FARMER v. LEGIER (2025)

Plaintiffs, Courtney Chappuis Farmer and Catherine Chappuis, appeal from a trial court judgment granting declinatory exceptions of lis pendens in favor of multiple defendants in these two consolidated suits. For the foregoing reasons, we affirm in part, reverse in part, render, and remand.

FACTS AND PROCEDURAL HISTORY

The two appeals at issue in these consolidated suits are based on facts arising from an underlying suit filed by William R. Legier, Sr. (Mr. Legier) against numerous defendants, including Courtney Chappuis Farmer and Catherine Chappuis (referred to collectively as “Plaintiffs”), as detailed below.

Plaintiffs are the daughters of Dr. Cynthia A. Glass and Dr. Charles Chappuis. Dr. Glass is also Mr. Legier's ex-wife and the mother of William R. Legier, Jr. (William), who passed away on July 27, 2019. Prior to his death, William held minority ownership interests in two businesses formed by Dr. Glass: Coccolare Spa, LLC (9%) and C&C Realty Management, LLP (C&C Realty) (10%). Plaintiffs, individually, also held ownership interests in these businesses (9% and 40%, respectively). William further held a minority ownership interest (10%) in an additional partnership formed by Dr. Glass, Chappuis & Legier, LLC, with the remaining ownership interest held by C&C Realty.

On September 29, 2020, Mr. Legier, in his capacity as the independent executor of William's succession and as trustee of two trusts established in favor of William's minor daughter, Lily, initiated the underlying suit against Dr. Glass regarding her management of the three entities.¹ He alleged that her actions constituted “conversion, breach of fiduciary duty, unfair trade practice and abuse of rights and improper manipulation of tax reporting that were intended to deprive [William] and his daughter, Lily Legier[,] of their rightful ownership benefits of these entities.” Over the course of this ongoing litigation, Mr. Legier amended his petition to add as defendants Dr. Chappuis, Plaintiffs, Aesthetic Institute of the South, LLC (AIS), and C&C Support Services, LLP (C&C Support), both of which he alleged were owned by Dr. Glass, Dr. Chappuis, and Plaintiffs.²

Central to Plaintiffs’ appeals in the instant matter were the defendants’ unsuccessful attempts to obtain information from Mr. Legier regarding the two trusts and his failure to acknowledge his lack of capacity to sue on their behalf. As a result, in April 2020, Ms. Farmer, AIS, and C&C Support filed a dilatory exception of lack of procedural capacity, alleging that Mr. Legier lacked the capacity to sue on behalf of the trusts. In opposing the exception, Mr. Legier provided an executed copy of William's last will and testament as well as a document naming him as independent executor of the succession. He further admitted, in brief, that “[a]ll of the claims against the Defendants [were] being asserted solely by” him, in his capacity as succession representative.

On April 25, 2022, Ms. Farmer, in addition to answering Mr. Legier's petitions and filing a reconventional demand, filed a third-party demand against him, in his individual capacity, raising allegations of abuse of process and fraud. She further alleged that she “suffered and continues to suffer damages, including but not limited to embarrassment, humiliation, loss of reputation, attorney fees and costs.” That same day, Ms. Chappuis, who had previously answered the petitions, filed identical reconventional and third-party demands against Mr. Legier.

Following a May 31, 2022 hearing on the exception of lack of procedural capacity, the trial court took the matter under advisement. Thereafter, on November 21, 2022, it rendered judgment sustaining the exception but allowing Mr. Legier thirty days “to amend the petition to cure the procedural defect raised” by the exception. Thereafter, on December 5, 2022, Mr. Legier filed a third amended and supplemental petition, alleging violations against the defendants under the Louisiana Racketeering Act. Two days later, on December 7, 2022, he filed a fourth amending petition by which he removed all claims asserted on behalf of the trusts and clarified that the claims asserted were only made by him in his capacity as succession representative of William's succession.

On April 14, 2023, the defendants in the underlying suit collectively filed a motion for sanctions, seeking:

[I]mposition of sanctions pursuant to Louisiana Code of Civil Procedure, article 863, against [Mr. Legier] and his counsel including reasonable attorney fees and expenses incurred to secure dismissal of the legally and factually baseless suit filed by [Mr. Legier] as “trustee” for the sole purposes of harassment and needless increase of Defendants’ litigation costs and wasting judicial resources[.]

Following a June 22, 2023 hearing, the trial court orally denied the defendants’ motion, finding “that there was a factual and legal basis for [Mr. Legier's] allegation. The Court does not find that the defendant[s] has [sic] met their burden.” The defendants sought review of the judgment through writs to this court, which were denied. Legier v. Glass, 23-509 (La.App. 3 Cir. 11/30/23) (unpublished writ denial). Writs were further denied by the supreme court. Legier v. Glass, 23-1682 (La. 2/14/24), 379 So.3d 34.

