Opinion
2021-CA-0267
01-05-2022
ROBERT SCHIFF v. LAWRENCE G. PUGH, III, FREDERICK T. HAAS, III, ALEXANDER L. BURNS, AND PUGH, ACCARDO, HAAS, RADECKER & CAREY, L.L.C.
R. Joshua Koch, Jr. KOCH AND SCHMIDT, LLC COUNSEL FOR PLAINTIFF/APPELLANT James H. Gibson Stacy N. Kennedy GIBSON LAW PARTNERS, LLC COUNSEL FOR DEFENDANT/APPELLEE
APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-03864, DIVISION "A" Honorable Ellen M Hazeur, Judge
R. Joshua Koch, Jr.
KOCH AND SCHMIDT, LLC
COUNSEL FOR PLAINTIFF/APPELLANT
James H. Gibson
Stacy N. Kennedy
GIBSON LAW PARTNERS, LLC
COUNSEL FOR DEFENDANT/APPELLEE
Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods
Regina Bartholomew-Woods, Judge 1
In this legal malpractice case, Plaintiff-Appellant, Robert Schiff ("Mr. Schiff"), appeals the trial court's judgment granting the motion for summary judgment filed by Defendants-Appellees-Frederick T. Haas, III, and the law firm of Pugh, Accardo, Haas, Radecker & Carey, LLC (collectively "Appellees")-and dismissing Mr. Schiff's claims against them. For the reasons that follow, we dismiss the appeal as untimely.
FACTUAL AND PROCEDURAL BACKGROUND
This legal malpractice suit arises from Appellees' representation of Mr. Schiff in a contract suit filed by Lidia Pollard ("Ms. Pollard"). In 2007, Mr. Schiff and Ms. Pollard entered a partnership to purchase, renovate, and resell houses in New Orleans following Hurricane Katrina. The parties agreed that Mr. Schiff would fund the purchase and renovation of the properties while Ms. Pollard would locate suitable properties and oversee and assist in their renovations. Mr. Schiff and Ms. Pollard agreed to split equally all profits from reselling the houses. 2
Eventually, the business relationship soured, and Ms. Pollard filed a lawsuit against Mr. Schiff ("the Pollard suit"). Ms. Pollard claimed, among other things, that Mr. Schiff failed to reimburse her for expenses she incurred in renovating the properties and failed to remit profits owed to Ms. Pollard from sales of the renovated properties. Mr. Schiff contended throughout the Pollard suit that the parties' business did not realize any profits, due to expenses he incurred in the renovation and resale of the houses. He also filed a reconventional demand seeking recovery of money Ms. Pollard allegedly owed him.
The Pollard suit proceeded to a bench trial; and the trial court rendered judgment in Ms. Pollard's favor, awarding her $685, 176.52. On appeal, this Court amended the underlying judgment to $684, 824.73 and affirmed as amended. Pollard v. Schiff, 13-1682 (La.App. 4 Cir. 2/4/15), 161 So.3d 48.
In 2014, Mr. Schiff filed this malpractice suit against Appellees, claiming that their negligent representation at trial in the Pollard suit was the direct cause of the judgment against him. As the malpractice suit proceeded, Mr. Schiff, through his retained expert witness, Attorney Dane Ciolino, identified specific acts of alleged negligence committed by Appellees at trial which, Mr. Schiff argued, caused the unfavorable outcome against him.
Among these alleged negligent acts was Appellees' failure to investigate whether Ms. Pollard was a licensed contractor and to raise the issue of her licensure at trial. Mr. Schiff claimed that Ms. Pollard was not a licensed contractor, even though she was acting as a contractor in her partnership with him, 3 and that, pursuant to La. R.S. 37:2160, she was prohibited from recovering under the contract. Mr. Schiff alleged that Appellees were aware of this potential defense but failed to investigate the issue or raise it at trial.
La. R.S. 37:2160 provides, in pertinent part:
A. (1) It shall be unlawful for any person to engage or to continue in this state in the business of contracting, or to act as a contractor as defined in this Chapter, unless he holds an active license as a contractor under the provisions of this Chapter.
