Russel Mier v. Gregory Russel Mier

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-378

RUSSEL MIER

VERSUS

GREGORY RUSSEL MIER

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, DOCKET NO. 2013, 2704-C
HONORABLE HERMAN C. CLAUSE, DISTRICT JUDGE
**********

SYLVIA R. COOKS
JUDGE

**********

Court composed of Sylvia R. Cooks, James T. Genovese, and John E. Conery,
Judges.

AFFIRMED.

Steven T. Ramos
Andrus, Boudreaux, Landry & Coussan, APLC
1245 Camellia Boulevard, Suite 200
Lafayette, LA 70508
(337) 984-9480
ATTORNEY FOR THIRD PARTY PLAINTIFFS/APPELLANTS
Stephanie Mier Leblanc and Pamela Mier Boyle

Karen T. Bordelon
Camille Bienvenu Poché
Babineaux, Poché, Anthony & Slavich, L.L.C.
P.O. Box 52169
Lafayette, LA 70505-2169
(337) 984-2505
ATTORNEY FOR DEFENDANT/APPELLEE
Sara Derouen Gallineau
Richard D. Mere
Richard D. Mere, Ltd.
P.O. Box 3301
Lafayette, LA 70502-3301
(337) 269-5555
ATTORNEY FOR PLAINTIFF/APPELLEE
Russel Mier

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Russel Mier (Russel) sued his son, Gregory Russel Mier (Gregory), an

attorney, alleging Gregory violated his fiduciary duties as Russel’s attorney-in-fact

by keeping the proceeds of the sale of Russel’s home totaling $175,000.00. The

petition also alleged Gregory received two payments of $100,000.00 each from

Russel which he asserts were not donations as claimed by Gregory. In the

alternative, Russel alleges that if these were donations inter vivos they were made

as a result of fraud, duress, and/or through undue influence. Russel asserts in his

petition that the $200,000.00 paid to Gregory was for the purchase of Gregory’s

home located at 102 Stonehill Road, Lafayette, Louisiana.

Gregory did not answer the petition but instead filed Exceptions of

Vagueness and Ambiguity, No Cause of Action, and No Right of Action. The trial

court sustained the exceptions and conditionally dismissed all claims filed by

Russel unless within fifteen days of the trial court order Russel amended his

petition to remove any defects which resulted in the granting of the dismissal.

Russel timely filed an Amended and Supplemental Petition setting forth his claims

with more particularity. Gregory filed a Motion to Dismiss for Failure to Follow

the Court Order and for Failure to State a Cause of Action. The trial court denied

Gregory’s motion and he sought a supervisory writ of review with this court which

was denied. See Mier v. Mier, 14-425 (La.App. 3 Cir. 7/16/14). The Louisiana

Supreme Court also unanimously denied writs. Mier v. Mier, 14-1735 (La.

9/23/14), 149 So.3d 249.

Thereafter, Gregory filed an Answer to Original Petition for Damages,

Answer to First Supplemental and Amending Petition for Damages, Affirmative

Defenses, and a Third Party Demand Against Sara Derouen Gallineau (Sara).

Gregory’s third party demand seeks to add Sara as a third party Defendant and also

seeks to join his sisters, Stephanie Mier Leblanc (Stephanie) and Pamela Mier

Boyle (Pamela), as third party Plaintiffs. Gregory, Stephanie, and Pamela assert as

the basis of their action against Sara a claim for alienation of their father’s

affections. This claim is couched in various vague allegations, including an

allegation of intentional and/or negligent interference with “various agreements

between Russel and his children” and infliction of emotional distress allegedly

resulting in severe and prolonged mental anguish. The trial court sustained Sara’s

exceptions of no right of action and no cause of action as to the third party

demands of Stephanie, Pamela, and Gregory, dismissing Stephanie and Pamela’s

claims without prejudice. The trial court allowed Gregory thirty days from

December 8, 2014, to amend his third party pleadings failing which his demands

would be dismissed with prejudice. The record evidences no amended or

supplemental pleadings were filed by Gregory within the thirty-day deadline.

