STROTHER v. COOPER LLC (2025)

Dan Strother (“Strother”) appeals the granting of an exception of no right of action in favor of Kathryn Cooper (“Ms. Cooper”) and Hesser Cooper Law Group, LLC, (collectively “the Defendants”) that dismissed his petition for damages for legal malpractice, with prejudice. For the reasons that follow, we reverse and remand.

FACTS AND PROCEDURAL HISTORY:

On May 21, 2023, Strother was served with a petition for protection from stalking or sexual assault (“the underlying suit”) and a temporary restraining order (“TRO”). The plaintiff in the underlying suit, Jill West, was granted a TRO against Strother through June 14, 2023. A hearing was set for May 31, 2023, for Strother to show cause why the TRO should not be made a protective order. On May 31, 2023, Strother appeared at the hearing in proper person and requested that the matter be continued. The trial judge granted Strother's request and continued the matter until June 28, 2023, and the TRO was extended through July 12, 2023.

On June 16, 2023, Strother and the Defendants executed a fee agreement, where the Defendants agreed to legally represent Strother in connection with the TRO hearing. Ms. Cooper was the handling attorney. Strother and Ms. Copper both attended the hearing on June 28, 2023, wherein the hearing officer concluded with the following recommendation: “TRO to expire as ordered by agreement of the parties, w/ no admission of guilt by defendant. Attorney to submit Title 9 judgment to Division ‘A’[.]”¹ The recommendation also ordered Strother to pay all court costs.

On June 27, 2024, Strother filed a petition for legal malpractice against the Defendants, alleging that the Defendants breached their duties as his attorneys when allowing his TRO to expire rather than be dismissed. Strother alleged in his petition that “as an employee for the Department of Defense, he was required to handle his TRO in a certain way as to not interfere with his employment. Particularly, department policy required the TRO be dismissed, rather than allowed to expire.” Strother alleged in his petition that he “communicated the necessity of having the TRO dismissed to [the] Defendants as a critical goal in the representation[,]” and that “[o]n the morning of the hearing, June 28, [2023], Defendant Cooper did not meet with [him] as scheduled.” In the petition, Strother alleged that “the hearing officer recommendations do not note [his] desire to have the TRO dismissed[,]” and that “[d]ue to the [Defendants] failure to have the TRO dismissed, [he] was suspended without pay and denied a significant promotion in his employment.” In the petition, Strother alleged his “damages include but are not limited to: his suspension without pay from his employment, the loss of his chance of promotion along with its pay increase and benefits, and the cost to hire additional counsel in the underlying dispute to attempt to mitigate his damages.”

In December 2024, the Defendants filed an exception of no right of action, alleging that “Strother has no right of action against Defendants in malpractice as (1) he cannot show that any action or inaction by Defendants caused him any damages, and (2) he was in the same legal position before and after he discharged Defendants.” The Defendants argued that the fee agreement with Strother was signed on June 16, 2023, and that their representation extended only to June 28, 2023. The Defendants allege that they were retained to represent Strother (1) after he had already been served with the TRO petition; (2) after he had already made an appearance before the court, and (3) after Strother was suspended from his work. In support of the exception of no right of action, the Defendants filed the following exhibits: (1) the petition for damages; (2) the May 21, 2023 service return for Strother; (3) the June 16, 2023 fee agreement; (4) the May 31, 2023 Hearing Officer Recommendation; (5) the June 28, 2023 Hearing Officer Recommendation; (6) emails between Strother and the Defendants; (7) the proposed motion for form and content; (8) emails to attorney Lauren Gay Coleman; (9) the March 8, 2024 letter discharging the Defendants; (10) the June 27, 2024 exceptions that were filed; and (11) the October 18, 2024 judgment. The Defendants argue that “Strother only advised after the hearing, and after the time to make any objection to the Hearing Officer's recommendation, that a dismissal with prejudice was required by his employer.”

On January 28, 2025, Strother filed a first supplemental and amending petition, which stated as follows:

3.