Ultimately, Appellees moved for summary judgment, arguing that Mr. Schiff could not establish that any of the alleged breaches identified by Attorney Ciolino's report caused the adverse judgment against him in the Pollard suit. Appellees maintained that Mr. Schiff required expert testimony to prove causation, but his expert witness, Attorney Ciolino, declined to offer any opinions on causation. Rather, Appellees countered, the outcome in the Pollard suit would have been the same even if they had not committed the alleged breaches. In support, the defendants relied on the report and deposition of their own expert witness, Attorney Wayne Lee, who opined that the trial court in the Pollard suit would have entered the unfavorable judgment against Mr. Schiff regardless of the alleged malpractice.
In his deposition testimony, attached to Mr. Schiff's opposition memorandum, Attorney Ciolino explained that he would not offer expert opinions on causation, because his opinions would be speculative, and questions on causation and damages should be left to the jury.
In opposition, Mr. Schiff argued that he did not need expert testimony to establish causation. Mr. Schiff contended that he needed only to establish a causal connection between the alleged negligence and the unfavorable outcome of the litigation, which could be proven by lay testimony. Mr. Schiff further addressed 4 each instance of negligence identified by Attorney Ciolino's report and offered his theories as to how each alleged breach caused the adverse judgment against him in the Pollard suit.
At the hearing, the trial court granted Appellees' summary judgment motion. While the trial court disagreed with Appellees' argument that Mr. Schiff needed expert testimony to establish causation; it found Mr. Schiff's opposition memorandum insufficient to defeat the summary judgment motion. It reasoned that while Mr. Schiff had offered theories to support his burden on causation and had cited to deposition testimony which purported to support his theories, he failed to attach the portions of the deposition transcripts cited within his memorandum.
After the trial court granted Appellees' motion, Mr. Schiff filed a motion for summary judgment, which the trial court denied. Mr. Schiff's appeal followed.
TIMELINESS OF APPEAL
While Mr. Schiff appeals the trial court's granting of summary judgment, we must first address a procedural issue in this matter, notably whether Mr. Schiff's motion for new trial, and consequently, his motion for appeal, were filed timely. Absent a timely motion for appeal, this court lacks jurisdiction over the appeal. Sens v. Plaisance, 20-0382, p. 2 (La.App. 4 Cir. 8/12/20), 2020 WL 4692882 (unpub.), writ denied, 20-01014 (La. 8/19/20), 300 So.3d 877.
The delay for applying for a new trial is seven (7) days, exclusive of legal holidays, commencing on the day after the clerk mails the notice of judgment required by La. C.C.P. art. 1913. La. C.C.P. art. 1974. A devolutive appeal may 5 only be taken within sixty (60) days of either (1) the expiration of the delay for applying for a new trial if no application has been filed timely; or (2) the date of the mailing of notice of the court's refusal to grant a timely application for a new trial. La. C.C.P. art. 2087(A). An untimely motion for new trial does not interrupt the delays for timely taking an appeal. See First Nat. Bank of Com. v. Boydell, 03-0613, p. 3 (La.App. 4 Cir. 9/24/03), 857 So.2d 1115, 1117.
The trial court's judgment granting Appellees' summary judgment motion was signed on November 25, 2020. Mr. Schiff did not file his motion for new trial until December 11, 2020-more than seven (7) days after the November 25, 2020 judgment was signed-and did not file his motion for appeal until March 9, 2021. If the November 25, 2020 notice of signing of judgment was mailed on that same date, Mr. Schiff's motion for new trial, and consequently his motion for appeal, would be untimely.
Accordingly, on May 11, 2021, we ordered Mr. Schiff show cause why his appeal should not be dismissed as untimely. Mr. Schiff submitted a brief on the timeliness of his appeal in which he argues that the record contains no certificate, signed by the clerk of court, showing the date the notice of signing of judgment was mailed, as required by La. C.C.P. art. 1913(D). Rather, Mr. Schiff contends the November 25, 2020 notice of signing of judgment was signed by the trial court's law clerk and is silent as to when the notice itself was mailed. Mr. Schiff also contends that the notice of signing of judgment was not received by counsel 6 for either Mr. Schiff or Appellees until December 9, 2020, and Mr. Schiff filed his motion for new trial two (2) days later. In the absence of a certificate of mailing of the notice of judgment, signed by the clerk of court, Mr. Schiff argues that the issue of timeliness must be resolved in favor of his right to appeal.
