Virginia Anne Gerace Benoist v. Jackson National Life Insurance Company, Norma Ford Gerace, and Mary Kathryn Gerace Carleton

STATE OF LOUISIANA

COURT OF APPEAL

9j FIRST CIRCUIT

O"W
2022 CA 0878

VIRGINIA ANNE GERACE BENOIST

W VERSUS

JACKSON NATIONAL LIFE INSURANCE COMPANY, NORMA
FORD GERACE, AND MARY KATHRYN GERACE CARLETON

JUDGMENT RENDERED:
APR 14 2023

Appealed from the Nineteenth Judicial District Court
Parish of East Baton Rouge • State of Louisiana
Docket Number 710,447 • Section 27

The Honorable Trudy M. White, Presiding Judge

Jerry F. Pepper COUNSEL FOR APPELLANT
Baton Rouge, Louisiana PLAINTIFF— Virginia. Anne Gerace
Benoist

Dawn D. Bonnecaze COUNSEL FOR APPELLEE
F. Charles Marionneaux DEFENDANT— Mary Kathryn Gerace
Melissa J. Avant Carleton
Thomas C. Naquin
Baton Rouge, Louisiana

Michelle Lorio St. Martin COUNSEL FOR APPELLEE
David G. Koch DEFENDANT ---Norma Ford Gerace
Riley E. Huntington
Baton Rouge, Louisiana

Covert J. Geary COUNSEL FOR APPELLEE
Taylor Wimberly DEFENDANT— Jackson National Life
Eric P. Morvant Insurance Company
New Orleans, Louisiana

BEFORE: WELCH, PENZATO, AND LANIER, JJ.

WELCH, J.

The plaintiff, Virginia " Ginny" Anne Gerace Benoist, challenges the trial

court' s judgment sustaining a peremptory exception raising the objection of no cause

of action for intentional interference with contractual rights filed by the defendant,

her sister Mary Kathryn " Mary Kay" Gerace Carleton, which dismissed all claims

against Mary Kay. For the following reasons, we affirm.

BACKGROUND

This lawsuit involves a dispute among family members. This case has

previously been before this, Court.1 In addition to the instant matter, there is also

another appeal pending. 2 Pertinent to the instant appeal, Ginny filed a " Petition for

Breach of Contract, and Intentional Interference with Contractual Rights, and for

Removal of Agent" on August 9, 2021. Ginny alleged that Jackson National Life

Insurance Company (" JNLIC") issued an annuity contract (" Annuity") to her

mother, Norma F. Gerace, on December 6, 2007. Mrs. Gerace named Ginny' s

daughter, Mary Turner Benoist, as her mandatary; named Ginny a per stirpes

irrevocable beneficiary of the Annuity; and named Mary Kay a per stirpes

beneficiary of the Annuity. Ginny alleged that despite the " substantial adverse tax

1 In her August 9, 2021 petition, Ginny brought an action to review the acts of a mandatary against
her mother, Norma F. Gerace, as principal, and against her sister, Mary Kay, as mandatary, seeking
the disqualification or termination of Mary Kay as her mother' s mandatary. This Court affirmed a
notion to dismiss Mrs. Gerace from Ginny' s action to review the acts of a mandatary; the Supreme
Court denied writs. See Benoist v. Jackson Nat' l Life Ins. Co., 2022- 0292 ( La. App. 1St Cir.
11/ 15122), So. 3d , 2022 WL 16946498, writ denied, 2022- 01920 ( La. 3/ 14/ 23), So. 3d
2023 WL 2494558. Thereafter, the trial court dismissed all of Ginny' s mandate -related
actions and claims against any and all defendants that were raised in her August 9, 2021 petition,
in a judgment signed on November 12, 2021.

See also Benoist v. Jackson Nat' l Life Ins. Co., 2022- 0879 ( La. App. 1St Cir. 311! 23), S0. 3d
2023 WL 2291648 ( amended, and affirmed as amended, a judgment awarding attorney fees
and costs to Mrs. Gerace in the amount of $76, 543. 63, related to her motion to dismiss).

