Transamerica Life Insurance Company Versus Bruce Fuselier, Jr. and Tonya L. Gegenheimer

TRANSAMERICA LIFE INSURANCE NO. 21-C-52
COMPANY
FIFTH CIRCUIT
VERSUS
COURT OF APPEAL
BRUCE FUSELIER, JR. AND TONYA L.
GEGENHEIMER STATE OF LOUISIANA

April 21, 2021

Susan Buchholz
First Deputy Clerk

IN RE TONYA L. GEGENHEIMER

APPLYING FOR SUPERVISORY WRIT FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT,
PARISH OF JEFFERSON, STATE OF LOUISIANA, DIRECTED TO THE HONORABLE ROBERT J. BURNS,
JUDGE PRO TEMPORE, DIVISION "D", NUMBER 759-140

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Robert A. Chaisson

WRIT GRANTED

Relator, Tonya Gegenheimer, seeks review of the trial court’s January 7, 2021
judgment that granted the motion to disqualify her counsel, Leo Prange, III, filed by
Respondent, Transamerica Life Insurance Company (“Transamerica”). Ms.
Gegenheimer alleges that Transamerica failed to prove that extraordinary
circumstances existed for it to depose Mr. Prange pursuant to La. C.C.P. art.
1452(B), and the trial court was erroneous in its finding that Mr. Prange is likely to
be a necessary witness under Louisiana Rules of Professional Conduct, Rule 3.7.

In its brief to the trial court, Transamerica argued that Mr. Prange should be
disqualified because, should this matter proceed to trial, he may have to call himself
as the primary witness. Transamerica contended that it will have to call Mr. Prange
as a witness to speak about the details regarding Mrs. Fuselier’s mental capacity at
the time the 2010 will was drafted; her capacity in the years between 2010 and her
death; and, all information actually given to Transamerica related to the wills, Mrs.
Fuselier’s disinheritance of Bruce Fuselier, Jr., and Mrs. Fuselier’s mental capacity
on or before January 6, 2016.

In its oral reasons for judgment, the trial court stated, in pertinent part,

I am aware of the Rules of Professional Conduct, more
specifically, 3.7, which states that a lawyer should not act as an
advocate at a trial in which the lawyer is likely to be a witness and there
were certain criteria related to that. Number one, whether the testimony
relates to uncontested issues, whether the testimony relates to the nature

21-C-52

and value of the legal services rendered, or disqualification of the
lawyer would work a substantial hardship. So, under those three
conditions that I’ve just read, the Court should not disqualify a lawyer.
In this case, I don’t believe disqualification of the lawyer would
work any substantial hardship on the client and, also, I think that
Transamerica has made a showing here today that Mr. Prange will have
to be a necessary witness in this case in order for Transamerica to
defend its position and rebut the allegations made and the penalties
sought against defendant, Transamerica.
So, for the brief reasons I have read into the record, I believe
there is merit to this motion and today I grant the motion, which is
extraordinary in nature, admittedly. But, based upon the peculiar facts
of this case, I believe Mr. Prange needs to be deposed and it seems to
me that the Motion to Disqualify Counsel has to be granted before his
deposition.
For the reasons stated today, I grant the Motion to Disqualify Leo
Prange as counsel of record for Tonya Gegenheimer pending further
Orders of this Court.

A court’s ruling a motion to disqualify counsel is reviewable by application
for supervisory writ. Succession of Armand, 19-751 (La. App. 3 Cir. 2/27/20); 297
So.3d 37, citing Keith v. Keith, 48,919 (La. App. 2 Cir. 5/15/14); 140 So.3d 1202.
A motion to disqualify counsel requires the court to balance important factors: 1) the
right of a party to retain counsel of his choice; and 2) the substantial hardship that
may result from disqualification as against the public perception of and the public
trust in the judicial system. Id., citing Dhaliwal v. Dhaliwal, 49,973 (La. App. 2 Cir.
11/25/15); 184 So.3d 773, 781, writ denied, 16-236 (La. 4/4/16); 190 So.3d 1204.
The disqualification of counsel must be decided on a case-by-case basis. Id. The
burden of proving disqualification of an attorney or other officer of the court rests
on the party making the challenge. Id., citing Walker v. State, Dep’t of Transp. &
Dev., 01-2078, 01-2079 (La. 5/14/02); 817 So.2d 57, 60. The refusal to disqualify
an attorney is typically subject to review under the manifest error standard. Id.,
citing McCann v. ABC Ins. Co., 93-1789 (La. App. 4 Cir. 7/14/94); 640 So.2d 865,
874.

After review, we find that the trial court was manifestly erroneous in its
disqualification of Mr. Prange as Ms. Gegenheimer’s counsel of record at this time.
On the showing made, we find that Transamerica has not established that Mr. Prange
is a necessary witness as to the issues to be litigated at trial. Rather, Transamerica’s
motion to disqualify Mr. Prange as Ms. Gegenheimer’s counsel of record asserts
only speculative grounds for disqualifying Mr. Prange as counsel for Ms.
Gegenheimer (e.g., “he is likely to be a necessary witness in this litigation,” “Mr.
Prange … likely interacted with her, … may have been involved in Jody Fuselier’s
sixth change of Beneficiary Designation, .. and may have advised her on any
purported implication of such a designation.”). (Emphasis added). We agree with
Ms. Gegenheimer’s assertion that disqualification of Mr. Prange is not warranted at
this time and that the taking of Mr. Prange’s deposition would be in the nature of a
“fishing expedition.”

While Mr. Prange’s testimony may hold special credence by providing insight
into Mrs. Fuselier’s mental capacity at the times the beneficiaries were changed and

2

the will was drafted,1 the mental capacity of Mrs. Fuselier at the relevant times can
be determined by other means. Furthermore, any communication between Mr.
Prange and Transamerica can be obtain through a Transamerica representative. As
such, we find that Transamerica failed to meet its burden of proving Mr. Prange
should be disqualified as counsel of record for Ms. Gegenheimer at this time. As
discovery continues, the trial court can revisit this issue in the future upon proper
motion made, if warranted.

Accordingly, we grant the writ application and reverse the trial court’s
disqualification of Leo Prange as the counsel of record for Tonya Gegenheimer.

Gretna, Louisiana, this 21st day of April, 2021.

MEJ
JGG
RAC

1
Compare Succession of Mack, 535 so.2d 461, 464 (La. App. 4th Cir. 1989), where the court held that the testimony
of a notary holds a special credence when testamentary capacity is disputed; see also, In re Succession of Sirgo, 14-
324 (La. App. 5 Cir. 10/29/14); 164 So.3d 832, 839, writ denied, 14-2638 (La. 3/6/15); 160 So.3d 1288, citing,
Succession of Mack.
3

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