Opinion
NO. 2022 CA 0408.
11-04-2022
Ronald BIAS v. Carl J. FOSTER and John B. Wells.
Ronald Bias, Baton Rouge, Louisiana, Plaintiff/Appellant, Pro Se. Connell L. Archey , Madaline King , Aliena W. McCain , Baton Rouge, Louisiana, Counsel for Defendant/Appellee, John B. Wells. BEFORE: WELCH, PENZATO, AND LANIER, JJ.
Ronald Bias, Baton Rouge, Louisiana, Plaintiff/Appellant, Pro Se.
Connell L. Archey , Madaline King , Aliena W. McCain , Baton Rouge, Louisiana, Counsel for Defendant/Appellee, John B. Wells.
BEFORE: WELCH, PENZATO, AND LANIER, JJ.
LANIER, J.
The plaintiff, Ronald Bias, appeals from the district court's judgment sustaining the peremptory exception raising the objection of no cause of action filed by defendant, John B. Wells, and dismissing his claims against Wells with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
This matter stems from a bitter personality clash between two Junior Reserve Officer Training Corps ("JROTC") instructors. In August 2008, Bias, a retired lieutenant colonel in the United States Marine Corps ("USMC"), began working as a JROTC instructor at Amite High School. One year later, Bias was recalled to active duty due to a miscalculation regarding his eligibility for retirement, but was permitted to keep his job at Amite High. Notably, the other JROTC instructor at Amite High, Carl J. Foster, a retired master sergeant in the Marine Corps and Bias' subordinate, voiced concerns about an active duty officer being assigned as a JROTC instructor. Thus began the hostile relationship between the men.
Soon thereafter, Bias reported his belief that Foster was misappropriating JROTC funds to the school's principal, Michael Stant, and to the JROTC Regional Director. As a result, Foster was subsequently decertified as a JROTC instructor by the USMC and the United States Navy. In November 2011, Foster filed suit against the Secretary of the Navy and the Commanding General of the USMC Training and Education Command challenging the decision to decertify him as an instructor ("Decertification Suit"). Wells represented Foster in the Decertification Suit. In May 2015, a federal court granted summary judgment in favor of Foster, finding that the USMC violated the Administrative Procedure Act by failing to consider "the blatant predisposition and consequent bias" in the recommendations to decertify Foster. Foster v. Mabus, 103 F.Supp.3d 95, 113 (D.D.C. 2015). The court found that Bias' recommendations regarding Foster's decertification were tainted by a "documented predisposition against [Foster], prompted, at least in part, by [Foster's] critical reports about Bias." Id. at 110. Accordingly, the court vacated the USMC's decisions denying Foster's recertification requests, and ordered the defendants to reconsider their decision to decertify Foster. Id. at 113.
On June 22, 2015, the Navy and Foster entered into a "Stipulation of Settlement and Dismissal" ("stipulation"), and Foster was recertified as a JROTC instructor. Of particular note, the stipulation contained the following provision:
Release. Subject to the exception specified below, this Stipulation provides for the full and complete satisfaction of all claims which have been or could have been asserted by Plaintiff in the above-captioned civil action, including without limitation all claims for compensatory damages, back pay, front pay, costs, attorney[']s fees, and interest or other compensation for delay, and Plaintiff agrees not to hereafter assert any claim or institute or prosecute any civil action or other proceeding against the Defendant, the U.S. Department of the Navy, the U.S. Marine Corps, or the United States, its agencies or officials, or its present or former employees or agents, in either their official or individual capacities, with respect to any event complained of therein. Plaintiff hereby fully and forever releases and discharges the Defendant, the U.S. Department of the Navy, the U.S. Marine Corps, and the United States, its agencies and officials, and its present and former employees and agents, in their official and individual capacities, from any and all rights and claims of every kind, nature, and description, whether presently known or unknown, which Plaintiff now has or may have arising out of or in connection with any event occurring on or before the date on which he has executed this Stipulation, including without limitation any rights or claims. In connection with this release, Plaintiff acknowledges he is aware that he may hereafter discover rights or claims presently unknown and unsuspected, or facts in addition to or different from those which he now knows with respect to the rights and claims released herein. Nevertheless, Plaintiff agrees, through this Stipulation, to settle and release all such rights and claims against the released parties, the U.S. Department of the Navy, the U.S. Marine Corps, or the United States, its agencies or officials, or its present or former employees or agents, in either their official or individual capacities; provided, however, that nothing in this Stipulation shall affect: (i) any rights or claims that may arise after the date
Plaintiff signs this Stipulation; and (ii) any right or claims against third parties not covered by this agreement.
