Opinion
2017 CA 1768
02-20-2019
LOUISIANA MACHINERY RENTALS, L.L.C. AND LOUISIANA MACHINERY COMPANY, L.L.C. v. KEAN MILLER, L.L.P., LINDA S. AKCHIN, CHRISTOPHER J. DICHARRY, PAMELA R. MASCARI AND ABC INSURANCE COMPANY
Jacques F. Bezou, Sr. Stacy R. Palowsky Covington, Louisiana Counsel for Plaintiffs-Appellants Louisiana Machinery Rentals, L.L.C. and Louisiana Machinery Company, L.L.C. Connell L. Archey Keith J. Fernandez Baton Rouge, Louisiana Counsel for Defendants-Appellees Kean Miller, L.L.P., Linda S. Akchin, Christopher J. Dicharry and Pamela R. Mascari
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER C616658, SECTION 23, PARISH OF EAST BATON ROUGE
STATE OF LOUISIANA HONORABLE WILLIAM A. MORVANT, JUDGE Jacques F. Bezou, Sr.
Stacy R. Palowsky
Covington, Louisiana Counsel for Plaintiffs-Appellants
Louisiana Machinery Rentals, L.L.C.
and Louisiana Machinery Company,
L.L.C. Connell L. Archey
Keith J. Fernandez
Baton Rouge, Louisiana Counsel for Defendants-Appellees
Kean Miller, L.L.P., Linda S. Akchin,
Christopher J. Dicharry and Pamela R.
Mascari BEFORE: WHIPPLE, C.J., McDONALD, THERIOT, HOLDRIDGE AND CHUTZ, JJ.
Disposition: REVERSED AND REMANDED.
CHUTZ, J.
In this legal malpractice action, plaintiffs-appellants, Louisiana Machinery Rentals, LLC and Louisiana Machinery Company, LLC (collectively, "LMC"), appeal a district court judgment that granted a motion for judgment on the pleadings and dismissed plaintiffs' claims with prejudice. For the following reasons, we reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background from which this action arises was set forth by the Louisiana Supreme Court in Catahoula Parish School Board v. Louisiana Machinery Rentals , LLC , 12-2504 (La. 10/15/13), 124 So.3d 1065, 1066, as follows:
Louisiana Machinery Company, L.L.C. and Louisiana Machinery Rentals, L.L.C. (collectively "the Companies"), Louisiana's exclusive Caterpillar franchise dealers, sold, leased, and/or repaired Caterpillar equipment and machinery in parishes throughout Louisiana. Following a multi-parish audit, the taxing authorities from numerous parishes began tax collection proceedings against the Companies, alleging they incorrectly failed to charge and collect sales and use taxes from their customers on their taxable sales, leases, and/or repairs for certain tax periods, and that the Companies were liable for these taxes, penalties, and interest under the provisions of the Uniform Local Sales Tax Code [La. R.S. 47:337.1 et seq.] ("ULSTC"). [Footnote omitted.]
During September and October of 2010, tax collectors in eleven parishes instituted twenty-two suits against LMC to collect sales and use taxes, penalties, interest, and audit fees. LMC retained the law firm of Kean Miller, LLP to defend it in the multi-parish litigation. Approximately a year later, on October 31, 2011, LMC terminated Kean Miller, having become dissatisfied with its services. LMC then retained the law firm of Jones, Walker, Waechter, Poitevent, Carrere & Denegre (Jones Walker) to represent it in the tax litigation.
Kean Miller alleges that prior to retaining its legal services, LMC failed to formally respond to the notices it received from the tax collectors in various parishes.
According to the allegations of LMC's amended petition, upon review of the pleadings previously filed in the litigation, Jones Walker discovered that Kean Miller "had failed to assert an exception of no cause of action and an affirmative defense based on that fact that the final assessment notices issued by all but one of the tax collectors failed to meet the strict requirements of La. R.S. 47:337.51(A)." (Footnote omitted.) Jones Walker subsequently attempted to challenge the validity of the notices in the various proceedings pending against LMC. The attempts met with varying success.