Three months prior to our November 30, 2019 writ ruling, Plaintiffs filed the lawsuits giving rise to these appeals. On September 27, 2023, Plaintiffs, under docket number 20235421, filed a “Petition for Abuse of Process, Defamation, Defamation Per Se, Malicious Prosecution, Intentional Infliction of Emotional Distress, and Damages” against Mr. Legier, both individually and as the purported trustee of the two trusts. Under docket number 20235424, Plaintiffs filed a “Petition for Abuse of Process, Defamation, Defamation Per Se, Intentional Infliction of Emotional Distress, and Damages” against the law firms and attorneys who had represented or were currently representing Mr. Legier in the underlying suit. Named as defendants were Sher Garner Cahil Richter Klein & Hilbert, L.L.C., James Garner, Ryan O. Luminais, and Victoria E. Terranova (the Sher Garner defendants); Perrier & Lacoste, LLC and Norman E. Anseman, III, (the Perrier & Lacoste defendants); and Lowe, Stein, Hoffman, Allweiss & Hauver, LLP, Mitchell Hoffman, and Gregory S. Marsiglia, (the Lowe Stein defendants) (referred to collectively as “Attorneys”).

The allegations contained in both suits are virtually identical, with the exception that Plaintiffs allege that Attorneys, in their representation of Mr. Legier, signed pleadings in the litigation alleged to have been the basis for their claims of abuse of process, malicious prosecution, intentional infliction of emotional distress, and defamation. On motion of the Lowe Stein defendants, the two lawsuits were consolidated under docket number 20235421.

In response to Plaintiffs’ suit, Mr. Legier filed a declinatory exception of lis pendens, a dilatory exception of prematurity, and peremptory exceptions of no right of action and no cause of action. Attorneys followed by each filing declinatory exceptions of lis pendens, dilatory exceptions of prematurity, and peremptory exceptions of no cause of action. Plaintiffs opposed all exceptions.

During the August 19, 2024 hearing on the exceptions, Plaintiffs stipulated that they were dismissing their claim for intentional infliction of emotional distress as to Attorneys. At the close of the hearing, the trial court took the matter under advisement. Thereafter, on September 26, 2024, it issued written reasons in favor of Mr. Legier and Attorneys, granting the exceptions of lis pendens and dismissing Plaintiffs’ suits against them without prejudice. A written judgement was rendered October 10, 2024, dismissing without prejudice Plaintiffs’ claims for intentional infliction of emotional distress against Attorneys; granting the exceptions of lis pendens in favor of Mr. Legier and Attorneys and dismissing Plaintiffs’ claims against them without prejudice; and finding moot all remaining exceptions. It is from this judgment that Plaintiffs have perfected their appeals.

On appeal, Plaintiffs raise two assignments of error:

(1) The Trial Court erred in sustaining Defendants’ exception of lis pendens (and subsequently dismissing these two consolidated lawsuits) because the parties are not all the same as the Underlying Lawsuit.

(2) The Trial Court erred in finding that because Attorney Defendants represented Legier in the underlying suit [sic], that they were considered the “same party” for purposes of lis pendens and res judicata.

The Sher Garner defendants have answered Plaintiffs’ appeal. On appeal, they ask that we affirm the judgment sustaining the exception of lis pendens. They further ask that the judgment be modified, revised, and/or reversed to grant their exception of no cause of action.³

OPINION

Exception of Lis Pendens (Mr. Legier)

In their first assignment of error, Plaintiffs assert that the trial court erred in sustaining Mr. Legier's and Attorneys’ exception of lis pendens and subsequently dismissing these consolidated suits because the parties are not all the same as in the underlying suit. Specifically, as to the allegations pertaining to Mr. Legier, Plaintiffs claim that the instant suit is against him personally and in his capacity as purported trustee of the trusts. They assert that Mr. Legier was not a plaintiff in the underlying suit in his personal capacity and that his claims as trustee were dismissed in his fourth amending petition. Plaintiffs also claim that while Attorneys are parties to the instant lawsuit, they were not parties to the underlying suit; thus, making the parties in the two actions distinct.

Our law provides for the declinatory exception of lis pendens in La.Code Civ.P. art. 925(A)(3), with the procedural requirements for granting the exception set forth in La.Code Civ.P. art. 531:

When two or more actions are pending in a Louisiana court or courts on the same transaction or occurrence, between the same parties in the same capacities, the defendant may have all but the first action dismissed by excepting thereto as provided in Article 925. When the defendant does not so except, the plaintiff may continue the prosecution of any of the actions, but the first final judgment rendered shall be conclusive of all.

“The ‘test’ established to determine if an exception of lis pendens should be sustained is the same as that for res Judicata; thus, an exception of lis pendens should be sustained if ‘a final judgment in the first suit would be res judicata in the subsequently filed suit.’ ” Aisola v. La. Citizens Prop. Ins. Corp., 14-1708, p. 4 (La. 10/14/15), 180 So.3d 266, 269 (quoting United Gen. Title Ins. Co. v. Casey Title, Ltd., 01-600, p. 8 (La.App. 5 Cir. 10/30/01), 800 So.2d 1061, 1065). Thus, the defendant must prove that “(1) two or more suits are pending in a Louisiana court or courts; (2) on the same transaction or occurrence; and (3) between the same parties in the same capacities.” Id.

