STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
14-738
LARRY TOLLIVER
VERSUS
BOB BROUSSARD, ET AL.
**********
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2013-6250B HONORABLE JULES DAVIS EDWARDS, DISTRICT JUDGE
ULYSSES GENE THIBODEAUX CHIEF JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and J. David Painter, Judges.
AFFIRMED.
Gracella Gail Simmons Keogh, Cox & Wilson, Ltd. P. O. Box 1151 Baton Rouge, LA 70821 Telephone: (225) 383-3796 COUNSEL FOR: Defendant/Appellee - Continental Casualty Company
James Huey Gibson Allen & Gooch P. O. Box 81129 Lafayette, LA 70598-1129 Telephone: (337) 291-1300 COUNSEL FOR: Defendants/Appellees - Bob Broussard and Bob Broussard, APLC D. Patrick Daniel, Jr. The Daniel Law Firm P. O. Drawer 51709 Lafayette, LA 70505-1709 Telephone: (337) 232-7516 COUNSEL FOR: Intervenors/Appellants – Patrick Daniel and D. Patrick Daniel, LLC
Jennifer A. Rodriguez 615 Brown Avenue Harvey, LA 70058 Telephone: (504) 296-7660 COUNSEL FOR: Plaintiff/Appellant - Larry Tolliver
Larry Tolliver In Proper Person 2404 Davis Court Lake Charles, LA 70601 Plaintiff/Appellant THIBODEAUX, Chief Judge.
The intervenors, Patrick Daniel and D. Patrick Daniel, LLC (Daniel),
appeal the trial court’s granting of the Motion for Summary Judgment filed by the
defendants, Bob Broussard, Bob Broussard APLC, and Continental Casualty
Company (collectively, “Broussard”), in this action for legal malpractice and
tortious interference with contract. Finding no error on the part of the trial court,
we affirm.
I.
ISSUE
We must decide whether the trial court erred in granting summary
judgment to Broussard and in dismissing all claims.
II.
FACTS AND PROCEDURAL HISTORY
Underlying U-Haul Suit in Federal Court
Daniel and Broussard are attorneys who at different times represented
Larry Tolliver in Tolliver’s personal injury suit against U-Haul Company of
Texas.1 The accident, involving the negligent installation of a towing kit, occurred
in 2008. Daniel was the attorney who filed Tolliver’s U-Haul suit in federal court
in 2009. In 2010 Tolliver fired Daniel. Broussard enrolled as counsel of record in
the U-Haul suit in September, 2010. In January, 2011, Daniel filed a petition for
intervention, naming Tolliver and U-Haul as defendants, to recover his expenses
and fees from any settlement or judgment proceeds obtained by Tolliver in the suit.
1 “Tolliver v. U-Haul Company of Texas,” Docket No. 2:09-CV-313, was filed in Lake Charles in the United States District Court for the Western District of Louisiana. Tolliver answered the intervention and reconvened against Daniel, asserting
damages for Daniel’s failure to communicate, for Daniels’ dismissal of Tolliver’s
cause of action for past lost wages without his consent, and for financing medical
and living expenses with third parties at an onerous rate of interest without
Tolliver’s informed consent.
In August, 2011, during Broussard’s representation of the U-Haul
matter, the lawsuit settled for $75,000.00. The settlement was finalized in October,
2011. The amount was insufficient to cover Broussard’s litigation expenses and
was a fraction of the third party financing that Daniel had arranged during his
representation of the matter. In November, 2011, Daniel amended his intervention
to add Broussard as a defendant and to assert claims against him for legal
malpractice and interference with contract.
Daniel’s 2012 State Court Suit Against Broussard
Daniel filed suit against Broussard and his malpractice insurer in state
court in Lafayette in February, 2012.2 Daniel’s initial and supplemental petitions
asserted that, in the federal U-Haul suit, Broussard had negligently represented
Tolliver, had failed to retain experts timely, obtained an inadequate settlement, and
interfered with Daniel’s contract with Tolliver. Broussard filed special motions to
strike Daniel’s claims under La.Code Civ.P. art. 971. The trial judge found Article
971 inapplicable, but indicated that he would consider Broussard’s arguments if
brought by a motion for summary judgment.
