Opinion
2021 CA 0682
12-22-2021
LAW OFFICES OF ROBERT C. LEHMAN, a Professional Law Corporation, Law Offices of Robert C. Lehman, LLC and Robert C. Lehman, Individually v. Shawn W. ROGERS, Rogers Law Firm, LLC d/b/a Rogers Law Firm, Norman J. Manton, Jr., and Louisiana Citizens Property Insurance Company
Robert C. Lehman, Mandeville, LA, Plaintiff/Appellant, in proper person David S. Daly, Elliot M. Lonker, New Orleans, LA and John W. Waters, Jr., New Orleans, LA, Counsel for Defendant/Appellee, David E. Walle
Robert C. Lehman, Mandeville, LA, Plaintiff/Appellant, in proper person
David S. Daly, Elliot M. Lonker, New Orleans, LA and John W. Waters, Jr., New Orleans, LA, Counsel for Defendant/Appellee, David E. Walle
BEFORE: LANIER, WOLFE, AND BURRIS, JJ.
The Honorable William J. Burris, retired, is serving pro tempore by special appointment of the Louisiana Supreme Court.
LANIER, J.
The plaintiffs, the Law Offices of Robert C. Lehman, a Professional Law Corporation, the Law Offices of Robert C. Lehman, LLC, and Robert C. Lehman, individually (Lehman, collectively) appeal the summary judgment of the Twenty-Second Judicial District Court in favor of the defendant, David E. Walle. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On August 12, 2016, Lehman filed a petition against Shawn W. Rogers, the Rogers Law Firm, LLC d/b/a Rogers Law Firm (Rogers, collectively), Norman J. Manton, Jr., and Louisiana Citizens Property Insurance Company (LA Citizens). Lehman alleged in his petition that Manton hired him to provide legal services in connection with damage Manton received to his home. Lehman filed two separate petitions on behalf of Manton, the first on September 20, 2007, and the second on March 24, 2008. These suits were filed against LA Citizens, Manton's insurer (the LA Citizens cases).
Several months after after the lawsuits were filed, LA Citizens issued six separate checks for Manton's damages totaling $293,463.83 with Lehman named as an additional payee. Lehman received the checks but advised LA Citizens the payments were not in full settlement of Manton's claims and that he would not disburse the funds until he was authorized to do so. LA Citizens replied that the checks should not be negotiated until Manton agreed to fully release LA Citizens and dismiss the cases. Lehman stated to LA Citizens that he never understood the checks to be in full settlement of the cases, and that the funds only covered the portion of damages that were undisputed. Lehman further stated LA Citizen's position would first be considered by Mr. Manton before deciding whether to negotiate the checks.
On August 6, 2008, Manton approved the disbursement of the funds. The statements executed by Lehman show that after legal fees of $119,684.05 were deducted, Manton was to receive $173,779.78. All six checks were endorsed by Manton's spouse. Lehman alleged that he and Manton had agreed to meet at a later date to satisfy payment for Lehman's legal services, but Lehman was unable to contact Manton, nor did he receive any further communications from Manton.
Approximately two years later, LA Citizens attempted to have the LA Citizens cases dismissed by representing to the district court in both cases that the payments had been tendered on full settlement of both claims. Lehman alleged that although he had been unable to reach Manton, he had successfully obtained a judgment signed on May 8, 2015, and the checks were not payment in full but rather payment for the undisputed damages plus attorney's fees and costs. LA Citizens issued another check for $116,342.47 to cover the balance due on the judgment, plus attorney's fees and costs, which Lehman deposited in an Interest on Lawyer Trust Account (IOLTA) until he could get in touch with Manton.
Lehman then alleged that in August of 2015, approximately one month after depositing the check into the IOLTA, he was contacted by Rogers, who claimed he represented Manton in a separate personal injury suit. Rogers informed Lehman that Manton was seeking criminal charges against Lehman for theft of the funds LA Citizens had tendered to Manton. During discussions with Rogers, Lehman offered to transfer the full value of the funds held in the IOLTA directly to Manton; however, Rogers informed Lehman that Manton still intended to file criminal charges against Lehman unless the funds were immediately transferred into Rogers's own IOLTA.