On appeal, a trial court's ruling granting or denying an exception of lis pendens raises a question of law, which is reviewed de novo. Peddy v. Lott Oil Co., Inc., 55,320 (La.App. 2 Cir. 11/15/23), 374 So.3d 288.⁴ “[B]ecause lis pendens does not address the merits of the dispute between the parties, the reviewing court considers the issue in the procedural and factual climate that exists at the time of review, rather than at the time of the trial court's ruling.” Id. at 291.

In denying the exception as to Mr. Legier, the trial court stated:

The doctrine of lis pendens prevents a plaintiff from litigating a second suit when the suits involve the same transaction or occurrence between the same parties in the same capacities. For lis pendens to apply, La.Code Civ. Proc. art. 531 requires that (1) two or more suits are pending in a Louisiana court or courts; (2) on the same transaction or occurrence; and (3) between the same parties in the same capacity. Aisola v. La. Citizens Prop. Ins. Corp., 14-1708, p. 4 (La. 10/14/15), 180 So.3d 266, 269.

This court finds that all 3 prongs are met. First, there are two or more actions pending in Louisiana courts [i.e. 15th JDC # 20235421 c/w 20235424(collectively the “second suit”) and 15th JDC 20204757(“underlying suit”)]. Second, as to the same transaction or occurrence prong, no one test exists for determining what constitutes the same transaction or occurrence, rather what constitutes a transaction or occurrence must be determined on a case-by-case basis. TMF Hotel Properties, L.L.C, v. Crescent City Connections 501(C) 7 Gris-Gris Pleasure Aide & Social Club, App. 4 Cir. 2018, 318 So.3d 756, 2018-0079 (La.App. 4 Cir. 11/28/18), writ denied 267 So.3d 87, 2019-0110 (La. 3/18/19) [sic].

In Legier's original and amending petitions in his capacity as succession representative, his petitions include, but are not limited to, allegations of breach of fiduciary duty, fraudulent income tax returns, and diminished value. Farmer/Chappuis filed a third party demand against Legier individually in the underlying suit. Farmer/Chappuis filed a motion for sanctions against Legier as succession representative and against his attorneys for sanctions in the underlying suit based on the trustee action. They also filed the petitions in the second suit against Legier, individually, and as purported trustee. In the consolidated second suit, Farmer/Chappuis also filed against the attorney defendants based on the same allegations and actions pled in underlying suit [sic]. Given the facts, this court finds that the second prong is met.

As to the third prong, this court finds it is met as the suits are between the same parties in the same capacity because of an identity of parties. In Newman Hoffoss & Devall v[.] Raleigh Newman, APLC, 216 So.3d 276 (La. App. 3rd Cir. 2017) [sic], the court stated:

In Welch v. Crown Zellerbach Corp., 359 So.2d 154, 156 (La.1978), we explained that “[t]here exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same ‘quality’ as parties.” In Hudson v. City of Bossier, 33,620 at p. 8 (La.App. 2 Cir. 8/25/00), 766 So.2d 73 8,743, the appellate court, relying on federal jurisprudence interpreting res judicata provisions analogous to those under our state law, found that the preclusive effect of a judgment could bind a nonparty whose interests were adequately represented by parties to the litigation:

Under federal law, the preclusive effect of a judgment binds the parties to the action and nonparties who are deemed the “privies” of the parties in these limited circumstances: (1) the nonparty is the successor in interest of a party; (2) the nonparty controlled the prior litigation; or (3) the nonparty's interests were adequately represented by a party to the action who may be considered the “virtual representative” of the nonparty because the interests of the party and the nonparty are so closely aligned. Gilbert v. Visone, 30,204 [(]La.App. 2 Cir. 2/25/98[)], 708 So.2d 496; Condrey v. Howard, 28,442 (La.App. 2 Cir. 8/21/96), 679 So.2d 563, writ denied, 96-2335 (La. 11/22/96), 683 So.2d 281, citing Meza v. General Battery Corp., 908 F.2d 1262 (5th Cir. 1990).

Again, in looking at the underlying suit and the petitions in these consolidated suits, it is clear that there is an identity of parties. This second suit was filed by Farmer/Chappuis, defendants in the underlying suit, against Legier, third party defendant in the underlying suit for defamation, malicious prosecution, abuse of process and intentional infliction of emotional distress. Additionally, the attorneys in the underlying suit for both Legier, individually and as succession representative[,] are defendants in the second suit. As attorneys for Legier, [sic] the necessary representative capacity is met. For Legier, his different capacities share the same qualities as evidenced by Farmer/Chappuis’ own petition in the second suit which makes no distinction in the allegations between Legier and Legier as purported trustee rather just referring to him as LEGIER throughout. Thus, after considering the pleadings filed, the applicable law, as well as argument of counsel, the court hereby sustains the declinatory exception of lis pendens and as per La.C.C.P. Art. 531 [sic], docket numbers 2023-5421 and 2023-5424 [sic] are dismissed without prejudice. As per above cited jurisprudence, once a declinatory exception is granted, the court is without power or authority to rule on the remaining exceptions.

