Opinion
NO. 2013 CA 0109
2013-09-13
GORDON B. McFARLAND, III AND WRIGHT E. McFARLAND v. MICHAEL D. CONROY AND MICHAEL D. CONROY, PLC
Soren E. Gisleson John S. Creevy New Orleans, LA Attorneys for Plaintiffs-Appellants, Gordon B. McFarland, III and Wright E. McFarland Richard T. Simmons, John C. Duplantier Alayne R. Corcoran Metairie, LA Attorneys for Defendants-Appellees, Michael D. Conroy and Michael D. Conroy, PLC
NOT DESIGNATED FOR PUBLICATION
On Appeal from the
22nd Judicial District Court,
In and for the Parish of St. Tammany,
State of Louisiana
Trial Court No. 2009-17564
Honorable William J. Crain, Judge Presiding
Soren E. Gisleson
John S. Creevy
New Orleans, LA
Attorneys for Plaintiffs-Appellants,
Gordon B. McFarland, III and
Wright E. McFarland
Richard T. Simmons,
John C. Duplantier
Alayne R. Corcoran
Metairie, LA
Attorneys for Defendants-Appellees,
Michael D. Conroy and
Michael D. Conroy, PLC
BEFORE: KUHN, HIGGINBOTHAM, AND THERIOT, JJ.
HIGGINBOTHAM, J.
In this case, the trial court granted summary judgment in favor of an attorney, finding no attorney-client relationship existed and thus, no basis to hold the attorney liable to the non-client plaintiff's. For the following reasons, we affirm.
BACKGROUND
In 1998, attorney Michael D. Conroy prepared a Last Will and Testament (the Will) for Dr. Gordon B. McFarland, Jr., the father of the plaintiffs, Gordon B. McFarland, III and Wright E. McFarland. Dr. McFarland executed the Will on August 7, 1998. After execution, the Will was stored in Mr. Conroy's safe/safety deposit box that was maintained by his law firm, Michael D. Conroy, PLC, until Dr. McFarland's death on December 24, 2008. In July and August 2008, Mr. Conroy also prepared and/or notarized medical directives and a Living Will for Dr. McFarland and his wife, Suzanne McFarland. Mr. Conroy billed Dr. McFarland and his wife for the legal services he had rendered.
At some point between March 2007 and December 2008, Dr. McFarland gave Mr. Conroy's office staff a signed and witnessed Codicil to the Will that had been dated March 22, 2007. The Codicil purported to make the plaintiffs the beneficiaries of certain life insurance policies and owners of Dr. McFarland's retirement account. When Dr. McFarland delivered the Codicil to Mr. Conroy's office, he directed Mr. Conroy's office staff to safely store the Codicil with the Will. It is undisputed that Mr. Conroy did not prepare, review, notarize, discuss, or bill Dr. McFarland for anything related to the Codicil. It is also undisputed that Dr. McFarland's Codicil was not executed in proper form and was eventually determined to be legally insufficient to accomplish a change of beneficiaries.
The plaintiffs, as adult children of the deceased Dr. McFarland, brought suit against Mr. Conroy, alleging malpractice in that he negligently failed to fulfill his obligation to review the Codicil for its legal efficacy, thereby causing the plaintiffs' harm. Mr. Conroy answered and denied all allegations in the plaintiffs' lawsuit, and then filed a motion for summary judgment on the grounds that he was never retained by Dr. McFarland to prepare or review the Codicil. After a hearing, the trial court granted summary judgment in favor of Mr. Conroy, concluding that the plaintiffs failed to establish that an attorney-client relationship existed between Mr. Conroy and Dr. McFarland with respect to the Codicil. The plaintiffs appeal, asserting the trial court erred in failing to find a genuine issue of material fact existed, because the Codicil's wording reflected that Dr. McFarland reasonably believed that Mr. Conroy was his attorney, and further, that Mr. Conroy had a duty to clarify the scope of the parties' relationship concerning the Codicil.
