Frederick Walker and Irma Walker VS Jack Patrick Harris and Desalvo & Harris
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 0141 FREDERICK WALKER AND IRMA WALKER VERSUS JACK PATRICK HARRIS AND DESALVO HARRIS Judgment Rendered September 14 201 Appealed from teenth Nin Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket Number S3b 964 Honorable Timothy E Kelley Judge Alfred B Counsel for Baton Appellants Plaintiffs Shapiro Rouge LA Frederick and Irma Walker Gracella Simmons Counsel for Collin J LeBlanc Appellees Defendants Baton Jack Patrick Harris and Rouge LA DeSalvo BEFORE WHIPPLE KUHN AND GUIDRY JJ Harris GUIDRY J This is an appeal of a judgment dismissing a legal malpractice claim wherein the trial court found the plaintiffs were equitably estopped from asserting an action for malpractice against their former counsel because they had settled the underlying lawsuit on which the legal malpractice claim was based We affirm FACTS AND PROCEDURAL HISTORY In September 2003 Frederick Walker was involved in an automobile accident Mr Walker and his wife Irma Walker later retained Jack Patrick Harris and the Desalvo Harris law firm to represent them in a legal action for damages they allegedly sustained as a result of the September 2003 accident A petition for damages was filed in Twenty First Judicial District Court for Livingston Parish In the course of litigating the personal injury suit the defendants named in that suit requested that Mr Walker be examined by a physician of their choice A physical examination was scheduled to be performed September 2004 however Mr Walker did not appear for the exam When Mr Walker failed to appear for the exam the defendants filed a motion to compel which was granted Thereafter the defendants scheduled a new appointment to have Mr Walker examined in December 2004 Mr Walker attended the rescheduled exam but a dispute arose as to the scope of the examination and the doctor refused to perform the examination The personal injury defendants then filed a motion for rehearing of the clarification prior judgment in which the court had previously ordered Mr Walker to appear for the examination A hearing on the motion for rehearing was held on clarification March 21 2005 following which in a judgment signed April 11 2005 the court ordered Mr Walker to submit to a medical examination by the defendants doctor and to answer specific medical questions posed to him The court also ruled that if 6 Mr Walker again failed to submit to the medical exam severe sanctions would be imposed A motion to reconsider the April 11 2005 judgment was filed on behalf of the Walkers wherein then counsel for the Walkers Mr Harris stated that he arrived late for the hearing on March 21 2005 due to transportation difficulties and as result the court ruled on the defendants motion in his absence Mr Harris therefore requested that the court grant a rehearing so that he could be allowed to present argument on the matter In the alternative Mr Harris requested the court to set a return date in which he could seek supervisory review of the April 11 2005 judgment He further requested a stay of the April 11 2005 judgment until a decision was rendered on his writ application The court denied the request for a rehearing but signed an incomplete Alternative Order submitted by Mr Harris which read as follows ALTERNATIVE ORDER The motion for reconsideration of the ruling pertaining to the physical examination of plaintiff Frederick Walker signed on is hereby DENIED the return date within which plaintiffs may file supervisory writs for review of the order pertaining to the physical examination of plaintiff Frederick Walker signed with the First Circuit Court of is Appeal it is further ordered that the order of May 20 2005 be stayed pending final disposition of plaintiffs Application for Supervisory Writs or if not timely filed the order shall become effective on the return date Only the date of May 20 2005 and the judge signature were added to the order s so Mr Harris filed a Motion to Correct Record in which he stated that there was a clerical error in that the prior order did not provide a return date Accordingly an order was signed by the court on May 3 2005 providing a return date of June 30 2005 In the meantime a new appointment to have Mr Walker examined by the defendants doctor was scheduled for May 5 2005 but Mr Walker did not attend 3 Consequently the personal injury defendants filed a motion for contempt and sanctions which motion was granted By a judgment rendered August 17 2005 the court ordered that any claims by Mr Walker relating to alleged cervical and lumbar injuries be dismissed with prejudice and that the Walkers be precluded from introducing evidence of any cervical or lumbar injuries including but not limited to any alleged injuries to vertebrae discs nerves muscles tendons ligaments or other associated structures relating to the cervical spine and lumbar spine at the trial of the matter The Walkers filed a motion to vacate the August 17 2005 judgment on September 29 2005 The trial court denied the motion Following this ruling the Walkers terminated the representation of Mr Harris and the law firm of DeSalvo Harris and retained new counsel to represent them in the personal injury suit The Walkers through new counsel then sought writs to this court for supervisory review of the trial court denial of their motion s to vacate but the application was denied Walker App lst Cir 2 unpublished writ action 06 21 v Alexander 06 0052 La They then filed a renewed motion with the trial court to vacate andor revise the August 17 2005 judgment In the renewed motion the Walkers for the first time raised the argument that Mr Walker was not required to attend the May 5 2005 medical appointment because the matter had been stayed The trial court denied the second motion noting that the new argument had not been raised previously The Walkers sought supervisory review of the denial of their second motion to vacate but that writ application was also denied by this court Walker v Alexander 06 0888 La App 1st Cir 06 19 5 unpublished writ action The Walkers eventually settled their claims in the personal in jury suit on August 17 2006 In the meantime however they filed the instant claim for legal malpractice in the Nineteenth Judicial District Court East Baton Rouge Parish rd against Mr Harris and the law firm of DeSalvo Harris alleging that the malpractice defendants negligently represented