As to Mr. Legier, Plaintiffs contend that the parties in the present lawsuit are different from those in the underlying suit. They assert that “Legier (in his personal capacity) was never a plaintiff in the Underlying Lawsuit[,]” and “[w]hen he filed the Underlying Lawsuit, he did so only in the following capacities: (1) as independent executor of the Succession of William R. Legier, Jr.; (2) as trustee of the Lily Legier Trust; and (3) as trustee of the Lily Legier Testamentary Trust.” While we agree with this assessment of Mr. Legier's capacities as the plaintiff in the underlying suit, we must also look to his capacity as third-party defendant in the underlying suit as compared to the capacity in which he was sued in the instant suit, a factor totally ignored by Plaintiffs.

Ms. Farmer, in her third-party demand, named Mr. Legier, individually, as third-party defendant, asserting his liability as follows:

[F]or damages for abuse of process resulting from his intentional and negligent acts in his various capacities per Louisiana Civil Code Articles 2315 and 2324. LEGIER is also liable to COURTNEY for damages for fraud for misrepresentation or suppression of truth made with the intent to obtain an unjust advantage and cause loss.

She further alleged that as a result of Mr. Legier's actions, she “has suffered and continues to suffer damages, including but not limited to embarrassment, humiliation, loss of reputation, attorney fees and costs.” Ms. Chappuis's third-party demand against Mr. Legier was identical to that of Ms. Farmer.

In the instant suit, Plaintiffs sued Mr. Legier both individually and in his capacity as the purported trustee of the trusts, seeking damages for abuse of process, intentional infliction of emotional distress, malicious prosecution, and defamation based on allegations made by him in filings connected with the underlying suit.

Regarding the “identity of parties” element that is necessary for a finding of res judicata, the supreme court, in Joseph v. Huntington Ingalls Inc., 18-2061, pp. 4-5 (La. 1/29/20), 347 So.3d 579, 584 (footnote omitted), stated:

The jurisprudence is clear that the identity of parties necessary to sustain a plea of res judicata is not the physical “identity of persons,” but an “identity of capacity or quality.” See Burguieres v. Pollingue, 02-1385, p. 9 (La. 2/25/03), 843 So.2d 1049, 1054 (quoting 2 Planiol, Traite Elmentaire De Droit Civil , NO. 54A(4), 36 n.30 (Louisiana State Law Institute trans., 11th ed. 1939)). For purposes of res judicata, there exists an identity of parties whenever the same parties, their successors, or others appear so long as they share the same “quality” as parties, i.e., so long as they are the same in the legal sense of the word. Welch [v. Crown Zellerbach Corp.], 359 So.2d [154,] 156 [(1978)]; Ditch v. Finkelstein, 399 So.2d 1216, 1222 (La. App. 1 Cir. 1981). The legal requirement of identity of parties is met where successors or privies of the original parties assert rights derived therefrom.

Based on the foregoing, we find no legal error in the trial court's finding that an identity of parties exists as to Mr. Legier in the claims set forth in Plaintiffs’ underlying third-party demands and those in the instant suit. The trial court correctly determined that as to Mr. Legier, privity exists as to his actions individually, as representative of the succession, and as purported trustee of the trusts. We further find no merit to Plaintiffs’ assertion that the addition of defendants in the present suit that were not included in the underlying suit is sufficient to deny the exception. “[T]he filing of a new suit naming new and additional parties will not defeat an exception of lis pendens.” Dean v. Delacroix Corp., 03-1352, p. 4 (La.App. 4 Cir. 8/27/03), 853 So.2d 769, 772. Accordingly, we affirm the judgment of the trial court sustaining the exception of lis pendens in favor of Mr. Legier.

Exception of Lis Pendens (Attorneys)

In their second assignment of error, Plaintiffs contend that the trial court erred in granting the exceptions of lis pendens as to Attorneys by finding them to be the “same party” for purposes of lis pendens and res judicata because they represented Mr. Legier in the underlying suit. We agree.

Although not specifically stated by the trial court, Attorneys were not parties to the underlying suit as they were neither plaintiffs in the principal demand nor named as defendants in Ms. Farmer's or Ms. Chappuis's third-party demands. However, as noted by the trial court, the defendants, including Plaintiffs, moved unsuccessfully in the underlying suit for La.Code Civ.P. art. 863 sanctions against Mr. Legier and his counsel, “Mitchell J. Hoffman, Elizabeth K. Fox of the law firm of Hoffman, Nguyen & Kuehl[,] LLC, and Patrick R. Schmidt and Norman E. Anseman, III of the law firm of Perrier & Lacoste, LLC[.]” The Sher Garner defendants were not named in this motion.