See, e.g. Caldwell Parish School Board v . Louisiana Machinery Company , L.L.C., 47,349 (La. App. 2d Cir. 5/16/12), 94 So.3d 144, 152, writ granted, 12-1383 (La. 9/28/12), 98 So.3d 822, and writ dismissed, 12-1383 (La. 1/29/13), 110 So.3d 993 (notice deficient under La. R.S. 47:337.51(A)); Catahoula Parish School Board v. Louisiana Machinery Rentals , LLC , 12-443 (La. App. 3d Cir. 10/24/12), 105 So.3d 169, 176, affirmed, 12-2504 (La. 10/15/13), 124 So.3d 1065 (notice deficient under La. R.S. 47:337.51(A)); compare Livingston Parish School Board ex rel. Sales & Use Tax Division v. Louisiana Machinery Company , LLC , 11-1235 (La. App. 1st Cir. 6/8/12), 98 So.3d 407, 412, writ granted, cause remanded, 12-1585 (La. 1/17/14), 130 So.3d 334 (compliance with the notice requirements of La. R.S. 47:337.51(A) not required for summary relief to the tax collector under La. R.S. 47:337.61).
In addition to arguing that the defense of defective notice was raised untimely, the tax collectors responded to the challenges by arguing that the notice required for "taxpayers" under La. R.S. 47:337.51(A) was different than the notice required for "dealers," such as LMC, under Section (B) of the statute. At the time in question, Section (A) provided that a "taxpayer" must be advised, among other things, that he had sixty days from the date of notice of an assessment to request a hearing with the collector. In contrast, Section (B) provided that a "dealer" aggrieved by "any findings or assessment" had thirty days from receipt of the notice of assessment or findings to file a protest with the collector and request a hearing. The tax collectors asserted LMC was properly given notice of the hearing requirements specifically set forth for dealers in Section (B), i.e., that LMC had thirty days to protest the assessment or request a hearing.
Under La. R.S. 47:337.61(2), all defenses must be "presented at one time" and filed "prior to the time fixed for the hearing," otherwise the court is prohibited from considering the defenses.
At the time the notices were issued (prior to 2010 La. Acts, No. 1003, §§ 2 and 4, eff. January 1, 2011), La. R.S. 47:337.51 provided, in pertinent part:
A. Having assessed the amount determined to be due, the collector shall send a notice by certified mail to the taxpayer against whom the assessment is imposed .... This notice shall inform the taxpayer of the assessment and that he has sixty calendar days from the date of the notice to (a) pay the amount of the assessment; (b) request a hearing with the collector; or (c) pay under protest in accordance with R.S. 47:337.63.(Emphasis added.) See
B. If any dealer shall be aggrieved by any findings or assessment of the collector, he may, within thirty days of the receipt of notice of the assessment or finding, file a protest with the collector in writing, signed by himself or his duly authorized agent, which shall be under oath and shall set forth the reason therefor, and may request a hearing. Thereafter, the collector shall grant a hearing to said dealer, if a hearing has been requested, and may make any order confirming, modifying or vacating any such finding or assessment. The filing of any such protest shall not abate any penalty for nonpayment, nor shall it stay the right of the taxing authority to collect the tax in any manner herein provided. Appeals from the decision of the collector shall be directed to any state, city or federal court of competent jurisdiction. This Section shall afford a legal remedy and right of action in any state, city or federal court having jurisdiction of the parties and subject matter for a full and complete adjudication of any and all questions arising in the enforcement of the local ordinance and this Chapter as to the legality of any tax accrued or accruing or the method of enforcement thereof.
