Ashton R. O'dwyer, Jr. and Alexis O'Dwyer Navarro (Both Appearing in Inpropria Persona) Versus The Metairie Towers Condominium Association Board President Ronald T. Carter, Individually, Advanced Property Restoration Services, LLC and Its Owner Jason Houp, Individually, Strategic Claim Consultants, LLC and Its Owner Brandon Lewis, Individually, Gno Property Management, LLC and Its President Robert Kirk Phillips, Individually, Jack K. Whitehead, Jr (A Professional Law Corporation) and Jack K. Whitehead, Jr., Individually, and Cynthia Bologna, Individually, and the Loeb Law Firm, LLC, J. Bartholomew Kelly III, Individually, and Alvendia, Kelly & Demarest, LLC, Charles E. Sutton, Individually, and Sutton Law Firm, LLC, Brian D. Grubb, Individually, and Gravis Law Pllc, and Certain Underwriters at Lloyd's, London Subscribing to Commercial Lines Policy No. Pxa0001321-01

ASHTON R. O'DWYER, JR., ET AL. NO. 24-CA-277

VERSUS FIFTH CIRCUIT

THE METAIRIE TOWERS CONDOMINIUM COURT OF APPEAL
ASSOCIATION BOARD PRESIDENT, ET AL.
STATE OF LOUISIANA

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 849-260, DIVISION "N"
HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

January 29, 2025

SCOTT U. SCHLEGEL
JUDGE

Panel composed of Judges Jude G. Gravois,
Marc E. Johnson, and Scott U. Schlegel

AFFIRMED
SUS
JGG
MEJ

PLAINTIFF/APPELLANT,
ASHTON R. O'DWYER, JR.
In Proper Person

COUNSEL FOR DEFENDANT/APPELLEE,
STRATEGIC CLAIM CONSULTANTS, LLC AND BRANDON LEWIS,
INDIVIDUALLY
Michael D. Lane

COUNSEL FOR DEFENDANT/APPELLEE,
JACK K. WHITEHEAD, JR., CHARLES E. SUTTON AND SUTTON LAW
FIRM, L.L.C.
Gus A. Fritchie, III
Edward W. Trapolin
Christopher H. Irwin

COUNSEL FOR DEFENDANT/APPELLEE,
J. BARTHOLOMEW KELLY, III AND ALVENDIA, KELLY & DEMAREST,
LLC
Richard C. Stanley
Kathryn W. Munson
J. Andrew Mieras

SCHLEGEL, J.

Plaintiff/Appellant, Ashton R. O’Dwyer, Jr., seeks review of the trial court’s

March 20, 2024 judgment that granted exceptions of no right of action in favor of

defendants, J. Bartholomew Kelly, III, Alvendia, Kelly & Demarest, LLC, Charles

E. Sutton, Jr., Sutton Law Firm, LLC, Jack K. Whitehead, Jr., Strategic Claim

Consultants, LLC, and Brandon Lewis. Mr. O’Dwyer also appeals the trial court’s

denial of his motion to transfer this lawsuit to another division of the 24 th Judicial

District Court. For reasons stated more fully below, we affirm the trial court’s

rulings.

FACTS AND PROCEDURAL BACKGROUND

This matter arises from damages sustained to the Metairie Towers

condominium complex on August 29, 2021, during Hurricane Ida, as well as a

second incident on September 28, 2021 that allegedly caused additional damage to

the property. Metairie Towers is a 219-unit condominium building located at 401

Metairie Road in Metairie, Louisiana. Mr. O’Dwyer alleges that he owns Unit

330, as well as an undivided interest in the common areas of the condominium

complex. The Metairie Towers Condominium Association, Inc. (“MTCA”) is a

non-profit corporation that manages the property through its Board of Directors.

On November 27, 2023, Mr. O’Dwyer filed this lawsuit alleging that the

MTCA’s Board of Directors failed to secure adequate insurance for the property,

squandered over $30 million dollars of insurance proceeds, and mishandled the

repairs to the condominium complex. In addition to suing the Board of Directors

and certain members, Mr. O’Dwyer also sued the MTCA’s insurer, Certain

Underwriters at Lloyd’s, London, as well as contractors, property managers,

consultants, attorneys, and public adjusters hired by the Board of Directors. Mr.

O’Dwyer contends that the MTCA improperly paid the insurance proceeds to these

individuals and entities, rather than utilizing them to repair Metairie Towers. Mr.