Meanwhile, in September 2012, Bias filed a federal lawsuit against Foster, the Tangipahoa School Board, and Stant, asserting claims under state and federal law, including the False Claims Act ("FCA"), and alleging he suffered retaliation as a result of his reporting of Foster's alleged improper use of JROTC funds ("FCA Suit"). Notably, Wells did not represent Foster in the FCA Suit. Bias' state and federal law claims, except his FCA retaliation claim against the Tangipahoa School Board, were dismissed as untimely. See U.S. ex rel. Bias v. Tangipahoa Parish School Bd., 816 F.3d 315 (5th Cir. 2016). Ultimately, Bias was judicially estopped from bringing his FCA claim against the Tangipahoa School Board because he failed to disclose the claim in his bankruptcy proceedings. See United States ex rel. Bias v. Tangipahoa Parish School Board, 2012-2202, 2017 WL 4049596 (E.D. La. 2017).
In September 2013, Bias filed a complaint with the Louisiana Attorney Disciplinary Board asserting that Wells had somehow violated the Rules of Professional Conduct. According to a letter from the Office of Disciplinary Counsel dated April 25, 2014, Bias' complaint was dismissed because "the evidence [was] not clear and convincing that [Wells] engaged in ethical misconduct that violated the Rules of Professional Conduct[.]" Also in September 2013, Bias contacted the U.S. Department of Defense, Defense Privacy and Civil Liberties Office about Wells, alleging that Wells had illegally gained access to Bias' military records and had shared them with others. According to a letter dated April 10, 2015 from Ronald J. Bald, Deputy Counsel for the U.S. Marine Forces Reserve, Bias' "personally identifiable information" was obtained by K.P. Lord, an investigator for Wells' law firm. It was Bald's belief that the information was "released without authorization prior to its disclosure to the Department of Justice for a routine litigation purpose." Bald stated that he contacted Wells, who had not explained how he obtained the documents.
On November 16, 2015, Foster sued Bias for defamation in the 19th Judicial District Court ("Defamation Suit"). Wells represented Foster in the Defamation Suit. Foster alleged that on November 21, 2014, Bias made defamatory statements about Foster during a deposition taken as part of his FCA Suit. In response, Bias filed a special motion to strike pursuant to La. Code Civ. P. art. 971(F)(1)(a). Following the district court's denial of Bias' motion, Bias filed a writ application with this court seeking review of the judgment. On December 28, 2016, this court granted Bias' writ, reversed the district court's judgment denying his special motion to strike, and granted the motion. In doing so, this court explained that Bias' alleged defamatory statements were made during a deposition and were directly related to his FCA claims. Thus, he was "afforded absolute immunity from civil defamation liability regardless of malice or falsity." This court also vacated a $4,800 attorney fee awarded to Foster by the district court. See Foster v. Bias, 2016-1376 (La. App. 1 Cir. 12/28/16), 2016 WL 7470012 (unpublished writ action), writ denied, 2017-0181 (La. 3/24/17), 216 So.3d 793.
On August 30, 2018, Foster sued Bias for abuse of process based on his FCA Suit in the 19th Judicial District Court ("Abuse of Process Suit"). Wells represented Foster in the Abuse of Process Suit. Foster alleged that the dismissal of Bias' FCA Suit under the theory of judicial estoppel gave rise to a cause of action for abuse of process. In response, Bias filed a special motion to strike, which was denied by the district court. However, on January 5, 2022, the district court granted Bias' exceptions granting the objections of prescription, no right of action, and no cause of action, and dismissed the Abuse of Process Suit with prejudice.
Foster has appealed this judgment, and his appeal is currently pending before another panel of this court under docket number 2022 CA 0329.
In September 2019, Bias, appearing pro se, filed this lawsuit against Foster and Wells in the 19th Judicial District Court, alleging that Foster and Wells colluded to retaliate against him and violate the terms of the stipulation, resulting in various tortious acts against Bias. Bias asserted Wells was liable to him under the following causes of action: (1) abuse of process; (2) breach of the stipulation; (3) malicious prosecution; (4) intentional infliction of emotional distress; (5) violating Bias' constitutional right of free speech; and (5) aiding and abetting Foster in the commission of tortious acts.
