Jordan Jones Favret v. John Favret, Kathy Favret, Justin Phipps Boyce, and Madison Gallo Boyce

JORDAN JONES FAVRET * NO. 2022-CA-0820

VERSUS *
COURT OF APPEAL
JOHN FAVRET, KATHY *
FAVRET, JUSTIN PHIPPS FOURTH CIRCUIT
BOYCE, AND MADISON *
GALLO BOYCE STATE OF LOUISIANA
*******

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2022-00146, DIVISION “J”
Honorable D. Nicole Sheppard, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Terri F. Love, Judge Tiffany Gautier Chase,
Judge Dale N. Atkins)

D. Douglas Howard, Jr.
J. Katheryn Doré
HOWARD REED & PEDERSEN
531 Julia Street
New Orleans, LA 70130

COUNSEL FOR PLAINTIFF/APPELLANT, Jordan Jones Favret

Timothy G. Schafer
William H. Dunckelman, Jr.
SCHAFER & SCHAFER
328 Lafayette Street
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE, Kathy Favret

Trevor C. Davies
WANEK KIRSCH DAVIES LLC
1340 Poydras Street, Suite 2000
New Orleans, LA 70112

COUNSEL FOR DEFENDANTS/APPELLEES, Justin Phipps Boyce and
Madison Gallo Boyce

AFFIRMED
JULY 31, 2023

DNA

TFL
TGC

This is a negligence action. In this appeal, Jordan Jones Favret (“Ms. Jones

Favret”) seeks review of the trial court’s September 9, 2022 judgment, which

sustained the Peremptory Exceptions of No Cause of Action filed by Justin Boyce

and Madison Boyce (collectively “the Boyces”) and by Kathy Favret (“Ms. Kathy

Favret”) thereby dismissing Ms. Jones Favret’s claims against them. Ms. Jones

Favret sought damages from the Boyces and Ms. Kathy Favret for negligent

precipitation of a third party’s crime, negligent infliction of emotional distress, and

intentional infliction of emotional distress. Upon review, we find that the trial court

did not err in its determination that Ms. Jones Favret failed to state a cause of

action for each of her claims. For the following reasons, we affirm.

Further, Ms. Kathy Favret filed an “Answer to Appeal” with this Court.

Therein, she seeks damages, including attorney fees and costs, for the filing of a

frivolous appeal by Ms. Jones Favret pursuant to La. C.C.P. art. 2164.1 For the

following reasons, we deny Ms. Kathy Favret’s request for damages, attorney fees,

and costs.

1 As discussed more fully throughout this Opinion, La. C.C.P. art. 2164 provides, in

pertinent part, that “[t]he court may award damages, including attorney fees, for frivolous appeal
or application for writs, and may tax the costs of the lower or appellate court, or any part thereof,
against any party to the suit, as in its judgment may be considered equitable.”

1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

January 6, 2022 Petition for Damages

This lawsuit stems from a custody dispute between Ms. Jones Favret and her

former husband, John Favret (“Mr. Favret”), over their minor child, CF.2 On

January 6, 2022, Ms. Jones Favret instituted the suit by filing a Petition for

Damages (“Petition”) in Civil District Court for Orleans Parish (“Orleans Civil

District Court”) and naming Mr. Favret, Ms. Kathy Favret, and the Boyces as

defendants. According to her Petition, the 24th Judicial District Court for Jefferson

Parish granted Ms. Jones Favret emergency custody of CF on October 22, 2021,

and issued a warrant for the return of CF to Ms. Jones Favret’s custody. That same

day, Ms. Jones Favret called the New Orleans Police Department (“NOPD”) to

execute the warrant. In the Petition, Ms. Jones Favret contended that when the

NOPD officers (“officers”) arrived at the residence that Mr. Favret and his mother,

Ms. Kathy Favret, shared (“the Favret Residence”), Mr. Favret refused to comply

with the warrant. Further, Ms. Jones Favret alleged that the officers requested

assistance from the Orleans Parish Civil Sheriff, but when the deputies arrived to

execute the warrant, Ms. Kathy Favret informed the deputies that Mr. Favret had

already left through the back door of the Favret Residence with CF. Unbeknownst

to Ms. Jones Favret and law enforcement, Mr. Favret brought CF to the home

where the Boyces lived (“the Boyce Residence”) after leaving the Favret

Residence.

2 This Opinion will use the initials of the minor child to protect the child’s identity. See

Uniform Rules, Louisiana Courts of Appeal, Rules 5-1 and 5-2. See also Barak v. Saacks, 2021-
0756, 0757, 0758, 0759, p. 2 (La. App. 4 Cir. 10/12/22), ___ So.3d ___, ___, 2022 WL 6944282,
at *1 n.3 (citing Council v. Livingston, 2019-1049, p. 1 (La. App. 4 Cir. 3/13/20), ___ So.3d ___,
___, 2020 WL 1231392, at *1 n.1).

2

Later that same day, Ms. Jones Favret filed a Petition for Protection from

Abuse (“Petition for Protection”) on behalf of CF in Orleans Civil District Court,

which granted her request for a temporary restraining order. Thereafter, according

to the Petition, officers returned to the Favret Residence, and Ms. Kathy Favret

stated that Mr. Favret and CF were not present and that she did not know their

location. The officers then served the Petition for Protection on Ms. Kathy Favret,

and she continued to deny having knowledge about Mr. Favret’s and CF’s location.