Louisiana Code of Civil Procedure Article 863,⁵ which provides sanctions for improperly certified pleadings, “does not create a private cause of action, but is rather a remedial tool available to the court.” Montalvo v. Sondes, 93-2813, p. 6 (La. 5/23/94), 63 7 So.2d 127, 131 n.6. As noted in Montalvo, La.Code Civ.P. art. 863 is derived from Fed. R. Civ. P. 11, which allows courts “to regulate proceedings among parties already before [them] in a particular case[,]” and more specifically, “to discourage groundless proceedings[.]” Port Drum Co. v. Umphrey, 852 F.2d 148, 150 (5th Cir. 1988). Additionally, in Snavely v. Ace Pain Management, LLC, 17-237, p. 4 (La.App. 3 Cir. 12/13/17), 258 So.3d 37, 40, this court held that “[a] sanctions motion under La.Code Civ.P. art. 863 is not the same as an action for malicious prosecution, and therefore, the requirement that the underlying litigation be complete prior to the filing of a malicious prosecution action is inapplicable to a sanctions motion.” Thus, we find that the sanctions motion filed by the defendants in the underlying suit does not equate to a suit pending in a Louisiana court for purposes of lis pendens.

In finding that an identity of parties existed as to Attorneys, the trial court stated, “Additionally, the attorneys in the underlying suit for both Legier, individually and as succession representative[,] are defendants in the second suit. As attorneys for Legier, [sic] the necessary representative capacity is met.” It is not clear whether this statement refers to the fact that Attorneys represented Mr. Legier in the underlying suit and are now sued in the instant suit based on the actions taken by them in representing him. However, considering the trial court's reference to this court's opinion in Newman Hoffoss & Devall v. Raleigh Newman, APLC, 16-967 (La.App. 3 Cir. 3/22/17), 216 So.3d 276, it could refer to a finding that Mr. Legier was Attorneys’ virtual representative in the underlying suit. No matter the trial court's basis, we find that it legally erred in sustaining the exception because Attorneys were not the privies of Mr. Legier.

In closely examining the issue of who qualifies as a “virtual representative,” this court, in McCalmont v. McCalmont, 19-738, pp. 9-10 (La.App. 3 Cir. 4/29/20), 297 So.3d 1057, 1065-66 (footnote omitted), stated:

Although identity of the parties does not mean that the parties must be the same physical or material parties, they nonetheless must appear in the suit in the same quality or capacity. Certified Fin., Inc. v. Cunard, 01-0797 (La.App. 1 Cir. 4/17/02), 827 So.2d 424. The parties are required to be the same “only in the legal sense of the word.” Berrigan [v. Deutsch, Kerrigan, & Stiles, LLP, 01-612 (La.App. 4 Cir. 1/2/02)], 806 So.2d 163,] 167[, writs denied, 02-338, 02-341 (La. 4/12/02), 813 So.2d 410].

In [Certified Fin., Inc. v.] Cunard, 838 So.2d [1] at 4-5 [(La.App. 1 Cir. 4/17/02)], the first circuit stated:

Following the federal law from which our new res judicata statute was taken, Louisiana courts have held that the preclusive effect of a judgment binds the parties to an action and the nonparties who are deemed the “privies” of the parties in three limited circumstances: 1) the nonparty is the successor in interest of a party; 2) the nonparty controlled the prior litigation; and 3) the nonparty's interests were adequately represented by a party to the action who may be considered the “virtual representative” of the nonparty because the interests of the party and the nonparty are so closely aligned. Thomas v. Janzen, 35,288, pp. 12-13 (La.App. 2d Cir. 10/31/01), 800 So.2d 81, 89; Condrey v. Howard, 28,442, p. 5 (La.App. 2 Cir. 8/21/96), 679 So.2d 563, 566-67, writ denied, 96-2335 (La. 11/22/96), 683 So.2d 281, citing Meza v. General Battery Corp., 908 F.2d 1262 (5th Cir. 1990).

See also Hudson v. City of Bossier, 33,620 (La.App. 2 Cir. 8/25/00), 766 So.2d 738, writ denied, 00-2687 (La. 11/27/00), 775 So.2d 450.

In the present case, it is abundantly clear that Jay was not a party to James's lawsuit against Lauren. Although Cunard recognized three limited circumstances on which a claim for res judicata involving non-parties may be based, he makes no argument that he was either a successor to the interest of Lauren or that he controlled the prior litigation. Rather, Jay focuses solely on Lauren being his virtual representative.

In Meza, 908 F.2d at 1272, the fifth circuit observed:

The question of virtual representation is to be kept within “strict confines.” Benson and Ford, Inc. v. Wanda Petroleum Co., 833 F.2d 1172, 1175 (5th Cir.1987) (quoting Hardy v. Johns-Manville Sales Corp., 681 F.2d 334, 339 (5th Cir.1982)). Among the “strict confines” is a requirement that there be “an express or implied legal relationship in which parties to the first suit are accountable to non-parties who file a subsequent suit raising identical issues.” Benson and Ford, 833 F.2d at 1175; Hardy, 681 F.2d at 340; Pollard v. Cockrell, 578 F.2d 1002, 1008 (5th Cir. 1978).

Such representation “requires more than a showing of parallel interests—it is not enough that the non-party may be interested in the same questions or proving the same facts.” Eubanks v. Fed. Deposit Ins. Co., 977 F.2d 166, 170 (5th Cir. 1992); Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860 (5th Cir. 1985). Just as the Supreme Court specifically rejected “an expansive doctrine of virtual representation,” Taylor v. Sturgell, 553 U.S. 880, 896, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008), so has the U.S. Fifth Circuit Court of Appeals, see, Gulf Island-IV, Inc. v. Blue Streak-Gulf Island Operations, 24 F.3d 743 (5th Cir. 1994) (quoting Eubanks, 977 F.2d at 170); White v. Fox, 576 Fed.Appx. 327 (5th Cir. 2014).