Counsel for Mr. Schiff pointed to Appellee-counsel's representation in a trial court pleading that he received the notice of judgment on December 9, 2020. Appellees have not disputed this timeline and did not address the timeliness of Mr. Schiff's appeal in their brief.
La. C.C.P. art. 1913 provides in pertinent part:
A. Except as otherwise provided by law, notice of the signing of a final judgment, including a partial final judgment under Article 1915, is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel.
D. The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of signing of judgment was mailed.
The jurisprudence interpreting the certification requirement of La. C.C.P. art. 1913, was discussed by this Court in Argence L.L.C. v. Box Opportunities, Inc., 07-0765, p. 5-6 (La.App. 4 Cir. 3/13/08), 980 So.2d 786, 789-90. This Court noted that there are two lines of interpretation, one favoring the right of appeal in cases where it is not clear that the mandatory requirements of La. C.C.P. art. 1913 have been met, and the other finding appeals untimely based on the presence in the record of a notice of judgment and a copy of the judgment mailed to the parties but without a certification of the date of mailing. Compare Roy Fink, Inc. v. State, D.O.T.D., 464 So.2d 1064 (La.App. 1st Cir. 1985) (finding that the presence in the record of a dated letter is insufficient to serve as the certificate showing the date of 7 mailing), and Trailwood Forest-Calcasieu, Ltd. v. Coursey, 372 So.2d 615 (La.App. 3rd Cir. 1979) (finding that a signed, dated letter from the Clerk's office to the parties notifying them of the judgment fulfilled the requirements of La. C.C.P. art. 1913).
In Argence, this Court was addressing a motion to dismiss the appeal based on an untimely filed motion for new trial. In that case, the trial court entered a default judgment against defendants on July 19, 2005. The record contained an original judgment with "a handwritten notation on the reverse [side]" indicating that the judgment was mailed on July 19, 2005; the record also contained an envelope showing that a copy of the judgment was mailed by the Clerk of Court on July 25, 2005. The Court then found that, "[a]bsent the mandatory 1913 D certificate, there is reasonable doubt as to the date on which the judgment was mailed," and, favoring the right of the party to be heard and to appeal, the Court resolved the doubt as to the date of mailing in favor of the appellant. Argence, 07-0765, p. 6, 980 So.2d at 790.
In Argence, there was no certificate of notice of signing of judgment, but there was evidence in the record that the actual date of mailing was shown on the envelope in which the judgment was mailed. We find the facts in this case is more analogous to Beagle v. Beagle, 95-168 (La.App. 3 Cir. 5/31/95), 657 So.2d 422. Addressing the timeliness of that appeal, the Third Circuit noted that the record reflected the notice of judgment was mailed on October 19, 1994, and a certificate of mailing was filed in the record. Based upon that date of mailing of notice, the last day for filing the appeal would have been November 28, 1994. The appeal was filed on November 29, 1994. In arguing for the timeliness of the appeal, appellants' counsel submitted affidavits that the notice of judgment was not 8 received until November 21, 1994. In its consideration of the record and affidavits, the Third Circuit stated:
It is imperative to recognize that although the affidavits of counsel and his secretary state that the notice was not received, there is no assertion that it was not mailed nor that it was not mailed to the correct address. There is no evidence to contradict the certificate of mailing. … We are aware of no authority for extending an appeal date based upon an affidavit that counsel failed to receive notice of judgment where the record contains the certificate of mailing required by Article 1913.Beagle, 95-168, p. 4, 657 So.2d at 423. Consequently, the Third Circuit dismissed the appeal as untimely.
In the present matter, the trial court ruled in open court on November 6, 2020, granting Appellees' motion for summary judgment and dismissing Mr. Schiff's claims against them. The trial court signed its judgment on November 25, 2020. The record includes a certificate of notice of signing of judgment to all parties that indicates the mailing date as November 25, 2020, with a signature of the law clerk rather than the minute clerk. Mr. Schiff's counsel attests in an affidavit that he did not receive the notice of signing of judgment until December 9, 2020, by which time the seven-day delay for filing a motion for new trial had already expired. As in the case of Beagle, Mr. Schiff acknowledges that the notice was mailed and received, and he presents no evidence that the notice was not mailed by the Clerk of Court or to contradict the date of mailing on the certificate filed in the record. Mr. Schiff argues only that the signature of the law clerk rather 9 than the minute clerk is inadequate to certify that the notice of judgment was mailed on the date that is indicated.