According to the record, Wells had this case removed to federal court on the basis of a then existing constitutional claim. While the case was in federal court, Bias apparently filed a First Amended Complaint to remove the sole federal claim, and the case was ultimately remanded to the district court.
In a Second Amended Complaint filed on April 20, 2020, Bias alleged that he was a third-party beneficiary to the stipulation and set forth the following additional relevant allegations as to Wells: (1) the Defamation Suit and Abuse of Process Suit "were filed in conspiracy by Foster and Wells against Bias"; (2) Wells admitted that Foster's claims against Bias arose out of Foster's Decertification Suit and Bias' FCA Suit, both of which were subject to the stipulation; (3) Wells' assistance to Foster in suing Bias was outside the scope of his position as an attorney, intentional, and done with malice for the purpose of retaliating against and harming Bias for filing complaints against Wells and Foster; (4) because Wells knew of the stipulation and Foster's waiver of claims against Bias, Wells was acting as a co-conspirator rather than an attorney and attempted to use his status as an attorney to avoid liability; (5) Wells' actions constituted negligence; and (6) Wells and Foster conspired to violate 42 U.S.C. § 1985(2) by attempting to intimidate Bias from testifying.
Bias attached a copy of the stipulation to his Second Amended Complaint and a copy of purported emails between Wells and Rhonda Campbell, an Assistant United States Attorney, regarding whether the stipulation could be amended to allow Foster to sue third parties not specifically covered by the stipulation. Notably, in the email from Wells to Campbell, he asked that the stipulation be amended to allow Foster to reserve his rights "against third parties not specifically covered by this release." Wells explained that Foster may need to bring suit against the Tangipahoa School Board to recover back pay or sue Bias if he continued to make defamatory statements about Foster. In response, Campbell stated that it would be difficult to amend the language, but that "[i]t is implied that this [stipulation] agreement is binding only on the parties before this court in this United States action."
In response to Bias' Second Amended Complaint, Wells filed a peremptory exception raising the objection of no cause of action, alleging that Bias failed to state a cause of action against him based solely on his representation of Foster. In particular, Wells pointed out that Louisiana courts have consistently held that an attorney does not owe a duty to his client's adversary as long as the attorney is acting on his client's behalf. Wells further noted that, pursuant to Montalvo v. Sondes, 637 So.2d 127, 130 (La. 1994), a petition fails to state a cause of action against an adversary's attorney absent allegations showing malice or an intent to harm on the part of the attorney. Wells argued that the Defamation Suit and Abuse of Process Suit were not frivolous, and pointed out that neither he nor Foster were sanctioned as a result of filing the Defamation Suit or Abuse of Process Suit. Wells argued that Bias failed to state a cause of action against him under any basis alleged in his complaints.
Following a hearing on January 18, 2021, the district court signed a judgment on January 21, 2021, overruling Wells' exception raising the objection of no cause of action, explaining, in pertinent part, "[a]fter examining the petition, and accepting the allegations of fact as true, the court finds that the petition does allege facts sufficient to show specific malice or an intent to harm Bias on the part of Wells." Wells sought seeks supervisory review of the district court's judgment, and on May 12, 2021, this court issued the following:
WRIT GRANTED WITH ORDER. The trial court's January 21, 2021 judgment denying the peremptory exception of no cause of action filed by the relator, John B. Wells, is reversed. The original and amending petitions filed by the plaintiff, Ronald Bias, fail to state a cause of action against Wells, the attorney of Bias' adversary, Carl J. Foster. In particular, Bias fails to state a cause of action against Wells for breach of the "Stipulation of Settlement and Dismissal" because Wells was not a party to that agreement. Bias fails to state a cause of action against Wells for negligence because Wells, the attorney for Bias' adversary, owed no legal duty to Bias. See Penalber v. Blount, 550 So.2d 577, 581 (La. 1989); Montalvo v. Sondes, 637 So.2d 127, 130 (La. 1994). The remainder of the allegations contained in Bias' petitions refers to Wells' representation of Foster in a defamation suit and an abuse of process suit filed by Wells on Foster's behalf. In bringing a cause of action against an attorney based on intentional tort, it is essential for the petition to allege facts showing specific malice or an intent to harm on the part of the attorney. Montalvo, 637 So.2d at 130 (La. 1994). Legal or factual conclusions, absent facts which support such conclusions, are insufficient. See Id. at 131. We find that Bias' original and amending petitions fail to allege specific actions evidencing Wells' malice or intent to inflict direct harm. Additionally, Bias fails to state a cause of action against Wells based on the filing of the abuse of process suit because there has been no "bona fide termination" of the abuse of process suit in Bias' favor. See Id. Accordingly, the exception of no cause of action filed by Wells is granted, and this matter is remanded to the district court with instructions to afford Bias an opportunity to amend his petition, if he can, to state a cause of action against Wells. See La. Code Civ. P. art. 934.
