Montalvo v. Sondes

• Decision Date: 23 May 1994
• Citation: 637 So.2d 127
• Parties: 93-2813 La
• Court: Louisiana Supreme Court

Page 127

637 So.2d 127

93-2813 La. 5/23/94

Ileana M. Santos MONTALVO, et al. v. Brian SONDES, et al.

No. 93-CC-2813.

Supreme Court of Louisiana.

May 23, 1994.

Richard J. Tyler, Katy K. Theriot, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for applicants.

Anthony C. D'Antonio, Metairie, for respondents.

[93-2813 La. 1] MARCUS, Justice. ^*

At issue in this case is whether an attorney sued by a former client in malpractice has a cause of action against his former client's new attorneys based on their filing of the malpractice suit.

Ileana M. Montalvo and Hector E. Montalvo were engaged in a custody battle over their minor child, Ileana Sharee Montalvo. By orders of the Virginia court dated September 10, 1990 and October 4, 1990, Ms. Montalvo and Mr. Montalvo were given joint custody of the child, with Ms. Montalvo designated primary residential parent and Mr. Montalvo given visitation rights. The orders recognized that Ms. Montalvo intended to vacate the marital residence in Virginia and move to Louisiana to live with her parents.

Once in Louisiana, Ms. Montalvo hired attorneys Brian Sondes and E. Martin Fontaine to represent her. On December 19, 1990, Sondes and Fontaine filed a "motion to establish child custody jurisdiction and request for TRO" in Louisiana. The motion sought emergency jurisdiction in Louisiana, based on allegations of sexual abuse. The court issued a temporary restraining order [93-2813 La. 2] prohibiting Mr. Montalvo from removing the child from the jurisdiction and exercising any unsupervised visitation. On December 23, 1990, Mr. Montalvo filed a motion to vacate the temporary restraining order, on the ground that the sexual abuse allegations were blatantly frivolous and misleading, having been previously addressed by the Virginia Child Protection Services and deemed unfounded. Mr. Montalvo asserted that under the Virginia custody order, he had visitation with his daughter over the Christmas holidays. As a consequence of that motion, the temporary restraining order was vacated; however, Ms. Montalvo refused to relinquish the child. On December 26, 1990, the trial court issued an ex parte order, ordering immediate transfer of the child to Mr. Montalvo. On January 7, 1991, Mr. Montalvo filed a petition for writ of habeas corpus, based a January 4, 1991 order of the Virginia court granting temporary custody to him. Ms. Montalvo was not present at the January 25, 1991 hearing on the petition, but was represented by Sondes. The trial court granted the petition, ordering immediate transfer of the child to her father. The court also ordered Ms. Montalvo to pay $500 in sanctions for filing "a false and fraudulent pleading alleging sexual abuse," ordered her to pay $500 per day for each day she failed to return the child, and ordered her to pay attorney fees and costs.

Ms. Montalvo terminated the employment of Sondes and Fontaine and sought help from the Loyola Law School Clinic in appealing the January 25, 1991 judgment against her. While that appeal was pending, Ms. Montalvo hired attorneys Scott R. Bickford and Regina O. Matthews, who filed a legal malpractice claim on her behalf against Sondes and Fontaine on December 6, 1991. That petition alleged that Sondes and Fontaine failed to inform Ms. Montalvo that re-allegation of the child abuse claims previously determined to be unfounded by the Virginia authorities could subject her to liability and sanctions. It was also alleged that Ms. Montalvo did not appear at the January 25, 1991 hearing on the advice of Sondes, thus making her unavailable to testify at the hearing and resulting in the immediate transfer of legal custody of [93-2813 La. 3] the child to her father.

On December 30, 1991, the court of appeal rendered its decision in the appeal of the January 25, 1991 judgment. The court reversed the judgment insofar as it ordered Ms. Montalvo to pay $500 per day for each day she failed to return the child. In all other respects, the judgment was affirmed. Montalvo v. Montalvo, 592 So.2d 904 (La.App. 5th Cir.1991).