After this exchange, Lehman continued to act as Manton's attorney of record in the LA Citizens cases for which he was originally hired. On July 5, 2016, Lehman filed pleadings to prevent abandonment. The following day, Rogers called Lehman and asked him why he filed pleadings in those cases, when he was not the attorney in one of the cases and when the other case was closed. Lehman then discovered that without his knowledge, Rogers had enrolled as counsel on behalf of Manton in the LA Citizens cases, compromised the cases and had them both dismissed. Lehman alleged he had not yet been compensated for his work on the LA Citizens cases. Lehman therefore filed his petition to recover the remaining fees he claimed were owed to him.
Lehman asserted that through an orchestrated means of overt and covert actions by Rogers, LA Citizens, and Manton, Rogers enrolled as counsel in the LA Citizens cases without notifying Lehman, settled each case, and dismissed them with prejudice without Lehman's knowledge. Lehman further asserted that the actions of Rogers, LA Citizens, and Manton have precluded him from receiving the attorney's fees and costs for which a judgment had already been rendered
In Lehman's first amended petition, he included Walle, counsel for LA Citizens, as an additional defendant. Lehman alleged that Walle also participated in the covert and overt schemes of the other defendants to prevent Lehman from receiving his compensation. In his second amended petition, Lehman removed all wording indicating that the tortious actions of the defendants were intentional.
On August 12, 2020, Walle filed a motion for summary judgment, in which he claimed he had no duty to protect Lehman's interest in attorney's fees that might have been due to him. After a hearing and review of all exhibits submitted into evidence, the district court granted summary judgment in favor of Walle and dismissed all of Lehman's claims against Walle with prejudice. The judgment was signed on December 2, 2020, and this timely appeal followed. ASSIGNMENTS OF ERROR
The district court designated the judgment as a final judgment pursuant to La. C.C.P. 1915 and found no just reason for delay.
Lehman has filed another appeal in this court of a separate summary judgment granted in favor of LA Citizens in 2021-CA-0681, Law Offices of Robert C. Lehman, et al. v. Shawn W. Rogers, et al. While both appeals share the same operative facts, our decisions in the appeals are independent of each other.
Lehman cites the following assignments of error:
1. The district court erred in failing to recognize Lehman's valid cause of action and that sufficient factual evidence exists to try the case.
2. The district court erred by denying Lehman an opportunity for adequate discovery prior to hearing Walle's motion for summary judgment.
STANDARD OF REVIEW
Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Kennedy v. Sheriff of East Baton Rouge , 2005-1418 (La. 7/10/06), 935 So.2d 669, 686. A court must grant a motion for summary judgment "if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law." La. C.C.P. art. 966(A)(3). A "genuine issue" is a "triable issue," or one on which reasonable persons could disagree. Kennedy, 935 So.2d at 686.
DISCUSSION
The district court issued detailed written reasons for its judgment. The district court noted that Lehman failed to record his contract of employment with Manton in order to secure his interest in attorney fees, pursuant to La. R.S. 37:218. As such, Lehman forfeited any right to impose an obligation on third parties, and Walle, as opposing counsel, had no duty to defend Lehman's right to a fee. Lehman's response in his brief is that he was never aware that he needed to record his employment contract because the defendants kept their actions hidden from him. Regardless, no contractual obligation of any kind exists between Lehman and Walle. The only contractual obligations evidenced by documents submitted at the trial on the motion for summary judgment are in two contracts of employment between Lehman and Manton, one signed by Manton on September 17, 2007, and another dated March of 2008, but unsigned.