Bias v. Foster, 2021-0172 (La. App. 1 Cir. 5/12/21), 2021 WL 1910987 (unpublished writ action) ("Bias I"). On July 21, 2021, Bias filed a Third Amended Petition, most of which again focused on what Bias alleged was Wells' negligence and breach of the stipulation. With regard to his alleged claim of intentional acts by Wells, Bias asserted that Wells acted with specific malice or intent to cause direct harm to Bias as a result of Bias having leveled formal complaints against Wells. Bias further alleged that Wells induced, colluded with, and/or conspired with Foster to maintain the two retaliatory lawsuits filed against Bias "as a direct result of Wells' retaliatory motives and specific malice or intent to cause direct harm to Bias."
Apparently the district court issued a second ruling concerning the exception raising the objection of no cause of action that Wells filed in response to Bias' Second Amended Complaint. On April 12, 2021, the district court issued a ruling sustaining the exception with regard to the cause of action alleging negligence on the part of Wells, but overruled the exception with regard to the causes of action alleging Wells intentionally conspired to commit tortious acts; to commit abuse of process; to commit breach of contract/stipulation agreement; to commit malicious prosecution in filing a defamation suit; to commit intentional infliction of emotional distress; to aid and abet Foster in the commission of tortious acts; and to retaliate against Bias in violation of 42 U.S.C. § 1985(2). Bias sought supervisory review of this ruling, and on July 6, 2021, this court granted the writ and vacated the district court's judgment, referencing this court's action issued in Bias I.
Following the filing of Bias' Third Amended Petition, Wells reurged his exception raising the objection of no cause of action. The matter was set for hearing on November 29, 2021. Thereafter, on November 12, 2021, Bias filed an Ex Parte Motion to File Plaintiff's Fourth Amended and Supplemental Petition. Wells filed a motion to strike, alleging that the pleading was "redundant, immaterial, impertinent, and made for the purpose of delaying" the upcoming November 29, 2021 hearing. The motion to strike was set for hearing on November 29, 2021. Bias, realizing that he had failed to request leave of court to file his fourth amending petition or include an order to set a contradictory hearing date, filed a new motion for leave to file same, withdrawing his previously filed ex parte motion. This matter was also set for hearing on November 29, 2021.
According to the transcript of the November 29, 2021 hearing, there was a discussion between counsel and the district court concerning the allegation by Bias in his Fourth Amended Supplemental Petition that Wells' actions were outside the scope of his position as an attorney, intentional, and done with malice for the purpose of retaliating against and harming Bias. The district court noted, however, that Bias provided no facts to demonstrate how that occurred and then shifted its attention to the Third Amended Petition. Counsel for Wells also mentioned the motion to strike Bias' Fourth Amended Supplemental Petition.
After considering argument of counsel and the record before it, the district court found in favor of Wells, sustaining the exception raising the objection of no cause of action. A judgment in accordance with the court's ruling was signed on December 20, 2021, sustaining the exception and dismissing, with prejudice, Bias' claims against Wells.
The judgment did not mention either Bias' motion for leave to file a fourth amended and supplemental petition or Wells' motion to strike said petition. Generally, silence in a judgment of the district court as to any issue, claim, or demand placed before the court is deemed a rejection of the claim, and the relief sought is presumed to be denied. Alost v. Lawler, 2018-1271 (La. App. 1 Cir. 5/8/19), 277 So.3d 329, 333 n.3.
It is from this judgment that Bias has appealed, arguing the district court erred in finding Wells' exception raising the objection of no cause of action responsive to the Third Amended Petition; sustaining Wells' exception and not granting Bias an opportunity to amend his petition pursuant to La. Code Civ. P. art. 934; allowing the enlargement of the pleadings over his objection; and not granting Bias declaratory or injunctive relief.