Broussard filed a writ application with this court, and the trial court
stayed discovery pending our ruling. In January 2013, in Patrick Daniel v. Bob
2 “Patrick Daniel v. Bob Broussard, Esquire, et al,” Docket No. 2012-0981E, was filed on February 16, 2012, in the Fifteenth Judicial District Court, Lafayette Parish, Louisiana.
2 Broussard, et al, Writ No. 12-974, a five-judge panel of this court granted
Broussard’s writ application in part, finding that Daniel had no right of action
against Broussard for negligent representation, which was essentially a malpractice
claim that only Tolliver could raise.
Five months after this court’s ruling that Daniel did not have a right of
action against Broussard for malpractice, Daniel, as Tolliver’s attorney again, filed
a third superseding petition in Daniel’s own suit, attempting to join Tolliver as an
additional malpractice plaintiff. Because Daniel still had a pending claim in
federal court against Tolliver for litigation expenses in the U-Haul suit, the trial
court found that Daniel had a conflict of interest, disqualified Daniel as Tolliver’s
attorney, and found the joinder of Tolliver improper. The trial court struck the
third superseding petition that attempted to add Tolliver as a plaintiff and
instructed Tolliver to file a separate suit.
Tolliver’s 2013 State Court Suit against Broussard
On December 6, 2013, Tolliver, as a pro se plaintiff, filed a petition
for damages against Broussard and his malpractice insurer in Lafayette Parish.
The suit was improperly captioned “Patrick Daniel v. Bob Broussard, Esquire, et
al;” and it was filed with Daniel’s suit number, 2012-0981E, typed in the caption.
The suit was assigned to Division B. The docket number was hand-corrected to
read 2013-6250B, though it is not clear from the record whether or when the
caption was corrected. This suit is the subject of the current appeal.
After service of the Tolliver petition, Broussard filed exceptions of
peremption and res judicata, a motion for summary judgment, and a motion for
Article 863 sanctions. The hearing on Broussard’s motions was set for March 10,
3 2014. On February 27, Jennifer Rodriguez filed a motion to enroll as Tolliver’s
attorney3 and to continue the hearing.4 Broussard objected to the continuance. The
trial judge ordered counsel and Tolliver to appear for a March 10 conference, at
which time the judge granted the requested continuance to April 14, 2014, but
made it clear, addressing Tolliver directly, that no more continuances would be
granted for another enrolling attorney.
On April 7, Rodriguez fax-filed on Tolliver’s behalf a twenty-eight-
page “consolidated” pleading entitled, “Opposition To Defendant’s Exceptions Of
Peremption And Res Judicata, Motion For Sanctions, Motion For Summary
Judgment And Motion For 967 Continuance, Compel, Sanctions And Disqualify
Counsel.” It was accompanied by a Motion For Leave and Order. The exhibits
ostensibly attached to the opposition were not received by the trial court until April
16, 2014, which was two days after the hearing on April 14, 2014.
Broussard did not receive all of the exhibits until April 8. He objected
to the opposition as untimely because it was not filed at least eight days before the
hearing as required by the Louisiana Code of Civil Procedure, the Rules for
Louisiana District Courts, and the interpreting jurisprudence. He asserted that the
opposition documents should not be considered at the hearing on the motion for
summary judgment.
On April 8, 2014, Daniel filed a petition for intervention in Tolliver’s
suit and adopted Tolliver’s opposition to Broussard’s motion for summary
judgment. At the hearing on April 14, 2014, the trial judge briefly reviewed the
3 On February 26, an associate attorney on Daniel’s letterhead allegedly attempted to enroll as Tolliver’s attorney. 4 The February 27 motion to continue the March 10 hearing referenced a “February 28” hearing in the title and the body; and the attached order referenced a “January 15” hearing.
4 procedural status of the case and announced the exceptions and motions filed by
the defendant and scheduled to be heard that day. He then stated:
All of those were filed by the defendant. And the plaintiff did not file a memorandum in opposition on a timely basis. Thus, plaintiff forfeits the right for oral arguments.
Plaintiff did file something that was requesting permission to file the opposition as well as a motion for sanctions and to disqualify defense counsel, but there was no explanation of what the good cause would be for that late filing. So again, I am denying that permission to file that. So that’s where we are now.
