Opinion
NUMBER 2011 CA 0141R
11-07-2012
FREDERICK WALKER AND IRMA WALKER v. JACK PATRICK HARRIS AND DESALVO & HARRIS
Alfred B. Shapiro Baton Rouge, LA Counsel for Plaintiffs/Appellants Frederick and Irma Walker Gracella Simmons Collin J. LeBlanc Baton Rouge, LA Counsel for Defendants/Appellees Jack Patrick Harris and DeSalvo & Harris
NOT DESIGNATED FOR PUBLICATION
Appealed from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Docket Number 536,964
Honorable Timothy E. Kelley, Judge
Alfred B. Shapiro
Baton Rouge, LA
Counsel for
Plaintiffs/Appellants
Frederick and Irma
Walker
Gracella Simmons
Collin J. LeBlanc
Baton Rouge, LA
Counsel for
Defendants/Appellees
Jack Patrick Harris and
DeSalvo & Harris
BEFORE: WHIPPLE, KUHN, GUIDRY, PETTIGREW,
AND McCLENDON, JJ.
GUIDRY , J.
On February 3, 2012, the Louisiana Supreme Court remanded this matter to this court to re-consider the appeal in light of its decision in MB Industries, LLC v, CNA Insurance Company, 11-0303 (La. 10/25/11), 74 So. 3d 1173, a decision that was handed down over a month after our judgment was rendered in this case. See Walker v. Harris, 11-0141 (La. App. 1st Cir. 9/14/11) (unpublished opinion), writ granted, 11-2531 (La. 2/3/12), 79 So. 3d 1020.
This remand involves an appeal of a summary judgment that dismissed a legal malpractice suit filed by Frederick and Irma Walker against Jack Patrick Harris and the Desalvo & Harris law firm ("malpractice defendants"), the legal counsel that initially represented the Walkers in a personal injury suit. The malpractice suit stemmed from an adverse interlocutory judgment rendered on August 17, 2005, in which the trial court restricted the Walkers from presenting any claims or evidence relative to cervical and back injuries Mr. Walker allegedly sustained in a car accident that was the basis of the personal injury suit. Initially, the Walkers sought supervisory review of the adverse ruling, but when writs were denied by this court, the Walkers terminated the representation of the malpractice defendants, obtained new counsel, filed the subject malpractice suit, and then settled their personal injury suit. In turn, the malpractice defendants filed a motion for summary judgment in the legal malpractice action, asserting that the Walkers had waived their right to maintain the malpractice suit based on their failure to appeal the August 17, 2005 judgment on which their malpractice action was premised and therefore should be equitably estopped from pursuing that action. The trial court agreed and granted the motion for summary judgment. We affirmed the judgment on appeal.
In the August 17, 2005 judgment, the trial court ordered that any claims by Mr. Walker relating to alleged cervical and lumbar injuries be dismissed with prejudice and that the Walkers be precluded from introducing evidence of any "cervical or lumbar injuries including, but not limited to, any alleged injuries to vertebrae, discs, nerves, muscles, tendons, ligaments, or other associated structures relating to the cervical spine and lumbar spine" at the trial of the matter.
For a more detailed recitation of the facts and procedural history of this case, see our original opinion in this matter.
In MB Industries, LLC, the Louisiana Supreme Court expressly rejected application of the doctrine of "equitable estoppel" to a claim of waiver by failure to appeal, and instead held that the principle of "failure to mitigate damages," under La. C.C. art. 2002, should apply to such claims. MB Industries, LLC, 11-0303 at p. 10, 74 So. 3d at 1180-81. Similar to the issue before us in this appeal, the attorneys in MB Industries, LLC alleged that their former client had waived its right to pursue its legal malpractice action due to its failure to appeal the underlying judgment on which the malpractice claim was premised. The Louisiana Supreme Court, however, held that such a claim should be viewed as a defense of failure to mitigate damages and that it should be reviewed in terms of the merits of any mitigation efforts proposed. Thus, in reviewing the claim that the former client should have appealed the adverse judgment on which its legal malpractice action was premised, the Louisiana Supreme Court decreed:
We ... hold a party does not waive its right to file a legal malpractice suit by not filing an appeal of an underlying judgment unless it is determined a reasonably prudent party would have filed an appeal, given the facts known at the time and avoiding the temptation to view the case through hindsight. This analysis is heavily dependent on the specific facts of the case. A court should take into account any relevant factors including, but not limited to, the nature of the alleged malpractice, the likelihood an appeal would have been successful, the likely expense of the appeal, and the possibility the peremptive period on the legal malpractice claim would have expired during the course of the appeal.MB Industries, LLC, 11-0303 at p. 13, 74 So. 3d 1182-83.
Therefore, in compliance with the Louisiana Supreme Court's directive in MB Industries, LLC, the malpractice defendants' claim in this matter must be considered as an assertion that the Walkers failed to properly mitigate their damages in this case due to their failure to appeal the August 17, 2005 judgment on which their malpractice claim is premised. However, consideration of this restructured argument requires a determination of whether a reasonably prudent person would have sought an appeal of the August 17, 2005 judgment on which the malpractice claim is premised given the facts known at the time.
