STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-545
RYAN WILLIAM PRICE, ET AL.
VERSUS
RANDY J. FUERST
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2008-5329 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J. Gremillion, Judges.
AFFIRMED.
James B. Doyle Law Office of James B. Doyle APLC P. O. Box 5241 Lake Charles, LA 70606-5241 (337) 474-9989 Counsel for Plaintiff/Appellant: Ryan William Price
Steven W. Hale Steven W. Hale & Associates, Inc. 1735 Ryan Street Lake Charles, LA 70601 (337) 433-0612 Counsel for Defendant/Appellee: Randy J. Fuerst J. Michael Veron Veron, Bice, Palermo & Wilson, LLC P. O. Box 2125 Lake Charles, LA 70602-2125 (337) 310-1600 Counsel for Defendant/Appellee: Randy J. Fuerst DECUIR, Judge.
Ryan Price, individually and on behalf of his two minor children, filed suit
against Randy Fuerst for intentional infliction of emotional distress. The trial court
maintained Fuerst’s exception of no cause of action, denied Fuerst’s motion for
sanctions, and dismissed the suit. Price has appealed the judgment on the exception.
Fuerst answered the appeal, alleging error in the denial of sanctions and requesting
further sanctions for a frivolous appeal. For the following reasons, we affirm.
An exception of no cause of action will be maintained “only if it is clearly
shown that the law affords no remedy for the grievances alleged, under the
circumstances alleged, under any theory of the case.” Sanders v. Gore, 95-660, p. 10
(La.App. 3 Cir. 7/10/96), 676 So.2d 866, 872, writ denied, 96-2072 (La. 11/15/96),
682 So.2d 762. In Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616
So.2d 1234, 1235 (La.1993), the supreme court described the court’s task in
considering an exception of no cause of action as follows: “[T]he court reviews the
petition and accepts well pleaded allegations of fact as true, and 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.” Articulating the standard of review which governs an exception
of no cause of action, the supreme court explained, “the appellate court and this Court
should subject the case to de novo review because the exception raises a question of
law and the trial court’s decision is based only on the sufficiency of the petition.”
Fink v. Bryant, 01-0987, p. 4 (La. 11/28/01), 801 So.2d 346, 349. See also, J.M.Y.
v. R.R., 08-805 (La.App. 3 Cir. 12/11/08), 1 So.3d 725.
In the case before us, the petition alleges certain facts which we accept as true
for purposes of reviewing the exception of no cause of action. Price contends the
defendant Fuerst was hired by Price’s wife during a period of marital discord while the couple was engaged in counseling in an effort to repair their marriage. Fuerst is
an attorney and was hired by Brandy Price in his capacity as a divorce lawyer. Fuerst
immediately filed suit for divorce and allegedly within a few weeks, as stated in
Price’s petition, “began an adulterous and inappropriate relationship with BRANDY
while he was acting as her counsel of record, and in that capacity steered her away
from reconciliation with her husband, and was an agent in the destruction of this
family.”
If true, the conduct described in the petition is egregious, professionally
repugnant, and “ethically reprehensible,” as similar conduct was characterized in
Sanders, 676 So.2d at 872. The trial court described the alleged conduct as extreme
and outrageous, noting that it would make for an obvious complaint to the bar
association. The 1998 case of In re Ashy, 98-0662 (La. 12/1/98), 721 So.2d 859,
provides a thorough discussion of the disciplinary actions that have been imposed on
lawyers who enter into extramarital affairs with their clients.
Nevertheless, Louisiana law does not recognize a cause of action for
intentional infliction of emotional distress based solely on allegations of an
extramarital affair. The cause of action is similar to one for alienation of affection
which has never been actionable in Louisiana. See Moulin v. Monteleone, 165 La.
169, 115 So. 447 (1927). Rather, the jurisprudence holds, “the mere seduction and
loss of one’s spouse due to the seduction or affair cannot be the basis for the action.
There must be proof that defendant violated some legal duty to plaintiff.” Scamardo
v. Dunaway, 94-545, p. 8 (La.App.5 Cir. 2/15/95), 650 So.2d 417, 420. The law
demands more than an affair, requiring the plaintiff “to assert facts establishing
defendant’s specific duty to the plaintiff.” Scamardo v. Dunaway, appeal after
2 remand, 96-1036, p. 3 (La.App. 5 Cir. 4/29/97), 694 So.2d 1041, 1042, writ denied,
97-1395 (La. 9/5/97), 700 So.2d 517. In Viator v. Miller, 04-1199, pp. 9-10 (La.App.
3 Cir. 4/27/05), 900 So.2d 1135, 1142-43, this court stated:
Clearly, any damages arising from the sexual relationship between Heather and Judge Miller are not recoverable under Louisiana law. Understandably Michael experienced emotional distress in this situation, but “the mere seduction and loss of one’s spouse due to the seduction or affair cannot be the basis for the action.” Scamardo, 650 So.2d at 420 (emphasis omitted). Although Michael, in addition, attempts to rest his claim on allegations of bad faith, detrimental reliance, civil fraud and other general tort law theories, an examination of the facts alleged in the petition clearly shows the basis of his claims rests on the adulterous relationship between Judge Miller and his ex-wife. Except for the paternity allegations found in paragraphs 85 and 86 of the petition, the facts alleged in the petition are insufficient to support a claim for intentional or negligent infliction of emotional distress or any other claim based on the noted alternative theories.