Louisiana Revised Statutes, 37:218 states, in pertinent part:
By written contract signed by his client, an attorney at law may acquire as his fee an interest in the subject matter of a suit, proposed suit, or claim in the assertion, prosecution, or defense of which he is employed, whether the claim or suit be for money or for property. Such interest shall be a special privilege to take rank as a first privilege thereon, superior to all other privileges and security interests under Chapter 9 of the Louisiana Commercial laws. In such contract, it may be stipulated that neither the attorney nor the client may, without the written consent of the other, settle, compromise, release, discontinue, or otherwise dispose of the suit or claim. Either party to the contract may, at any time, file and record it with the clerk of court in the parish in which the suit is pending or is to be brought or with the clerk of court in the parish of the client's domicile. After such filing, any settlement, compromise, discontinuance, or other disposition made of the suit or claim by either the attorney or the client, without the written consent of the other, is null and void and the suit or claim shall be proceeded with as if no such settlement, compromise, discontinuance, or other disposition has been made.
A contract between the parties is the law between the parties. La. C.C. art. 1983. See also Mobil Exploration & Producing U.S. Inc. v. Certain Underwriters Subscribing to Cover Note 95-3317(A), 2001-2219 (La. App. 1 Cir. 11/20/02), 837 So.2d 11, 31, writ denied, 2003-0418 (La. 4/21/03), 841 So.2d 805, and writs denied , 2003-0417, 0427 (La. 5/16/03), 843 So.2d 1129, and writ denied, 2003-0438 (La. 5/16/03), 843 So.2d 1130. The evidence submitted by both parties at the hearing on the motion for summary judgment indicates that Lehman only had a contractual obligation with Manton; therefore, Walle, as opposing counsel, had no duty of any kind to protect Lehman's entitlement to legal fees. We therefore find that no genuine issue of material fact exists as to whether Walle owed any such contractual duty to Lehman.
As to whether the district court should have given more time for adequate discovery prior to hearing the motion for summary judgment, while parties must be given fair opportunity to carry out discovery and present their claims, the requirement is that adequate discovery be conducted, not that discovery be completed. Whittington v. QBE Specialty Ins. Co., 2012-0409 (La. App. 3 Cir. 11/7/12), 105 So.3d 797, 803, writ denied, 2012-2646 (La. 1/25/13), 105 So.3d 723. Further, there is no absolute right to delay trial court's consideration of a summary judgment motion until discovery is completed; rather, the trial judge has discretion to issue a summary judgment or to require further discovery. Williams v. A Day To Remember Invitations, L.L.C., 2006-0757 (La. App. 5 Cir. 3/13/07), 956 So.2d 30, 33.
Lehman specifically stated in his memorandum in opposition to the motion for summary judgment that the depositions of Rogers and Walle had not yet been taken. However, Lehman has not argued that the taking of such depositions would relate to whether Walle had any obligation to protect Lehman's interest in his attorney fees. Rather, Lehman alluded to defamatory statements made by Walle, which would not be relevant to the instant appeal. Lehman did have the opportunity to depose Andrew Lee, a claims adjuster for LA Citizens, who testified as to Walle issuing the settlement checks in the LA Citizens cases according to the direction of Rogers, who Walle understood to be Manton's attorney after Manton had terminated his relationship with Lehman. Walle verifies Lee's statement in his response to Lehman's interrogatories by stating that he received instructions from Rogers on behalf of Manton to disburse the settlement checks.
Furthermore, we note that from the filing of the first amended petition on January 24, 2017, when Walle was initially brought into the instant case, to the date of the motion hearing, November 10, 2020, Lehman had nearly four years to conduct discovery pertaining to Walle. Based on the above findings, we conclude that the district court did not abuse its discretion in disallowing further discovery to be taken.
DECREE
The summary judgment of the Twenty-Second Judicial District Court in favor of the defendant, David E. Walle, is affirmed. All costs of this appeal are assessed to the appellants, the Law Offices of Robert C. Lehman, a Professional Law Corporation, the Law Offices of Robert C. Lehman, LLC, and Robert C. Lehman, individually.