Considering the foregoing law, we find that Attorneys cannot be deemed the privies of Mr. Legier as they are not his successors in interest and did not control the prior litigation.⁶ We further find that Mr. Legier was not the virtual representative of Attorneys despite the attorney-client relationship because he was in no way legally accountable to them. Thus, a final judgment in the first suit would not be res judicata in Plaintiffs’ subsequently filed suit against Attorneys. Accordingly, the judgment of the trial court sustaining the exceptions of lis pendens in favor of Attorneys is reversed.

Answer to Appeal

In answering Plaintiffs’ appeal, the Sher Garner defendants ask that we “modify, revise, and/or reverse” the trial court's failure to grant its exception of no cause of action.

In the present case, all exceptions, including the Sher Gamer's exception of no cause of action, were raised, briefed, and then argued before the trial court on August 19, 2024. In its October 10, 2024 judgment, the trial court, after granting the exceptions of lis pendens, declared that the remaining exceptions were rendered moot. However, based on our reversal of the judgment sustaining Attorneys’ exception of lis pendens, we now consider the Sher Gamer defendants’ exception of no cause of action.

In Hebert v. Shelton, 08-1275 (La.App. 3 Cir. 6/3/09), 11 So.3d 1197, the defendant filed a dilatory exception of vagueness and three peremptory exceptions, including exceptions of no cause of action, no right of action, and prescription. All exceptions were briefed and heard by the trial court. At the conclusion of the hearing, the trial court ruled only on the exception of no right of action, sustaining that exception. On appeal, this court reversed the judgment sustaining the no-right-of-action exception and then considered the merits of the remaining exceptions. In doing so, we stated:

Where the trial court fails to rule on a demand raised by the pleadings, the silence in the judgment is deemed a rejection of the demand. Metro Elec. & Maintenance, Inc. v. Bank One Corp., 05-1045 (La.App. 3 Cir. 3/1/06), 924 So.2d 446 (citing Sun Finance Co., Inc. v. Jackson, 525 So.2d 532 (La. 1988)); VaSalle v. Wal-Mart Stores, Inc., 01-462 (La. 11/28/01), 801 So.2d 331. Accordingly, in this case, the trial court has effectively denied the exceptions of vagueness, no cause of action, and prescription. We will address those denials, along with the exception of no right of action.

Id. at 1201.

While here, the trial court did not specifically reject the remaining exceptions, it effectively did so by finding them moot. As the exception of no cause of action was raised, argued, and rejected, at least tacitly, by the trial court, the propriety of that ruling is properly before us via the Sher Garner defendants’ answer to appeal. Thus, as this court has not raised the exception on its own motion, and the exception was briefed and argued by the parties before this court, the issue may be adjudicated without further briefing or oral argument as required by La.Code Civ.P. art. 927(B).

The law pertaining to the peremptory exception of no cause of action was set forth in Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118–19, as follows:

A cause of action, when used in the context of the peremptory exception, is defined as the operative facts that give rise to the plaintiff's right to judicially assert the action against the defendant. Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d 1234, 123 8 (La. 1993). The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition, which is done by determining whether the law affords a remedy on the facts alleged in the pleading. Id. at 1235. No evidence may be introduced to support or controvert an exception of no cause of action. La. C.C.P. art. 931. Consequently, the court reviews the petition and accepts well-pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of Corrections, 00-2882, p. 3 (La. 5/15/01), 785 So.2d 803, 806; Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Montalvo v. Sondes, 93-2813 (La. 5/23/94), 637 So.2d 127, 131.

Louisiana has chosen a system of fact pleading. La. C.C.P. art. 854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. Kizer v. Lilly, 471 So.2d 716, 719 (La. 1985). However, the mere conclusions of the plaintiff unsupported by facts does not set forth a cause of action. Montalvo at p. 6, 637 So.2d at 131.

The burden of demonstrating that the petition states no cause of action is upon the mover. City of New Orleans v. Board of Com'rs of Orleans Levee Dist., 93-0690, p. 28 (La. 7/5/94), 640 So.2d 237, 253. In reviewing the judgment of the district court relating to an exception of no cause of action, appellate courts should conduct a de novo review because the exception raises a question of law and the lower court's decision is based solely on the sufficiency of the petition. Fink v. Bryant, 01-0987, p. 4 (La. 11/28/01), 801 So.2d 346, 349; City of New Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether, in the light most favorable to plaintiff and with every doubt resolved in plaintiff's behalf, the petition states any valid cause of action for relief. City of New Orleans at p. 29, 640 So.2d at 253.

Regardless of the underlying basis or theory of liability asserted by a non-client litigant against their adversary's attorney, attorneys are essentially entitled to a form of qualified immunity from such suits. Thus, our supreme court has established a high standard of proof, which a non-client litigant cannot satisfy upon a showing of mere negligence.