LAW AND ANALYSIS
The exception raising the objection of no cause of action tests the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged. Hayes v. University Health Shreveport, LLC, 2021-01601 (La. 1/7/22), 332 So.3d 1163, 1168. In the context of the exception, a "cause of action" is defined as the operative facts that give rise to the plaintiffs right to judicially assert the action against the defendant. Carr v. Sanderson Farms, Inc., 2016-1064 (La. App. 1 Cir. 2/17/17), 215 So.3d 437, 440. Louisiana has chosen a system of fact pleading. Therefore, it is not necessary for a plaintiff to plead the theory of his case in the petition. However, the mere conclusions of plaintiff unsupported by facts do not set forth a cause of action. Palowsky v. Cork, 2019-0148 (La. App. 1 Cir. 5/20/20), 304 So.3d 867, 872 (citing Ramey v. DeCaire, 2003-1299 (La. 3/19/04), 869 So.2d 114, 118).
On the trial of a peremptory exception, "[n]o evidence may be introduced at any time to support or controvert the objection that the petition fails to state a cause of action." La. Code Civ. P. art. 931. Rather, in deciding an exception raising the objection of no cause of action a court can consider only the petition, any amendments to the petition, and any documents attached to the petition. 2400 Canal, LLC v. Board of Sup'rs of Louisiana State University Agr. and Mechanical College, 2012-0220 (La. App. 4 Cir. 11/7/12), 105 So.3d 819, 825.
The burden of demonstrating that no cause of action has been stated rests with the exceptor. Dodson & Hooks, APLC v. Louisiana Community Development Capital Fund, Inc., 2019-1516 (La. App. 1 Cir. 12/30/20), 318 So.3d 939, 944. In ruling on a peremptory exception raising the objection of no cause of action, the court must determine whether the law affords any relief to the claimant if the factual allegations in the pleading were proven at trial. Frigon v. Universal Pictures, Inc., 2017-0993 (La. App. 1 Cir. 6/21/18), 255 So.3d 591, 596, writ denied, 2018-1868 (La. 1/18/19), 262 So.3d 896.
Peremptory exceptions raising the objection of no cause of action present legal questions, which are reviewed using the de novo standard of review. The court reviews the petition and accepts well-pleaded allegations of fact as true. Reyer v. Milton Homes, LLC, 2018-0580 (La. App. 1 Cir. 2/25/19), 272 So.3d 604, 607. The pertinent inquiry is whether, in the light most favorable to the plaintiff, and with every doubt resolved in the plaintiffs favor, the petition states any valid cause of action for relief. Scheffler v. Adams and Reese, LLP, 2006-1774 (La. 2/22/07), 950 So.2d 641, 647.
Initially, we address Bias' argument that the district court erred in finding Wells' exception, absent an answer, responsive to his Third Amended Petition. Citing La. Code Civ. P. art. 1001, Bias asserts that an answer was required and that Wells' exception was procedurally defective and should have been dismissed or stricken from the record.
At the time of this matter, Article 1001 provided, in part:
When an exception is filed prior to answer and is overruled or referred to the merits, or is sustained and an amendment of the petition ordered, the answer shall be filed within ten days after the exception is overruled or referred to the merits, or ten days after service of the amended petition.
Moreover, La. Code Civ. P. art. 1002 provided that "[n]otwithstanding the provisions of Article 1001, the defendant may file his answer or other pleading at any time prior to the signing of a final default judgment against him."
Both have been amended. Article 1001 was amended to extend the time for filing an answer from ten days to fifteen days. Article 1002 was amended to delete the word "final" from before "default judgment" in accordance with the changes that the Act made relative to default judgments. Under current law, there is no longer the need for the entry of a preliminary default or the confirmation thereof. Rather, if a defendant "fails to answer or file other pleadings within the time prescribed by law or by the court, and the plaintiff establishes a prima facie case by competent and admissible evidence that is admitted on the record, a default judgment in favor of the plaintiff may be rendered," provided that, unless waived, proper notice is given. See La. Code Civ. P. arts. 1701-1704 (as repealed, amended, and reenacted by Acts 2021, No. 174, § 1, eff. January 1, 2022).