2 See Benoist v. Jackson Nat' l Life Ins. Co., 2022- 0877 ( La. App. 1St Cir. — /_/_ J. In that
appeal, Ginny challenges a motion for summary judgment granted in favor of JNLIC, regarding
Ginny' s breach of contract claims against JNLIC. In her August 9, 2021 petition, Ginny alleged
that as an irrevocable beneficiary, she was a third -party beneficiary of a stipulation pour autrui,
which endowed her with contractual rights and standing to assert a breach of contract claim against
JNL1C, challenging the liquidation of the annuity by Mrs. Gerace.

2

consequence" and " carefully crafted estate plan," on January 3, 2020, Mrs. Gerace

withdrew the entire balance of her Annuity, in the then -present amount of

226, 259. 80.
I

Pertinent to the instant appeal, Ginny raised a claim of intentional interference

with contractual rights against Mary Kay. From 2005 to 2019, Mrs. Gerace lived

with her daughter Mary Kay. Ginny alleged that during that time, Mary Kay

interfered and tampered with Mrs. Gerace' s mail, installing a lock on the mailbox in

which Mrs. Gerace received mail, and refusing to furnish her mother with a key to

the mailbox in order to retrieve her own mail. Ginny alleged that she believed,

based on her own reasonable conclusions drawn from substantial circumstantial

evidence," that her sister Mary Kay caused the Annuity " disinvestment, wholly

without proper authority, and without any proper form of legal mandate, power of

attorney, or direction" from Mrs. Gerace. Ginny claimed Mrs. Gerace denied ever

authorizing the disinvestment of her Annuity. Ginny further alleged that Mary Kay

tortuously interfered with" Ginny' s " contractual rights as a third party and

irrevocable beneficiary under the JNLIC' Annuity.

Thereafter, Mary Kay filed a peremptory exception raising the objection of no

cause of action for intentional interference with contractual rights. The trial court set

the exception for hearing on March 22, 2022. Following the argument of counsel,

the trial court sustained Mary Kay' s peremptory exception raising the objection of

no cause of action for intentional interference with contractual rights. The trial court

signed a judgment in accordance with its ruling on April 1, 2022, which decreed as

follows:

T] he Peremptory Exception of No Cause of Action for
Intentional Interference with Contractual Rights filed on
behalf of Mary Kathryn Gerace Carleton is GRANTED

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and all claims against Mary Kathryn Gerace Carleton are
DISMISSED. 3[1

Ginny now appeals.4

NO CAUSE OF ACTION

As used in the context of the peremptory exception, a " cause of action" refers

to the operative facts that give rise to the plaintiff' s right to judicially assert the action

against the defendant. Scheffler v. Adams and Reese, LLP, 2006- 1774 ( La.

2122107), 950 So.2d 641, 646. The peremptory exception raising the objection of no

cause of action is used to test the legal sufficiency of the petition by determining

whether the law affords a remedy on the facts alleged in the petition. Scheffler, 950

So. 2d at 646. The purpose of the exception of no cause of action is not to determine

whether the plaintiff will ultimately prevail at trial, but to only ascertain if a cause

of action exists. Louisiana Pub. Serv. Comm' n v. Louisiana State Legislature,

2012- 0353 ( La. App. Pt Cir. 4126113), 117 So. 3d 532, 537. No evidence may be

introduced to support or controvert the exception of no cause of action. La. C. C. P.

art. 931. The exception is triable on the face of the pleadings, and, for purposes of

resolving the issues raised by the exception, the well -pled facts in the petition must

be accepted as true. 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. Scheffler, 950 So. 2d

at 646.