The burden of proof was laid out by the supreme court in Montalvo, 637 So.2d at 130 (alteration in original) (emphasis added), as follows:

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. A non-client, therefore, cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation. The intent of this rule is not to reduce an attorney's responsibility for his or her work, but rather to prevent a chilling effect on the adversarial practice of law and to prevent a division of loyalty owed to a client. Penalber v. Blount, 550 So.2d 577 (La. 1989). Although Penalber re-affirmed the basic premise that an attorney acting on behalf of his client may not be sued by an adversary based on negligence or malpractice, that case did allow a cause of action against an attorney based on intentional tort:

Intentionally tortious actions, ostensibly performed for a client's benefit, will not shroud an attorney with immunity. Consequently, even though an attorney does not generally owe a duty to his client's adversary, under the broad ambit of LSA-C.C. art. 2315, an attorney may be held personally accountable for his intentional tortious conduct․

550 So.2d at 582.

Of course, identifying an intentional tort in the context of an attorney's actions may be more difficult than identifying a traditional intentional tort. It is clear 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. Spencer v. Burglass, 337 So.2d 596 (La.App. 4th Cir. 1976), writ denied, 340 So.2d 990 (La. 1977). Rather, we believe it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney in persuading his client to initiate and continue the suit.

As noted, the Sher Garner defendants are not liable to Plaintiffs for any ordinary acts of negligence that occurred in their representation of Mr. Legier. Thus, we look to the factual allegations in Plaintiffs’ petition to determine if they show “specific malice” or an “intent to harm” by Attorneys in persuading their client, Mr. Legier, to “initiate and continue the suit.” Id. We find they do not.

Plaintiffs’ petition alludes to Mr. Legier's original and first amended and supplemental petitions in the underlying suit and acknowledges that they were not named as defendants in those petitions. They further acknowledge that although they were named as defendants in the second supplemental petition, Mr. Legier did not plead any “factual allegations of conduct or misconduct” by them therein. Accordingly, we conclude that Plaintiffs have failed to state a cause of action against the Sher Garner defendants through Mr. Legier's second supplemental petition.

Plaintiffs only allegations against the Sher Garner defendants concern Mr. Legier's third amended petition, wherein they assert:

17.

In December of 2022, Legier filed a Third Amended Petition to include an allegation that the defendants, including Courtney and Catherine, participated in a RICO scheme which began in the early 2000's [sic] when they were minor children.

18.

The Third Amended Petition was signed by Defendant Ryan O. Luminais and included in the signature block Defendants James Garner, Victoria Terranova, Norman Anseman, III, Mitchell Hoffman, and Gregory S. Marsiglia.

19.

The allegations relative to Courtney and Catherine allege that they used C&C Support Services, LLP, a limited partnership which existed from approximately 2003-2013, to further the RICO scheme which is alleged to have occurred between 2006 and 2019.

․

26.

On December 12, 2022, Defendants filed the Third Supplemental and Amending Petition which contained the following defamatory allegations against Petitioners:

a.

Paragraph 120 falsely alleges the following:

“Upon information and belief, Coccolare Spa, LLC paid millions of dollars to C&C Support Services, LLP, which were allegedly coded on the books of Coccolare Spa, LLC for expenses including payroll, payroll processing, and payroll processing fees, equipment leasing and sales, and/or other expenses, which were not legitimate expenses of Coccolare Spa, LLC.”

b.

Paragraph 124 falsely alleges the following:

“Upon information and belief, payments made by Coccolare Spa, LLC to Cynthia A. Glass MD Health Services.. .and C&C Support Services, LLP comprise part of a fraudulent conveyance and concealment scheme perpetuated by Defendants Cynthia Glass, Charles Chappuis, Courtney Chappuis Farmer, Cather Chappuis․to obtain these funds for their combined and/or individual personal gain.”

c.

Paragraph 125 falsely alleges the following:

“The fraudulent and accounted for conveyances made by Coccolare Spa, LLC to Cynthia A. Glass MD Health Services․accrued to the ultimate benefit of Defendants․Courtney Chappuis Farmer, Catherine Chappuis.. .[.]”

d.

Paragraph 129 falsely alleges the following:

“․Courney Chappuis Farmer, Catherine Chappuis.. .and C&C Support Services LLC were associated with the Enterprise formed on the common or shared purpose of obtaining unlawful monetary gain from economically damaging Coccolare Spa, LLC to their individual and/or shared benefit.”

e.

Paragraph 120 [sic] falsely alleges the following:

“Defendants Cynthia Glass, Charles Chappuis, Courtney Chappuis Farmer, Catherine Chappuis[‘s] [sic]․control and participation in the Enterprise was necessary for the successful activity to which the Enterprise engaged.”

(First, second, eighth, tenth, and twelfth alterations ours.)

After reviewing these allegations, we find that none contain any factual basis rising to the level of “specific malice or an intent to harm on the part of the attorney in persuading his client to initiate and continue the suit.” Id.