Ultimately, on October 15, 2013, the Louisiana Supreme Court held in Catahoula Parish School Board , 124 So.3d at 1075-76, that the notices issued to LMC, which failed to advise LMC it had sixty days to request a hearing, were defective for failing to comply with the mandatory notice requirements of La. R.S. 47:337.5(A). The Catahoula Court held that Section (A) applied to all taxpayers, including dealers such as LMC. Catahoula Parish School Board , 124 So.3d at 1075. The court further held that valid notice under Section (A) was an essential element of the tax collectors' claims, since these claims were premised on the tax collectors' assertions that the assessments were final. The court stated that Section (B) provided "a separate protest procedure available to dealers who are aggrieved by any finding of a collector, not solely an assessment." Catahoula Parish School Board , 124 So.3d at 1075-76. In an opinion issued the same date, the Supreme Court reached the same result in Washington Parish Sheriff's Office v. Louisiana Machinery Company , supra. Subsequently, on January 17, 2014, the Supreme Court granted writs and remanded six additional cases involving LMC to various courts of appeal for reconsideration in light of the opinions in Catahoula and Washington . Upon remand, the assessment notices in each of those cases were found to be defective, and the cases were remanded to the trial courts for further proceedings.
See Ascension Parish Sales & Use Tax Authority v. Louisiana Machinery Company , LLC , 12-0977 (La. 1/17/14), 130 So.3d 332; Ascension Parish Sales & Use Tax Authority v. Louisiana Machinery Rentals , Inc., 12-0977 (La. 1/17/14), 130 So.3d 333; Lasalle Parish School Board v. Louisiana Machinery Company , LLC , 12-1567 (La. 1/17/14), 130 So.3d 333; Lasalle Parish School Board v. Louisiana Machinery Rentals , LLC , 12-1568 (La. 1/17/14), 130 So.3d 333, 334; Livingston Parish School Board ex rel. Sales & Use Tax Division v. Louisiana Machinery Company , LLC , 12-1585 (La. 1/17/14), 130 So.3d 334; and Concordia Parish School Board v. Louisiana Machinery Rentals , LLC , 12-2503 (La. 1/17/14), 130 So.3d 334.
See Concordia Parish School Board v. Louisiana Machinery Rentals , LLC , 12-422 (La. App. 3d Cir. 3/12/14), 133 So.3d 1291; Lasalle Parish School Board. v. Louisiana Machinery Rentals , LLC , 12-259 (La. App. 3d Cir. 4/9/14) (unpublished); Lasalle Parish School Board. v. Louisiana Machinery Company , LLC , 12-276 (La. App. 3d Cir. 4/9/14) (unpublished); Livingston Parish School Board v. Louisiana Machinery Company , LLC , 11-1235 (La. App. 1st Cir. 7/3/14) (unpublished); Ascension Parish Sales & Use Tax Authority v. Louisiana Machinery Rentals , L.L.C., 11-1784 (La. App. 1st Cir. 8/18/14) (unpublished); and Ascension Parish Sales & Use Tax Authority v. Louisiana Machinery Company , L.L.C., 11-1785 (La. App. 1st Cir. 8/18/14), as corrected on rehearing (9/2/14) (unpublished).
Meanwhile, after Jones Walker advised LMC that Kean Miller had failed to challenge the validity of the tax collectors' notices, LMC filed the instant suit for legal malpractice against Kean Miller on October 30, 2012. Linda S. Akchin, Christopher J. Dicharry, and Pamela R. Mascari, the Kean Miller partners who handled the tax litigation for LMC, were also named as defendants (all defendants are collectively referred to as "Kean Miller"). In an amended petition, LMC alleged that Kean Miller failed to meet the standard of care for attorneys handling sales and use tax litigation in the State of Louisiana. Specifically, LMC alleged that Kean Miller failed to challenge the validity of the assessment notices that failed to comply with Section (A) by either filing an exception of no cause of action or an affirmative defense to the tax collectors' claims. As a result, LMC alleged that it sustained financial damages consisting of attorney fees paid to Kean Miller, additional attorney fees paid in an effort to remedy Kean Miller's omissions, and payments it made to the Jefferson Davis Parish tax collector after all avenues of appeal were exhausted.