Stephanie and Pamela timely filed a Motion for Suspensive Appeal and Stay

of Proceedings. The original trial judge retired and was replaced by a new trial

judge who signed an order granting Pamela and Stephanie a suspensive appeal and

a stay of the proceedings. After the expiration of Gregory’s thirty-day period to

amend his pleadings, Sara filed a Motion for Entry of Judgment of Dismissal or

Alternatively, Motion for Lift of Stay, based on the record showing Gregory did

not file any amended or supplemental pleadings against Sara. On April 3, 2015,

the new trial judge denied Sara’s motion and cast costs against her.

Stephanie and Pamela appeal the trial court ruling, asserting the trial court

erred in granting the exceptions of no cause of action and no right of action as to

2

Stephanie and Pamela failing to “[consider] the effects of cumulation under LCCP

art. 463.” Gregory did not appeal the trial court ruling dismissing his claims with

prejudice.

LAW AND ANALYSIS

Under the law and jurisprudence of Louisiana, children have no cause of

action for alienation of affection against their parent’s paramour. Price v. Fuerst,

09-545 (La.App. 3 Cir. 11/4/09), 24 So.3d 289, following Greene v. Roy, 604

So.2d 1359 (La.App. 3 Cir.), writ denied, 607 So.2d 544 (La. 1992). All of the

allegations alleged by the third party Plaintiffs relate to the alienation of Russel’s

affection for his adult children by the alleged actions of Sara, his paramour.

The third party Plaintiffs attempt to avoid Louisiana’s proscription of an

action for alienation of affections by characterizing their alleged cause of action

against Sara as tortious interference with a contract. They make a vague allegation

that Sara “intentionally and/or negligently interfered with various agreements

between Russel Mier and his children . . .” This, too, fails to state a cause of action

under Louisiana law. In Spears v. American Legion Hospital, 00-865, pp. 3-6

(La.App. 3 Cir. 1/31/01), 780 So.2d 493, 495-97 (emphasis added), we discussed

appellate review of an exception of no cause of action and the limited action for

negligent interference with a contract in Louisiana:

A peremptory exception of no cause of action presents a
question of law, thus on this appeal we review this issue de novo.
City of New Orleans v. Board of Com’rs, 93-0690 (La. 7/5/94), 640
So.2d 237. The peremptory exception of no cause of action is
designed to test the legal sufficiency of the petition by determining
whether plaintiff is afforded a remedy in law based on the facts
alleged in the pleading. Everything on Wheels Subaru, Inc. v. Subaru
South, 616 So.2d 1234 (La. 1993).

No evidence may be introduced to support or controvert the
objection that the petition fails to state a cause of action. La. Code

3

Civ. P. art. 931. The exception is triable on the face of the papers and
for the purposes of determining the issues raised by the exception, the
well-pleaded facts in the petition must be accepted as true. Id.; City of
New Orleans, 640 So2d. 237. Simply, if the petition alleges sufficient
facts to establish a case cognizable in law, an exception of no cause of
action must fail. Rebman v. Reed, 286 So.2d 341 (La. 1973).

. . . Historically, a cause of action for tortious interference with a
contract was not available in Louisiana. Kline v. Eubanks, 109 La.
241, 33 So. 211 (1902). However, in 9 to 5 Fashions, Inc. v. Spurney,
538 So.2d 228 (La. 1989), the Louisiana Supreme Court recognized a
narrowly defined cause of action for the breach of duty by a corporate
officer to refrain from intentionally and unjustifiably interfering with
a contractual relationship between the officer’s corporate employer
and the particular plaintiff. Krebs v. Mull, 97-2643 (La.App. 1st Cir.
12/ 28/98), 727 So.2d 564, writ denied, 99-0262 (La.3/19/99), 740
So.2d 119; Lynn v. Berg Mechanical, Inc., 582 So.2d 902 (La.App. 2d
Cir. 1991).

In 9 to 5 Fashions v. Spurney, supra, the court stated that it did
not intend to adopt “whole and undigested the fully expanded
common law doctrine of interference with contract, consisting of ‘a
rather broad and undefined tort in which no specific conduct is
prescribed and in which liability turns on the purpose for which the
defendant acts, with the indistinct notion that the purposes must be
considered in some undefined way.’” –Krebs v. Mull, supra. The
court recognized only a corporate officer’s duty to refrain from
intentional and unjustified interference with the contractual
relationship between his employer and a third person. . . .