24-CA-277 1

O’Dwyer also contends that unit owners were repeatedly assured that the insurance

proceeds would be sufficient to repair the property. However, he alleges that after

two years, the Board of Directors reversed course in September 2023 and advised

the unit owners that the remaining insurance proceeds were insufficient to rebuild

the condominium complex, that the rebuild would require a large assessment

against the unit owners, and that the unit owners should sell the property rather

than attempting to rebuild it. Mr. O’Dwyer filed his petition for damages shortly

thereafter, in November 2023.

In response to Mr. O’Dwyer’s petition, several of the defendant lawyers and

their law firms filed exceptions of no right of action arguing that they were

engaged by the MTCA through its Board of Directors or other parties, and

therefore, Mr. O’Dwyer did not have a right of action against them because they

did not have an attorney-client relationship with him. The public adjuster hired by

the MTCA, Strategic Claims Consultants, LLC, and its “owner,” Brandon Lewis,

also filed exceptions of no right of action raising similar arguments regarding the

lack of a contractual relationship with and lack of a duty owed to Mr. O’Dwyer.

Prior to the hearing on the exceptions, Mr. O’Dwyer filed a motion to transfer this

matter to another division of the same court that was handling a class action

proceeding brought by the unit owners against the MTCA and other defendants

arising out of the Hurricane Ida damages to Metairie Towers. Mr. O’Dwyer also

requested a continuance of the hearing on the exceptions based on his request to

transfer this lawsuit.

Following oral arguments on March 20, 2024, the trial court denied Mr.

O’Dwyer’s motion to transfer and continue the hearing on the exceptions. After

conducting an evidentiary hearing on that same date, the trial court granted the

exceptions of no rights of action and dismissed Mr. O’Dwyer’s claims against the

public adjuster, Strategic, and several of the lawyer/law firm defendants. The trial

24-CA-277 2

court stated that all other exceptions raised by defendants were moot.1 The trial

court further explained that the grounds for granting the exceptions of no right of

action could not be removed pursuant to La. C.C.P. art. 934, and therefore,

dismissed Mr. O’Dwyer’s claims against defendants with prejudice. The trial court

entered a written judgment on March 20, 2024. The trial court also issued written

reasons for its judgment on April 23, 2024, providing as follows:

Assuming that the petition states a valid cause of action, the Court
holds that, as to Defendants herein, Plaintiffs Ashton R. O’Dwyer, Jr.
and Alexis O’Dwyer Navarro do not belong to the class of persons to
whom the law grants the causes of action asserted in the suit. There
was no attorney-client relationship or engagement agreement between
Plaintiffs Ashton R. O’Dwyer, Jr. and Alexis O’Dwyer Navarro and
any of Defendants herein. Plaintiffs have no right of action as to
causes of action arising from an attorney-client relationship with
Defendants or legal representation by Defendants. Plaintiffs have no
right of action as to the claims asserted against Defendants Strategic
Claim Consultants, LLC and Brandon Lewis, individually, as
Plaintiffs did not have a contract with Defendants Strategic Claim
Consultants, LLC and Brandon Lewis, individually, and Plaintiffs
were not clients of and did not receive services from Defendants
Strategic Claim Consultants, LLC and Brandon Lewis, individually.
The evidence does not show any right of action of Plaintiffs as third-
party beneficiaries or primary intended beneficiaries of the services of
any of Defendants herein or of a contract or policy under which
services were provided. Plaintiffs are not a member of the class that
has a legal interest in the subject matter of the litigation.

Mr. O’Dwyer filed a timely motion for devolutive appeal, which the trial

court granted on April 3, 2024.

DISCUSSION

Motion to Transfer

We first address Mr. O’Dwyer’s claim that the trial court erred by failing to

transfer his individual claims in this matter to Division H of the 24th Judicial

District Court for “ultimate consolidation” with a class action proceeding, AVMI,

L.L.C., et al. v. Metairie Towers Condominium Association, Inc., et al., No. 839-

979. Shortly before the hearing date on the exceptions at issue in this proceeding,

1
In addition to the exceptions of no right of action, some defendants also raised exceptions of no
cause of action, peremption, and vagueness.

24-CA-277 3

Mr. O’Dwyer filed a motion to transfer this case pursuant to Rule 9.4 of the Rules

for Proceedings in District Courts. He also requested a continuance of the hearing

date on the pending exceptions in view of the requested transfer. According to the

parties, the class action litigation involves negligence, detrimental reliance and

breach of fiduciary duty claims, brought by and on behalf of unit owners, against

the MTCA, its Board of Directors, as well as various insurers, consultants and

management companies, arising from the procurement of insurance and the

handling of insurance claims, insurance proceeds, and repairs of the Metairie

Towers condominium complex following Hurricane Ida. While the public

adjuster, Strategic, is a party to the class action litigation, it does not include any of

the attorneys or other individuals named as parties in the present matter.

