ASHTON R. O'DWYER, JR., ET AL. NO. 24-CA-277
VERSUS FIFTH CIRCUIT
THE METAIRIE TOWERS CONDOMINIUM COURT OF APPEAL ASSOCIATION BOARD PRESIDENT, ET AL. STATE OF LOUISIANA
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 849-260, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING
January 29, 2025
SCOTT U. SCHLEGEL JUDGE
Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Scott U. Schlegel
AFFIRMED SUS JGG MEJ PLAINTIFF/APPELLANT, ASHTON R. O'DWYER, JR. In Proper Person
COUNSEL FOR DEFENDANT/APPELLEE, STRATEGIC CLAIM CONSULTANTS, LLC AND BRANDON LEWIS, INDIVIDUALLY Michael D. Lane
COUNSEL FOR DEFENDANT/APPELLEE, JACK K. WHITEHEAD, JR., CHARLES E. SUTTON AND SUTTON LAW FIRM, L.L.C. Gus A. Fritchie, III Edward W. Trapolin Christopher H. Irwin
COUNSEL FOR DEFENDANT/APPELLEE, J. BARTHOLOMEW KELLY, III AND ALVENDIA, KELLY & DEMAREST, LLC Richard C. Stanley Kathryn W. Munson J. Andrew Mieras SCHLEGEL, J.
Plaintiff/Appellant, Ashton R. O’Dwyer, Jr., seeks review of the trial court’s
March 20, 2024 judgment that granted exceptions of no right of action in favor of
defendants, J. Bartholomew Kelly, III, Alvendia, Kelly & Demarest, LLC, Charles
E. Sutton, Jr., Sutton Law Firm, LLC, Jack K. Whitehead, Jr., Strategic Claim
Consultants, LLC, and Brandon Lewis. Mr. O’Dwyer also appeals the trial court’s
denial of his motion to transfer this lawsuit to another division of the 24 th Judicial
District Court. For reasons stated more fully below, we affirm the trial court’s
rulings.
FACTS AND PROCEDURAL BACKGROUND
This matter arises from damages sustained to the Metairie Towers
condominium complex on August 29, 2021, during Hurricane Ida, as well as a
second incident on September 28, 2021 that allegedly caused additional damage to
the property. Metairie Towers is a 219-unit condominium building located at 401
Metairie Road in Metairie, Louisiana. Mr. O’Dwyer alleges that he owns Unit
330, as well as an undivided interest in the common areas of the condominium
complex. The Metairie Towers Condominium Association, Inc. (“MTCA”) is a
non-profit corporation that manages the property through its Board of Directors.
On November 27, 2023, Mr. O’Dwyer filed this lawsuit alleging that the
MTCA’s Board of Directors failed to secure adequate insurance for the property,
squandered over $30 million dollars of insurance proceeds, and mishandled the
repairs to the condominium complex. In addition to suing the Board of Directors
and certain members, Mr. O’Dwyer also sued the MTCA’s insurer, Certain
Underwriters at Lloyd’s, London, as well as contractors, property managers,
consultants, attorneys, and public adjusters hired by the Board of Directors. Mr.
O’Dwyer contends that the MTCA improperly paid the insurance proceeds to these
individuals and entities, rather than utilizing them to repair Metairie Towers. Mr.
24-CA-277 1 O’Dwyer also contends that unit owners were repeatedly assured that the insurance
proceeds would be sufficient to repair the property. However, he alleges that after
two years, the Board of Directors reversed course in September 2023 and advised
the unit owners that the remaining insurance proceeds were insufficient to rebuild
the condominium complex, that the rebuild would require a large assessment
against the unit owners, and that the unit owners should sell the property rather
than attempting to rebuild it. Mr. O’Dwyer filed his petition for damages shortly
thereafter, in November 2023.
In response to Mr. O’Dwyer’s petition, several of the defendant lawyers and
their law firms filed exceptions of no right of action arguing that they were
engaged by the MTCA through its Board of Directors or other parties, and
therefore, Mr. O’Dwyer did not have a right of action against them because they
did not have an attorney-client relationship with him. The public adjuster hired by
the MTCA, Strategic Claims Consultants, LLC, and its “owner,” Brandon Lewis,
also filed exceptions of no right of action raising similar arguments regarding the
lack of a contractual relationship with and lack of a duty owed to Mr. O’Dwyer.