After Tolliver’s attorney, Ms. Rodriguez, received clarification on the
court’s ruling, Broussard’s attorney introduced exhibits and argued the motion for
summary judgment, which the trial court granted. Ms. Rodriguez did not proffer
the opposition or the exhibits that the trial court had stricken from the hearing.
Daniel spoke as intervenor, attempting to argue assertions from the opposition,
including charges against Broussard’s attorney, James Gibson. Mr. Gibson
responded briefly, and the trial court announced that summary judgment was
granted “regarding all claims filed.”
Ms. Rodriguez filed a motion to withdraw her representation of
Tolliver in open court at the end of the hearing. Tolliver did not appeal. Daniel
alone, as intervenor, appeals the trial court’s judgment granting Broussard’s
motion for summary judgment on peremption and res judicata.
III.
STANDARD OF REVIEW
When an appellate court reviews a district court judgment on a motion
for summary judgment, it applies the de novo standard of review, “using the same
5 criteria that govern the trial court’s consideration of whether summary judgment is
appropriate.” Gray v. American Nat. Property & Cas. Co., 07-1670, p. 6 (La.
2/26/08), 977 So.2d 839, 844 (quoting Supreme Serv. & Specialty Co., Inc. v.
Sonny Greer, 06-1827, p. 4 (La. 5/22/07), 958 So.2d 634, 638). The motion for
summary judgment shall be granted if the pleadings, depositions, answers to
interrogatories, admissions, and affidavits, if any, show that there is no genuine
issue of material fact and that the mover is entitled to judgment as a matter of law.
La.Code Civ.P. art. 966(B). The de novo review of questions of law means that
the judgment is rendered on the record without deference to the legal conclusions
of the trial court. See Wooley v. Lucksinger, 09-571 (La. 4/1/11), 61 So.3d 507.
IV.
LAW AND DISCUSSION
In addition to reiterating Daniel’s malpractice claims, Tolliver’s suit
alleged that Broussard solicited Tolliver’s business, resulting in Tolliver’s firing
Daniel; and that Broussard interfered with Daniel’s contract with Tolliver.
Broussard’s motion for summary judgment asserted that Tolliver’s malpractice
claim against Broussard was perempted under La.R.S. 9:56055 because it was not
filed within one year of discovery of the alleged malpractice.6 Broussard further
asserted that Tolliver’s malpractice claim was barred by res judicata because the
parties had compromised and settled the malpractice claim, and because a
5 The malpractice statute provides in pertinent part that any action against an attorney or firm arising from an engagement to provide legal services, “whether based upon tort, or breach of contract, or otherwise” must be brought within one year from the date that the alleged malpractice was “discovered or should have been discovered.” La.R.S. 9:5605(A). 6 Broussard provided the court with three viable discovery dates, the last of which was the settlement of the malpractice claim on February 8, 2012, a year and ten months before suit was filed on December 6, 2013. The document entitled “Mutual Consent and Release Agreement By Affidavit,” was detailed, comprehensive, and it satisfied the codal articles on Compromise.
6 compromise has the efficacy of a judgment on the issues.7 These assertions were
well-supported by jurisprudence, and by records and rulings from the U-Haul suit,
and affidavits and agreements of the parties, all of which were attached to the
summary judgment motion and properly introduced at the hearing in the Lafayette
Parish court.8 Last, Broussard’s motion for summary judgment refuted Tolliver’s
claims that Broussard had solicited Tolliver’s business and interfered with
Tolliver’s attorney-client relationship with Daniel. Broussard introduced a third
affidavit by Tolliver directly negating the claims of solicitation and interference
that he alleged in his petition.9
However, we need not discuss or rule upon the parties’ burdens of
proof as to these issues because these issues are not before us. Tolliver did not
appeal the trial court’s judgment finding that the malpractice claims were
preempted and barred by res judicata, and we have already found that Daniel, the
intervenor, does not have a right to bring a malpractice action against Broussard.