Rule 9.4(b) provides that “all subsequent actions asserting the same claim by

the same parties . . . shall be transferred to the division to which the first case filed

was allotted, whether or not the first case is still pending.” While some overlap

exists, the parties do not dispute that the current matter and the class action

litigation do not involve the same claims by the same parties. Consequently, Rule

9.4(b) does not apply in this case.

Further, La. C.C.P. art. 253.2, which is the governing provision applicable

to the motion to transfer, only allows the transfer of a case to another division in

the same court when “agreed to by all parties, or unless it is being transferred to

effect a consolidation pursuant to Article 1561.” Article 253.2 further provides

that “the supreme court, by rule, may establish uniform procedures for reassigning

cases under circumstances where an expeditious disposition of the cases may be

effectuated.” Mr. O’Dwyer does not dispute that defendants did not consent to a

transfer, and that there is no order for consolidation in the class action. Further, he

does not point to any Supreme Court rule allowing a transfer of this case.

24-CA-277 4

Accordingly, the trial court did not err in denying Mr. O’Dwyer’s motion to

transfer.

Exceptions of No Right of Action ‒ Attorneys Hired By
The MTCA Board of Directors

We next address Mr. O’Dwyer’s assignments of error asserting that the trial

court erred by granting the exceptions of no right of action in favor of certain

attorneys hired by the Board of Directors to represent the MTCA and dismissing

his legal malpractice claims against them.

The exception of no right of action is a peremptory exception, the function

of which is to have an action declared legally nonexistent or barred by law and

tends to dismiss or defeat the action. La. C.C.P. arts. 923 and 927. An exception

of no right of action assumes that the petition states a valid cause of action and

tests whether the plaintiff has the capacity or legal interest in judicially enforcing

the right asserted. Kreb, Lasalle, Lemieux Consultants, Inc. v. G.E.C., Inc., 16-24

(La. App. 5 Cir. 7/27/16), 197 So.3d 829, 831. When the facts alleged in the

petition provide a remedy under the law to someone, but the plaintiff who seeks the

relief is not the person in whose favor the law extends the remedy, the proper

objection is no right of action, or want of interest in the plaintiff to institute the

suit. Howard v. Administrators of Tulane Educational Fund, 07-2224 (La. 7/1/08),

986 So.2d 47, 59.

Whether a plaintiff has a right of action is a question of law subject to de

novo review. Wallace C. Drennan, Inc. v. Kerner, 21-664 (La. App. 5 Cir.

8/17/22), 348 So.3d 194, 199. The party raising the exception has the burden of

proving the exception. Roubion Shoring Company, LLC v. Crescent Shoring, LLC,

16-540 (La. App. 5 Cir. 5/17/17), 222 So.3d 921, 925. Evidence is admissible in

support of the exception of no right of action. La. C.C.P. art. 931. In instances

when evidence has been introduced at the hearing on a peremptory exception, the

24-CA-277 5

trial court’s findings of fact are subject to the manifest error-clearly wrong

standard of review. State ex rel. Caldwell v. Molina Healthcare, Inc., 18-1768 (La.

5/8/19), 283 So.3d 472, 477.

J. Bartholomew Kelly, III and Alvendia, Kelly & Demarest, LLC

Defendants, J. Bartholomew Kelly, III, and his law firm, Alvendia, Kelly &

Demarest, LLC (the “AKD defendants”), contend that the Board of Directors hired

them to represent the MTCA to recover insurance proceeds for damages that the

condominium complex sustained following Hurricane Ida. In response to Mr.

O’Dwyer’s petition, the AKD defendants filed exceptions of no right of action,

peremption, no cause of action, and vagueness seeking dismissal of the legal

malpractice claims filed against them by Mr. O’Dwyer. As previously explained,

the trial court granted the exceptions of no right of action and dismissed all of Mr.

O’Dwyer’s claims against the AKD defendants based on its finding that Mr.

O’Dwyer did not have an attorney-client relationship with them and did not enjoy

third-party beneficiary status.

In order to prevail on a legal malpractice claim, the plaintiff bears the burden

of proving: (i) an attorney-client relationship; (ii) the attorney was negligent in his

representation of the client; and (iii) that negligence caused the plaintiff loss.

Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129, 138. The plaintiff bears

the burden of proof of each of these elements. Id. Failure to prove one of these

elements is fatal to the claim. Willis v. Meilleur, 11-705 (La. App. 5 Cir. 5/31/12),

96 So.3d 1259, 1270, writ denied, 12-2078 (La. 11/16/12), 102 So.3d 42.

An attorney-client relationship is a threshold requirement for a legal

malpractice action. Barkerding v. Whittaker, 18-415 (La. App. 4 Cir. 12/28/18),

263 So.3d 1170, 1181, writ denied, 19-166 (La. 4/8/19), 267 So.3d 607. Even

though the question of whether an attorney-client relationship exists turns largely

on one’s subjective belief that it does, a person’s subjective belief that an attorney

24-CA-277 6

represents him must be reasonable under the circumstances, and must have been

induced by the attorney. Murphy v. MKS Plastics, L.L.C., 19-1485 (La. App. 1

Cir. 9/21/20), 314 So.3d 65, 71, writ denied, 20-1225 (La. 12/22/20), 307 So.3d

1041. The requirement that the belief be reasonable is an objective standard. Id.

For this reason, an attorney-client relationship cannot exist in the absence of some

initial communication – verbal, written, or otherwise ‒ between the attorney and

the client. Id.

In Barkerding, supra, a plaintiff-member of a limited liability company sued

his company’s lawyers for legal malpractice in connection with the development

and funding of the plaintiff’s invention and company. The trial court found an

implied attorney-client relationship existed with the individual plaintiff. However,

the Fourth Circuit reversed, finding that the individual’s belief that he was

represented by the company’s attorney was unreasonable because the defendant

lawyers executed an engagement letter only with the LLC, the lawyer expressly

identified the LLC as the client throughout the representation, and the individual

did not present any evidence to establish that he was represented by the defendant

lawyers. Id. at 1186. The Fourth Circuit further recognized that Louisiana Rule of

Professional Conduct 1.13(a) provides that a lawyer retained by an organization

“represents the organization acting through its duly authorized constituents.” Id.

At the hearing on the exceptions, Mr. O’Dwyer acknowledged that he did

not enter into an engagement letter and did not have a contract for services with the

AKD defendants or any other lawyers that he named as defendants in his petition

for damages. He further stated that he revoked any authority that he may have

believed the MTCA’s attorneys had to act on his behalf. Despite these assertions,

Mr. O’Dwyer argued before the trial court and now on appeal, that as a unit owner,

an attorney-client relationship exists between him and the attorney defendants by

“operation of law.” He more specifically argues that this relationship exists based

24-CA-277 7

on the Louisiana Condominium Act, La. R.S. 9:1121.101, et seq., as well as the

“condominium documents,” including the MTCA’s articles of incorporation,

declaration, and by-laws.2 He contends that the condominium documents provide

that the MTCA is a nonprofit corporation created solely for the use and benefit of

the condominium unit owners. He further argues that the unit owners, rather than

nonprofit corporation, own all of the insured property.

We first observe that Mr. O’Dwyer did not introduce any of the

“condominium documents” into evidence. While he attached copies of these

documents, as well as others, to his oppositions to the exceptions of no right of

action, he did not introduce these documents into evidence at the hearing. We

recognize that during the March 20, 2024 hearing, Mr. O’Dwyer stated that his

“papers” are “verified and in effect my affidavits.”3 But he did not ask to introduce

any “verified” pleadings, memoranda, or exhibits into evidence. Courts cannot

consider evidence that has not been properly and officially offered and introduced,

even if it is physically placed in the record. Denoux v. Vessel Mgmt. Servs., Inc.,

07-2143 (La. 5/21/08), 983 So.2d 84, 88. Documents that are attached to

memoranda but not formally introduced are not evidence. Id.

Mr. O’Dwyer also cites to La. C.C.P. art. 853 in his petition, memoranda,

and appellate brief as a basis to incorporate attached exhibits into the filing. La.

C.C.P. art. 853 provides that a “copy of any written instrument that is an exhibit to

2
Mr. O’Dwyer cites specifically to La. R.S. 9:1121.103(8) from the Louisiana Condominium
Act, which defines that term “Association of unit owners” or “association” as “a corporation, or
unincorporated association, owned by or composed of the unit owners and through which the unit
owners manage and regulate the condominium.”