Prior to the hearing on the exceptions, Mr. O’Dwyer filed a motion to transfer this
matter to another division of the same court that was handling a class action
proceeding brought by the unit owners against the MTCA and other defendants
arising out of the Hurricane Ida damages to Metairie Towers. Mr. O’Dwyer also
requested a continuance of the hearing on the exceptions based on his request to
transfer this lawsuit.
Following oral arguments on March 20, 2024, the trial court denied Mr.
O’Dwyer’s motion to transfer and continue the hearing on the exceptions. After
conducting an evidentiary hearing on that same date, the trial court granted the
exceptions of no rights of action and dismissed Mr. O’Dwyer’s claims against the
public adjuster, Strategic, and several of the lawyer/law firm defendants. The trial
24-CA-277 2 court stated that all other exceptions raised by defendants were moot.1 The trial
court further explained that the grounds for granting the exceptions of no right of
action could not be removed pursuant to La. C.C.P. art. 934, and therefore,
dismissed Mr. O’Dwyer’s claims against defendants with prejudice. The trial court
entered a written judgment on March 20, 2024. The trial court also issued written
reasons for its judgment on April 23, 2024, providing as follows:
Assuming that the petition states a valid cause of action, the Court holds that, as to Defendants herein, Plaintiffs Ashton R. O’Dwyer, Jr. and Alexis O’Dwyer Navarro do not belong to the class of persons to whom the law grants the causes of action asserted in the suit. There was no attorney-client relationship or engagement agreement between Plaintiffs Ashton R. O’Dwyer, Jr. and Alexis O’Dwyer Navarro and any of Defendants herein. Plaintiffs have no right of action as to causes of action arising from an attorney-client relationship with Defendants or legal representation by Defendants. Plaintiffs have no right of action as to the claims asserted against Defendants Strategic Claim Consultants, LLC and Brandon Lewis, individually, as Plaintiffs did not have a contract with Defendants Strategic Claim Consultants, LLC and Brandon Lewis, individually, and Plaintiffs were not clients of and did not receive services from Defendants Strategic Claim Consultants, LLC and Brandon Lewis, individually. The evidence does not show any right of action of Plaintiffs as third- party beneficiaries or primary intended beneficiaries of the services of any of Defendants herein or of a contract or policy under which services were provided. Plaintiffs are not a member of the class that has a legal interest in the subject matter of the litigation.
Mr. O’Dwyer filed a timely motion for devolutive appeal, which the trial
court granted on April 3, 2024.
DISCUSSION
Motion to Transfer
We first address Mr. O’Dwyer’s claim that the trial court erred by failing to
transfer his individual claims in this matter to Division H of the 24th Judicial
District Court for “ultimate consolidation” with a class action proceeding, AVMI,
L.L.C., et al. v. Metairie Towers Condominium Association, Inc., et al., No. 839-
979. Shortly before the hearing date on the exceptions at issue in this proceeding,
1 In addition to the exceptions of no right of action, some defendants also raised exceptions of no cause of action, peremption, and vagueness.
24-CA-277 3 Mr. O’Dwyer filed a motion to transfer this case pursuant to Rule 9.4 of the Rules
for Proceedings in District Courts. He also requested a continuance of the hearing
date on the pending exceptions in view of the requested transfer. According to the
parties, the class action litigation involves negligence, detrimental reliance and
breach of fiduciary duty claims, brought by and on behalf of unit owners, against
the MTCA, its Board of Directors, as well as various insurers, consultants and
management companies, arising from the procurement of insurance and the
handling of insurance claims, insurance proceeds, and repairs of the Metairie
Towers condominium complex following Hurricane Ida. While the public
adjuster, Strategic, is a party to the class action litigation, it does not include any of
the attorneys or other individuals named as parties in the present matter.
Rule 9.4(b) provides that “all subsequent actions asserting the same claim by
the same parties . . . shall be transferred to the division to which the first case filed
was allotted, whether or not the first case is still pending.” While some overlap
exists, the parties do not dispute that the current matter and the class action
litigation do not involve the same claims by the same parties. Consequently, Rule
9.4(b) does not apply in this case.