Paragraph 4 of Plaintiff's Petition for damages is amended as follows:

In late May of 2023, [Strother] was served with notice of an action for a temporary restraining order against himself. Due to the nature of this employment, this resulted in his immediate suspension, but with the caveat that he was given a “grace period” to remedy the restraining order prior to having to be officially suspended and to update his personnel file.

4.

Paragraph 6 of Plaintiff's Petition is amended as follows:

Due to [Strother's] position as an employee for a contractor of the Department of Defense, he was required to handle his TRO in a certain way as to not interfere with his employment. Particularly, department policy required the TRO be dismissed, rather than allowed to expire.

5.

Paragraph 10 of Plaintiff's Petition is amended as follows:

Due to the failure to have the TRO dismissed, [Strother's] suspension was made official. This resulted in a lengthy suspension and the loss of significant promotions.

6.

Plaintiff supplements his Petition for Damages as follows:

10(b).

After terminating his representation with Defendants, Plaintiff hired subsequent counsel who was able to successfully have the TRO dismissed with prejudice in October of 2024.

After a hearing, the trial court signed a judgment on February 13, 2025, granting the Defendants’ exception of no right of action, and dismissing Strother's claims against them, with prejudice.

On appeal, Strother alleges the following two assignments of error: (1) “The trial court legally erred in considering the merits of Appellant's ability to establish causation on an exception of no right of action[;]” and (2) “The trial court manifestly erred in granting an exception of no right of action when the attorney-client relationship between the parties is undisputed.”

STANDARD OF REVIEW:

In Badeaux v. Southwest Computer Bureau, Inc., 05-612, 05-719, p. 6 (La. 3/17/06), 929 So.2d 1211, 1217, the Louisiana Supreme Court noted that “[t]he function of an exception of no right of action is a determination of whether plaintiff belongs to the class of persons to whom the law grants the cause of action asserted in the petition[.]” See also La.Code Civ.P. art. 927. It further stated that a “no right of action serves to question whether the plaintiff in the particular case is a member of the class of persons that has a legal interest in the subject matter of the litigation.” Id. A peremptory exception of no right of action poses a question of law and is reviewed de novo. Washington Mut. Bank v. Monticello, 07-1018 (La.App. 3 Cir. 2/6/08), 976 So.2d 251, writ denied, 08-530 (La. 4/25/08), 978 So.2d 369.

“To prevail on an exception of no right of action, the defendant must show that the plaintiff does not have an interest in the subject matter of the lawsuit or the legal capacity to proceed.” Shorter v. Akins, 11-1553, p. 2 (La.App. 3 Cir. 4/4/12), 86 So.3d 883, 885, writ denied, 12-1363 (La. 10/8/12), 98 So.3d 853. “Evidence supporting or controverting the existence of no right of action is admissible.” First Union Baptist Church of Alexandria v. Banks, 533 So.2d 1305, 1309 (La.App. 3 Cir. 1988). Thus, as the exceptors, the Defendants had the burden of showing that Strother did not have a legal interest in his legal malpractice suit against them.

DISCUSSION:

The issue before this court is whether the trial court correctly determined that Strother does not have a right of action for legal malpractice against the Defendants. In Dinger v. Shea, 96-448 (La.App. 3 Cir. 12/11/96), 685 So.2d 485, this court affirmed a trial court's grant of an exception of no right of action on a claim for legal malpractice upon finding that plaintiff had no attorney/client relationship with the defendant. In Dinger, 685 So.2d at 490 (second alteration in original), this court addressed the function of the exception of no right of action while addressing a claim for legal malpractice, and stated:

In order to determine whether the exception was properly granted ․ the above definition [of an exception of no right of action] must be read in conjunction with the requirements for establishing a claim for legal malpractice. In order for a plaintiff to establish a prima facie case for recovery in a claim for legal malpractice, he must prove:

1) [T]hat he and the defendant entered into an attorney/client relationship,

2) that the attorney was guilty of negligence or professional impropriety in his relationship with the client, and

3) that this conduct caused plaintiff some loss.