In response, Kean Miller filed a peremptory exception raising the objection of no cause of action or, alternatively, a motion for summary judgment. The basis of Kean Miller's exception and alternative motion for summary judgment was its contention that, as demonstrated by the conflicting appellate decisions involving LMC, the standard of care was not established as a matter of law at the time that Kean Miller represented LMC. Pointing out that a claim for legal malpractice cannot be based on rulings rendered subsequent to the alleged malpractice, Kean Miller asserted that the law was unsettled prior to the Supreme Court's decisions in Catahoula and Washington. The district court overruled Kean Miller's exception of no cause of action and denied its motion for summary judgment.
Kean Miller then filed an answer to LMC's amended petition and a motion for judgment on the pleadings. In support of its motion, Kean Miller argued that the allegations of LMC's petitions failed "as a matter of law to establish [that] Kean Miller breached the standard of care," which is an essential element of a legal malpractice claim, "because the standard of care was not known or established prior to Catahoula." Following a hearing, the district court granted Kean Miller's motion for judgment on the pleadings and signed a judgment on September 25, 2017, dismissing this matter with prejudice.
LMC has now appealed. In a single assignment of error, LMC contends the district court erred in concluding Kean Miller did not have a duty in the underlying tax litigation to raise the issue that the tax collectors' notices were defective.
APPLICABLE LAW
Legal Malpractice :
To establish a claim for legal malpractice, a plaintiff must prove: 1) the existence of an attorney-client relationship; 2) negligent representation by the attorney; and 3) loss caused by that negligence. MB Industries , LLC v. CNA Insurance Company , 11-0303 (La. 10/25/11), 74 So.3d 1173, 1184; Teague v. St. Paul Fire & Marine Insurance Company , 07-1384 (La. 2/1/08), 974 So.2d 1266, 1272. An attorney is not required to exercise perfect judgment in every instance. Ramp v. St. Paul Fire and Marine Insurance Company , 263 La. 774, 269 So.2d 239, 244 (1972); Crescent City Property Redevelopment Association , LLC v. Hardy , 11-1292 (La. App. 4th Cir. 4/18/12), 89 So.3d 1270, 1274-75, writ denied, 12-1429 (La. 10/8/12), 98 So.3d 859. The plaintiff must prove the defendant failed to "exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality." MB Industries , LLC , 74 So.3d at 1184, quoting, Ramp , 269 So.2d at 244. The Louisiana Supreme Court has held that expert testimony must be introduced in legal malpractice cases to establish the applicable standard of care, except in those rare cases where the malpractice is so egregious that a lay jury could infer the defendant's actions fell below any reasonable standard of care. MB Industries , LLC , 74 So.3d at 1185.
In determining whether or not an attorney has committed malpractice, the court must look at the conditions existing at the time of the alleged malpractice. Fenner v. DeSalvo , 01-2223 (La. App. 4th Cir. 4/17/02), 826 So.2d 39, 46; see also Leonard v. Reeves , 11-1009 (La. App. 1st Cir. 1/12/12), 82 So.3d 1250, 1262. In situations where legal issues are not definitely resolved by legislation or jurisprudence, an attorney may not be held liable for malpractice as long as his determination of the question, whether ultimately proved right or wrong, is based upon reasonable consideration of applicable legal rules or principles. Muse v. St. Paul Fire & Marine Ins. Co., 328 So.2d 698, 704 (La. App. 1st Cir. 1976); Fenner , 826 So.2d at 46. Judgment on the Pleadings :
Louisiana Code of Civil Procedure article 965 provides:
Any party may move for judgment on the pleadings after the answer is filed, or if an incidental demand has been instituted after the answer thereto has been filed, but within such time as not to delay the trial. For the purposes of this motion, all allegations of fact in mover's pleadings not denied by the adverse party or by effect of law, and all allegations of fact in the adverse party's pleadings shall be considered true.