Further, La. C.C.P. art. 253.2, which is the governing provision applicable
to the motion to transfer, only allows the transfer of a case to another division in
the same court when “agreed to by all parties, or unless it is being transferred to
effect a consolidation pursuant to Article 1561.” Article 253.2 further provides
that “the supreme court, by rule, may establish uniform procedures for reassigning
cases under circumstances where an expeditious disposition of the cases may be
effectuated.” Mr. O’Dwyer does not dispute that defendants did not consent to a
transfer, and that there is no order for consolidation in the class action. Further, he
does not point to any Supreme Court rule allowing a transfer of this case.
24-CA-277 4 Accordingly, the trial court did not err in denying Mr. O’Dwyer’s motion to
transfer.
Exceptions of No Right of Action ‒ Attorneys Hired By The MTCA Board of Directors
We next address Mr. O’Dwyer’s assignments of error asserting that the trial
court erred by granting the exceptions of no right of action in favor of certain
attorneys hired by the Board of Directors to represent the MTCA and dismissing
his legal malpractice claims against them.
The exception of no right of action is a peremptory exception, the function
of which is to have an action declared legally nonexistent or barred by law and
tends to dismiss or defeat the action. La. C.C.P. arts. 923 and 927. An exception
of no right of action assumes that the petition states a valid cause of action and
tests whether the plaintiff has the capacity or legal interest in judicially enforcing
the right asserted. Kreb, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc., 16-24
(La. App. 5 Cir. 7/27/16), 197 So.3d 829, 831. When the facts alleged in the
petition provide a remedy under the law to someone, but the plaintiff who seeks the
relief is not the person in whose favor the law extends the remedy, the proper
objection is no right of action, or want of interest in the plaintiff to institute the
suit. Howard v. Administrators of Tulane Educational Fund, 07-2224 (La. 7/1/08),
986 So.2d 47, 59.
Whether a plaintiff has a right of action is a question of law subject to de
novo review. Wallace C. Drennan, Inc. v. Kerner, 21-664 (La. App. 5 Cir.
8/17/22), 348 So.3d 194, 199. The party raising the exception has the burden of
proving the exception. Roubion Shoring Company, LLC v. Crescent Shoring, LLC,
16-540 (La. App. 5 Cir. 5/17/17), 222 So.3d 921, 925. Evidence is admissible in
support of the exception of no right of action. La. C.C.P. art. 931. In instances
when evidence has been introduced at the hearing on a peremptory exception, the
24-CA-277 5 trial court’s findings of fact are subject to the manifest error-clearly wrong
standard of review. State ex rel. Caldwell v. Molina Healthcare, Inc., 18-1768 (La.
5/8/19), 283 So.3d 472, 477.
J. Bartholomew Kelly, III and Alvendia, Kelly & Demarest, LLC
Defendants, J. Bartholomew Kelly, III, and his law firm, Alvendia, Kelly &
Demarest, LLC (the “AKD defendants”), contend that the Board of Directors hired
them to represent the MTCA to recover insurance proceeds for damages that the
condominium complex sustained following Hurricane Ida. In response to Mr.
O’Dwyer’s petition, the AKD defendants filed exceptions of no right of action,
peremption, no cause of action, and vagueness seeking dismissal of the legal
malpractice claims filed against them by Mr. O’Dwyer. As previously explained,
the trial court granted the exceptions of no right of action and dismissed all of Mr.
O’Dwyer’s claims against the AKD defendants based on its finding that Mr.
O’Dwyer did not have an attorney-client relationship with them and did not enjoy
third-party beneficiary status.
In order to prevail on a legal malpractice claim, the plaintiff bears the burden
of proving: (i) an attorney-client relationship; (ii) the attorney was negligent in his
representation of the client; and (iii) that negligence caused the plaintiff loss.
Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 138. The plaintiff bears
the burden of proof of each of these elements. Id. Failure to prove one of these
elements is fatal to the claim. Willis v. Meilleur, 11-705 (La. App. 5 Cir. 5/31/12),
96 So.3d 1259, 1270, writ denied, 12-2078 (La. 11/16/12), 102 So.3d 42.
An attorney-client relationship is a threshold requirement for a legal
malpractice action. Barkerding v. Whittaker, 18-415 (La. App. 4 Cir. 12/28/18),
263 So.3d 1170, 1181, writ denied, 19-166 (La. 4/8/19), 267 So.3d 607. Even
though the question of whether an attorney-client relationship exists turns largely
on one’s subjective belief that it does, a person’s subjective belief that an attorney
24-CA-277 6 represents him must be reasonable under the circumstances, and must have been
induced by the attorney. Murphy v. MKS Plastics, L.L.C., 19-1485 (La. App. 1
Cir. 9/21/20), 314 So.3d 65, 71, writ denied, 20-1225 (La. 12/22/20), 307 So.3d
1041. The requirement that the belief be reasonable is an objective standard. Id.
For this reason, an attorney-client relationship cannot exist in the absence of some
initial communication – verbal, written, or otherwise ‒ between the attorney and
the client. Id.