See Patrick Daniel v. Bob Broussard, et al, Writ No. 12-974. Because Tolliver
7 “[C]ompromises have the legal efficacy of the thing adjudged.” Ortego v. State, Dept. of Transp. and Development, 96-1322 (La. 2/25/97), 689 So.2d 1358, 1363 (citations omitted). A “valid compromise may form the basis of a plea of res judicata.” Rivett v. State Farm Fire and Cas. Co., 508 So.2d 1356, 1359 (La.1987). See La.R.S. 13:4231 on Res Judicata; and see La.Civ.Code arts. 3071-3080 on Compromise. 8 Broussard introduced the federal court’s August, 2011 memorandum discussing the attorney’s inadvertent neglect and willfulness; Tolliver’s November, 2011 affidavit averring that he read and discussed the memorandum; Broussard’s own affidavit averring that Daniel talked to Tolliver about suing Broussard for malpractice in November 2011, and the February, 2012 release agreement. 9 Tolliver’s July, 2012 affidavit averred that Tolliver first approached Broussard who declined the representation in the U-Haul suit; that Tolliver then hired Daniel who filed the suit in 2009; that Tolliver fired Daniel for cause; that Tolliver approached Broussard again, but not until after he had fired Daniel; that Broussard enrolled in the U-Haul suit in September 2010; and that Broussard never solicited Tolliver to secure the representation. Tolliver’s affidavit also contained considerable detail regarding the federal court’s rulings on the evidence for trial which led to the settlement, Broussard’s motion for reconsideration, the two-day settlement discussions, the settlement amount, Tolliver’s reasons for settlement, and Tolliver’s instructions to Broussard to settle the case.
7 failed to appeal the dismissal of his own action, Daniel’s appeal can only bring up
the portions of the judgment that were adverse to Daniel. He cannot appeal the
portions of the judgment that were only adverse to Tolliver. See Grimes v.
Louisiana Medical Mut. Ins. Co., 10-39 (La. 5/28/10), 36 So.3d 215. If Daniel
never had a right of action for malpractice, the judgment dismissing the
malpractice claim cannot be adverse to him. Additionally, an intervenor is limited
to the assertion of his own rights and cannot raise issues that are personal to
another party. See Devant v. Pecou, 13 La.App. 594, 128 So. 700 (La.App. 1 Cir.
1930), and Galloway v. Levitt, 135 So.2d 798 (La. App. 2 Cir.1961).10 Thus, the
dismissal of the malpractice claim is final.
The Opposition to the Motion for Summary Judgment
As indicated in the factual section above, the trial court found that the
opposition filed by Tolliver’s attorney, and adopted by Daniel as intervenor, was
untimely. The trial court then declined to hear oral argument on the opposition and
ultimately denied Tolliver’s request for leave to file it. Thus, neither the
opposition nor its attached exhibits were considered by the trial court in the
summary judgment hearing. While Tolliver did not appeal the trial court’s
judgment, Daniel did file an appeal. Daniel asserts that the trial court erred in
refusing to consider the opposition. We disagree.
La.Code Civ.P. art. 966(B)(1) provides that the affidavits and
memorandum opposing a motion for summary judgment “shall be served pursuant
to Article 1313 within the time limits provided in District Court Rule 9.9.”
10 Because the intervenor has a remedy in filing a separate action, the intervenor’s rights are limited to the protection of his own interest; he cannot object to the mode of procedure or jurisdiction of the court; and he cannot retard the principal suit. Suites at New Orleans, L.L.C. v. Lloyd’s London, 09-562 (La. App. 4 Cir. 5/27/09), 13 So.3d 241.
8 La.Code Civ.P. art. 1313 provides for service by mail, delivery, or electronic
means. Under La.Dist.Ct.R. 9.9(c), “[a] party who opposes an exception or motion
shall concurrently furnish the trial judge and serve on all other parties an
opposition memorandum at least eight calendar days before the scheduled
hearing[;]” and, it “shall be served on all other parties so that it is received by the
other parties at least eight calendar days before the hearing, unless the court sets a
shorter time.”11 Under La.Dist.Ct.R. 9.9(e), parties who fail to comply with 9.9(c)
“may forfeit the privilege of oral argument.”12
In computing any period of time specified in these rules, La.Dist.Ct.R.
1.5 governs the calculation. The first day that begins the period––the hearing date,
Monday, April 14, 2014––is excluded from the computation under 1.5(a).