Despite her statements to the contrary, the Petition alleged that cell phone data

revealed that Ms. Kathy Favret had been in communication with both Mr. Favret

and CF after Mr. Favret had arrived at the Boyce Residence. Per the Petition, at

some point, Ms. Kathy Favret brought clothes and other personal items to the

Boyce Residence. However, neither Ms. Kathy Favret nor the Boyces informed

Ms. Jones Favret or law enforcement of Mr. Favret’s and CF’s location. On

October 23, 2021, a warrant for Mr. Favret’s arrest was issued. On October 24,

2021, officers apprehended and arrested Mr. Favret at the Boyce Residence, where

CF was also present.

In her Petition, Ms. Jones Favret asserted that Mr. Favret’s actions in

absconding with CF constituted a criminal act in violation of La. R.S. 14:45.1.3

Further, Ms. Jones Favret sought damages against Ms. Kathy Favret and the

Boyces for negligently precipitating Mr. Favret’s criminal interference with Ms.

Jones Favret’s custody of CF, negligent infliction of emotional distress, and

intentional infliction of emotional distress.

3 Louisiana Revised Statutes 14:45.1 is titled “[i]nterference with the custody of a child.”

However, the allegations against Mr. Favret are not before us on review.

3

The Boyces’ and Ms. Kathy Favret’s First Peremptory Exceptions of No
Cause of Action and Ms. Jones Favret’s Opposition

On February 24, 2022, the Boyces filed a Peremptory Exception of No

Cause of Action and a Motion for Sanctions (“ the Boyces’ First Exception of No

Cause of Action”). Therein, the Boyces asserted that Ms. Jones Favret’s Petition

failed to state a cause of action against them. Specifically, they argued that “there

is no duty to control, or warn against, the criminal actions of a third person” and

that “there is no duty to protect others from the criminal acts of third parties.”

Further, they contended that Ms. Jones Favret’s Petition “completely fail[ed]” to

state a cause of action for negligent or intentional infliction of emotional distress

and that “it is well-settled in Louisiana that a claim of mental distress absent

physical injury is not actionable.”

On March 25, 2022, Ms. Kathy Favret also filed a Peremptory Exception of

No Cause of Action (“Ms. Kathy Favret’s First Exception of No Cause of

Action”). In her First Exception of No Cause of Action, Ms. Kathy Favret adopted

the same arguments asserted by the Boyces in their First Exception of No Cause of

Action. She further emphasized that the Petition “set[] forth no allegations that

would make [Ms. Kathy Favret] legally responsible for any of [Mr. Favret]’s

conduct” and set forth no allegations establishing that Ms. Kathy Favret owed a

duty to Ms. Jones Favret. Additionally, Ms. Kathy Favret asserted that under

Louisiana negligence law, “[i]f no duty exists, then there can be no liability.”

On May 5, 2022, Ms. Jones Favret filed an “Opposition to the Peremptory

Exceptions of No Cause of Action Filed by Defendants [Ms.] Kathy Favret [and

the Boyces].” Conceding their argument that Louisiana law does not recognize a

duty to protect others from the criminal activities of third persons, Ms. Jones

4

Favret countered that the Boyces and Ms. Kathy Favret owed a duty because “the

law does recognize a duty not to negligently cause a third party to commit a crime

that is a foreseeable consequence of negligence.” She also asserted that Louisiana

law recognizes a “broad duty not to negligently precipitate the crime of a third

party” and that “[the Boyces’ and Ms. Kathy Favret’s] actions precipitated Mr.

Favret’s criminal acts and were a cause-in-fact of Ms. Favret’s harm.” On May 19,

2023, the trial court held a hearing on the Boyces’ and Ms. Kathy Favret’s First

Exceptions of No Cause of Action. The trial court sustained the exceptions, but

ordered Ms. Jones Favret to amend her petition.

Ms. Jones Favret’s Amended Petition

Prior to the hearing on the Boyces’ and Ms. Kathy Favret’s First Exceptions

of No Cause of Action, on May 18, 2022, Ms. Jones Favret filed a “Motion for

Leave of Court to File First Amending and Supplemental Petition;” and the trial

court granted her Motion on May 26, 2022. Ms. Jones Favret’s Amended Petition

alleged that officers served the Petition for Protection on Ms. Kathy Favret before

she brought toiletries and other personal items to Mr. Favret and CF. Regarding the

Boyces, Ms. Jones Favret contended that they knew Mr. Favret had not parked his

vehicle in front of their residence in order “to avoid detection by law enforcement

officers or Ms. [Jones] Favret.” Further, Ms. Jones Favret alleged that the Boyces

were aware that Mr. Favret “was refusing to return custody of the minor child, CF,

to Ms. [Jones] Favret” and “was concealing himself and the minor child, CF, from

law enforcement and Ms. [Jones] Favret.”

Additionally, Ms. Jones Favret alleged that she experienced physical

symptoms due to the emotional distress caused by the Boyces and Ms. Kathy

Favret, including anxiety, insomnia, panic attacks, weight loss of thirty pounds,

5

and depression. Ms. Jones Favret contended that their actions were partially

responsible for her having “to seek additional medical attention as well as therapy

to address the physical injuries caused by . . . [the] emotional distress.”