In Barkerding, supra, a plaintiff-member of a limited liability company sued
his company’s lawyers for legal malpractice in connection with the development
and funding of the plaintiff’s invention and company. The trial court found an
implied attorney-client relationship existed with the individual plaintiff. However,
the Fourth Circuit reversed, finding that the individual’s belief that he was
represented by the company’s attorney was unreasonable because the defendant
lawyers executed an engagement letter only with the LLC, the lawyer expressly
identified the LLC as the client throughout the representation, and the individual
did not present any evidence to establish that he was represented by the defendant
lawyers. Id. at 1186. The Fourth Circuit further recognized that Louisiana Rule of
Professional Conduct 1.13(a) provides that a lawyer retained by an organization
“represents the organization acting through its duly authorized constituents.” Id.
At the hearing on the exceptions, Mr. O’Dwyer acknowledged that he did
not enter into an engagement letter and did not have a contract for services with the
AKD defendants or any other lawyers that he named as defendants in his petition
for damages. He further stated that he revoked any authority that he may have
believed the MTCA’s attorneys had to act on his behalf. Despite these assertions,
Mr. O’Dwyer argued before the trial court and now on appeal, that as a unit owner,
an attorney-client relationship exists between him and the attorney defendants by
“operation of law.” He more specifically argues that this relationship exists based
24-CA-277 7 on the Louisiana Condominium Act, La. R.S. 9:1121.101, et seq., as well as the
“condominium documents,” including the MTCA’s articles of incorporation,
declaration, and by-laws.2 He contends that the condominium documents provide
that the MTCA is a nonprofit corporation created solely for the use and benefit of
the condominium unit owners. He further argues that the unit owners, rather than
nonprofit corporation, own all of the insured property.
We first observe that Mr. O’Dwyer did not introduce any of the
“condominium documents” into evidence. While he attached copies of these
documents, as well as others, to his oppositions to the exceptions of no right of
action, he did not introduce these documents into evidence at the hearing. We
recognize that during the March 20, 2024 hearing, Mr. O’Dwyer stated that his
“papers” are “verified and in effect my affidavits.”3 But he did not ask to introduce
any “verified” pleadings, memoranda, or exhibits into evidence. Courts cannot
consider evidence that has not been properly and officially offered and introduced,
even if it is physically placed in the record. Denoux v. Vessel Mgmt. Servs., Inc.,
07-2143 (La. 5/21/08), 983 So.2d 84, 88. Documents that are attached to
memoranda but not formally introduced are not evidence. Id.
Mr. O’Dwyer also cites to La. C.C.P. art. 853 in his petition, memoranda,
and appellate brief as a basis to incorporate attached exhibits into the filing. La.
C.C.P. art. 853 provides that a “copy of any written instrument that is an exhibit to
2 Mr. O’Dwyer cites specifically to La. R.S. 9:1121.103(8) from the Louisiana Condominium Act, which defines that term “Association of unit owners” or “association” as “a corporation, or unincorporated association, owned by or composed of the unit owners and through which the unit owners manage and regulate the condominium.”
He also cites to La. R.S. 9:1123.101 which provides as follows regarding the membership of the association:
The membership of the association at all times shall consist exclusively of all the unit owners or, following termination of the condominium, of all former unit owners entitled to distributions of proceeds under Section 1122.112, or their heirs, successors, or assigns. The association shall be organized as a profit or nonprofit corporation, or as an unincorporated association. 3 Mr. O’Dwyer’s petition and opposition briefs contain verifications at the end of the documents that are signed by Mr. O’Dwyer, but the verifications are not notarized.
24-CA-277 8 a pleading is a part thereof.” However, pleadings and attachments to motions are
not evidence. See Andrews v. Marts, 22-576 (La. App. 1 Cir. 11/15/22), 356 So.3d
1059, 1062-63. The attachments are simply part of the pleadings. Id. at 1063.
