267 So. 3d 1190
La. Ct. App.2019Background
- Plaintiff Luis Musa sued his estranged wife Shelley Musa and her attorney Bernadette Lee, alleging Lee induced Shelley to breach an agreement to sell community property (the Derby Place property) and improperly filed lis pendens notices.
- Musa alleges Lee’s legal advice caused Shelley to refuse to execute the act of sale at closing, and that lis pendens filings were false or improperly filed.
- Lee filed a peremptory exception of no cause of action, arguing Louisiana law generally precludes tort claims against adversary counsel absent intentional tort or malice.
- The trial court denied the exception; the appellate court reviewed de novo whether Musa’s petition, on its face, stated a cause of action.
- The court found Musa’s petition lacked factual allegations showing specific malice or intent to harm by Lee and contained legal conclusions unsupported by facts, but allowed amendment instead of dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Improper lis pendens | Lee filed false/improper notices that harmed Musa; statute provides remedy | Claim barred because Musa failed to request cancellation under La. R.S. 9:4833 and petition lacks facts showing Lee acted with malice/intent to harm | Petition fails to allege specific malice or required statutory steps; no cause of action as pled; amendment permitted |
| Tortious interference with contract | Lee used legal skill to induce Shelley to breach the agreement to sell; acted maliciously and without justification | Attorneys owe no duty to adversary; absent intentional tort with malice, no liability | Petition alleges only conclusions; fails to plead facts showing specific malice/intent to harm; no cause of action as pled; amendment permitted |
| Applicability of Montalvo rule (liability for opposing counsel) | Musa contends malice suffices to state claim | Lee invokes Montalvo: must plead facts showing specific malice/intent to cause direct harm | Court applies Montalvo: mere allegations of malicious or wrongful conduct insufficient; must plead factual allegations of intent or specific malice |
| Whether dismissal or leave to amend | Musa seeks to proceed; requests damages | Lee argues claims are incurable and should be dismissed | Majority reverses denial of exception but remands for amendment; one judge would dismiss as amendment would be futile |
Key Cases Cited
- Montalvo v. Sondes, 637 So.2d 127 (La. 1994) (attorney not liable to adversary for negligence; intentional tort requires pleading facts showing specific malice or intent to harm)
- 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228 (La. 1989) (limited circumstances permitting tortious interference claims against corporate officers)
- Ocwen Loan Servicing, LLC v. Porter, 248 So.3d 491 (La. App. 4 Cir. 2018) (de novo review applies to exception of no cause of action)
- Delapaz v. Monem, 811 So.2d 1062 (La. App. 5 Cir. 2002) (agreement to sell is not a sale when a later act of sale is contemplated)