Subsequently, in Great Southwest Fire Insurance Company v.
CNA Insurance Companies, 557 So.2d 966 (La.1990), the Louisiana
Supreme Court reaffirmed its intention to proceed with caution in
expanding a cause of action for interference with a contract. In Great
Southwest, the court declined to recognize a cause of action for
negligent interference with a contract. . . .

In Louisiana, this court has limited the application of 9 to 5
Fashions, Inc. v. Spurney, supra, to its facts. Where the interference
alleged is beyond the cause of action created in that decision, the trial
court is correct in denying the claim. A & W Sheet Metal, Inc. v. Berg
Mechanical, 26,799 (La.App. 2d Cir. 4/5/95), 653 So.2d 158.

Based upon the jurisprudence of this state, as discussed at length in Spears,

this court found the “action by the Ad Hoc Committee alleged in Plaintiffs’

petition [did] not meet the requirements for tortious interference with contract[.]”

4

Spears, 780 So.2d at 498. Again, in Brown v. Romero, 05-1016 (La.App. 3 Cir.

2/1/06), 922 So.2d 742, 747 writ denied, 06-480 (La.5/5/06), 927 So.2d 315,

(citation omitted) we reiterated, “The supreme court has expressly declined to

recognize a cause of action for negligent interference with contract.” The alleged

facts of this case present the very type of circumstances warranting Louisiana’s

refusal to adopt the common law notion of tortious interference with contracts,

except on a limited basis, and then, only when an express duty is owed by the party

alleged to have breached such duty, such as a corporate officer to the corporation.

As we explained in Spears, 780 So.2d at 497:

The wisdom of the Louisiana Supreme Court’s pronouncement
in this area of the law recognizes the broad basis for delictual liability
furnished by La. C.C. art. 2315, but also recognizes the need to avoid
blurring the distinction between tort claims and contract claims. The
rules governing contract disputes and breaches are separate from those
governing offenses and quasi offenses, and these separate legal
domains should not overlap unless there is a duty on the part of a
person or legal entity, separate and apart from the obligations created
by the terms of a contract. Thus, in Spurney, an exception to the
general prohibition against an action for interference with contract
was found because the court recognized a duty on the part of a
corporate officer to a third person having a contractual relationship
with the corporation to which the officer owed a fiduciary duty. On
the other hand, in Great Southwest the court found no duty owed by a
primary insurer to an excess insurer.

Likewise, in this case, Sara owes no duty to any of Russel’s children and no

action lies in favor of the children for Sara’s alleged influences on Russel.

Moreover, we note that, according to the facts alleged, Russel had not met Sara at

the time two of the transactions allegedly occurred. As for the allegation

concerning the sale of Russel’s home by Gregory under a general power of

attorney we can discern no duty owed by Sara to Gregory or his sisters concerning

this transaction. Russel’s power of attorney appointing Gregory his attorney-in-

fact is a matter between Russel and Gregory. Gregory owed a fiduciary duty to his

5

father when acting under the power of attorney, but there is no duty on Sara’s part

to refrain from whatever suggestions she may or may not have made to Russel

concerning this transaction and Gregory’s alleged failure to turn over the funds

received in this sale to Russel.

Because we find Louisiana law does not recognize a cause of action against

Sara arising out of the facts alleged in the third party petition on behalf of any of

the third party Plaintiffs, we find the issue of cumulation of actions is rendered

moot, as are the issues raised concerning the procedural propriety of Stephanie and

Pamela’s third party action. Whatever vehicle was used procedurally, i.e. a third-

party demand under the provisions of La. Code Civ. P. art. 11111, is of no moment

in this case because the would-be third party plaintiffs have no cause of action

under the circumstances for recovery as a matter of law. We note that even if a

cause of action existed then the vehicle they attempt to use here is not proper under

La. Code Civ. P. art 1111.

For the reasons stated we find there is no error in the trial court’s ruling.

All costs of this appeal are assessed against Appellants Stephanie Mier Leblanc

and Pamela Mier Boyle.

AFFIRMED.

1
The defendant in a principal action by petition may bring in any person, including a
codefendant, who is his warrantor, or who is or may be liable to him for all or part of the
principal demand.

In such cases the plaintiff in the principal action may assert any demand against the third
party defendant arising out of or connected with the principal demand… La.Code. Civ. P. art.
1111.

6