Furthermore, an opposition memorandum is not a pleading recognized under the
Louisiana Code of Civil Procedure. See M.J. Farms, Ltd. v. Exxon Mobil Corp.,
07-450 (La. 4/27/07), 956 So.2d 573, 574. Therefore, even though the
“condominium documents” Mr. O’Dwyer refers to were attached to his opposition
briefs, we cannot consider them because they were never formally introduced and
admitted.
Regardless, we agree with the AKD defendants that Mr. O’Dwyer has no
right of action against them because Mr. O’Dwyer admitted that he did not enter
into an agreement with these defendants. In addition, we find that there is no
evidence to establish that Mr. O’Dwyer could have reasonably believed that he had
an attorney-client relationship with the AKD defendants. Thus, we find that the
trial court did not err in finding that Mr. O’Dwyer failed to meet his burden to
establish the threshold issue of an attorney-client relationship.
Mr. O’Dwyer alternatively argues that he has a right of action against the
AKD defendants because he is a third-party beneficiary of their representation of
the MTCA. La. C.C. art. 1978 provides that a “contracting party may stipulate a
benefit for the third person called a third party beneficiary.” Such a contract is
commonly referred to as a stipulation pour autrui in Louisiana. Joseph v. Hosp.
Service Dist. No. 2 of Parish of St. Mary, 05-2364 (La. 10/15/06), 939 So.2d 1206,
1211. The Louisiana Civil Code does not provide an “analytic framework for
determining whether a third-party beneficiary contract exists” in a particular case.
Id. at 1212. The Louisiana Supreme Court, however, has held that there are three
criteria for determining whether contracting parties have provided a benefit for a
third party and requires a review of whether: (1) the stipulation for a third party is
24-CA-277 9 manifestly clear; (2) there is certainty as to the benefit provided the third party; and
(3) the benefit is not a mere incident of the contract between the promisor and the
promisee. Id.
Pursuant to La. C.C. art. 1981, “[t]he stipulation gives the third party
beneficiary the right to demand performance from the promisor.” Each case must
be decided on a case-by-case basis, and “[e]ach contract must be evaluated on its
own terms and conditions in order to determine if the contract stipulates a benefit
for a third person.” Joseph, 939 So.2d at 1212. A stipulation for the benefit of a
third party is never presumed, and the party claiming the benefit bears the burden
of proof. Id. “The most basic requirement of a stipulation pour autrui is that the
contract manifests a clear intention to benefit the third party; absent such a clear
manifestation, a party claiming to be a third-party beneficiary cannot meet his
burden of proof.” Id.
Mr. O’Dwyer again turns to the “condominium documents” and the fact that
the unit owners, rather than the MTCA, owned the insured property to argue that
he and the other unit owners are the third-party beneficiaries of the professional
services provided by the lawyers hired to represent the MTCA. However, even if
the “condominium documents,” to which the AKD defendants were not a party,
were properly introduced into evidence, Mr. O’Dwyer does not argue that they
serve to define an attorney-client relationship or manifest a clear intention that the
future legal services of any attorney hired by the Board of Directors shall be for the
benefit of the unit owners as members of the MTCA. Further, we do not find that
these pre-existing documents can serve to establish Mr. O’Dwyer as a third-party
beneficiary of an engagement agreement with the MTCA’s attorneys simply
because they purportedly mention that the purpose of creating the MTCA was for
“the use and benefit of the condominium unit owners.” There is no evidence that
24-CA-277 10 the agreement between the MTCA and the AKD defendants manifests a clear
intention to benefit Mr. O’Dwyer.
Despite this lack of evidence, Mr. O’Dwyer urges this Court to follow the
Louisiana Supreme Court’s decision in Maggio v. Parker, 17-1112 (La. 6/27/18),
250 So.3d 874. However, the Maggio case provides no guidance in the present
matter because it involved an analysis of whether language in a settlement
agreement entered into by an employee releasing “all other persons, firms, or
corporations who are or might be liable” served to benefit the employer and
employer’s insurer as third-party beneficiaries. Id. at 880.