The Boyces’ and Ms. Kathy Favret’s Second Peremptory Exceptions of No
Cause of Action and Ms. Jones Favret’s Opposition

On May 31, 2022, Ms. Kathy Favret filed a second “Peremptory Exception

of No Cause of Action” (“Ms. Kathy Favret’s Second Exception of No Cause of

Action”). Therein, Ms. Kathy Favret argued that Ms. Jones Favret’s Amended

Petition “contains no new substantive allegations that would support a cause of

action against” her. On June 22, 2022, the Boyces filed a “Peremptory Exception

of No Cause of Action and Motion for Costs and Attorneys’ Fees” (“the Boyces’

Second Exception of No Cause of Action”). Like Ms. Kathy Favret, they argued

that Ms. Jones Favret’s Amended Petition failed to state a cause of action against

them. Again, Ms. Jones Favret filed an “Opposition to the Peremptory Exceptions

of No Cause of Action filed by Defendants [Ms.] Kathy Favret [and the Boyces].”

Ms. Jones Favret argued that she had stated a valid cause of action against them for

the damages she sustained: she contended that the Petition and Amended Petition

established that Ms. Kathy Favret and the Boyces owed a duty in this situation and

breached it by negligently precipitating Mr. Favret’s interference with her custody

of CF.

August 25, 2022 Hearing and September 9, 2022 Judgment

On August 25, 2022, the trial court held a hearing on the Boyces’ and Ms.

Kathy Favret’s Second Exceptions of No Cause of Action and the Motion for Costs

and Attorneys’ Fees filed by the Boyces.4 The trial court orally sustained the

4 The transcript of the August 25, 2022 hearing is not in the record before this Court.

6

Exceptions but denied the Boyces’ Motion for Costs and Attorneys’ Fees.

Thereafter, on September 9, 2022, the trial court signed a judgment, which stated,

in pertinent part:

IT IS HEREBY ORDERED, ADJUDGED AND DECREED
that the Exceptions of No Cause of Action filed by Justin Boyce and
Madison Boyce, and Kathy Favret are sustained and the plaintiff’s
lawsuit dismissed as to said exceptors;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED
that the Motion of Justin Boyce and Madison Boyce for Costs and
Attorney’s Fees, pursuant to La. C.C.P. article 863(D) be denied.

Ms. Jones Favret timely filed a devolutive appeal. In response, Ms. Kathy Favret

filed an Answer to Appeal in which she sought damages for a frivolous appeal

together with attorney fees and costs.

ASSIGNMENTS OF ERROR

On appeal, Ms. Jones Favret raises four assignments of error:

1. The [Trial] Court determined that Appellee, Kathy Favret, did not
owe a duty to Appellant not to negligently precipitate the crime of
a third party and sustained Appellee’s Peremptory Exception of No
Cause of Action.

2. The [Trial] Court determined that Appellees, Justin Boyce and
Madison Boyce, did not owe a duty to Appellant not to negligently
precipitate the crime of a third party and sustained their
Peremptory Exception of No Cause of Action.

3. The [Trial] Court determined that Appellant failed to state a cause
of action for negligent infliction of emotion distress against
Appellees, Kathy Favret, Justin Boyce, and Madison Boyce and
sustained their Peremptory Exception of No Cause of Action as to
that claim.

4. The [Trial] Court determined that Appellant failed to state a cause
of action for intentional infliction of emotion distress against
Appellees, Kathy Favret, Justin Boyce, and Madison Boyce and
sustained their Peremptory Exceptions.

7

Because this appeal concerns peremptory exceptions of no cause of action, we

begin our discussion by summarizing the principles applicable to exceptions of no

cause of action.

DISCUSSION

Standard of Review

“An exception of no cause of action presents a question of law, so an

appellate court reviews a trial court’s ruling on an exception of no cause of action

de novo.” Cunningham v. City of New Orleans, 2021-0532, p. 9 (La. App. 4 Cir.

3/30/22), 336 So.3d 977, 986 (citing Fertitta v. Regions Bank, 2020-0300, p. 7 (La.

App. 4 Cir. 12/9/20), 311 So.3d 445, 451), writ denied, 2022-00716 (La. 6/22/22),

339 So.3d 1185. “A peremptory exception of no cause of action questions whether

the law extends a remedy against a defendant to anyone under the factual

allegations of a petition.” Id. at p. 10, 336 So.3d at 986 (emphasis added) (citing

Fertitta, p. 6, 311 So.3d at 450). “The grant of the exception of no cause of action

is proper when, assuming all well pleaded factual allegations of the petition and

any annexed documents are true, the plaintiff is not entitled to the relief he seeks as

a matter of law.” Id. at p. 11, 336 So.3d at 986-87 (quoting Fertitta, 2020-0300, p.

7, 311 So.3d at 451). This Court has explained how a court reviews the petition in

deciding an exception of no cause of action:

The exception [of no cause of action] is triable on the face of the
petition and, to determine the issues raised by the exception, each
well-pleaded fact in the petition must be accepted as true. Indus. Cos.
v. Durbin, 2002-0665, p. 6 (La. 1/28/03), 837 So.2d 1207, 1213. . . .
An exception of no cause of action should be granted only when it
appears beyond doubt that the plaintiff can prove no set of facts in
support of any claim which would entitle him to relief. Id. at p. 7, 837
So.2d at 1213; Barrie v. V.P. Exterminators, Inc., 625 So.2d 1007,
1018 (La. 1993). If the petition states a cause of action on any ground
or portion of the demand, the exception should generally be overruled.
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d

8

1234, 1236 (La. 1993). Every reasonable interpretation must be
accorded the language used in the petition in favor of maintaining its
sufficiency and affording the plaintiff the opportunity of presenting
evidence at trial. Industrial Cos., [20]02-0665[,] p. 7, 837 So.2d at
1213.