Based on the record as it stands before us, we find that genuine issues of material fact exist that make summary judgment improper in this case. A motion for summary judgment is rarely appropriate for disposition of a case requiring judicial determination of subjective facts such as intent, motive, malice, good faith, or knowledge. Eskind v. Marcel, 06-0369, p. 5 (La. App. 1st Cir. 12/28/06), 951 So. 2d 289, 292. Notably, issues that require the determination of reasonableness of acts and conduct of parties under all facts and circumstances of the case cannot ordinarily be disposed of by summary judgment. Granda v. State Farm Mutual Insurance Company, 04-1722, pp. 4-5 (La. App. 1st Cir. 2/10/06), 935 So. 2d 703, 707, writ denied, 06-0589 (La. 5/5/06), 927 So. 2d 326. A determination of whether a reasonably prudent person would nevertheless continue to litigate the personal injury suit to a final judgment in order to seek an appeal of the August 17, 2005 ruling raises a genuine issue of material fact that precludes summary judgment.
Therefore, we reverse the summary judgment dismissing the Walkers' legal malpractice action and remand this matter to the trial court for further proceedings. All costs of this appeal are cast to Jack Patrick Harris and the Desalvo & Harris law firm.
REVERSED AND REMANDED.
2011CA0141R
FREDERICK WALKER AND IRMA WALKER
VERSUS
JACK PATRICK HARRIS AND DESALVO & HARRIS
McCLENDON, J., concurs and assigns reasons.
Based upon the Louisiana Supreme Court's ruling in MB Industries, LLC v. CNA Ins. Co., 11-0303 (La, 10/25/11), 74 So.3d 1173, the key issue presented for our review is whether plaintiffs failed to mitigate their damages. The record shows that an appeal in this case would not have been unreasonable or futile. However, the supreme court has indicated that additional factors should be taken into account in determining whether plaintiffs failed to mitigate their damages, including, but not limited to, the likely expense of the appeal and the possibility the peremptive period on the legal malpractice claim would have expired during the course of the appeal. See MB Industries, LLC, 74 So.3d at 1183. These remaining factors have not been developed by the parties. Therefore, I respectfully concur with the majority's decision to remand. FREDERICK WALKER AND
IRMA WALKER
I note that the plaintiffs sought supervisory review of the trial court's interlocutory ruling imposing sanctions and dismissing Mr. Walker's claims for alleged cervical and lumbar injuries. This court declined to exercise supervisory jurisdiction at that time, noting that the criteria set forth in Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc., 396 So.2d 878 (La. 1981) were not met. See Walker v. Alexander, 2006-0888 (La. App. 1 Cir. 5/19/06)(Unpublished writ action). Judge Hughes, who dissented and was the only judge to address the merits of the writ application, indicated that he would grant the writ because the "facts in this case do not support imposing the ultimate drastic sanction of dismissal against the plaintiff."
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VERSUS
JACK PATRICK HARRIS AND
DESALVO & HARRIS
NO. 2011 CA 0141R
KUHN, J., dissenting.
I disagree with the majority opinion. Although MB Industries, LLC v. CNA Ins. Co. , 2011-0304 (La. 10/25/11), 74 So.2d 1173, does not permit a per se preclusion of a malpractice claim by a client against his former attorney when he has failed to appeal the underlying case and instead settles it, it also should not permit a per se right of a malpractice action in every instance that a client settles his underlying claim without appealing it. The MB Industries court stated, "a party does not waive his right to file a malpractice suit by not filing an appeal of [the] underlying judgment unless it is determined [that] a reasonably prudent party would have filed an appeal."
Here, the trial judge dismissed with prejudice the plaintiff's claims arising out of any cervical or lumbar injuries he may have sustained because of his failure to attend an IME. Although this court subsequently denied Walker's writ challenging the trial court's discovery determination (based solely on a finding that the criteria of Herlitz Construction Co., Inc. v. Hotel Investors of New Iberia, Inc. , 366 So.2d 878 (La. 1981) had not been met), as noted in the dissent:
The trial court signed two separate orders indicating that the case had been stayed. The evidence is uncontested that plaintiff's attorney, now suspended from the practice of law, failed to properly inform and advise plaintiff.
It is claimed that plaintiff was "uncooperative," but his reluctance to inject hearsay into his medical history through office personnel is understandable. The doctor refused to examine the plaintiff, not vice versa. The failure of the IME doctor to discern the distinction between the IME ordered for litigation purposes and a
regular office visit should not be held against plaintiff, as should not the actions of his attorney.
The facts in this case do not support imposing the ultimate drastic sanction of dismissal against this plaintiff. See Horton v. McCary , 93-2315 (La. 4/11/94), 635 So.2d 199. A more flexible remedy might avoid the appeal to come. [Emphasis added.]
Instead of pursuing an appeal of the trial court's clearly-erroneous discovery ruling, plaintiff fired his attorney, hired new counsel, settled his claim for $75,000.00, and filed this legal malpractice suit. Clearly, a reasonably prudent party would have appealed the erroneous discovery ruling. Walker chose to forego the appeal, settle his lawsuit, and file this legal malpractice suit. If these facts do not amount to the requisite showing necessary to sustain defendants' burden on summary judgment -- particularly here where he was specifically advised, confirmed by a written acknowledgement, that settlement of his personal injury claims could have the effect of a dismissal of any legal malpractice claim against his former attorney and his law firm -- there is no set of facts that could. If the majority has correctly interpreted MB Industries , it thus appears there simply is no opportunity for resolution of a malpractice claim by summary judgment if a client decides not to appeal or otherwise challenge an unfavorable ruling in the underlying litigation and instead pursues a malpractice claim. I do not believe that the MB Industries court intended such a broad application of its holding. Accordingly, I dissent.