Mr. O’Dwyer also cites to Speedee Oil Change No. 2, Inc. v. Nat'l Union
Fire Ins. Co., 444 So.2d 1304, 1307 (La. App. 4th Cir. 1984). This matter is also
inapposite because it involved a legal malpractice suit where the issue was whether
a corporation had the right to recover against the attorney’s insurer for incorrect
advice the attorney provided to an incorporator regarding certain actions the
corporation should take in the future to exercise an option to extend a lease. The
insurer argued that the corporation did not have a right of action because it was not
in existence at the time the attorney provided the advice. The appellate court
confirmed that the corporation was a third-party beneficiary of the advice because
the evidence introduced established that the attorney was assisting in the formation
of the corporation, the attorney understood the legal advice he provided was for the
benefit of the corporation, and the corporation accepted the stipulation in its favor
by acting on the attorney’s advice. Id.
As explained above, Mr. O’Dwyer does not provide any evidence of a clear
intent to benefit him and does not cite to any precedent extending third-party
beneficiary status to members of a condominium association in a scenario similar
to this matter. Accordingly, we do not find that the trial court abused its discretion
24-CA-277 11 by finding that Mr. O’Dwyer does not enjoy third-party beneficiary status in this
matter.
Charles E. Sutton, Jr. and Sutton Law Firm, LLC
Defendants, Charles E. Sutton, Jr. and Sutton Law Firm, LLC (the “Sutton
defendants”) also filed a similar exception of no right of action arguing that Mr.
O’Dwyer did not have a right of action to sue them for legal malpractice because
they did not have an attorney client relationship with Mr. O’Dwyer. At the hearing
on the exception of no right of action, Mr. Sutton introduced his affidavit into
evidence. In this affidavit, he explained that the MTCA retained his services in
May 2022 to assist in collection efforts. In September 2022, Mr. Sutton was hired
to serve as General Counsel for the MTCA. Mr. Sutton states that he never
represented Mr. O’Dwyer, or any other unit owners or individual members of the
MTCA. He further explains that he had no involvement in prosecuting and settling
the MTCA’s claims against Lloyd’s following Hurricane Ida because the MTCA
retained separate counsel to handle that litigation. He also stated that he had no
involvement with the selection of contractors and the contracts entered into by the
MTCA for the Hurricane Ida repairs. He claimed that when he had any dealings
with a constituent unit owner or individual member, he always represented that his
client was the MTCA and not the constituent unit owners or individual members of
the MTCA. Sutton also introduced evidence to establish that the MTCA is a
Louisiana non-profit corporation.
Mr. O’Dwyer raises the same arguments discussed above with respect to the
AKD defendants ‒ that an attorney-client relationship exists by operation of law
based on the condominium documents and Louisiana Condominium Act, and
alternatively, that he is a third-party beneficiary of the MTCA’s contract with the
Sutton defendants. Therefore, for the same reasons discussed above, we find that
the trial court did not err by granting the exception of no right of action in favor of
24-CA-277 12 the Sutton defendants. The trial court did not err in finding that Mr. O’Dwyer
failed to meet his burden to establish the threshold issue of an attorney-client
relationship. In addition, the trial court did not err in determining that Mr.
O’Dwyer does not enjoy third-party beneficiary status with respect to these
defendants.
Exception of No Right of Action ‒ Jack K. Whitehead, Jr.
In his exception, defendant Jack K. Whitehead, Jr. argued that Mr. O’Dwyer
has no right of action against him because he did not have an attorney-client
relationship with either Mr. O’Dwyer or the MTCA. Mr. Whitehead explained in
his affidavit, which was introduced into evidence at the hearing on the exceptions,
that he is an attorney who represents one of the other parties named as a defendant
by Mr. O’Dwyer ‒ a disaster response contractor, Advanced Property Restoration
Systems, LLC (“APRS”).4 Mr. Whitehead stated that after Hurricane Ida, he
recommended to APRS that it contact the MTCA Board of Directors about
providing its services. Mr. Whitehead explained that he played no part in the
process by which the Board of Directors chose contractors to perform work at
Metairie Towers, and played no part in its decision to enter into a contract with
APRS.
He further avers that he was not involved on behalf of the Board of Directors
or the MTCA in any contract management or oversight of any Hurricane Ida
cleanup, renovation, restoration, remediation, recovery, or litigation. He contends
that at all material times, he represented the interests of APRS and was
compensated by APRS for legal services he provided to that client. He also states
that he never represented the MTCA, Mr. O’Dwyer, or any other unit owner. As
explained above, the trial court granted Mr. Whitehead’s exception of no right of
4 Mr. Whitehead also stated that he owns one of the units at Metairie Towers.
24-CA-277 13 action based on its finding that no attorney-client relationship existed between Mr.
