisiana Rules of Professional Conduct ("RPC"):
RPC 1.4 (duty to communicate); RPC 1.6 (lawyer shall not
reveal information relating to the representation of the
client); RPC 1.8 (b) (lawyer shall not use information from
one client to the disadvantage of another); RPC 1.9 (lawyer
shall not represent another person in the same or a
substantially related matter in which that person's
interests are materially adverse to the interests of a former
client, absent consent).
oppose, arguing that ASI has failed to state a claim because
it has not adequately alleged an existing attorney-client
relationship, breach of an applicable standard of care for
the rendition of legal services, or that ASI suffered
recoverable damages as a result of Kappel's provision of
complaint alleges, inter alia, that:
From 2011 to 2018, attorney Timothy R.W. Kappel acted as U.S.
trademark counsel for ASI, a United Kingdom-based decorative
paint company. As trademark counsel, Kappel assisted ASI with
its U.S. trademark applications and helped defend ASI's
trademarks against third-party infringers. Even before ending
his relationship with ASI, however, Kappel began attacking
ASI's valid trademarks on behalf of a different client.
In so doing, Kappel breached his fiduciary and professional
duties of loyalty to ASI. These breaches have caused ASI to
suffer significant damages and have allowed Kappel and his
law firm Farmer Purcell to enrich themselves unjustly.
Cmplt., ¶ 1.
12(b)(6) of the Federal Rules of Civil Procedure permits a
motion to dismiss a complaint for failure to state a claim
upon which relief can be granted. "To survive a Rule
12(b)(6) motion to dismiss, 'enough facts to state a
claim for relief that is plausible on its face' must be
pleaded." In re Katrina Canal Breaches Litig.,
495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. v.
Twombly, 550 U.S. 544 (2007). A claim is plausible on
its face when the plaintiff pleads facts from which the court
can “draw the reasonable inference that the defendant
is liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). “Factual
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Twombly, 550 U.S. 544, 555 (citations
omitted). The court “must accept all well-pleaded facts
as true and view them in the light most favorable to the
non-moving party.” In re S. Scrap Material Co.,
LLC, 541 F.3d 584, 587 (5th Cir. 2008). However, the
court need not accept legal conclusions couched as factual
allegations as true. Iqbal, 556 U.S. at 678.
Breach of Fiduciary Duty
elements of a breach of fiduciary duty claim under Louisiana
law,  are: "(1) the existence of a
fiduciary duty on the part of the defendant; (2) an action
taken by the defendant in violation of that duty; and (3)
damages to the plaintiff as a result of that action."
Hall v. Habul, 2014 WL 2441177, at *2 (M.D. La. May
30, 2014). "The relationship between an attorney and his
client is frequently characterized as a fiduciary
relationship." Schlesinger v. Herzog, 672 So.2d
701, 712 (La. Ct. App. 1996), writ denied, 679 So.2d
1381 (La. 1996) (citing Plaquemines Parish Com. Council
v. Delta Development Co., Inc., 502 So.2d 1034, 1040
(La.1987)(other citations omitted). “A claim for breach
of fiduciary duty is separate and apart from a claim of legal
malpractice....” In re Queyrouze, 580 B.R.
671, 678 (E.D. La. 2017)(citing Hiern v. Sarpy, 1995
WL 640528, at *13 (E.D. La. 1995); see also Gerdes v.
Cush, 953 F.2d 201, 204-06 (5th Cir. 1992); Newsome
v. Mendler, 2015 WL 5012310, at *4 n.1 ...