He also cites to La. R.S. 9:1123.101 which provides as follows regarding the membership of
the association:

The membership of the association at all times shall consist exclusively of all the unit
owners or, following termination of the condominium, of all former unit owners entitled
to distributions of proceeds under Section 1122.112, or their heirs, successors, or assigns.
The association shall be organized as a profit or nonprofit corporation, or as an
unincorporated association.
3
Mr. O’Dwyer’s petition and opposition briefs contain verifications at the end of the documents
that are signed by Mr. O’Dwyer, but the verifications are not notarized.

24-CA-277 8

a pleading is a part thereof.” However, pleadings and attachments to motions are

not evidence. See Andrews v. Marts, 22-576 (La. App. 1 Cir. 11/15/22), 356 So.3d

1059, 1062-63. The attachments are simply part of the pleadings. Id. at 1063.

Furthermore, an opposition memorandum is not a pleading recognized under the

Louisiana Code of Civil Procedure. See M.J. Farms, Ltd. v. Exxon Mobil Corp.,

07-450 (La. 4/27/07), 956 So.2d 573, 574. Therefore, even though the

“condominium documents” Mr. O’Dwyer refers to were attached to his opposition

briefs, we cannot consider them because they were never formally introduced and

admitted.

Regardless, we agree with the AKD defendants that Mr. O’Dwyer has no

right of action against them because Mr. O’Dwyer admitted that he did not enter

into an agreement with these defendants. In addition, we find that there is no

evidence to establish that Mr. O’Dwyer could have reasonably believed that he had

an attorney-client relationship with the AKD defendants. Thus, we find that the

trial court did not err in finding that Mr. O’Dwyer failed to meet his burden to

establish the threshold issue of an attorney-client relationship.

Mr. O’Dwyer alternatively argues that he has a right of action against the

AKD defendants because he is a third-party beneficiary of their representation of

the MTCA. La. C.C. art. 1978 provides that a “contracting party may stipulate a

benefit for the third person called a third party beneficiary.” Such a contract is

commonly referred to as a stipulation pour autrui in Louisiana. Joseph v. Hosp.

Service Dist. No. 2 of Parish of St. Mary, 05-2364 (La. 10/15/06), 939 So.2d 1206,

1211. The Louisiana Civil Code does not provide an “analytic framework for

determining whether a third-party beneficiary contract exists” in a particular case.

Id. at 1212. The Louisiana Supreme Court, however, has held that there are three

criteria for determining whether contracting parties have provided a benefit for a

third party and requires a review of whether: (1) the stipulation for a third party is

24-CA-277 9

manifestly clear; (2) there is certainty as to the benefit provided the third party; and

(3) the benefit is not a mere incident of the contract between the promisor and the

promisee. Id.

Pursuant to La. C.C. art. 1981, “[t]he stipulation gives the third party

beneficiary the right to demand performance from the promisor.” Each case must

be decided on a case-by-case basis, and “[e]ach contract must be evaluated on its

own terms and conditions in order to determine if the contract stipulates a benefit

for a third person.” Joseph, 939 So.2d at 1212. A stipulation for the benefit of a

third party is never presumed, and the party claiming the benefit bears the burden

of proof. Id. “The most basic requirement of a stipulation pour autrui is that the

contract manifests a clear intention to benefit the third party; absent such a clear

manifestation, a party claiming to be a third-party beneficiary cannot meet his

burden of proof.” Id.

Mr. O’Dwyer again turns to the “condominium documents” and the fact that

the unit owners, rather than the MTCA, owned the insured property to argue that

he and the other unit owners are the third-party beneficiaries of the professional

services provided by the lawyers hired to represent the MTCA. However, even if

the “condominium documents,” to which the AKD defendants were not a party,

were properly introduced into evidence, Mr. O’Dwyer does not argue that they

serve to define an attorney-client relationship or manifest a clear intention that the

future legal services of any attorney hired by the Board of Directors shall be for the

benefit of the unit owners as members of the MTCA. Further, we do not find that

these pre-existing documents can serve to establish Mr. O’Dwyer as a third-party

beneficiary of an engagement agreement with the MTCA’s attorneys simply

because they purportedly mention that the purpose of creating the MTCA was for

“the use and benefit of the condominium unit owners.” There is no evidence that

24-CA-277 10

the agreement between the MTCA and the AKD defendants manifests a clear

intention to benefit Mr. O’Dwyer.

Despite this lack of evidence, Mr. O’Dwyer urges this Court to follow the

Louisiana Supreme Court’s decision in Maggio v. Parker, 17-1112 (La. 6/27/18),

250 So.3d 874. However, the Maggio case provides no guidance in the present

matter because it involved an analysis of whether language in a settlement

agreement entered into by an employee releasing “all other persons, firms, or

corporations who are or might be liable” served to benefit the employer and

employer’s insurer as third-party beneficiaries. Id. at 880.