Id. (alteration in original) (quoting Williams v. Wood, 2017-1049, p. 3 (La. App. 4

Cir. 10/31/18), 258 So.3d 834, 837-38).

We begin by addressing Ms. Jones Favret’s first and second assignments of

error in the same discussion. Then, we will address Ms. Jones Favret’s third and

fourth assignments of error in turn.

Assignments of Error Numbers One and Two: Whether the Petition and
Amended Petition Established that the Boyces and Ms. Kathy Favret Had a
Duty to Ms. Jones Favret

In her first and second assignments of error, respectively, Ms. Jones Favret

contends that the trial court erred in determining that Ms. Kathy Favret and the

Boyces did not owe a duty to Ms. Jones Favret not to negligently precipitate the

crime of a third party. In particular, in her Petition, Ms. Jones Favret alleged that

the Boyces and Ms. Kathy Favret precipitated Mr. Favret’s violation of La. R.S.

14:45.1 by absconding with CF in contravention of a court order.5 As to Ms. Kathy

Favret, Ms. Jones Favret asserts that her Petition and Amended Petition alleged

that Ms. Kathy Favret “continued to assist Mr. Favret in absconding with CF

despite having personal knowledge that Mr. Favret was acting illegally in violation

5 Louisiana Revised Statutes 14:45.1, which is titled “[i]nterference with the custody of a

child,” provides in pertinent part:

A. Interference with the custody of a child is the intentional taking, enticing, or
decoying away of a minor child by a parent not having a right of custody, with
intent to detain or conceal such child from a parent having a right of custody
pursuant to a court order or from a person entrusted with the care of the child by a
parent having custody pursuant to a court order.

9

of a civil warrant, protective order, and a criminal warrant for Mr. Favret’s arrest.”

Ms. Jones Favret also contends that her Petition and Amended Petition alleged that

“Mr. Favret was further aided and abetted by [the Boyces] in absconding with and

secreting away the minor child, CF, to avoid the execution of a valid civil warrant

for the immediate return of CF.”

Ms. Jones Favret concedes that Louisiana does not recognize a “duty to

protect others from the criminal activities of third persons.” However, Ms. Jones

Favret argues that, following the recent opinion of the Louisiana Supreme Court in

Doe v. Mckesson, 2021-00929 (La. 3/5/22), 339 So.3d 524, Ms. Kathy Favret and

the Boyces had a duty not to negligently precipitate the alleged criminal actions of

Mr. Favret.6 Thus, as part of our de novo review of the trial court’s grant of the

Exceptions of No Cause of Action, we must consider whether Ms. Jones Favret’s

Petition and Amended Petition established that Ms. Kathy Favret and the Boyces

owed a duty not to negligently precipitate the crime of Mr. Favret, a third party. To

determine this, we must review Ms. Jones Favret’s Petitions in light of the relevant

negligence law on the issue of duty.

Relevant Negligence Law

In a negligence case, a plaintiff must prove five separate elements:

(1) the defendant had a duty to conform his or her conduct to a
specific standard of care (the duty element); (2) the defendant failed to
conform his or her conduct to the appropriate standard (the breach of
duty element); (3) the defendant’s substandard conduct was a cause-
in-fact of the plaintiff’s injuries (the cause-in-fact element); (4) the
defendant’s substandard conduct was a legal cause of the plaintiff’s
injuries (the scope of liability or scope of protection element); and, (5)
actual damages (the damages element).

6 In its opinion, the Louisiana Supreme Court titled the defendant’s name as “Mckesson.”

However, as published by Westlaw, the case is captioned Doe v. McKesson. For the sake of
consistency, we have used “Mckesson” throughout this opinion.

10

Spencer v. Valero Refining Meraux, L.L.C., 2022-00469, 00539, 00730, pp. 15-16

(La. 1/27/23), 356 So.3d 936, 949 (citing Mathieu v. Imperial Toy Corp., 1994-

0952, pp. 4-5 (La. 11/30/94), 646 So.2d 318, 322). “A negative answer to any of

those inquiries results in a determination of no liability.” Id. (citing Mathieu, 1994-

0952, p. 11, 646 So.2d at 326).

“The threshold determination in a negligence action is the first element, i.e.,

whether the defendant owed a duty to the plaintiff.” Duronslet v. Wal-Mart Stores,

Inc., 2022-0019, p. 18 (La. App. 4 Cir. 7/27/22), 345 So.3d 1136, 1149 (citing

James v. Ernest N. Morial New Orleans Exhibition Hall Authority, 2018-0198, p. 7

(La. App. 4 Cir. 12/26/18), 262 So.3d 958, 964). “Specific duties can arise from

codal, statutory, administrative and local laws, as well as private contracts and

custom.” Mckesson, 2021-00929, p. 15, 339 So.3d at 537 n.1 (Weimer, C.J.,

concurring).