A motion for judgment on the pleadings presents solely a question of law. Stonebridge Development , LLC v. Stonebridge Enterprises , LLC , 42,039 (La. App. 2d Cir. 4/4/07), 954 So.2d 893, 895, writ denied, 07-0963 (La. 6/22/07), 959 So.2d 508; A&B Bolt & Supply , Inc. v. Dawes , 04-699 (La. App. 3d Cir. 11/10/04), 888 So.2d 1023, 1026, writ denied, 05-0265 (La. 4/1/05), 897 So.2d 609. Questions of law are reviewed de novo without deference to the legal conclusions of the trial court. Gadrel , L.L.C. v. Williams , 17-537 (La. App. 5th Cir. 3/14/18), 241 So.3d 508, 513. On a motion for judgment on the pleadings, both the trial and appellate court are limited to a review of the pleadings, and must assume that all allegations of fact contained in the pleadings filed by the party against whom the motion for judgment on the pleadings is filed are true and all allegations made by the mover are denied. Gibbens v. Wendy's Foods , Inc., 31,487 (La. App. 2d Cir. 1/20/99), 729 So. 2d 629, 631; A&B Bolt & Supply , Inc., 888 So.2d at 1026.
DISCUSSION
LMC contends the district court erred in concluding Kean Miller had no duty as a matter of law to raise the issue of defective notice under La. R.S. 47:337.51(A) in the underlying tax litigation. LMC's position is that, regardless of whether proper notice under Section (A) is an essential element of the tax collectors' claims, it was still incumbent upon Kean Miller to challenge the tax collectors' defective notices in some manner. LMC argues that the notice requirements in Section (A) were clearly set forth by the explicit terms of that provision, even before the Catahoula decision was rendered. Accordingly, LMC asserts that because the notice requirements were clear and explicit, Kean Miller's failure to verify that the notices LMC received met the statutory requirements constituted "obvious" malpractice. In response to Kean Miller's contention that the conflicting opinions rendered by various appellate courts on the notice issue exonerates it due to the unsettled state of the law, LMC argues that the same fact should have led the district court to the conclusion that this matter was not one appropriate for judgment on the pleadings. According to LMC, it was improper for the district court to conclude on the basis of the pleadings alone that Kean Miller did not breach the applicable standard of care since evidence was necessary to establish what the standard of care was at the time in question.
Kean Miller contends that it cannot be held guilty of malpractice based on the new rulings rendered by the Supreme Court in Catahoula and Washington. It argues that because the law was unsettled, as demonstrated by the split in the appellate circuits in the various cases involving LMC, it could not be guilty of malpractice as a matter of law because the standard of care was unknown prior to the decisions in Catahoula and Washington.
Alternatively, Kean Miller also argues that LMC's pleadings fail to state a cause of action. We find no merit in this contention. The function of the peremptory exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts of the petition. A court must review the petition and accept all well-pleaded facts as true. The only issue is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. Clavier v. Our Lady of the Lake Hospital Inc., 12-0560 (La. App. 1st Cir. 12/28/12), 112 So.3d 881, 885, writ denied, 13-0264 (La. 3/15/13), 109 So.3d 384.
Our examination of LMC's original and amended petitions reveals they allege facts that, if taken as true, state a cause of action for legal malpractice against Kean Miller. Specifically, LMC alleges: (1) it retained Kean Miller to represent it in multi-parish tax litigation; (2) despite being expected to assert all possible exceptions and affirmative defenses, Kean Miller failed to file an exception of no cause of action or an affirmative defense raising the issue of defective notice under La. R.S. 47:337.51(A); and (3) as a result, it sustained damages in the form of attorney fees and payments made to the Jefferson Parish tax collector. Accepting these allegations as true, they are sufficient to state a cause of action for legal malpractice.