We, likewise, note that Plaintiffs acknowledge that Mr. Legier himself filed an affidavit attesting to the validity of the allegations he made in the original and all amending and supplemental petitions filed against the various defendants, including the last versions naming Plaintiffs as defendants in the underlying suit. Certainly, the Sher Garner defendants are entitled to rely on their own client's attestation as to the veracity of the allegations they present on his behalf, especially given his expertise as a certified public accountant.

Based on the foregoing, we find that Plaintiffs have failed to state a cause of action for recovery against the Sher Garner defendants. We further remand the matter to the trial court for consideration of the Perrier & Lacoste and Lowe Stein defendants’ remaining exceptions.

DECREE

The judgment of the trial court sustaining the exception of lis pendens in favor of William Legier, Sr., individually and in his various capacities, is affirmed; the judgment sustaining the exceptions of lis pendens in favor of Sher Garner Cahil Richter Klein & Hilbert, L.L.C.; James Garner; Ryan O. Luminais; Victoria E. Terranova; Perrier & Lacoste, LLC; Norman E. Anseman, III; Lowe, Stein, Hoffman, Allweiss & Hauver, LLP; Mitchell Hoffman; and Gregory S. Marsiglia is reversed; and judgment is rendered sustaining the exception of no cause of action in favor of Sher Garner Cahil Richter Klein & Hilbert, L.L.C.; James Garner; Ryan O. Luminais; and Victoria E. Terranova, dismissing the claims of Courtney Chappuis Farmer and Catherine Chappuis with prejudice. The matter is remanded for consideration of the exceptions raised by Perrier & Lacoste, LLC; Norman E. Anseman, III; Lowe, Stein, Hoffman, Allweiss & Hauver, LLP; Mitchell Hoffman; and Gregory S. Marsiglia. Costs of appeal are assessed one-third to Courtney Chappuis Farmer and Catherine Chappuis; one-third to Perrier & Lacoste, LLC and Norman E. Anseman, III; and one-third to Lowe, Stein, Hoffman, Allweiss & Hauver, LLP, Mitchell Hoffman, and Gregory S. Marsiglia.

AFFIRMED IN PART; REVERSED IN PART; RENDERED; AND REMANDED.

FOOTNOTES

1.   The two trusts established in Lily's favor are the Lily Legier Trust and the Lily Legier Testamentary Trust.

2.   Dr. Chappuis was added as defendant in Mr. Legier's December 17, 2020 first amended and supplemental petition. Plaintiffs, AIS, and C&C Support were added as defendants in Mr. Legier's June 8, 2021 second supplemental petition.

3.   The Lowe Stein and Perrier & Lacoste defendants also request, in brief, that this court consider their exceptions of prematurity and no cause of action. However, because they failed to answer Plaintiffs’ appeal, they are precluded from seeking a modification of the judgment. La.Code Civ.P. art. 2133(A). Mr. Legier also argues, in brief, that even if this court reverses the grant of the exception of lis pendens in his favor, it should affirm the dismissal of Plaintiffs’ claims based on his exceptions of prematurity, no right of action, and no cause of action. However, like the Lowe Stein and Perrier & Lacoste defendants, Mr. Legier has not answered Plaintiffs’ appeal. Thus, he, too, is precluded from seeking a modification of the judgment.

4.   We note that several opinions from this court have reviewed the grant or denial of a La.Code Civ.P. art. 531 exception of lis pendens pursuant to the abuse of discretion standard. See Rivers v. Bo Ezernack Hauling Contractor, LLC, 09-1495 (La.App. 3 Cir. 5/5/10), 37 So.3d 1088, and citing opinions. We believe that this finding resulted from a misapplication of the review standard applicable under La.Code Civ.P. art. 532. When suits are pending in a Louisiana court and another state or federal court, on the same transaction or occurrence and between the same parties in the same capacities, the trial court may stay the proceedings in the second suit on motion of the defendant or on its own motion. Id. However, the trial court has no such discretion when the suits are pending in Louisiana courts as the discretion to dismiss the second suit rests with the defendant, not the trial court. La.Code Civ.P. art. 531. Accordingly, we find that a judgment granting or denying an exception of lis pendens pursuant to La.Code Civ.P. art. 531 presents a question of law, which should be reviewed de novo.

5.   Pursuant to La.Civ.Code art. 863(B), an attorney, by signing a pleading, certifies that he has read it and “to the best of his knowledge, information, and belief formed after reasonable inquiry,” that:(1) The pleading is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation.(2) Each claim, defense, or other legal assertion in the pleading is warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law.(3) Each allegation or other factual assertion in the pleading has evidentiary support or, for a specifically identified allegation or factual assertion, is likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.(4) Each denial in the pleading of a factual assertion is warranted by the evidence or, for a specifically identified denial, is reasonably based on a lack of information or belief.

6.   In Freeman v. Lester Coggins Trucking, Inc., 771 F.2d 860, 864 n.3 (5th Cir. 1985), the fifth circuit noted that “[t]ypical examples of control that result in collateral estoppel” are when a “president and sole shareholder controls his corporation” and a “parent corporation controls a subsidiary[.]”

KYZAR, Judge.