Although the delay for applying for a new trial does not commence until the day after the notice of judgment has been mailed in accordance with Article 1913, or served by the sheriff, there is no rule prohibiting a party from filing a motion for new trial from a judgment rendered in open court prior to receiving the signed judgment. See La. C.C.P. art. 1974.
Two dates appear on the certificate of notice of signing of judgment, one indicating the date on which the judgment was signed and, below it, a second indicating the date of mailing. In this case, the judgment was signed and mailed on the same date, November 25, 2020.
Considering the language of La. C.C.P. art. 1913, review of the record and jurisprudence interpreting and applying the requirements of La. C.C.P. art. 1913, and review of the record, we find the instant appeal to be untimely.
DECREE
Accordingly, the appeal is dismissed as untimely.
APPEAL DISMISSED.
RBW 10
JENKINS, J., CONCURS WITH REASONS
I am in full agreement with the majority opinion. I write separately to address the dissent, which, in my view, calls into question the standard certification of the date of mailing, in accordance with La. C.C.P. art. 1913, filed in all current cases from the Orleans Parish Civil District Court.
At first glance, the notice of signing of judgment at issue in this case is no different than any notice of signing of judgment prepared in connection with a judgment from Orleans Parish Civil District Court. In reviewing appeals for timeliness, I check this notice for two dates: (1) the date of the signing of judgment, which is indicated within the La. C.C.P. art. 1913 certification statement; and (2) the date of mailing of the notice of signing of judgment, which is indicated just below that certification. In this case, the bottom of the notice at issue appears as follows:
In accordance with Article 1913 C.C.P., you are hereby notified that Judgment In the above entitled and numbered cause was signed on November 25, 2020.
New Orleans, Louisiana
[signature appears here]
November 25, 2020
Minute ["Law"] Clerk
Upon my review of this notice, I find both the date of the signing of judgment and the date of mailing. Although it is not labeled as "Place and Date of Mailing," the indication of the city and state along with the second date, below the 1 certification of the date of judgment, is considered by this Court as the date of mailing of notice of judgment when screening appeals for timeliness. But, the dissent appears to dispute that the second date is the date of mailing.
The dissent finds significant that the word "MAILED" is stamped next to the addresses of counsel of record, noting "no date appears next to these stamps" and finding, "[t]hus, the notice of signing of judgment itself contains no language establishing that it was actually mailed on November 25, 2020." I find this conclusion somewhat perplexing, because, although most notices I have seen do not include the word "MAILED" stamped on them, the notices do not include language stating that the second date is the date of mailing.
For comparison, within this same record on appeal, I have reviewed all other notices of signing of judgment. First, I note that four notices of signing of judgment, including the one at issue, were also signed by a Law Clerk and stamped "MAILED." Second, I note that the six other notices of judgment were signed by a minute clerk and included other stamps, with the words "VERIFIED", "SCANNED", and "Entered on Minutes" with handwritten notations of dates, not necessarily corresponding to the typewritten date of mailing. Third, I note that none of these notices include an explicit phrase of "date of mailing." Finally, I note that all of these notices include, below the statement of the date of judgment, a second typewritten date, and indication of city and state. Based upon my review of this record, I find that all of these notices of signing of judgment include a typewritten date of mailing of notice of signing of judgment that includes a certification signed either by a minute clerk or a law clerk; and, I find all of those certifications of the date of mailing of notice of judgment sufficient to fulfill the requirements of La. C.C.P. art. 1913.
My concern with the dissent is whether the intent is to question the typewritten second date as the date of mailing for any notice of signing of 2 judgment. The dissent appears to require the explicit phrase "date of mailing" on the notice of signing of judgment if there is to be an adequate certificate of the date of mailing of judgment. If that is the intended position taken, then none of the judgments in this record meets that requirement, and this Court would have no date in the record by which to determine the timeliness of a motion for new trial, a supervisory writ, or an appeal of any of the judgments. If, however, the dissent disputes only the adequacy of the signature of the law clerk in certifying the date of mailing, then we merely have a difference of opinion as to the requirements for who may certify the date of mailing of judgment in accordance with La. C.C.P. art. 1913.
Finally, in my review of the Rules for Louisiana District Courts, in particular the Appendices for Orleans Parish Civil District Court, I have found no rule specifying a form or procedure for certifying the date of mailing of notice of judgment in accordance with La. C.C.P. Art. 1913.