Mr. O’Dwyer also cites to Speedee Oil Change No. 2, Inc. v. Nat'l Union

Fire Ins. Co., 444 So.2d 1304, 1307 (La. App. 4th Cir. 1984). This matter is also

inapposite because it involved a legal malpractice suit where the issue was whether

a corporation had the right to recover against the attorney’s insurer for incorrect

advice the attorney provided to an incorporator regarding certain actions the

corporation should take in the future to exercise an option to extend a lease. The

insurer argued that the corporation did not have a right of action because it was not

in existence at the time the attorney provided the advice. The appellate court

confirmed that the corporation was a third-party beneficiary of the advice because

the evidence introduced established that the attorney was assisting in the formation

of the corporation, the attorney understood the legal advice he provided was for the

benefit of the corporation, and the corporation accepted the stipulation in its favor

by acting on the attorney’s advice. Id.

As explained above, Mr. O’Dwyer does not provide any evidence of a clear

intent to benefit him and does not cite to any precedent extending third-party

beneficiary status to members of a condominium association in a scenario similar

to this matter. Accordingly, we do not find that the trial court abused its discretion

24-CA-277 11

by finding that Mr. O’Dwyer does not enjoy third-party beneficiary status in this

matter.

Charles E. Sutton, Jr. and Sutton Law Firm, LLC

Defendants, Charles E. Sutton, Jr. and Sutton Law Firm, LLC (the “Sutton

defendants”) also filed a similar exception of no right of action arguing that Mr.

O’Dwyer did not have a right of action to sue them for legal malpractice because

they did not have an attorney client relationship with Mr. O’Dwyer. At the hearing

on the exception of no right of action, Mr. Sutton introduced his affidavit into

evidence. In this affidavit, he explained that the MTCA retained his services in

May 2022 to assist in collection efforts. In September 2022, Mr. Sutton was hired

to serve as General Counsel for the MTCA. Mr. Sutton states that he never

represented Mr. O’Dwyer, or any other unit owners or individual members of the

MTCA. He further explains that he had no involvement in prosecuting and settling

the MTCA’s claims against Lloyd’s following Hurricane Ida because the MTCA

retained separate counsel to handle that litigation. He also stated that he had no

involvement with the selection of contractors and the contracts entered into by the

MTCA for the Hurricane Ida repairs. He claimed that when he had any dealings

with a constituent unit owner or individual member, he always represented that his

client was the MTCA and not the constituent unit owners or individual members of

the MTCA. Sutton also introduced evidence to establish that the MTCA is a

Louisiana non-profit corporation.

Mr. O’Dwyer raises the same arguments discussed above with respect to the

AKD defendants ‒ that an attorney-client relationship exists by operation of law

based on the condominium documents and Louisiana Condominium Act, and

alternatively, that he is a third-party beneficiary of the MTCA’s contract with the

Sutton defendants. Therefore, for the same reasons discussed above, we find that

the trial court did not err by granting the exception of no right of action in favor of

24-CA-277 12

the Sutton defendants. The trial court did not err in finding that Mr. O’Dwyer

failed to meet his burden to establish the threshold issue of an attorney-client

relationship. In addition, the trial court did not err in determining that Mr.

O’Dwyer does not enjoy third-party beneficiary status with respect to these

defendants.

Exception of No Right of Action ‒ Jack K. Whitehead, Jr.

In his exception, defendant Jack K. Whitehead, Jr. argued that Mr. O’Dwyer

has no right of action against him because he did not have an attorney-client

relationship with either Mr. O’Dwyer or the MTCA. Mr. Whitehead explained in

his affidavit, which was introduced into evidence at the hearing on the exceptions,

that he is an attorney who represents one of the other parties named as a defendant

by Mr. O’Dwyer ‒ a disaster response contractor, Advanced Property Restoration

Systems, LLC (“APRS”).4 Mr. Whitehead stated that after Hurricane Ida, he

recommended to APRS that it contact the MTCA Board of Directors about

providing its services. Mr. Whitehead explained that he played no part in the

process by which the Board of Directors chose contractors to perform work at

Metairie Towers, and played no part in its decision to enter into a contract with

APRS.