3 The trial court' s April 1, 2022 judgment does not specify whether the dismissal of Ginny' s claims
against Mary Kay are with or without prejudice. When a judgment is silent as to whether it is
dismissed with or without prejudice, the dismissal must be without prejudice. Allen v. Allen, 2016-
0407 ( La. App. I" Cir. 12122/ 16), 210 So. 3d 477, 480. A judgment dismissing a suit without
prejudice is a final, appealable judgment. Bridges v. Smith, 2001- 2166 (La. App. V Cir. 9127102),
832 So. 2d 307, 309 n. 4, writ denied, 2002- 2951 ( La. 2114/ 03), 836 So. 2d 121. A trial court' s
dismissal of a plaintiff's claims against a defendant " without prejudice" in the context of a
peremptory exception raising the objection of no cause of action is to permit the plaintiff the
opportunity to amend their petition to state a valid cause of action. See La. C. C. P. art. 934. See
also, e.g., Robertson v. Sun Life Fin., 2009- 2275 ( La. App. 1st Cir. 6/ 11/ 10), 40 So. 3d 507, 514;

McCartney v. McCormick, 2007- 0997 ( La. App. 3` d Cir. 1/ 30108), 974 So. 2d 854, 860.
a
Ginny timely filed a motion for devolutive appeal on June 3, 2022. The trial court signed an order
of appeal on June 3, 2022, notice of which was transmitted by the clerk of court to the parties on
June 9, 2022.

4

The burden of demonstrating that a petition fails to state a cause of action is

on the mover. Louisiana Pub. Serv. Comm' n, 117 So. 3d at 537. Because the

exception raises a question of law and the trial court' s decision is based only on the

sufficiency of the petition, a judgment sustaining a peremptory exception raising the

objection of no cause of action is reviewed by an appellate court de novo. Louisiana

Pub. Serv. Comm' n, 117 So. 3d at 537. 5

TORTIOUS OR INTENTIONAL INTERFERENCE WITH CONTRACT

In 9 to 5 Fashions, Inc. v. Spurney, 538 So. 2d 228, 231 ( La. 1989), the

seminal case regarding Louisiana' s cause of action for tortious interference with

contract, the Louisiana Supreme Court was called upon to decide whether an officer

of a corporation owes a duty to a person having a contract with the corporation to

refrain from unjustified, intentional interference with the contractual relationship. 9

to 5 Fashions, Inc., 538 So.2d at 229. Our Supreme Court recognized a very limited

application of the common law doctrine of tortious interference with contract to be

available under Louisiana law. Pursuant to the holding in 9 to 5 Fashions, Inc., a

cause of action for tortious interference with contract arises from a corporate

5 This Court has held that an exception of no cause of action should not be maintained in part, so
as to prevent a multiplicity of appeals. See Harrington v. Board of Supervisors of Louisiana
State University and Agricultural and Mechanical College, 2021- 1527 ( La. App. 1St Cir.
9/ 29/ 22), 2022 WL 4587873, * 5 ( unpublished), writ denied, 2022- 01621 ( La. 1/ 11/ 23), 352 So. 3d

985 ( citIn Everything on Wheels Subaru, Inc, v. Subaru South, Inc., 616 S0. 2d 1234, 1236
La. 1993)). Therefore, if there are two or more items of damages or theories of recovery that arise
out of the operative facts of a single transaction or occurrence, a partial judgment on an exception
of no cause of action should not be rendered to dismiss an item of damages or theory of recovery.
Harrington, 2022 WL 4587873 at * 5. See also State of Louisiana, by and through Caldwell v.
Astra Zeneca AB, 2016- 1073 ( La. App. 1St Cir. 4111/ 18), 249 So. 3d 38, 42 ( en banc); Ikonitski
v. Ikonitski, 2020- 1160 ( La. App. I" Cir. 11/ 4/ 21), 2021 WL 5121220, * 4 ( unpublished).