On July 22, 1992, Sondes filed a "reconventional demand and third party demand" against Ms. Montalvo and her attorneys, Bickford and Matthews. The petition alleged that the malpractice suit filed by Bickford and Matthews was "instigated in bad faith," since the court of appeal had reversed the award of sanctions against Ms. Montalvo, and Mr. Montalvo had expressly waived his right to pursue the Louisiana judgment as part of a consent judgment in Virginia. In response, Bickford and Matthews filed an "exception of no cause and no right of action." The trial court denied the exception. ¹ Bickford and Matthews applied to the court of appeal, which denied their application for writs. They then applied to this court, which granted and remanded the case to the court of appeal for briefing, argument and opinion. ² On remand, the court of appeal affirmed the ruling of the trial court denying the exception of no cause of action. ³ Upon application of Bickford and Matthews, we granted certiorari to consider the correctness of that decision. ⁴

The sole issue before us is whether Sondes has a cause of action against Bickford and Matthews based on their filing of the malpractice petition against him on behalf of Ms. Montalvo.

Louisiana subscribes to the traditional, majority view [93-2813 La. 4] that an attorney does not owe a legal duty to his client's adversary when acting in his client's behalf. A non-client, therefore, cannot hold his adversary's attorney personally liable for either malpractice or negligent breach of a professional obligation. The intent of this rule is not to reduce an attorney's responsibility for his or her work, but rather to prevent a chilling effect on the adversarial practice of law and to prevent a division of loyalty owed to a client. Penalber v. Blount, 550 So.2d 577 (La.1989). Although Penalber re-affirmed the basic premise that an attorney acting on behalf of his client may not be sued by an adversary based on negligence or malpractice, that case did allow a cause of action against an attorney based on intentional tort:

Intentionally tortious actions, ostensibly performed for a client's benefit, will not shroud an attorney with immunity. Consequently, even though an attorney does not generally owe a duty to his client's adversary, under the broad ambit of LSA-C.C. art. 2315, an attorney may be held personally accountable for his intentional tortious conduct....

550 So.2d at 582.

Of course, identifying an intentional tort in the context of an attorney's actions may be more difficult than identifying a traditional intentional tort. It is clear that the mere filing of a lawsuit, even if the suit appears meritless on its face, is not enough, since the attorney may be simply the instrument through which the client invokes judicial determination. Spencer v. Burglass, 337 So.2d 596 (La.App. 4th Cir.1976), writ denied, 340 So.2d 990 (La.1977). Rather, we believe it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney in persuading his client to initiate and continue the suit. For example, in Penalber, we found the facts of the petition indicated that the attorney (Connelly) acted with full knowledge that his conduct would cause direct harm to the adverse party:

The petition asserts Connelly knew he was violating prohibitory laws when he seized public assets. The petition disclaims notions of Connelly's good faith noncompliance of the [93-2813 La. 5] prohibitory provisions. Instead, it alleges intentional, even calculated, misconduct performed for both Connelly and his client's benefit, causing direct harm to the adverse litigant.

550 So.2d at 582 (emphasis added).

Thus, our inquiry is narrowed. Sondes' petition will not state a cause of action if it alleges only negligence or malpractice on the part of Bickford and Matthews; rather, the facts in his petition must establish that Bickford and Matthews intended to cause direct harm to Sondes by filing the malpractice petition on Ms. Montalvo's behalf. With these precepts in mind, we now consider Sondes' petition.

The relevant paragraphs of Sondes' petition allege:

VII.

Defendants-in-reconvention filed the subject Petition for Damages in a frivolous attempt to collect sanctions and attorneys fees and costs allegedly awarded to Mr. Hector Montalvo....

* * * * * *

XII.

Plaintiff-in-reconvention avers that the defendants-in-reconvention, Ileana M. Montalvo and her attorneys for the present action, Scott R. Bickford and Regina O. Matthews, knew of, or could have been fully appraised [sic] of the foregoing proceedings by conducting a simple investigation.

XIII.

Plaintiff-in-reconvention further avers that the present proceeding was instigated in bad faith; and that all defendants-in-reconvention have continued in bad faith, as exemplified by their entering a preliminary default against your plaintiff-in-reconvention ⁵ after the Fifth Circuit Court of Appeals ruling in December 30, 1991 and after the January 8, 1992 Consent Judgment was rendered in Virginia.

XIV.

Defendants-in-reconvention, Scott Bickford and Regina O. Matthews, are guilty of malpractice in that they have filed, and are conducting a suit which they know to be frivolous and in contravention of the Code of Civil Procedure Article 863.

In deciding whether a petition states a cause of action, [93-2813 La. 6] a court must accept the facts alleged in the petition without reference to any extraneous supporting or controverting evidence. La.Code Civ.P. art. 931; Robinson v. North American Royalties, Inc., 470 So.2d 112 (La.1985). The court must accept well pleaded allegations of fact as true, and 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. Everything on Wheels Subaru, Inc. v. Subaru South, 616 So.2d 1234 (La.1993); ...