In granting Kean Miller's motion for judgment on the pleadings, the district court gave the following oral reasons for judgment:
Kean Miller [has] answered and admitted a majority of the allegations that, no, they didn't raise these defenses. And plaintiff is saying since you didn't raise these defenses, that's malpractice. I think the Supreme Court, when they addressed it, they specifically said [in Catahoula Parish School Board , 124 So.3d at 1076] ... "Because the collector's claims are premised on its assertion that the assessments were final and thus [equivalent] to judgments which cannot be challenged by the company ... we find the issue of the validity of these notices of assessment, the very defense that [LMC is] claiming Kean Miller didn't raise constitutes an essential element of the collector's claims rather than strictly a defense asserted by the defendants." Even if they didn't assert this defense, it is still incumbent upon the collectors, since this is an essential element, [LMC] can file an answer [in the] form of a general denial. ... It's [the tax collectors'] burden to prove it, not [LMC's] burden to raise it as a defense. So, I'm not quite sure how I can look and say: Kean Miller, you committed malpractice because you didn't raise a defense that the Supreme Court has now subsequently said you don't have to raise as a defense. The other side had to prove it as part of their case-in-chief. ... [A]nd I'm going to grant the motion for judgment on the pleadings. I don't think that the issue was resolved before. Supreme Court specifically said there was a split. They resolve the split and their opinion is contrary to the allegations - the very allegations plaintiff seeks to use to recover against Kean Miller. [Emphasis added.]
Based on our review of the pleadings in this matter, we conclude the district court legally erred in granting judgment on the pleadings. While the Catahoula Court held that LMC's defense counsel was not required to raise defective notice as a formal defense, it did not hold that defense counsel had no duty whatsoever to challenge the defective notices. In Catahoula , the Supreme Court was faced with an argument by the tax collector that LMC had waived the right to challenge the validity of the assessment notice by failing to timely raise the issue as a formal defense. Specifically, the tax collector argued that the issue of defective notice was waived since LMC failed to raise the issue at the same time that it filed its other defenses. Louisiana Revised Statutes 47:337.61(2) requires all defenses to be raised at one time prior to the time fixed for hearing.
It was in this context that the Supreme Court held that notice under La. R.S. 47:337.51(A) was an element of the tax collector's claims and not "strictly a defense" raised by LMC. Catahoula Parish School Board , 124 So.3d at 1076-77. Because it was not "strictly a defense," the Supreme Court held that the issue of defective notice was not waived under La. R.S. 47:337.61(2), even though the issue was not raised at the same time that LMC filed its defenses to the tax collector's claims. The issue now before this court, i.e., whether defense counsel had a duty to challenge the validity of the tax collectors' notices in some manner, was not raised in Catahoula and was never considered by the Supreme Court. Therefore, the district court erred in concluding that the issue of defense counsel's duty in this regard was resolved by the Catahoula decision.
In order to prevail on its legal malpractice claim, LMC must prove that Kean Miller failed to "exercise at least that degree of care, skill, and diligence which [was] exercised by prudent practicing attorneys in [its] locality" at the time that it represented LMC. MB Industries , LLC , 74 So.3d at 1184. The conditions existing at the time of the alleged malpractice must be considered. Fenner , 826 So.2d at 46; see also Leonard , 82 So.3d at 1262. According to Kean Miller, it was not established until the Catahoula and Washington decisions that the notice requirements of La. R.S. 47:337.51(A) applied to dealers such as LMC and that valid notice under that provision was an essential element of the tax collectors' claims. Therefore, since Kean Miller represented LMC before the Catahoula and Washington decisions were rendered, it argues that it had no duty as a matter of law to raise the issue of defective notice at the time that it represented LMC.
While we express no opinion herein on whether Kean Miller owed such a duty to LMC, we reject the contention that Kean Miller could not have breached the standard of care as a matter of law because the standard was unknown prior to the Catahoula and Washington decisions. Even if the Catahoula and Washington decisions did create new rules and a different standard of care did exist prior to those decisions, those facts do not mean that Kean Miller could not as a matter of law have breached the standard of care that existed at the time it represented LMC.
Because this matter was resolved on a motion for judgment on the pleadings, without the introduction of any expert testimony, the record does not establish the standard of care that existed at the time of the alleged malpractice by Kean Miller. Moreover, despite LMC's claims to the contrary, this case is not one involving obvious malpractice where the alleged malpractice is so egregious that a lay jury could infer the defendant's actions or omissions fell below any reasonable standard of care. See MB Industries , LLC , 74 So.3d at 1185. Whether Kean Miller met the standard of care existing at the time of the alleged malpractice is a complicated issue that requires expert evidence to resolve. See MB Industries , LLC , 74 So.3d at 1185. Without the assistance of an expert, a lay jury would have no basis for deciding whether the failure to raise the issue of defective notice at the time that Kean Miller represented LMC was within the standard of care for a reasonably competent tax attorney in the localities where the suits against LMC were filed. See MB Industries , LLC , 74 So.3d at 1186.