A defendant's failure to comply with Articles 1001 and 1002 exposes the party to a judgment of default. Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d 815, 818. Although Bias moved for and was granted a preliminary default against Wells in April 2021, there is no indication that he ever went forward with confirming the preliminary default prior to filing his Third Amended Petition in July 2021. Nonetheless, because Wells made an appearance in the case, by filing numerous motions and exceptions, including the one that is currently before us on review, Bias would be precluded from going any further with this default judgment unless the notice requirements of La. Code Civ. P. art. 1702 were satisfied. There is no indication in the record of any such notice. This argument by Bias is without merit.
Prior to its amendment by Acts 2021, No. 174, § 1, Article 1702(A) provided, in pertinent part, as follows:
When a preliminary default has been entered against a party that is in default after having made an appearance of record in the case, notice of the date of the entry of the preliminary default must be sent by certified mail by the party obtaining the preliminary default to counsel of record for the party in default, or if there is no counsel of record, to the party in default, at least seven days, exclusive of holidays, before confirmation of the preliminary default.
Concerning the merits of his cause of action, Bias asserts that because he has stated claims against Wells as a third-party beneficiary, he "can state both intentional and/or negligence claims against Wells." Wells counters that this court's prior ruling in Bias I is law of the case and dispositive of Bias' negligence claims and any claims involving the stipulation. Wells maintains that our ruling in Bias I is correct and bars any such arguments on appeal. We agree.
The law of the case principle is a discretionary guide that relates to (a) the binding force of a district judge's ruling during the later stages of trial, (b) the conclusive effects of appellate rulings at trial on remand, and (c) the rule that an appellate court ordinarily will not reconsider its own rulings of law on a subsequent appeal in the same case. Louisiana Land and Exploration Co. v. Verdin, 95-2579 (La. App. 1 Cir. 9/27/96), 681 So.2d 63, 65, writ denied, 96-2629 (La. 12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct. 1696, 137 L.Ed.2d 822 (1997). It applies to all prior rulings or decisions of an appellate court or the supreme court in the same case, not merely those arising from the full appeal process. See Brumfield v. Dyson, 418 So.2d 21, 23 (La. App. 1 Cir.), writ denied, 422 So.2d 162 (1982). The reasons for the law of the case doctrine are to avoid relitigation of the same issue; to promote consistency of result in the same litigation; and to promote efficiency and fairness to both parties by affording a single opportunity for the argument and decision of the matter at issue. Louisiana Land and Exploration Co., 681 So.2d at 65.
Reargument in the same case of a previously decided point will be barred where there is simply a doubt as to the correctness of the earlier ruling. However, the law of the case principle is not applied in cases of palpable error or where, if the law of the case were applied, manifest injustice would occur. Glenwood Hosp., Inc. v. Louisiana Hosp. Service, Inc., 419 So.2d 1269, 1271 (La. App. 1 Cir.1982).
When an appellate court considers arguments made in supervisory writ applications or responses to such applications, the court's disposition on the issue considered usually becomes the law of the case, foreclosing relitigation of that issue either at the district court on remand or in the appellate court on a later appeal. Dupre v. Maynard, 96-1183 (La. App. 1 Cir. 3/27/97), 692 So.2d 36, 38, writ denied, 97-1508 (La. 9/26/97), 701 So.2d 986. The law of the case doctrine is not an inflexible law, thus appellate courts are not absolutely bound thereby and may exercise discretion in application of the doctrine. It should not be applied where it would accomplish an obvious injustice or where the former appellate decision was manifestly erroneous. Dodson v. Community Blood Center of Louisiana, Inc., 633 So.2d 252, 255 (La. App. 1 Cir. 1993), writs denied, 93-3158, 93-3174 (La. 3/18/94), 634 So.2d 850, 851.
In the instant matter, we find no such error. Therefore, our prior ruling that "Bias fails to state a cause of action against Wells for breach of the [stipulation] because Wells was not a party to that agreement" and that "Bias fails to state a cause of action against Wells for negligence because Wells, the attorney for Bias' adversary, owed no legal duty to Bias" is the law of the case and we will not review these issues on appeal. Thus, as noted in our ruling in Bias I, the only issue remaining for our review is whether Bias has alleged specific facts evidencing Wells' malice or intent to inflict direct harm sufficient to state a cause of action against Wells based on an intentional tort.