LAW AND ANALYSIS
On appeal, summary judgments are reviewed de novo, using the same standards applicable to the trial court's determination of the issues. Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750; Leonard v. Reeves, 2011-1009 (La. App. 1st Cir. 1/12/12), 82 So.3d 1250, 1256. The court's first task is to determine whether the moving party's supporting documents - pleadings, depositions, answers to interrogatories, admissions and affidavits - are sufficient to resolve all material factual issues. La. Code Civ. P. art. 966(B); Francois v. Reed, 97-1328 (La. App. 1st Cir. 5/15/98), 714 So.2d 228, 229. A genuine issue of fact is an issue on which reasonable minds could disagree. If "reasonable persons could reach only one conclusion" based on "the state of the evidence," a genuine issue does not remain. Smith, 639 So.2d at 751. "A fact is 'material' when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery." Id. Whether a particular fact in dispute is "material" for summary judgment purposes is viewed in light of the substantive law applicable to the case. MB Industries, LLC v. CNA Ins. Co., 2011-0303 (La. 10/25/11), 74 So.3d 1173, 1183.
Traditionally, there are three elements to a legal malpractice claim: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney; and (3) loss to the client caused by that negligence. Francois, 714 So.2d at 229-230. The existence of an attorney-client relationship turns largely on the client's subjective belief that it exists. Louisiana State Bar Ass'n v. Bosworth, 481 So.2d 567, 571 (La. 1986). However, the client's belief that an attorney represents him must be reasonable under the circumstances. See In re Bordelon, 2004-0759 (La. 1/7/05), 894 So.2d 315, 322; Weinstein v. Weinstein, 2010-1083 (La. App. 3d Cir. 4/13/11), 62 So.3d 878, 882.
Under Louisiana law, an express agreement between the parties is required in order to establish an attorney-client relationship. See Keller v. LeBlanc, 368 So.2d 193, 194 (La. App. 1st Cir.), writ denied, 369 So.2d 457 (La. 1979). The attorney-client relationship is contractual in nature and is based upon the express agreement of the parties as to the nature of work to be undertaken by the attorney. Grand Isle Campsites, Inc. v. Cheek, 262 So.2d 350, 359 (La. 1972). Furthermore, when an attorney agrees to perform work for a client as to a particular matter, that agreement does not automatically extend and create an attorney-client relationship as to other business or affairs of the client. Id. As observed by this court many years ago in Delta Equipment & Const. Co. v. Royal Indem. Co., 186 So.2d 454, 458 (La. App. 1st Cir. 1966), and cited approvingly by the Louisiana Supreme Court in Grand Isle Campsites, 262 So.2d at 359:
The legal relationship of attorney and client is purely contractual and results only from the mutual agreement and understanding of the parties concerned. Such relationship is based only upon the clear and express agreement of the parties as to the nature of the work to be undertaken by the attorney and the compensation which the client agrees to pay therefor. The duty of an attorney to represent a litigant does not arise from the mere mailing to the attorney of documents served upon the litigant incident to a lawsuit unless, of course, the attorney is under contract or retainer obligating him to represent such party in all matters which such party may refer to the attorney. In such instances the duty to defend or represent arises, not from the mere mailing of the documents but upon the prior express undertaking of the attorney to represent the client. The duty to defend or represent imposes upon a member of the legal profession grave responsibilities which he may accept or decline at his election and for whatever reasons he chooses. An obligation of such gravity and magnitude may not be involuntarily thrust upon an attorney-at-law by the unilateral election of a litigant to mail him legal documents without a prior understanding or agreement between the parties. Consequently, the issue whether [appellant] relied upon the attorneys involved herein is not a question of material fact in view of appellant's own pleadings.Delta Equipment & Const. Co., 186 So.2d at 458. (Emphasis added and citations omitted.)
* * *
Counsel for appellant argues that the firm of attorneys owed [appellant] at least the duty of advising that the suit for wages would not be defended. With this conclusion we do not agree. The attorneys involved owed [appellant] no duty whatsoever considering no relationship of attorney and client existed between them.
* * *
Authorization to represent a client in connection with a specific legal matter does not imply authorization to handle all others, nor does the agreement or consent of an attorney to represent a prospective client in a particular matter create an attorney-client relationship as regards other business or affairs of the client.