Here, Ginny' s petition alleged multiple causes of action against three defendants, including: breach
of contract against JNLIC; intentional interference with contractual rights against Mary Kay; and
an action under La. R.S. 9: 3 851 to review the acts of a mandatary, against Mrs. Gerace as principal
and against Mary Kay as mandatary. We recognize that these theories of recovery arise out of the
same set of operative facts alleged by Ginny in her petition. However, there is no dispute that the
sole remaining cause of action against Mary Kay is intentional interference with contractual rights.
In ruling in Mary Kay' s favor on the exception of no cause of action for intentional interference
with contractual rights, the trial court did not sustain an impermissible partial exception of no cause
of action. The prohibition against granting a partial exception of no cause of action does not apply
in this particular instance, where the trial court dismissed Ginny' s only remaining claim against
this one particular defendant, Mary Kay.

officer' s duty to refrain from intentionally, and without justification, interfering with

the contractual relationship between his employer and a third person. See Hawkins

v. Decuir, Clark, & Adams, LLP, 2016- 1338 ( La. App. 1St Cir. 8/ 16/ 17), 2017 WL

3528872, * 7 ( unpublished) ( cites 9 to 5 Fashions, Inc., 538 So. 2d at 23 1) (" Where

officers knowingly and intentionally act against the best interest of the corporation

or outside the scope of their authority, they can be held liable by the party whose

contract right has been damaged.").

The action for intentional interference with contractual rights is a very narrow

one, with five elements a plaintiff must prove to recover: ( 1) the existence of a

contract or 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 cause 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; and ( 5) causation of damages to the plaintiff

by the breach of contract or difficulty of its performance brought about by the officer.

Allied N. Am. Corp. of Texas v. Edgecomb, 2009- 0113 ( La. App. 1St Cir. 6119109),

2009 WL 1717358, * 7 ( unpublished) ( citing 9 to 5 Fashions, Inc., 538 So. 2d at

234).

Louisiana courts have consistently limited the application of 9 to 5 Fashions,

Inc. to its facts and have held that, to succeed at trial on a claim of tortious

interference with contract, the plaintiff must prove, among other things, the existence

of a contract or a legally protected interest between the plaintiff and the corporation

that employs the corporate officer. Hawkins, 2017 WL 3528872 at * 7 ( citing 9 to 5

Fashions, Inc., 538 So. 2d at 234). Where the interference alleged is beyond the

cause of action created in 9 to 5 Fashions, Inc., the trial court is correct in denying

the claim. Hawkins, 2017 WL 3528872 at * 7.

n

Thus, under a strict application of 9 to 5 Fashions, Inc. to its facts, one who

is not a party to the contract at issue, but who merely claims to have a pecuniary

interest or third -party interest in the contract, has no cause of action for tortious or

intentional interference with contract. See Belle Pass Terminal, Inc. v. John, Inc.,

618 So.2d 1076, 1080 ( La. App, 1ST Cir.), writ denied, 626 So.2d 1172 ( La. 1993)

finding no cause of action existed for tortious interference with contract where no

privity of contract existed between the defendants and the contracts at issue), citing

Tallo v. Stroh Brewery Co., 544 So.2d 452, 454 ( La. App. 4" Cir.), writ denied,

547 So. 2d 355 ( La. 1989). Therefore, considering the allegations of Ginny' s petition

and the parties' arguments, we find that Ginny has no claim against her sister Mary

Kay for tortious or intentional interference with contract.

Furthermore, pursuant to La. C.C. P. art. 934, we find there are no set of facts

that Ginny may allege to state a valid cause of action for intentional interference

with contractual rights and decline to afford her the opportunity to amend her petition

to so state. See Herigodt v. Town of Golden Meadow, 2020- 0752 ( La. App. 1St Cir.

2122/ 21), 321 So. 3d 1004, 1015, writ denied, 2021- 00880 ( La. 10/ 12121), 325 So.3d

1070. We affirm the trial court' s judgment sustaining Mary Kay' s peremptory

exception of no cause of action for intentional interference with contractual rights.

DECREE

We affirm the trial court' s April 1, 2022 judgment, which sustained the

peremptory exception raising the objection of no cause of action for intentional

interference with contractual rights filed by Mary Kathryn Gerace Carleton and

dismissed all claims against Mary Kathryn Gerace Carleton. We assess appellate

court costs to Virginia Anne Gerace Benoist.

AFFIRMED.

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