He further avers that he was not involved on behalf of the Board of Directors

or the MTCA in any contract management or oversight of any Hurricane Ida

cleanup, renovation, restoration, remediation, recovery, or litigation. He contends

that at all material times, he represented the interests of APRS and was

compensated by APRS for legal services he provided to that client. He also states

that he never represented the MTCA, Mr. O’Dwyer, or any other unit owner. As

explained above, the trial court granted Mr. Whitehead’s exception of no right of

4
Mr. Whitehead also stated that he owns one of the units at Metairie Towers.

24-CA-277 13

action based on its finding that no attorney-client relationship existed between Mr.

O’Dwyer and Mr. Whitehead.

At the March 20, 2024 evidentiary hearing and now on appeal, Mr. O’Dwyer

argued that Mr. Whitehead and the trial court misconstrued his claims against Mr.

Whitehead. Mr. O’Dwyer argued that he did not sue Mr. Whitehead for legal

malpractice as a lawyer. Rather, he argues in his appellate brief that he sued Mr.

Whitehead in his capacity “as an alter ego of, joint venturer with, co-conspirator

of, and joint tortfeasor with his long-time clients, the prime contractor for the

Metairie Towers repair project, Advanced Property Restoration Services, LLC, and

its owner, Jason Houp.” At the hearing, he further explained that he sued Mr.

Whitehead because he wanted to see what Mr. Whitehead billed APRS and Mr.

Houp “during the past two-plus years.”

Mr. Whitehead argues in response in his appellate brief that the 61-page

petition for damages filed by Mr. O’Dwyer in this matter includes only a handful

of conclusory allegations against him, including:

In Paragraph VII, O’Dwyer cites the Louisiana Rules of
Professional Conduct as being applicable to Whitehead;

In Paragraph XVI, O’Dwyer admits that Whitehead had an
attorney-client relationship with its client, Advanced Property
Restoration Services, L.L.C.
* * *
In Paragraph XX, O’Dwyer alleges that the MTCA Board ‘did
not properly vet either APRS or its owner, Houp, or his lawyer,
Whitehead . . .’, and,

In Paragraph XXII, O’Dwyer alleges that ‘contractual
arrangements [] may exist by, between and among APRS, Houp,
Whitehead and his PLC . . .’5

We agree with Mr. Whitehead that despite Mr. O’Dwyer’s conclusory

arguments to the contrary, the allegations in the petition reflect that Mr. O’Dwyer

is suing Mr. Whitehead in his capacity as a lawyer and arising from his

5
We further observe that Mr. O’Dwyer references in his petition unrelated litigation filed in other
courts in which Mr. Whitehead represented APRS.

24-CA-277 14

representation of his client, APRS. However, Mr. O’Dwyer does not provide any

factual or legal justification to explain how he has a right of action to sue Mr.

Whitehead arising out of his attorney-client relationship with APRS. In addition,

Mr. O’Dwyer did not introduce any evidence or provide any further explanation

regarding his allegations against Mr. Whitehead at the evidentiary hearing, other

than to state that he wants to gain access to Mr. Whitehead’s billing records.

Based on the foregoing, we cannot find that the trial court erred in granting the

exception of no right of action in favor of Mr. Whitehead.

Exception of No Right of Action ‒ Public Adjuster Strategic Claim
Consultants, LLC and Brandon Lewis

Defendants Strategic Claim Consultant, LLC (“SCC”) and Brandon Lewis

(the “SCC defendants”) argue that SCC was retained by the MTCA through the

board of directors to serve as a public adjuster to assist with the insurance claim.

In their exception of no right of action, the SCC defendants argue that Mr.

O’Dwyer erroneously contends that they owed a fiduciary duty to the units owners

because they are the purported beneficiaries of the services provided. The SCC

defendants contend that Mr. O’Dwyer does not have a right of action against them

because they did not enter into a contract with him or any other unit owner. They

also contend that there is “no express stipulation pour autrui” for the unit owners

in the contract with MTCA.

To support their argument, the SCC defendants contend that the public

adjusting statute, La. R.S. 22:1706(A), clearly establishes that a public adjuster

only owes a duty to the insured:

A public adjuster is obligated, under his license, to serve with
objectivity and complete loyalty to the interest of his insured alone
and to render to the insured such information and service, as within
the knowledge, understanding, and good faith of the licensee, as will
best serve the insured’s insurance claim needs and interest. [Emphasis
added.]

24-CA-277 15

The parties do not dispute that the MTCA is the insured named in the

property insurance policy issued by Lloyd’s. In addition, the SCC defendants

contend that to represent both the insured, the MTCA, and the individual unit

owners would create irreconcilable conflicts of interest for the public adjuster, as

the parties could potentially have conflicting interests in the insurance claim. As a

result, SCC contends that it was effectively prohibited by Louisiana law from

entering into a contract with the unit owners after it was retained by the MTCA.