Counting backward beginning with April 13, the eighth day was April 6, 2014,
which was a Sunday. Under 1.5(c), April 6 is counted as the last day in the period,
i.e., the opposition due date, “unless the last day is a legal holiday, in which case
the period runs until the end of the next day that is not a legal holiday.” As a
Sunday, April 6, 2014, was a legal holiday; likewise April 5, 2014, was a Saturday
and also a legal holiday. Thus, Sunday and Saturday, April 6 and April 5, are not
11 In this case the trial court did not set a shorter time, and the court stated that the motion for leave to file the opposition late did not provide any good-cause reasons for allowing the late filing. 12 Further, La.Dist.Ct.R. 9.10 provides that the memorandum in opposition to the motion for summary judgment “shall contain” (1) a list of material facts in dispute, and (2) a “reference to the document proving that each such fact is genuinely disputed, with the pertinent part designated.” La.Dist.Ct.R. 9.10(c). Here, the opposition documents did not satisfy the second prong of Rule 9.10(c). The attached exhibits were in large part the very same exhibits used by Bob Broussard to support his motion for summary judgment. They were Broussard’s affidavits, three of Tolliver’s affidavits in support of Broussard’s assertions, and a written agreement compromise/settlement made between Broussard and Tolliver, all supporting Broussard’s position and proving his assertions. Tolliver did not attach a single affidavit that supported his, and Daniel’s, opposition, or that proved their disputed facts. The opposition merely used Broussard’s documents as a platform for making conclusory and unsupported allegations that every affidavit and agreement was coerced or bribed. Thus, even if the trial court had admitted the opposition documents, they would not have shown genuine issues of material fact for trial.
9 counted in the eight-day period; and we back up to the end of the next day that is
not a legal holiday, which in this case was Friday, April 4, 2014.13 The opposition
was faxed to the trial court on April 7, except for the exhibits, and was not fully
faxed to Broussard until April 8, 2014. Thus, the documents were clearly late.
Buggage v. Volks Constructors, 06-175 (La. 5/5/06), 928 So.2d 536
held that the trial court’s decision not to consider late-filed opposition documents
was not an abuse of discretion, given that the time limitation for serving such
documents is mandatory. While use of the language shall in the above provisions
implies a mandatory obligation to timely file, following Buggage courts have
overwhelmingly found that the trial court’s decision to strike untimely filed
oppositions is discretionary. Smith v. Rapides Healthcare System, L.L.C., 13-1172
(La.App. 3 Cir. 3/5/14), 134 So.3d 122.
A survey of the cases indicates that the trial court does not abuse its
discretion in choosing to follow the mandatory eight-day limit; nor is there abuse in
choosing to allow late-filed opposition materials if there is no prejudice to the
mover. Id. (citing Mahoney v. E. Carroll Parish Police Jury, 47,494 (La.App. 2
Cir. 9/26/12), 105 So.3d 144, writ denied, 12-2684 (La. 2/8/13), 108 So.3d 88).
Here, because the opposition documents were late, the trial court did not abuse its
discretion in striking the documents. We find no merit in Daniels’ arguments on
this issue.
Daniel’s Petition of Intervention
Daniel’s petition of intervention, filed on April 8 prior to the hearing
on April 14, reiterates the previously filed petitions and interventions asserting
13 This computation comports with La.Dist.Ct.R. 1.5(a), (c), (c)(i), and Comment (c) to Rule 1.5.
10 malpractice against Broussard. In fact, almost all of Daniel’s allegations pertain to
Broussard’s representation of Tolliver and Broussard’s interactions and
transactions with Tolliver before, during, and after settlement. He also includes
naked assertions of fraud and breach of fiduciary duty. These claims all arise
“from an engagement to provide legal services,” and “whether based upon tort, or
breach of contract, or otherwise,” they belong to Tolliver alone under La.R.S.
9:5605. See Patrick Daniel v. Bob Broussard, et al, Writ No. 12-974.
Similarly, Broussard did not owe a fiduciary duty to Daniel. “The
defining characteristic of a fiduciary relationship . . . is the special relationship of
confidence or trust imposed by one in another who undertakes to act primarily for
the benefit of the principal in a particular endeavor.” Scheffler v. Adams and
Reese, LLP, 06-1774, p. 7 (La. 2/22/07), 950 So.2d 641, 648. In Scheffler, the
court found no fiduciary relationship between two attorneys hired separately by a
corporation that would require one to protect the other’s interest in earning
attorney fees. The pleadings failed to state a cause of action because no facts were
pled to establish a legal relationship giving rise to a fiduciary duty. There was no
allegation of a contract between the attorneys or a co-ownership interest in the
endeavor, such as a partnership or joint venture agreement. And there was no
allegation regarding the existence of a mandate or agency relationship.