Additionally, in Posecai v. Wal-Mart Stores, Inc., the Louisiana Supreme

Court listed policy factors that a court may consider in deciding whether to impose

a duty:

[i]n deciding whether to impose a duty in a particular case, the court
must make a policy decision in light of the unique facts and
circumstances presented. See Socorro v. City of New Orleans, 579
So.2d 931, 938 (La. 1991). The court may consider various moral,
social, and economic factors, including the fairness of imposing
liability; the economic impact on the defendant and on similarly
situated parties; the need for an incentive to prevent future harm; the
nature of defendant’s activity; the potential for an unmanageable flow
of litigation; the historical development of precedent; and the
direction in which society and its institutions are evolving. See Meany
[v. Meany], [1994-0251, p. 6 (La. 7/5/94),] 639 So.2d [229,] 233;
Pitre v. Opelousas Gen. Hosp., 530 So.2d 1151, 1161 (La.1988);
Entrevia v. Hood, 427 So.2d 1146, 1149 (La.1983).

11

1999-1222, pp. 4-5 (La. 11/30/99), 752 So.2d 762, 766. In a subsequent case,

Reynolds v. Bordelon, the Louisiana Supreme Court reiterated “that the duty

requirement can be analyzed in terms of policy” and stated that such “policy

considerations can compel a court to simply make a categorical ‘no duty’ rule

regarding certain conduct.” 2014-2362, pp. 8-9 (La. 6/30/15), 172 So.3d 589, 596-

97. In Reynolds, the Louisiana Supreme Court listed the policy factors to consider

in determining whether to impose a duty “as deterrence of undesirable conduct,

avoiding the deterrence of desirable conduct, compensation of victims, satisfaction

of the community’s sense of justice, proper allocation of resources (including

judicial resources), predictability, and deference to the legislative will.” Id. at p. 8,

172 So.3d at 596 (quoting Frank L. Maraist & Thomas C. Galligan, Jr., LOUISIANA

TORT LAW § 5.02 (2004)).

As explained previously, Ms. Jones Favret argues that Mckesson supports a

finding that Ms. Kathry Favret and the Boyces owed a duty. In Mckesson, the

Louisiana Supreme Court answered a certified question posed by the United States

Court of Appeals for the Fifth Circuit: “Whether Louisiana law recognizes a duty,

under the facts alleged in [Doe’s] complaint, or otherwise, not to negligently

precipitate the crime of a third party?” 2021-00929, p. 1, 339 So.3d at 526. In his

federal complaint, Doe, a police officer, alleged that Mckesson, a Black Lives

Matter (“BLM”) protest organizer, was liable for personal injuries that stemmed

from an assault committed on Doe by a third party during a protest organized by

Mckesson. Id. at pp. 1-3, 339 So.3d at 527. Doe alleged that Mckesson organized

the protest, was seen and heard giving orders during the protest, and lead protestors

to block a busy public highway in front of the police department that employed

12

Doe. Id. The Louisiana Supreme Court considered the factual allegations in the

complaint and determined:

[I]t could be found that Mr. Mckesson’s actions, in provoking a
confrontation with Baton Rouge police officers through the
commission of a crime (the blocking of a heavily traveled highway,
thereby posing a hazard to public safety), directly in front of police
headquarters, with full knowledge that the result of similar actions
taken by BLM in other parts of the country resulted in violence and
injury not only to citizens but to police, would render Mr. Mckesson
liable for damages for injuries, resulting from these activities, to a
police officer compelled to attempt to clear the highway of the
obstruction.

Id. at pp. 9-10, 339 So.3d at 533. In sum, the Louisiana Supreme Court concluded

that Louisiana law recognizes a duty not to precipitate or “negligently cause a third

party to commit a crime that is a foreseeable consequence of negligence.” Id. at p.

8, 339 So.3d at 532.

We find that Mckesson does not support a finding that Ms. Kathy Favret or

the Boyces owed Ms. Jones Favret a duty under the facts alleged in the Petition

and Amended Petition. A careful review of the Petition and Amended Petition

reveals that Ms. Jones Favret did not include any allegations that Ms. Kathy Favret

or the Boyces acted to hasten Mr. Favret’s alleged criminal acts. Even though Ms.

Jones Favret alleged that Ms. Kathy Favret and the Boyces’ actions allowed Mr.

Favret to conceal CF, Louisiana law only recognizes a duty not to negligently

precipitate or cause a third party to commit a crime that is a foreseeable

consequence of negligence. Here, it was not foreseeable that Mr. Favret would

commit the alleged crime of absconding with CF. Rather, as asserted in the Petition

and Amended Petition, that alleged crime had already occurred prior to any actions

purportedly taken by Ms. Kathy and the Boyces.

13

Analysis of the Policy Factors a Court Considers in Deciding Whether to Impose
a Duty

Moreover, a review of the policy factors enumerated by the Louisiana

Supreme Court in Reynolds further supports the proposition that Ms. Kathy Favret

and the Boyces did not owe Ms. Jones Favret a duty.7 First, considering the

“deterrence of undesirable conduct” and “avoiding the deterrence of desirable

conduct” factors, Ms. Jones Favret argues that imposing liability on Ms. Kathy

Favret and the Boyces will deter the undesirable conduct of detaining or

concealing a child and encourage the adherence to court orders. However, Ms.