On appeal, Mr. O’Dwyer raises the same arguments discussed above with

respect to the lawyer defendants ‒ that a contractual relationship exists by

operation of law based on the condominium documents and Louisiana

Condominium Act, and alternatively, that he is a third-party beneficiary of the

MTCA’s contract with the SCC defendants. However, based on the plain language

of La. R.S. 22:1706 cited above, we cannot find that the trial court erred in

granting the exception of no right of action. Nothing in the statute suggests that a

public adjuster’s duty extends beyond the duty owed to the insured (the MTCA)

alone. In addition, Mr. O’Dwyer does not cite to any case or other legal grounds to

support his argument that the Louisiana Condominium Act or the condominium

documents creates a contractual or client relationship between him as a unit owner

and the public adjuster. He also provides no evidence and cites to no legal

authority that would render him a third-party beneficiary of a contract between the

MTCA and SCC.

Amendment of the Petition Would Be Futile

Lastly, Mr. O’Dwyer argues that the trial court erred by not granting him

leave to amend his petition to establish his rights against all of the defendants at

issue on appeal pursuant to La. C.C.P. art. 934. But Mr. O’Dwyer only makes

general arguments that he should be allowed leave to amend without explanation

as to any potential amendments that would salvage his claims against any of the

24-CA-277 16

defendants dismissed by the trial court. This provision states though that a trial

court shall only allow an amendment “[w]hen the grounds of the objection pleaded

by the peremptory exception may be removed by amendment of the petition.” We

find that an amendment cannot cure the objections.

Accordingly, we do not find that the trial court erred by denying Mr.

O’Dwyer leave to amend his petition with respect to any of the defendants at issue

in this appeal.

CONCLUSION

For the reasons explained above, we affirm the trial court’s March 20, 2024

judgment denying Mr. O’Dwyer’s motion to transfer, granting the exceptions of no

right of action filed by defendants, J. Bartholomew Kelly, III, Alvendia, Kelly &

Demarest, LLC, Charles E. Sutton, Jr., Sutton Law Firm, LLC, Jack K. Whitehead,

Jr., Strategic Claim Consultants, LLC, and Brandon Lewis, and dismissing Mr.

O’Dwyer’s claims against them with prejudice.

AFFIRMED

24-CA-277 17

SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
STEPHEN J. WINDHORST LINDA M. WISEMAN
JOHN J. MOLAISON, JR.
FIRST DEPUTY CLERK
SCOTT U. SCHLEGEL
TIMOTHY S. MARCEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX
www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
JANUARY 29, 2025 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES
NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

24-CA-277
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE STEPHEN D. ENRIGHT, JR. (DISTRICT JUDGE)
BRANDI F. ERMON (APPELLEE) JEFFREY K. PRATTINI (APPELLEE) MICHAEL D. LANE (APPELLEE)
EDWARD W. TRAPOLIN (APPELLEE) GUS A. FRITCHIE, III (APPELLEE) J. ANDREW MIERAS (APPELLEE)
KATHRYN W. MUNSON (APPELLEE) RICHARD C. STANLEY (APPELLEE) LORI D. BARKER (APPELLEE)

MAILED
ASHLEY E. BANE (APPELLEE) ALEXIS O'DWYER NAVARRO (APPELLEE) ASHTON R. O'DWYER, JR. (APPELLANT)
VICTORIA E. PITRE (APPELLEE) 1116 MONTICELLO AVENUE 2829 TIMMONS LANE
ATTORNEYS AT LAW JEFFERSON, LA 70121 UNIT 143
1100 POYDRAS STREET HOUSTON, TX 77027
SUITE 1800 CHRISTOPHER H. IRWIN (APPELLEE)
NEW ORLEANS, LA 70163 ATTORNEY AT LAW ANDRE C. GAUDIN (APPELLEE)
400 POYDRAS STREET CRAIG J. CANIZARO (APPELLEE)
HEATHER S. DUPLANTIS (APPELLEE) SUITE 2700 ATTORNEY AT LAW
KEVIN W. WELSH (APPELLEE) NEW ORLEANS, LA 70130 5213 AIRLINE DRIVE
VIRGINIA Y. DODD (APPELLEE) METAIRIE, LA 70001
ATTORNEYS AT LAW
400 CONVENTION STREET
SUITE 1100
BATON ROUGE, LA 70802