(Footnotes omitted.)
Price urges this court to overturn long-standing jurisprudence against alienation
of affection claims based on the fact that Fuerst’s alleged conduct arose in the course
of his legal representation of Brandy in her claim, or potential claim, against Price.
While this argument certainly highlights the rationale behind the ethical rules which
prohibit lawyers from engaging in affairs with their clients, it does not provide a basis
for a private cause action against a lawyer by a non-client ex-husband. Again, we
quote from the Viator case:
We note, as well, the petition contains allegations which refer to defendant’s professional conduct as a lawyer. Although Miller may have violated the Code of Professional Responsibility that governs his conduct as a lawyer, the mere violation of the Code does not give rise to civil liability. The facts alleged in the petition are insufficient to support a claim that an attorney-client relationship ever existed between Michael and Miller. Even if we were to conclude a de facto attorney-client relationship existed between Miller and Michael’s ex-wife, the Louisiana Supreme Court stated in Penalber v. Blount, 550 So.2d 577, 578 (La.1989) “no cause of action lies in favor of a non-client under theories of malpractice and negligence because the
3 attorney owes no duty to the adversary of his client.” In cases where the courts have recognized a cause of action against an attorney in favor of a non-client or a third-party beneficiary under the broad ambit of La.Civ.Code art.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
09-545
RYAN WILLIAM PRICE, ET AL.
VERSUS
RANDY J. FUERST
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2008-5329 HONORABLE CLAYTON DAVIS, DISTRICT JUDGE
OSWALD A. DECUIR JUDGE
Court composed of Oswald A. Decuir, Michael G. Sullivan, and Shannon J. Gremillion, Judges.
AFFIRMED.
James B. Doyle Law Office of James B. Doyle APLC P. O. Box 5241 Lake Charles, LA 70606-5241 (337) 474-9989 Counsel for Plaintiff/Appellant: Ryan William Price
Steven W. Hale Steven W. Hale & Associates, Inc. 1735 Ryan Street Lake Charles, LA 70601 (337) 433-0612 Counsel for Defendant/Appellee: Randy J. Fuerst J. Michael Veron Veron, Bice, Palermo & Wilson, LLC P. O. Box 2125 Lake Charles, LA 70602-2125 (337) 310-1600 Counsel for Defendant/Appellee: Randy J. Fuerst DECUIR, Judge.
Ryan Price, individually and on behalf of his two minor children, filed suit
against Randy Fuerst for intentional infliction of emotional distress. The trial court
maintained Fuerst’s exception of no cause of action, denied Fuerst’s motion for
sanctions, and dismissed the suit. Price has appealed the judgment on the exception.
Fuerst answered the appeal, alleging error in the denial of sanctions and requesting
further sanctions for a frivolous appeal. For the following reasons, we affirm.
An exception of no cause of action will be maintained “only if it is clearly
shown that the law affords no remedy for the grievances alleged, under the
circumstances alleged, under any theory of the case.” Sanders v. Gore, 95-660, p. 10
(La.App. 3 Cir. 7/10/96), 676 So.2d 866, 872, writ denied, 96-2072 (La. 11/15/96),
682 So.2d 762. In Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616
So.2d 1234, 1235 (La.1993), the supreme court described the court’s task in
considering an exception of no cause of action as follows: “[T]he court reviews the
petition and accepts well pleaded allegations of fact as true, and 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.” Articulating the standard of review which governs an exception
of no cause of action, the supreme court explained, “the appellate court and this Court
should subject the case to de novo review because the exception raises a question of
law and the trial court’s decision is based only on the sufficiency of the petition.”
Fink v. Bryant, 01-0987, p. 4 (La. 11/28/01), 801 So.2d 346, 349. See also, J.M.Y.
v. R.R., 08-805 (La.App. 3 Cir. 12/11/08), 1 So.3d 725.
In the case before us, the petition alleges certain facts which we accept as true
for purposes of reviewing the exception of no cause of action. Price contends the
defendant Fuerst was hired by Price’s wife during a period of marital discord while the couple was engaged in counseling in an effort to repair their marriage. Fuerst is
an attorney and was hired by Brandy Price in his capacity as a divorce lawyer. Fuerst
immediately filed suit for divorce and allegedly within a few weeks, as stated in
Price’s petition, “began an adulterous and inappropriate relationship with BRANDY
while he was acting as her counsel of record, and in that capacity steered her away
from reconciliation with her husband, and was an agent in the destruction of this
family.”