Jones Favret does not allege that Ms. Kathy Favret or the Boyces absconded with

CF with the intent to detain or conceal her from Ms. Jones Favret in violation of

La. R.S. 14:45.1. Instead, it was Mr. Favret who allegedly committed this criminal

act. Also, based on the Petition and Amended Petition, the court order was directed

to Mr. Favret, not Ms. Kathy Favret or the Boyces. Thus the imposition of a duty

under the facts alleged in the Petition and Amended Petition would not necessarily

lead to the desirable conduct of prevention of violations of La. R.S. 14:45.1 and

adherence with court orders. These factors do not support the imposition of a duty

under the facts alleged in the Petition and Amended Petition.

As to the “compensation of victims” factor, we find nothing in the pleadings

to indicate that Ms. Jones Favret will be unable to recover tort damages from Mr.

Favret. Unlike in Mckesson, the identity of the party that committed the act is

known to Ms. Jones Favret, and she even named Mr. Favret as a defendant in the

7 As explained previously, the Louisiana Supreme Court listed policy factors for a court

to consider in deciding whether to impose a duty in Posecai, 1999-1222, pp. 4-5, 752 So.2d at
766. However, because Reynolds is a more recent pronouncement by the Louisiana Supreme
Court on this issue, we will analyze the policy factors enumerated in that case instead. 2014-
2362, pp. 8-9, 172 So.3d at 596-97.

14

Petition and Amended Petition. Mr. Favret, as the individual who absconded with

CF, is the best person to make Ms. Jones Favret whole. This factor does not

support the imposition of a duty under the facts alleged in the Petition and

Amended Petition.

As to the “satisfaction of the community’s sense of justice” and

“predictability” factors,8 in Reynolds, the Louisiana Supreme Court advised that “it

is prudent to ask whether reasonable persons would expect certain behavior in

certain situations and, conversely, whether reasonable persons can be expected to

be exposed to liability in certain situations.” 2014-2362, p. 10, 172 So.3d at 598.

Ms. Jones Favret alleged that Ms. Kathy Favret was made aware of the protective

order yet failed to contact law enforcement or Ms. Jones Favret to inform them of

Mr. Favret’s whereabouts. Ms. Jones Favret also alleged that the Boyces allowed

Mr. Favret and CF to stay in their home despite their knowledge that Mr. Favret

was violating a court order and concealing himself and CF from law enforcement

in violation of La. R.S. 14:45.1. However, Ms. Jones Favret has not alleged that

Ms. Kathy Favret or the Boyces caused or encouraged Mr. Jones Favret to break

the law. Because the Boyces and Ms. Kathy Favret did not engage in conduct that

precipitated Mr. Favret’s alleged violation of La. R.S. 14:45.1, we find that

reasonable persons would not expect to be exposed to liability in this situation. As

Mr. Favret is the one who allegedly violated La. R.S. 14:45.1, justice, fairness, and

predictability suggest that any liability for Ms. Jones Favret’s injuries be imposed

on Mr. Favret, not Ms. Kathy Favret or the Boyces.

8 We discuss these two factors together because in Reynolds, the Louisiana Supreme

Court explained that the “satisfaction of the community’s sense of justice” question “factors in
squarely with another policy consideration: predictability.” 2014-2362, p. 10, 172 So.3d at 598.

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Next, we analyze the “proper allocation of resources (including judicial

resources)” factor, which we find highly weighs in favor of finding that Ms. Kathy

Favret and the Boyces did not have a duty to Ms. Jones Favret. As discussed

earlier, the Petition and Amended Petition lack any allegations that Ms. Kathy

Favret or the Boyces precipitated Mr. Favret’s alleged criminal acts. Were we to

find a duty, potentially any housemate, parent, or other close associate of a person

in violation of a custody order could be found negligent by merely letting that

person stay at their residence or even bringing them clothes and personal items.

Further, considering the number of contentious custody disputes, it is reasonable to

expect a number of spiteful parents filing suit against family members or friends of

the other parent should a duty be found in this case. Thus, we find that this factor

does not support the imposition of a duty under the facts asserted in the Petition

and Amended Petition.

Finally, in consideration of “deference to the legislative will,” we note that

the Legislature has not passed any laws imposing a duty in this situation, so we

find that this factor also weighs against doing so.

Therefore, having found no policy factors that support imposition of a duty

to the facts of this matter, we conclude that the trial court correctly ruled that under

the facts alleged in the Petition and the Amended Petition Louisiana law does not

recognize a duty owed by Ms. Kathy Favret or the Boyces.

Assignment of Error Number Three: Negligent Infliction of Emotional
Distress

In her third assignment of error, Ms. Jones Favret contends that the trial

court erred when it determined that she failed to state a cause of action for

negligent infliction of emotional distress against Ms. Kathy Favret and the Boyces.

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In support of this assignment of error, Ms. Jones Favret contends that she alleged

in her Petition and Amended Petition that Ms. Kathy Favret and the Boyces knew

or should have known their actions in furtherance of Mr. Favret’s criminal act

would cause severe mental and emotional distress related to the deprivation of the

custody of her child. Further, Ms. Jones Favret asserts that in her Amended

Petition she alleged that she experienced increased anxiety, weight loss, insomnia,

panic attacks, depression, trouble concentrating, and nightmares.