Expert evidence was required in this case to establish whether the then-existing standard of care required Kean Miller to challenge the tax collectors' notices in the litigation against LMC. See MB Industries , LLC , 74 So.3d at 1185. The fact that Jones Walker raised the issue almost immediately upon being retained and ultimately prevailed on that issue is not dispositive. The pertinent inquiry is not whether a successor attorney raised the issue of defective notice, but whether the standard of care existing before Catahoula and Washington required a reasonably competent tax attorney practicing in the localities in question to raise that issue in defending LMC in the tax litigation. Because expert testimony is required to resolve this issue in this complex case, it could not be decided on the pleadings before the district court.
Under these circumstances, the district court erred in granting judgment on the pleadings in favor of Kean Miller. The jurisprudence favors giving a party his day in court. Stonebridge Development , LLC , 954 So.2d at 895. A judgment on the pleadings is granted only when the legal right is clearly established and the facts are so clear and unquestioned that a trial on the merits is unwarranted. See Stonebridge Development , LLC , 954 So.2d at 895; A&B Bolt & Supply , Inc., 888 So.2d at 1026. In the absence of expert evidence to establish the existing standard of care at the time in question, the facts herein were not so clear and unquestioned that a trial on the merits was unwarranted. The judgment on the pleadings in favor of Kean Miller was improperly granted.
Kean Miller alleges that the "conflicting and varying decisions of the appellate courts [in the suits filed by various tax collectors against LMC] show that Kean Miller did not breach the standard of care." We disagree that these decisions alone establish that Kean Miller did not breach the applicable standard of care, whatever it may have been at the time in question. It is true that the conflicting decisions may reflect that the law was unsettled prior to the Supreme Court's decisions in Catahoula and Washington. In situations where legal issues are unsettled, an attorney may not be held liable for malpractice as long as his determination of the question, whether ultimately proved right or wrong, is based upon reasonable consideration of applicable legal rules or principles. Muse , 328 So.2d at 704; Fenner , 826 So.2d at 46. Thus, to resolve the instant matter, it must be determined whether Kean Miller's failure to challenge the tax collectors' notices for noncompliance with Section (A) was based upon reasonable considerations of applicable legal rules or principles. Muse , 328 So.2d at 704; Fenner , 826 So.2d at 46. This determination is not one that can properly be made on the pleadings alone. --------
CONCLUSION
For the reasons assigned, the judgment of the district court granting Kean Miller's motion for judgment on the pleadings and dismissing LMC's claims is reversed. This matter is remanded to the district court for further proceedings consistent with this opinion. All costs of this appeal are to be paid by Kean Miller.
REVERSED AND REMANDED. HOLDRIDGE, J., CONCURS.
I respectfully concur. In a motion for judgment on the pleadings, all allegations of fact contained in the non-moving party's pleadings are considered true. In this case, all of the allegations of plaintiff's petition are considered true and all of the allegations in the defendant's answer are considered as denied. A&B Bolt & Supply Inc. v. Dawes, 2004-699 (La. App. 3d Cir. 11/10/04), 888 So.2d 1023, 1026, writ denied, 2005-0265 (La. 4/1/05), 897 So.2d 609; Gibbens v. Wendy's Foods, Inc., 31,487 (La. App. 2d Cir. 1/20/99), 729 So.2d 629, 631; Whether defendants had a duty as a matter of law is not an issue within the purview of a motion for judgment on the pleadings under the circumstances of this case, but can be raised by defendants in a motion for summary judgment.
Washington Parish Sheriff's Office v. Louisiana Machinery Company , LLC , 13-0583 (La. 10/15/13), 126 So.3d 1273, 1275.