If true, the conduct described in the petition is egregious, professionally
repugnant, and “ethically reprehensible,” as similar conduct was characterized in
Sanders, 676 So.2d at 872. The trial court described the alleged conduct as extreme
and outrageous, noting that it would make for an obvious complaint to the bar
association. The 1998 case of In re Ashy, 98-0662 (La. 12/1/98), 721 So.2d 859,
provides a thorough discussion of the disciplinary actions that have been imposed on
lawyers who enter into extramarital affairs with their clients.
Nevertheless, Louisiana law does not recognize a cause of action for
intentional infliction of emotional distress based solely on allegations of an
extramarital affair. The cause of action is similar to one for alienation of affection
which has never been actionable in Louisiana. See Moulin v. Monteleone, 165 La.
169, 115 So. 447 (1927). Rather, the jurisprudence holds, “the mere seduction and
loss of one’s spouse due to the seduction or affair cannot be the basis for the action.
There must be proof that defendant violated some legal duty to plaintiff.” Scamardo
v. Dunaway, 94-545, p. 8 (La.App.5 Cir. 2/15/95), 650 So.2d 417, 420. The law
demands more than an affair, requiring the plaintiff “to assert facts establishing
defendant’s specific duty to the plaintiff.” Scamardo v. Dunaway, appeal after
2 remand, 96-1036, p. 3 (La.App. 5 Cir. 4/29/97), 694 So.2d 1041, 1042, writ denied,
97-1395 (La. 9/5/97), 700 So.2d 517. In Viator v. Miller, 04-1199, pp. 9-10 (La.App.
3 Cir. 4/27/05), 900 So.2d 1135, 1142-43, this court stated:
Clearly, any damages arising from the sexual relationship between Heather and Judge Miller are not recoverable under Louisiana law. Understandably Michael experienced emotional distress in this situation, but “the mere seduction and loss of one’s spouse due to the seduction or affair cannot be the basis for the action.” Scamardo, 650 So.2d at 420 (emphasis omitted). Although Michael, in addition, attempts to rest his claim on allegations of bad faith, detrimental reliance, civil fraud and other general tort law theories, an examination of the facts alleged in the petition clearly shows the basis of his claims rests on the adulterous relationship between Judge Miller and his ex-wife. Except for the paternity allegations found in paragraphs 85 and 86 of the petition, the facts alleged in the petition are insufficient to support a claim for intentional or negligent infliction of emotional distress or any other claim based on the noted alternative theories.
(Footnotes omitted.)
Price urges this court to overturn long-standing jurisprudence against alienation
of affection claims based on the fact that Fuerst’s alleged conduct arose in the course
of his legal representation of Brandy in her claim, or potential claim, against Price.
While this argument certainly highlights the rationale behind the ethical rules which
prohibit lawyers from engaging in affairs with their clients, it does not provide a basis
for a private cause action against a lawyer by a non-client ex-husband. Again, we
quote from the Viator case:
We note, as well, the petition contains allegations which refer to defendant’s professional conduct as a lawyer. Although Miller may have violated the Code of Professional Responsibility that governs his conduct as a lawyer, the mere violation of the Code does not give rise to civil liability. The facts alleged in the petition are insufficient to support a claim that an attorney-client relationship ever existed between Michael and Miller. Even if we were to conclude a de facto attorney-client relationship existed between Miller and Michael’s ex-wife, the Louisiana Supreme Court stated in Penalber v. Blount, 550 So.2d 577, 578 (La.1989) “no cause of action lies in favor of a non-client under theories of malpractice and negligence because the
3 attorney owes no duty to the adversary of his client.” In cases where the courts have recognized a cause of action against an attorney in favor of a non-client or a third-party beneficiary under the broad ambit of La.Civ.Code art. 2315, they have found the attorney knowingly violated a prohibitory law or intentionally engaged in a fraudulent act. Id. . . . [A]llegations that Miller intentionally had a sexual relationship with Michael’s ex-wife, failed to disclose such, and later divulged it in a telephone conversation are insufficient to constitute legal fraud or a violation of any prohibitory law recognized in this state.
900 So.2d at 1143, footnote 2.
We conclude the allegations set forth in Price’s petition are insufficient to state
a cause of action for intentional infliction of emotional distress. Furthermore, we also
find no cause of action on behalf of the minor children of Ryan and Brandy Price,
following the legal rationale set forth in Greene v. Roy, 604 So.2d 1359 (La.App. 3
Cir.), writ denied, 607 So.2d 544 (La. 1992).
While we find the exception of no cause of action was appropriately
maintained, we find no basis for an award of sanctions against the plaintiff or his
counsel and affirm the trial court’s denial of same. In filing his petition, Price sought
to have existing law overturned, and he set forth before the trial court and this court
legitimate arguments and thorough research to support his claim. We do not find the
petition a sanctionable pleading even though we affirm its dismissal pursuant to the
defendant’s exception. Likewise, we do not view the plaintiff’s appeal as frivolous
and, therefore, decline to award damages on that basis.
The judgment of the trial court is affirmed. Costs of the appeal are assessed to
the plaintiff.