In Spencer, the Louisiana Supreme Court recently examined the necessary

analysis to establish a claim for negligent infliction of emotional distress. 2022-

00469, 2022-00539, 00730, p. 15, 356 So.3d at 949. To recover under a claim of

negligent infliction of emotional distress,

a plaintiff must prove five separate elements: (1) the defendant had a
duty to conform his or her conduct to a specific standard of care (the
duty element); (2) the defendant failed to conform his or her conduct
to the appropriate standard (the breach of duty element); (3) the
defendant’s substandard conduct was a cause-in-fact of the plaintiff’s
injuries (the cause-in-fact element); (4) the defendant’s substandard
conduct was a legal cause of the plaintiff’s injuries (the scope of
liability or scope of protection element); and, (5) actual damages (the
damages element). Mathieu v. Imperial Toy Corp., 94-952, pp. 4-5
(La. 11/30/94), 646 So.2d 318, 322). A negative answer to any of
those inquiries results in a determination of no liability.

Id.

The Supreme Court also held that in addition to the general traditional duty-

risk factors, a plaintiff must prove “the especial likelihood of genuine and serious

mental distress, arising from the special circumstances, which serves as a guarantee

that the claim is not spurious.” Id. (citing Moresi v. State Through Dep’t of Wildlife

& Fisheries, 567 So.2d 1081, 1096 (La. 1990)). “A claim for negligent infliction of

emotional distress is a claim that, by definition, requires a plaintiff to prove

negligence.” Id. at 950. “[I]f the negligent conduct that causes emotional distress is

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accompanied by physical injury, illness, or other physical consequences, the

conduct need not be outrageous for the plaintiff to recover.” Covington v. Howard,

49,135, p. 9 (La. App. 2 Cir. 8/13/14), 146 So. 3d 933, 939. Therefore, the analysis

for a claim of negligent infliction of emotional distress begins with a duty-risk

analysis.

As discussed above, the duty not to interfere with Ms. Jones Favret’s legal

custody of CF was owed by Mr. Favret, not by Ms. Kathy Favret or the Boyces.

The language of La. R.S. 14:45.1 provides that it can only be violated by a “parent

not having a right of custody.” As explained previously, we determined that neither

Ms. Kathy Favret nor the Boyces owed a duty to Ms. Jones Favret to not

negligently precipitate the alleged crime of Mr. Favret. Accordingly, because a

plaintiff must prove that the defendant owed a duty to succeed in a claim of

negligent infliction of emotional distress, we similarly find that Ms. Jones Favret

failed to state a cause of action for negligent infliction of emotional distress against

Ms. Kathy Favret and the Boyces.

Assignment of Error Number Four: Intentional Infliction of Emotional
Distress

In her fourth assignment of error, Ms. Jones Favret contends that the trial

court erred when it determined that Ms. Jones Favret did not state of cause of

action against Ms. Kathy Favret and the Boyces for intentional infliction of

emotional distress. To establish a claim for intentional infliction of emotional

distress, the plaintiff must prove: (1) that the conduct of the defendant was extreme

and outrageous; (2) that the emotional distress suffered by the plaintiff was severe;

and (3) that the defendant desired to inflict severe emotional distress or knew that

severe emotional distress would be certain or substantially certain to result from

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the conduct. Cunningham, 2021-0532, p. 20, 336 So.3d at 991 (citing White v.

Monsanto, 585 So.2d 1205, 1209 (La. 9/9/91)).

“Louisiana courts, like courts in other states, have set a very high threshold

on conduct sufficient to sustain an emotional distress claim, and the Louisiana

Supreme Court has noted that ‘courts require truly outrageous conduct before

allowing a claim . . . even to be presented to a jury.’” Sullivan v. Malta Park, 2014-

0478, pp. 9-10 (La. App. 4 Cir. 12/10/14), 156 So.3d 751, 757 (quoting Morris v.

Dillard Dep’t Stores, 277 F.3d 743, 756-57 (5th Cir. 2001). For a claim of

intentional infliction of emotional distress to be successful, “[t]he nature of the

conduct must be ‘so outrageous in character, and so extreme in degree’ that it goes

‘beyond all possible bounds of decency, and [is] regarded as atrocious and utterly

intolerable in a civilized community.’” Cunningham, 2021-0532, p. 20, 336 So. 3d

at 991 (alteration in original) (quoting White, 585 So.2d at 1209.) “‘[M]ere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities’ do not

result in liability for intentional infliction of emotional distress.” Id.

Ms. Jones Favret cites to Dietz v. Dietz, 2014-1164 (La. App. 3 Cir 5/6/15),

165 So.3d 342, to support the proposition that false allegations of abuse in

pleadings made to deprive a mother of the custody of her child were found to be

extreme and outrageous conduct.9 However, in Dietz, the Third Circuit determined

that a sister and brother, during a custody battle with the sister’s ex-husband, made

death threats and authorized their attorney to use extreme tactics such as a drive-by

shooting and theft of confidential documents to get their desired custody and

divorce outcome, among other severe misconduct. Id. at pp. 3-5, 165 So.3d at 347-

9 While the claims against Mr. Favret are not before us, Ms. Jones Favret alleged in her

petition that Mr. Favret made false accusations of child abuse to deprive Ms. Jones Favret
custody of CF.

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49. The Third Circuit found that this conduct rose to the level of extreme and

outrageous and went beyond all possible bounds of decency, caused the plaintiff to

suffer extreme emotional distress, and the defendants desired to inflict severe

emotional distress. Id. at p. 27, 165 So.3d at 363.

Here, we find that neither Ms. Kathy Favret nor the Boyces’ conduct rose to

the level of extreme and outrageous. In her Petition and Amended Petition, Ms.