Under Louisiana law, "an attorney does not owe a legal duty to his client's adversary when acting in his client's behalf." Montalvo, 637 So.2d at 130. Accordingly, as a general rule, actions against an opponent's attorney lying in negligence are prohibited. However, the foregoing rule does not prevent an attorney from being sued by his client's opponent for intentionally tortious conduct. See Id. As discussed in Montalvo:
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. 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.
Montalvo, 637 So.2d at 130 (citations omitted; emphasis added). Thus, to state a cause of action in a suit against an opponent's attorney, mere allegations of negligence will not suffice; rather, the facts set forth in the complaint must establish the attorney "intended to cause direct harm" to the plaintiff. Id. In filing his second exception raising the objection of no cause of action, Wells maintained that the actions taken by him in merely representing Foster fail to state a cause of action based in intentional tort. He argued that Bias has done nothing more than "simply restate the same facts in a different manner," noting that the Third Amended Petition contains no new allegations of actions by Wells outside of his representation of Foster in the Defamation Suit and the Abuse of Process Suit.
Weils attached numerous documents, including a copy of Bias' Second Amended Complaint, to his memorandum in support of his exception. As stated in Woodland Ridge Ass'n v. Cangelosi, 94-2604 (La. App. 1 Cir. 10/6/95), 671 So.2d 508, 510, no evidence may be introduced to support or controvert the exception, unless evidence is admitted without objection to enlarge the pleadings. Bias objected to Wells' enlargement of the pleadings. With the exception of Bias' Second Amended Complaint, which is clearly within the court's purview when reviewing an exception raising the objection of no cause of action, we have not considered any of the other documents offered by Wells in making our determination herein. See 2400 Canal, LLC, 105 So.3d at 825. In addition, we note that no evidence was introduced at the hearing on the exception. Unless properly offered and introduced into evidence, documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Atain Speciality Ins. Co. v. Premier Performance Marine, LLC, 2015-1128 (La. App. 1 Cir. 4/8/16), 193 So.3d 187, 190.
In reviewing this matter, we find that the district court very closely and carefully considered Bias' Third Amended Petition. Moreover, although there is no ruling in the record from the district court regarding whether Bias was granted leave to file his Fourth Amended Supplemental Petition or whether the district court acted on Wells' motion to strike same, we find that the district court's obvious consideration of at least portions of the petition during the hearing on November 29, 2021, evidences the district court's intent to allow Bias every opportunity to present facts supporting his cause of action against Wells. As our review is de novo, we too have examined the allegations contained in the Fourth Amended Supplemental Petition in our review of this case. Even accepting all of Bias' well-pleaded allegations of fact as true, we find that the allegations are too general and vague to state a cause of action against Wells based on an intentional tort. Bias' petitions consist of conclusory statements and allegations of wrongdoing by Wells. However, such allegations are insufficient to constitute facts showing specific malice or intent to harm. Accordingly, we agree with the district court that Bias' petition against Wells does not state a cause of action in intentional tort.
Louisiana Code of Civil Procedure article 934 directs that a judgment sustaining a peremptory exception shall permit amendment of the petition when the grounds of the objection may be removed by amendment, and when the grounds of the objection cannot be removed by amendment, the action shall be dismissed. Amendment is not permitted when it would constitute a vain and useless act. American Intern. Gaming Ass'n, Inc. v. Louisiana Riverboat Gaming Comm'n, 2000-2864 (La. App. 1 Cir. 9/11/02), 838 So.2d 5, 18. The right to amend one's petition is qualified by the restriction that the objections to the petition be curable. Melancon v. Commonwealth Land Title Insurance Company, 2020-0196 (La. App. 1 Cir. 12/30/20), 318 So.3d 171, 177. Based on our thorough review of the record before us, we cannot contemplate any amendment that Bias could make to his petition to remove the grounds of the objection as it relates to his intentional tort claim against Wells. Finally, Bias argues that he prayed for and is entitled to declaratory and injunctive relief based on the clear wording of the stipulation. As previously noted, we found that Bias had no cause of action against Wells for breach of the stipulation because Wells was not a party to the agreement Accordingly, there are no grounds for relief based on the stipulation, declaratory or otherwise, and any argument to the contrary fails.
DECREE
For the above and foregoing reasons, we affirm the district court's December 20, 2021 judgment, sustaining the peremptory exception raising the objection of no cause of action filed by John B. Wells, and dismissing, with prejudice, all claims filed by Ronald Bias against John B. Wells. We assess all costs associated with this appeal against Ronald Bias.