SCJ 3
LEDET, J., DISSENTS WITH REASONS
I would find Robert Schiff's appeal timely. I also would reverse the trial court's judgment granting the motion for summary judgment filed by the defendants, Frederick T. Haas, III, and the law firm of Pugh, Accardo, Haas, Radecker & Carey, LLC, because there are genuine issues of material fact as to causation between the defendants' alleged negligence and Mr. Schiff's losses.
Mr. Haas and the law firm are referred to collectively throughout this dissent as "the defendants."
TIMELINESS OF APPEAL
The timeliness of Mr. Schiff's appeal turns on the date the notice of signing of judgment was mailed, because it is the mailing of the notice which triggers the seven-day delay to file a timely motion for new trial and interrupt the appeal delays. La. C.C.P. arts. 1974, 2087(A). There is no dispute that the notice of signing of judgment was in fact mailed. Nor is there any dispute that the notice was received by all counsel of record no earlier than December 9, 2020. There is, however, no evidence in the record as to the date the notice was mailed, which would trigger the delay for Mr. Schiff to file a timely motion for new trial and interrupt his appeal delay.
The majority's opinion characterizes the notice of signing as a "certificate of notice of signing of judgment to all parties that indicates the mailing date as 1 November 25, 2020[.]" In reaching this conclusion, the majority observes that the notice of signing of judgment contains two dates, one which indicates the date on which the judgment was signed, and another which indicates the date of mailing. But, the November 25, 2020 notice of signing of judgment sent to all counsel of record states: "In accordance with Article 1913 C.C.P., you are hereby notified that Judgment in the above entitled cause was signed on November 25, 2020." Below this notification is the signature of the trial court's law clerk next to a second date: November 25, 2020. The notice is also stamped in two places "Mailed," but no date appears next to these stamps. Thus, the notice of signing of judgment itself contains no language establishing that it was actually mailed on November 25, 2020. Moreover, the record contains no other evidence establishing mailing on that date.
Subsection D of article 1913 of the Louisiana Code of Civil Procedure provides: "The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of the judgment was mailed." The certificate requirements of La. C.C.P. art. 1913(D) are mandatory. Argence L.L.C. v. Box Opportunities, Inc., 07-0765, p. 5 (La.App. 4 Cir. 3/13/08), 980 So.2d 786, 789. "The evident purpose of [the certificate requirement] is to avoid uncertainty as to the extinction of favored rights of appeal and to prevent disputes such as the present." Id. (quoting Bielkiewicz v. Insurance Co. of North America, 201 So.2d 130 (La.App. 3rd Cir. 1967)). "In the absence of such a certificate, doubts should be resolved in favor of the right to appeal." Id.
The facts of Argence are analogous to those presented here, and this court's reasoning in Argence is equally applicable to the instant matter. As in the instant case, the issue in Argence was the date of mailing of the notice of judgment. In Argence, this court found that a notice of judgment did not constitute a valid certificate of mailing, as required by La. C.C.P. art. 1913(D), despite the record 2 containing a deputy clerk's handwritten notations on the reverse of the notice of judgment suggesting the date of mailing. Argence, 07-765, pp. 5-7, 980 So.2d at 789-790. In the absence of the mailing certificate, the Argence court found there was reasonable doubt as to the date the judgment was mailed and upheld the appellant's right to appeal. Id. (citing Bielkiewicz, 201 So.2d 130; Fink v. State, Through Dept. of Transp. and Development, 464 So.2d 1064 (La.App. 1st Cir. 1985); Penalber v. Blount, 405 So.2d 1376 (La.App. 1st Cir. 1981); Ouachita Equipment Rental, Inc. v. Dyer, 386 So.2d 193 (La.App. 3d Cir.1980)).
Likewise, in Penalber, 405 So.2d 1376, the court found that a notice of judgment, which certified the date the judgment was signed but did not certify the date the notice was mailed-like the notice at issue in the instant case-did not trigger the delay for filing a motion for new trial. The court reasoned:
There is nothing in the record to indicate the critical date from which the delays for applying for a new trial, or the delays for appealing, could be tolling. Appeals are favored under our law and jurisprudence. In the absence of a proper (dated) notification to counsel of the judgment having been signed, there is uncertainty as to date, and that doubt must be resolved in favor of the right to appeal.Id. at 1377.