The evidence submitted in support of and in opposition to the motion for summary judgment reflects that there was never any clear and express discussion or agreement between Dr. McFarland and Mr. Conroy that called for Mr. Conroy's opinion as to the legal efficacy of the Codicil that had been prepared and witnessed outside of Mr. Conroy's office. Further, there is no evidence that Mr. Conroy was under a contract or retainer obligating him to represent Dr. McFarland in all matters referred to Mr. Conroy. Consequently, Dr. McFarland's mere act of unilaterally delivering the Codicil, which had been prepared, witnessed, and signed elsewhere, to Mr. Conroy's office and directing that the Codicil be safely stored with the Will, did not give rise to a duty or obligation on the part of Mr. Conroy to evaluate and advise Dr. McFarland as to the legal efficacy of the Codicil. That obligation could have only arisen after an express agreement as to the nature of the work and compensation for the work to be undertaken by Mr. Conroy.
The deposition testimony of both Mr. Conroy and Dr. McFarland's widow clearly revealed that the McFarlands never asked Mr. Conroy to do legal work for them without agreeing to pay for Mr. Conroy's services. The record reflects that Mr. Conroy's legal services for preparing and/or notorizing Dr. McFarland's Will, medical directives, and Living Will were all finished and satisfactorily paid for prior to and after the time period when Dr. McFarland delivered the Codicil to Mr. Conroy's office for safekeeping with the Will.
Moreover, Mr. Conroy's apparent agreement to safely store the Codicil with the Will that was already being stored did not create an attorney-client relationship as to the legal efficacy of the Codicil. Simply put, the record is devoid of any indication that Dr. McFarland reasonably contemplated any continuing duty on Mr. Conroy's part except as to the safekeeping of the Will and the Codicil, which is clearly not a legal service in the sense that it would indicate an attorney-client relationship existed. There is certainly no evidence of any discussion or agreement as to a fee arrangement between Mr. Conroy and Dr. McFarland for legal advice or services concerning the Codicil. Even the language in the Codicil referencing "my attorney" is limited solely to the context of the storage/custody of Dr. McFarland's will. The plaintiffs bore the burden of proof on the existence of an attorney-client relationship, but they failed to submit sufficient evidence to establish this essential element of their case, i.e. the existence of any contract or express agreement to contract for legal services, ongoing or specific, as to the Codicil. Without such evidence, the plaintiffs' legal malpractice claims fall.
The opening paragraph of the Codicil states in part: "I submit the following requests and information to be attached to my last will and testament, currently held in the custody of my attorney, Michael Conroy[.]"
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CONCLUSION
For the stated reasons, we conclude that the trial court properly granted summary judgment in favor of Michael D. Conroy and his law firm, Michael D. Conroy, PLC. Thus, we affirm the judgment of the trial court. All costs of this appeal are assessed to the plaintiffs, Gordon B. McFarland, III and Wright E. McFarland.
AFFIRMED. GORDON B. McFARLAND,III AND WRIGHT E. McFARLAND
V.
MICHAEL D. CONROY AND MICHAEL D. CONROY,PLC
NO. 2013 CA 0109
KUHN, J., dissents and assigns reasons.
The attorney-client relationship created when Dr. McFarland retained Mr. Conroy to draft his will and hold it for safekeeping continued to exist through the probate of that will. It is undisputed that Mr. Conroy knew Dr. McFarland had delivered to Conroy's office a codicil to his will, requesting that it be held in conjunction with the will Mr. Conroy previously had drafted. Moreover, the codicil was a matter closely related to the will - the very matter for which Mr. Conroy was retained - since a codicil historically has been considered an addition to and a part of a will. See Succession of Ledet, 170 La. 449, 128 So. 273 (1930); Succession of Hinds, 06-846 (La. App. 3d Cir. 2/28/07), 952 So.2d 842, 846; see also Black's Law Dictionary 275 (8th ed. 2004). Therefore, Mr. Conroy failed to establish that no attorney-client relationship existed regarding the codicil. Given the circumstances, particularly the unresolved issue of material fact as to the existence of an attorney-client relationship, summary judgment in favor of Mr. Conroy was not proper. For these reasons, I dissent.