The Scheffler court went further to find that public policy dictates
against recognizing a fiduciary duty among co-counsel to protect one another’s
interest in prospective fees. This is because of the potential conflict with each
attorney’s undivided duty of loyalty to his client, which is paramount. The duty is
to pursue the case based upon the client’s best interest, even if it means foregoing a
potential contingency fee. Scheffler, 950 So.2d 649 (citing Mazon v. Krafchick,
11 158 Wash.2d 440, 144 P.3d 1168 (2006), which adopted a bright line rule that no
duties exist between co-counsel that would allow recovery for lost or reduced
prospective fees). Thus, the Scheffler court found that allowing an amendment to
the petition would not remove the legal impediments to the attorney’s pursuit of an
action based on allegations of breach of fiduciary duty.
This is particularly true in this case involving two attorneys who were
not co-counsel. Rather, this case involves intervention by Daniel, an attorney who,
by Tolliver’s own affidavit, caused him damages during Daniel’s prior
representation of the U-Haul matter, causing Tolliver to fire Daniel for cause.
Broussard, as Tolliver’s new attorney, was put in the position of defending
Tolliver’s interests against Daniel’s intervention and filing a reconventional
demand on behalf of Tolliver against Daniel. Accordingly, pursuant to La.Code
Civ.P. art. 927(B),14 we raise on our own motion the exception of no cause of
action because the naked allegations in Daniel’s petition did not assert facts to
support a cause of action for breach of fiduciary duty. Further, under Scheffler, the
petition is not subject to amendment on this cause of action because the legal
impediments cannot be cured. We also raise on our own motion the exception of
no right of action because, in this case, while Tolliver might have pled a cause of
action for breach of fiduciary duty against Broussard, just as Tolliver asserted
malpractice, the same legal impediments in Scheffler show that Daniel cannot
bring a breach of fiduciary duty action against Broussard. Simply put, Daniel is
not the proper party to assert the action for breach of fiduciary duty.
14 Under La.Code Civ.P. art. 927(B), the court cannot supply the exception of prescription because it must be specially pleaded. However, “[t]he nonjoinder of a party, peremption, res judicata, the failure to disclose a cause of action or a right or interest in the plaintiff to institute the suit, or discharge in bankruptcy, may be noticed by either the trial or appellate court on its own motion.”
12 Daniel’s petition alleges solicitation and intentional interference with
Daniel’s contract with Tolliver. As to the intentional interference with contract
claim, we raise on our own motion the peremptory exception of no cause of action.
In 9 to 5 Fashions, Inc. v. Spurney, 538 So.2d 228, 234 (La.1989), the
Louisiana Supreme Court announced an end to Louisiana’s absolute bar to an
action based on tortious interference with a contract. However, the court was very
specific in recognizing “only a corporate officer’s duty to refrain from intentional
and unjustified interference with the contractual relation between his employer and
a third person.” Id. at 234. The court then set forth five elements:
(1) the existence of a contract or a legally protected interest between the plaintiff and the corporation; (2) the corporate officer’s knowledge of the contract; (3) the officer’s intentional inducement or causation of the corporation to breach the contract or his intentional rendition of its performance impossible or more burdensome; (4) absence of justification on the part of the officer; (5) causation of damages to the plaintiff by the breach of contract or difficulty of its performance brought about by the officer.
Id.
Daniel’s petition has not pled, and cannot amend to plead, any facts to
support any of the above elements because Broussard is not a corporate official
whose employer has a contract with Daniel. Thus, Daniel’s intervention does not
state a cause of action under the 9 to 5 Fashions, Inc. criteria.
Accordingly, we find no error by the trial court in dismissing all
claims filed by Tolliver and Daniel.
13 V.
CONCLUSION
Based upon the foregoing, we affirm the trial court’s granting of the
motion for summary judgment. Pursuant to La.Code Civ.P. art. 927(B), we raise
and grant on our own motions the peremptory exceptions of no cause of action and
the peremptory exception of no right of action. All costs of this appeal are
assessed to Patrick Daniel and D. Patrick Daniel, LLC.