I would find the reasoning of the courts in Argone and Penalber equally applicable here. The November 25, 2020 notice of signing judgment contains no certification by the clerk of court of its mailing date, which is the date upon which the delays for a motion for new trial commence. In the absence of certification of this critical date, there is reasonable doubt as to the date on which the notice of judgment was mailed. As appeals are favored under Louisiana law, this doubt must be resolved in favor of Mr. Schiff's right to appeal. 3
Moreover, I have found no authority permitting certification of the mailing date of the notice of judgment by a trial court's law clerk, instead of the clerk of court, as mandated by La. C.C.P. art. 1913(D).
I also would find the majority's reliance on Beagle v. Beagle, 95-168 (La.App. 3 Cir. 5/21/95), 657 So.2d 422, misplaced. In the Beagle case, there was no uncertainty as to the date the notice of judgment was mailed, because the record contained a dated certificate of mailing of the notice of judgment as required by La. C.C.P. art. 1913(D). Id. at p. 3, 657 So.2d at 423. Rather, the appellant in Beagle argued that he had not received the notice of judgment and therefore his appeal should be deemed timely. Id. The Beagle court held that the appellant's alleged late receipt of the notice of judgment was irrelevant "where the record contains the certificate of mailing required by Article 1913."
The rationale of the Beagle case has no application here. Mr. Schiff does not dispute that the notice of signing of judgment was mailed and eventually received. Rather, the issue here is the date the notice was mailed, which triggered Mr. Schiff's delay to file a timely motion for new trial and, consequently, a timely appeal. Because there is no certificate of mailing, the record is silent on this issue. The rationale of the Beagle case, which relied on an unrebutted, dated certificate of mailing of the notice of judgment within the record, is inapplicable.
In the absence of the certificate of mailing required by La. C.C.P. art. 1913(D), there is reasonable doubt as to the date the notice of judgment was mailed. This present uncertainty is precisely what the certificate requirement was intended to prevent. As appeals are favored under Louisiana law, doubt about the timeliness of Mr. Schiff's appeal must be resolved in favor of his right to appeal. Therefore, I would find that, under these circumstances, Mr. Schiff's appeal was timely.
DISCUSSION
Turning to the merits of this appeal, Mr. Schiff argues that the trial court erred in granting the defendants' summary judgment motion, because it employed 4 the incorrect legal analysis. I would find no such error in the trial court's legal analysis. Based on a de novo review, I would find there are genuine issues of material fact, which precluded the granting of the defendants' summary judgment motion.
Mr. Schiff also assigns error to the trial court's denial of his motion for new trial. Because my decision would render Mr. Schiff's second assignment of error moot, I do not address it.
Summary Judgment Principles and Standard of Review
The summary judgment procedure is used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. La. C.C.P. art. 966(A) ; see also Balthazar v. Hensley R. Lee Contracting, Inc., 16-0920, p. 9 (La.App. 4 Cir. 3/14/17), 214 So.3d 1032, 1040 (observing that "summary judgment is a procedural vehicle for dismissing issues of law and/or fact that are not in dispute"). "A defendant can successfully move for summary judgment if he or she can demonstrate beyond peradventure the nonexistence of a fact essential to the plaintiff's cause of action." Frank L. Maraist, 1 LA. CIV. L. TREATISE, CIVIL PROCEDURE § 6:8 (2d ed. 2018). The summary judgment procedure is "designed to secure the just, speedy, and inexpensive determination of every action," and the summary judgment procedure is favored. La. C.C.P. art. 966(A)(2).
Appellate courts review the grant or denial of a motion for summary judgment de novo, employing the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Garces-Rodriguez v. GEICO Indem. Co., 16-196, p. 3 (La.App. 5 Cir. 12/21/16), 209 So.3d 389, 391; Sislo v. New Orleans Ctr. for Creative Arts, 16-0178, p. 4 (La.App. 4 Cir. 8/17/16), 198 So.3d 1202, 1205 (citing Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83). The standard for granting a motion for summary judgment is set forth in La. C.C.P. art. 966(A)(3), which provides: 5
After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law.
A shifting burden of proof is set forth in La. C.C.P. art. 966(D)(1), which provides:
The burden of proof rests with the mover. Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law.