In this case, Strother argues the trial court “erred in considering evidence of whether [he] would be successful in his claim” rather than deciding if he is in the class of individuals that have a legal interest in bringing this legal malpractice suit against the Defendants. Strother asserts that, interpreting his original and amended petition for damages in the light most favorable to him, he has sufficiently alleged all the necessary elements of a legal malpractice cause of action against the Defendants. We agree.

Before addressing the petitions, it is worth noting that “[t]he exception of no right of action does not raise the question of the plaintiff's ability to prevail on the merits, nor the question of whether there is a valid defense to the proceeding.” LeBlanc v. Alfred, 15-397, p. 8 (La.App. 1 Cir. 12/17/15), 185 So.3d 768, 774. Moreover, “[e]vidence supporting or controverting an objection of no right of action is admissible for the purpose of showing that the plaintiff does not possess the right claimed or that the right does not exist.” Pearce v. Lagarde, 20-1224, p. 11 (La.App. 1 Cir. 10/7/21), 330 So. 3d 1160, 1167, writ denied, 22-10 (La. 2/22/22), 333 So.3d 446. “Where doubt exists regarding the appropriateness of an objection of no right of action, it is to be resolved in favor of the plaintiff.” Robertson v. Sun Life Fin., 09-2275, p. 7 (La.App. 1 Cir. 6/11/10), 40 So.3d 507, 512. “In reviewing a trial court's ruling on an exception of no right of action, an appellate court ‘begins with an examination of the pleadings.’ ” N. Clark, L.L.C. v. Chisesi, 16-599, p. 6 (La.App. 4 Cir. 12/7/16), 206 So.3d 1013, 1017 (quoting Gisclair v. La. Tax Comm'n, 10-563, p. 2 (La. 9/24/10), 44 So.3d 272, 274).

With these legal precepts in mind, and because “[t]he exception of no right of action assumes that the petition states a valid cause of action[,]” we hereby assume Strother's petition and first amended petition states a valid cause of action for legal malpractice, i.e., an attorney client relationship, negligent representation, and loss due to the negligent representation. Indus. Cos, Inc. v. Durbin, 02-665 p. 12 (La.1/28/03), 837 So.2d 1207, 1216. Strother alleges in his petition that he “hired Defendants to represent him in the TRO action[,]” and that he “communicated the necessity of having the TRO dismissed to Defendants as a critical goal in the representation[,]” but that “Defendant Cooper negotiated to allow the TRO to expire against [his] instructions.” Due to the Defendants alleged actions, Strother “was suspended without pay and denied a significant promotion in his employment.”

Based on the facts alleged in the petitions and those adduced at the hearing, we find that Strother clearly established an attorney-client relationship with the Defendants. Strother also made allegations to satisfy the second and third requirements: the negligent representation by an attorney and the loss caused by that negligence. Specifically, in the petition, Strother alleges that the Defendants’ negligence in “fail[ing] to follow instructions to have the TRO dismissed rather than allowed to expire” and/or “[n]egotiating a resolution to allow the TRO to expire against their client's wishes” caused him damages of being suspended without pay from his employment and “the loss of his chance of promotion along with its pay increase and benefits[.]”

Although the Defendants argue that it is “updisputed that [they] represented [Strother] at the TRO proceeding, [but that] there was no negligent representation by [them] for any right of action to exist[,]” we find this argument reaches the merits of the case and is immaterial to the determination of whether Strother alleged a valid legal malpractice claim. As previously stated, and worth emphasizing, an “exception of no right of action does not raise the question of the plaintiff's ability to prevail on the merits, nor the question of whether there is a valid defense to the proceeding.” LeBlanc, 185 So.3d at 774.

For these reasons, we find the trial court erred by granting the exception of no right of action and dismissing Strother's claims. We hereby reverse the trial court's judgment, reinstate Strother's claims against the Defendants, and remand for further proceedings. Costs of this appeal are assessed to the Defendants, Kathryn Cooper and the Hesser Cooper Law Group, LLC.

REVERSED AND REMANDED.

FOOTNOTES

1.   According to the record, the following parties were present at the June 28, 2023 hearing on the TRO: Strother and his attorney, Ms. Cooper, and Jill West and her attorney, Lauren Gay Coleman.

PERRET, Judge.