Jones Favret alleged that Ms. Kathy Favret and the Boyces “engaged in tortious

conduct that aided and abetted Mr. Favret in his criminal interference with Ms.

[Jones] Favret’s custody of her child, with the intent to deprive Ms. [Jones] Favret

of the lawful custody of her child.” Specifically, Ms. Jones Favret alleged that Ms.

Kathy Favret brought personal items to Mr. Favret and CF while they were at the

Boyce Residence when she knew that a warrant had been issued to Mr. Favret for

the return of CF. Ms. Jones Favret also alleges that the Boyces allowed Mr. Favret

to stay in their home despite their knowledge that Mr. Favret was concealing

himself in their home and refused to return custody of CF. The Petition and

Amended Petition do not set forth conduct so outrageous in character and extreme

in degree as to go beyond all reasonable bounds of decency and be regarded as

atrocious and utterly intolerable in a civilized society. Ms. Jones Favret does not

allege that Ms. Kathy Favret or the Boyces engaged in a pattern of conduct

designed to deprive Ms. Jones Favret permanent custody of CF. Accordingly, we

find that the factual allegations in the Petition and Amended Petition fail to reach

the very high threshold on extreme and outrageous conduct sufficient to establish a

claim of intentional infliction of emotional distress.

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ANSWER TO APPEAL

As mentioned previously, Ms. Kathy Favret filed an “Answer to Appeal,”

wherein she asserts that Ms. Jones Favret’s appeal is frivolous. Ms. Kathy Favret

seeks damages under La. C.C.P. art. 2164, including attorney fees and costs

incurred in defending this appeal. In her Answer to Appeal, Ms. Kathy Favret

contends that the claims alleged by Ms. Jones Favret in the Petition and Amended

Petition were “unwarranted, improper, and made solely for the purposes of

harassing and financially burdening Ms. [Kathy] Favret on account of her

relationship to Mr. Favret.” Ms. Kathy Favret further contends that the appeal filed

by Ms. Jones Favret “is presented for an improper purpose, namely, to harass and

financial[ly] burden Ms. [Kathy] Favret.”

Louisiana Code of Civil Procedure Article 2164 states:

The appellate court shall render any judgment which is just, legal, and
proper upon the record on appeal. The court may award damages,
including attorney fees, for frivolous appeal or application for writs,
and may tax the costs of the lower or appellate court, or any part
thereof, against any party to the suit, as in its judgment may be
considered equitable.

Our jurisprudence reflects that “[a]ppeals are always favored and, unless the appeal

is unquestionably frivolous, damages will not be granted[] due in part to the

possible chilling effect on the appellate process.” Ellison v. Romero, 2020-0376, p.

13 (La. App. 4 Cir. 8/11/20), ___ So.3d ___, ___, 2020 WL 4592805, at *7

(quoting Johnson v. Johnson, 2008-0060, pp. 5-6 (La. App. 4 Cir. 5/28/08), 986

So.2d 797, 801). “Likewise, because the statute allowing the imposition of

damages for frivolous appeal is penal in nature, it ‘must be strictly construed in

favor of the appellant.’” Id. at p. 14, ___ So.3d at ___, 2020 WL 4592805, at *7

(quoting Hunter v. Maximum Grp. Behavioral Servs., Inc., 2010-0930, p. 6 (La.

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App. 4 Cir. 3/16/11), 61 So.3d 735, 739). Additionally, our “jurisprudence reflects

that damages for a frivolous appeal may be awarded ‘if the appellant is trying to

delay the action or if the appealing counsel does not seriously believe the law he or

she advocates.’” Bruno v. Medley, 2020-0515, p. 1 (La. App. 4 Cir. 11/2/20), 310

So.3d 580, 592 (Atkins, J., concurring) (quoting Ellison, 2020-0376, p. 13, ___

So.3d at ___, 2020 WL 4592805, at *7).

Consequently, “[e]ven when an appeal lacks serious legal merit, frivolous

appeal damages will not be awarded unless the appeal was taken solely for the

purpose of delay or the appellant’s counsel is not serious in the position he [or she]

advances.” Id. (first alteration in original) (quoting Miralda v. Gonzalez, 2014-

0888, p. 33 (La. App. 4 Cir. 2/4/15), 160 So.3d 998, 1019). Thus, “[a]ny doubt

regarding whether an appeal is frivolous must be resolved in the appellant’s favor.”

Id. (alteration in original) (quoting Streiffer v. Deltatech Constr., LLC, 2019-0990,

p. 17 (La. App. 4 Cir. 3/25/20), 294 So.3d 564, 578).

In the matter sub judice, we do not find this appeal to be frivolous. The

record does not support a finding that this appeal was filed for the purpose of

delaying the action or that Ms. Jones Favret’s counsel did not seriously believe the

law or position advocated. Accordingly, we find this matter does not meet the

requirements of a frivolous appeal, and we deny Ms. Kathy Favret’s request for

frivolous appeal damages.

DECREE

For the foregoing reasons, we affirm the trial court’s September 9, 2022

judgment, which granted the Boyces’ and Ms. Kathy Favret’s Second Exceptions

of No Cause of Action and thereby dismissed Ms. Jones Favret’s claims against

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them. Further, we do not find the appeal to be frivolous and decline to award

frivolous appeal damages to Ms. Kathy Favret.

AFFIRMED

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