201 So. 3d 935
La. Ct. App.2016Background
- Tracage Development, L.L.C. planned a condominium tower adjacent to the Lengsfield Lofts; Lengsfield unit owners (except Rubenstein) and the LLCOA settled some disputes with Tracage.
- Two settling unit owners (the Hermans) and the LLCOA sued Tracage for breach of the settlement; Tracage answered, filed a reconventional demand, and filed a third-party demand against Joshua Rubenstein alleging abuse of right. The third-party claim accused Rubenstein of fomenting litigation, demanding payment to stop opposition, and maliciously opposing the development.
- Rubenstein moved to strike under La. C.C.P. art. 971 and filed exceptions including no cause of action and prescription. The trial court initially denied the motion to strike, then on reconsideration granted the motion to strike, awarded $5,000 fees, granted the exception of no cause of action, and denied prescription and prematurity exceptions.
- Tracage conceded the third-party procedural posture was improper (it did not allege Rubenstein was liable to it for the principal demand or as a warrantor) but argued the abuse-of-right claim arose from the same facts and could be joined or recast as a reconventional demand.
- On appeal, the court reviewed both rulings de novo and held the third-party demand failed as a third-party claim (no cause of action), but the special motion to strike under art. 971 did not apply to third-party demands and thus the trial court’s grant of the motion (and fee award) was reversed.
- Decree: affirmed in part (exception of no cause of action) and reversed in part (motion to strike and attorneys’ fees).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Tracage’s third-party demand against Rubenstein states a cause of action | Tracage: although miscaptioned, the substance shows an abuse-of-right claim arising from same facts and should be treated as a reconventional or otherwise permitted joinder | Rubenstein: third-party demands must allege liability to the third-party plaintiff for all/part of the principal demand (warranty/indemnity); Tracage’s pleading does not | Held: Third-party demand fails—no cause of action; affirm trial court on exception of no cause of action |
| Whether art. 971 special motion to strike applies to Tracage’s claim against Rubenstein | Tracage: art. 971 should permit striking meritless SLAPP-type claims for abuse of right | Rubenstein: art. 971 applies to petitions/reconventional demands to strike suits arising from acts in furtherance of petition/free speech | Held: art. 971 applies only to petitions or reconventional demands; it does not apply to third-party demands—trial court’s grant of motion to strike reversed |
| Whether trial court erred in denying Rubenstein’s prescription/prematurity exceptions (if strike reversed) | Tracage: (did not press) | Rubenstein: alternatively requested reversal of denial if motion to strike reversed | Held: Moot due to affirmance of no-cause-of-action exception and reversal of motion to strike |
| Whether trial court’s attorneys’ fees award tied to motion to strike stands on appeal | Tracage: fees improper because motion to strike inapplicable | Rubenstein: entitled to fees for successful strike at trial court | Held: Fee award reversed with reversal of motion to strike; alternative request for fees on appeal rendered moot |
Key Cases Cited
- Melius v. Keiffer, 980 So.2d 167 (La. App. 4 Cir. 2008) (de novo review of special motion to strike)
- Ramey v. DeCaire, 869 So.2d 114 (La. 2004) (definition and function of peremptory exception of no cause of action)
- Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234 (La. 1993) (accept well-pleaded allegations as true on exception of no cause of action)
- State, Div. of Admin. v. Infinity Sur. Agency, L.L.C., 63 So.3d 940 (La. 2011) (discussion of peremptory exception standards)
- Union Service & Maintenance Co., Inc. v. Powell, 393 So.2d 94 (La. 1980) (third-party demand is principally for indemnity/contribution; must allege liability to third-party plaintiff)
- Boyer v. Trinity Universal Ins. Co. of Kansas, Inc., 576 So.2d 444 (La. 1991) (third-party demand failing to allege warrantor/indemnitor liability fails as no cause of action)