O’Dwyer and Mr. Whitehead.
At the March 20, 2024 evidentiary hearing and now on appeal, Mr. O’Dwyer
argued that Mr. Whitehead and the trial court misconstrued his claims against Mr.
Whitehead. Mr. O’Dwyer argued that he did not sue Mr. Whitehead for legal
malpractice as a lawyer. Rather, he argues in his appellate brief that he sued Mr.
Whitehead in his capacity “as an alter ego of, joint venturer with, co-conspirator
of, and joint tortfeasor with his long-time clients, the prime contractor for the
Metairie Towers repair project, Advanced Property Restoration Services, LLC, and
its owner, Jason Houp.” At the hearing, he further explained that he sued Mr.
Whitehead because he wanted to see what Mr. Whitehead billed APRS and Mr.
Houp “during the past two-plus years.”
Mr. Whitehead argues in response in his appellate brief that the 61-page
petition for damages filed by Mr. O’Dwyer in this matter includes only a handful
of conclusory allegations against him, including:
In Paragraph VII, O’Dwyer cites the Louisiana Rules of Professional Conduct as being applicable to Whitehead;
In Paragraph XVI, O’Dwyer admits that Whitehead had an attorney-client relationship with its client, Advanced Property Restoration Services, L.L.C. * * * In Paragraph XX, O’Dwyer alleges that the MTCA Board ‘did not properly vet either APRS or its owner, Houp, or his lawyer, Whitehead . . .’, and,
In Paragraph XXII, O’Dwyer alleges that ‘contractual arrangements [] may exist by, between and among APRS, Houp, Whitehead and his PLC . . .’5
We agree with Mr. Whitehead that despite Mr. O’Dwyer’s conclusory
arguments to the contrary, the allegations in the petition reflect that Mr. O’Dwyer
is suing Mr. Whitehead in his capacity as a lawyer and arising from his
5 We further observe that Mr. O’Dwyer references in his petition unrelated litigation filed in other courts in which Mr. Whitehead represented APRS.
24-CA-277 14 representation of his client, APRS. However, Mr. O’Dwyer does not provide any
factual or legal justification to explain how he has a right of action to sue Mr.
Whitehead arising out of his attorney-client relationship with APRS. In addition,
Mr. O’Dwyer did not introduce any evidence or provide any further explanation
regarding his allegations against Mr. Whitehead at the evidentiary hearing, other
than to state that he wants to gain access to Mr. Whitehead’s billing records.
Based on the foregoing, we cannot find that the trial court erred in granting the
exception of no right of action in favor of Mr. Whitehead.
Exception of No Right of Action ‒ Public Adjuster Strategic Claim Consultants, LLC and Brandon Lewis
Defendants Strategic Claim Consultant, LLC (“SCC”) and Brandon Lewis
(the “SCC defendants”) argue that SCC was retained by the MTCA through the
board of directors to serve as a public adjuster to assist with the insurance claim.
In their exception of no right of action, the SCC defendants argue that Mr.
O’Dwyer erroneously contends that they owed a fiduciary duty to the units owners
because they are the purported beneficiaries of the services provided. The SCC
defendants contend that Mr. O’Dwyer does not have a right of action against them
because they did not enter into a contract with him or any other unit owner. They
also contend that there is “no express stipulation pour autrui” for the unit owners
in the contract with MTCA.
To support their argument, the SCC defendants contend that the public
adjusting statute, La. R.S. 22:1706(A), clearly establishes that a public adjuster
only owes a duty to the insured:
A public adjuster is obligated, under his license, to serve with objectivity and complete loyalty to the interest of his insured alone and to render to the insured such information and service, as within the knowledge, understanding, and good faith of the licensee, as will best serve the insured’s insurance claim needs and interest. [Emphasis added.]
24-CA-277 15 The parties do not dispute that the MTCA is the insured named in the
property insurance policy issued by Lloyd’s. In addition, the SCC defendants
contend that to represent both the insured, the MTCA, and the individual unit
owners would create irreconcilable conflicts of interest for the public adjuster, as
the parties could potentially have conflicting interests in the insurance claim. As a
result, SCC contends that it was effectively prohibited by Louisiana law from
entering into a contract with the unit owners after it was retained by the MTCA.