A genuine issue is one as to which reasonable persons could disagree; "if . . . reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate." Smith v. Our Lady of the Lake Hosp., Inc., 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic] cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Chapital v. Harry Kelleher & Co., Inc., 13-1606, p. 5 (La.App. 4 Cir. 6/4/14), 144 So.3d 75, 81. Whether a fact is material is a determination that must be made based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown, 17-0040, p. 7 (La.App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270.
Legal Malpractice Principles
To establish a claim for legal malpractice, a plaintiff must prove three elements: "(1) the existence of an attorney-client relationship; (2) negligent 6 representation by the attorney; and (3) loss caused by that negligence." Ewing v. Westport Ins. Corp., 20-00339, p. 8 (La. 11/19/20), 315 So.3d 175, 180-81, reh'g denied, 20-00339 (La. 2/9/21), 310 So.3d 175. In Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 1110 (La. 1982), the Supreme Court disavowed the "case within a case" requirement in legal malpractice cases. "Under that approach, a plaintiff in legal malpractice litigation [was required to] prove not only that the attorney was negligent in handling the client's claim or litigation, but also that the claim or litigation would have been successful but for the attorney's negligence." Id.
In MB Indus., LLC v. CNA Ins. Co., 11-0303, p. 20 (La. 10/25/11), 74 So.3d 1173, 1187, the Supreme Court confirmed that Jenkins had eliminated the "case within a case" requirement but it also made clear that "causation is an essential element of any tort claim" and that "[a]t the very least, [plaintiff] must establish some causal connection between the alleged negligence and the eventual unfavorable outcome of the litigation." (internal quotations omitted).
In its written reasons for judgment, the trial court accurately stated the law applicable to Mr. Schiff's legal malpractice claims and concluded that Mr. Schiff had offered multiple theories establishing a causal connection between the defendants' alleged negligence and the adverse outcome of the Pollard suit. Yet, the trial court found that Mr. Schiff failed to support his theories of causation with competent evidence, pointing out that the deposition transcript pages attached to his opposition memorandum were not the same as those pages cited within his memorandum.
Despite Mr. Schiff's failure to attach the correct exhibits to his opposition memorandum, the exhibits which were attached to his opposition memorandum 7 provide some evidence to support at least one of his causation theories. Specifically, there is evidence to support Mr. Schiff's claim that the defendants failed to investigate and raise the issue of whether Ms. Pollard was a licensed contractor, thereby failing to raise a potential defense to the contract.
Mr. Schiff attached to his opposition memorandum excerpts from the deposition of Alexander Burns, an associate at the law firm. Though the pages of Mr. Burns' deposition testimony attached to Mr. Schiff's opposition memorandum do not correspond with those cited in the memorandum, they do contain testimony supporting Mr. Schiff's claim. Mr. Burns testified that he was instructed to research Ms. Pollard's licensure and the viability of any defense based on her unlicensed contracting work. He found unreliable results as to whether Ms. Pollard was licensed on the website of the State Board of Contractors but found that Ms. Pollard's recovery of profits would be limited if she were unlicensed. Mr. Burns, however, did not recall discussing the issue with Mr. Schiff; and the issue was not raised in the Pollard suit.
Although the exhibits attached to the defendants' motion and Mr. Schiff's opposition memorandum do not establish whether or not Ms. Pollard was a licensed contractor, at the very least, Mr. Burns' testimony suggests the possibility that she was not licensed and that the defendants suspected as much. If Ms. Pollard was not a licensed contractor, Mr. Schiff may have had a viable defense to the Pollard suit which the defendants did not raise.
See, e.g., Alonzo v. Chifici, 526 So.2d 237, 243 (La. 5th Cir. 1988) (finding that Louisiana's rule of absolute nullity for a contracting agreement in the absence of a contractor's license limited the contractor to quantum meruit recovery).
I would find that the uncertainty regarding Ms. Pollard's licensure, which could have provided a defense to the Pollard suit, supported by Mr. Burns' testimony, presents a genuine issue of material fact as to the causal connection between the defendants' alleged malpractice and Mr. Schiff's losses. Accordingly, 8 pursuant to a de novo review, I would find that the trial court erred in granting summary judgment in favor of the defendants and reverse the trial court's judgment granting the defendants' motion for summary judgment.
For the foregoing reasons, I respectfully dissent.
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