On appeal, Mr. O’Dwyer raises the same arguments discussed above with
respect to the lawyer defendants ‒ that a contractual relationship exists by
operation of law based on the condominium documents and Louisiana
Condominium Act, and alternatively, that he is a third-party beneficiary of the
MTCA’s contract with the SCC defendants. However, based on the plain language
of La. R.S. 22:1706 cited above, we cannot find that the trial court erred in
granting the exception of no right of action. Nothing in the statute suggests that a
public adjuster’s duty extends beyond the duty owed to the insured (the MTCA)
alone. In addition, Mr. O’Dwyer does not cite to any case or other legal grounds to
support his argument that the Louisiana Condominium Act or the condominium
documents creates a contractual or client relationship between him as a unit owner
and the public adjuster. He also provides no evidence and cites to no legal
authority that would render him a third-party beneficiary of a contract between the
MTCA and SCC.
Amendment of the Petition Would Be Futile
Lastly, Mr. O’Dwyer argues that the trial court erred by not granting him
leave to amend his petition to establish his rights against all of the defendants at
issue on appeal pursuant to La. C.C.P. art. 934. But Mr. O’Dwyer only makes
general arguments that he should be allowed leave to amend without explanation
as to any potential amendments that would salvage his claims against any of the
24-CA-277 16 defendants dismissed by the trial court. This provision states though that a trial
court shall only allow an amendment “[w]hen the grounds of the objection pleaded
by the peremptory exception may be removed by amendment of the petition.” We
find that an amendment cannot cure the objections.
Accordingly, we do not find that the trial court erred by denying Mr.
O’Dwyer leave to amend his petition with respect to any of the defendants at issue
in this appeal.
CONCLUSION
For the reasons explained above, we affirm the trial court’s March 20, 2024
judgment denying Mr. O’Dwyer’s motion to transfer, granting the exceptions of no
right of action filed by defendants, J. Bartholomew Kelly, III, Alvendia, Kelly &
Demarest, LLC, Charles E. Sutton, Jr., Sutton Law Firm, LLC, Jack K. Whitehead,
Jr., Strategic Claim Consultants, LLC, and Brandon Lewis, and dismissing Mr.
O’Dwyer’s claims against them with prejudice.
AFFIRMED
24-CA-277 17 SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON STEPHEN J. WINDHORST LINDA M. WISEMAN JOHN J. MOLAISON, JR. FIRST DEPUTY CLERK SCOTT U. SCHLEGEL TIMOTHY S. MARCEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY JANUARY 29, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
24-CA-277 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE) BRANDI F. ERMON (APPELLEE) JEFFREY K. PRATTINI (APPELLEE) MICHAEL D. LANE (APPELLEE) EDWARD W. TRAPOLIN (APPELLEE) GUS A. FRITCHIE, III (APPELLEE) J. ANDREW MIERAS (APPELLEE) KATHRYN W. MUNSON (APPELLEE) RICHARD C. STANLEY (APPELLEE) LORI D. BARKER (APPELLEE)
MAILED ASHLEY E. BANE (APPELLEE) ALEXIS O'DWYER NAVARRO (APPELLEE) ASHTON R. O'DWYER, JR. (APPELLANT) VICTORIA E. PITRE (APPELLEE) 1116 MONTICELLO AVENUE 2829 TIMMONS LANE ATTORNEYS AT LAW JEFFERSON, LA 70121 UNIT 143 1100 POYDRAS STREET HOUSTON, TX 77027 SUITE 1800 CHRISTOPHER H. IRWIN (APPELLEE) NEW ORLEANS, LA 70163 ATTORNEY AT LAW ANDRE C. GAUDIN (APPELLEE) 400 POYDRAS STREET CRAIG J. CANIZARO (APPELLEE) HEATHER S. DUPLANTIS (APPELLEE) SUITE 2700 ATTORNEY AT LAW KEVIN W. WELSH (APPELLEE) NEW ORLEANS, LA 70130 5213 AIRLINE DRIVE VIRGINIA Y. DODD (APPELLEE) METAIRIE, LA 70001 ATTORNEYS AT LAW 400 CONVENTION STREET SUITE 1100 BATON ROUGE, LA 70802