them in the personal injury suit In their settlement of the underlying personal injury suit the Walkers expressly reserved their right to pursue their legal malpractice claim The malpractice defendants denied the Walkers claim asserting that there was no breach of the standard of care in failing to produce a client for a medical evaluation scheduled during a stay and further asserting that the August 17 2005 contempt judgment rendered by the 21st JDC was null void defective and without authority as it was premised on the s client failure to attend a medical examination scheduled during an alleged stay ordered by the court The malpractice defendants eventually filed a motion for summary judgment asserting that the Walkers could not establish that they would bear their burden of proving that the defendants had committed malpractice They also filed a second Motion for Summary Judgment to Enforce Judicial Estoppel of Legal Malpractice Claim asserting that the Walkers were equitably estopped from pursuing their malpractice claim based on their settlement of their personal injury claim Following a hearing on the motions the trial court denied the first motion for summary judgment but granted the second motion for summary judgment based on estoppel in favor of the malpractice defendants which the Walkers now appeal ISSUES PRESENTED FOR REVIEW On appeal the Walkers allege the trial court erred in granting summary judgment based on the following issues I 1I Whether the doctrine of equitable estoppel applies because of the partial settlement of the underlying suit Was there an effective stay order upon which Jack Harris could have relied in the underlying case 5 STANDARD OF REVIEW A motion for summary judgment should be granted if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law La C art 966 P B On a motion for summary judgment the burden of proof is on the mover If the moving party will not bear the burden of proof at trial on the matter that party burden on s a motion for summary judgment is to point out an absence of factual support for one or more essential elements of the adverse party claim action or defense s Thereafter if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact and the mover is entitled to summary judgment La C art 966C Robles v ExxonMobile 02 0854 p 4 La P 2 App 1st Cir 3 844 So 2d 339 341 03 28 An appellate court review of a s summary judgment is de novo using the same criteria that govern the trial court s consideration of whether summary judgment is appropriate R Claitor Realty G s v Rigell 061629 p 4 La App 1 st Cir 5 961 So 2d 469 471 72 writ 07 4 denied 07 1214 La 9 964 So 2d 340 07 21 DISCUSSION Equitable estoppel is defined as the effect of the voluntary conduct of a party by which he is barred from asserting rights or defenses against another party justifiably relying on such conduct and causing him to change his position to his detriment as a result of such reliance The three elements of estoppel are 1 a representation by action or word 2 justifiable reliance on the representation and 3 a change in position to one detriment because of the reliance s I Murphy v Gilsbar Inc 020205 p 4 La App 1st Cir 12 834 So 2d 669 672 writ 02 31 denied 03 0676 La 5 845 So 2d 1057 03 30 Although the Walkers characterize their settlement of the personal injury suit as a partial settlement in their first assignment of error the evidence clearly shows that the settlement was a full and complete settlement of the underlying personal injury suit The settlement expressly provided in pertinent part that the sum paid was in full settlement satisfaction and compromise of any and all claims and alleged causes of action of every nature whatsoever which the Walkers have or may ever have against the personal injury defendants The settlement further provided therein that the Walkers hereby release acquit and forever discharge the personal injury defendants of and from any and all past present andor future claims demands causes of action and rights of action whatsoever known and unknown anticipated and unanticipated which the Walkers may or might have against the personal injury defendants And finally the Walkers agreed not to at any time hereafter commence maintain or prosecute any action at law or otherwise or assert any claims against the personal injury defendants for damages losses benefits or for other equitable relief relating to the accident that occurred on September 24 2003 In settling this matter the Walkers did not seek to reserve their right to appeal the adverse ruling of the trial court in the August 17 2005 interlocutory judgment nor did they reserve the right to maintain an action against the personal injury defendants in the event they should prevail in having the August 17 2005 judgment reversed on appeal Instead they chose not to bring an appeal of the ruling and further foreclosed any right to seek additional compensation for the cervical and lumbar injuries claimed by Mr Walker which the Walkers allege rA were not taken into account in the settlement even had they elected to seek an appeal of the ruling Although this court twice declined to exercise supervisory review of the trial s court August 17 2005 judgment this court prior actions were in no way a s decision on the merits of the issue As noted in the second writ action supervisory review was declined because the criteria established in Herlitz Construction Company Inc v Hotel Investors of New Iberia Inc 396 So 2d 878 La 1981 were not met2 See Walker v Alexander 06 0888 La App 1st Cir 06 19 5 unpublished writ action Furthermore the denial of a writ application for supervisory review of an interlocutory judgment does not bar reconsideration of or a different conclusion on the same question when an appeal is taken from a final judgment Bozarth v State LSU Medical CenterChabert Medical Center 09 1393 p 9 La App 1st Cir 2 35 So 3d 316 323 There was even an 10 12 indication that the Walkers might have succeeded in having the August 17 2005 judgment reversed on appeal based on the reasons expressed by the dissenting judge on the writ panel for the second writ application 1 When an unrestricted appeal is taken from a final judgment an appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him in addition to the review of the final judgment However this general principle is subject to exceptions where the adverse interlocutory judgment has previously been appealed in accordance with the law or where the aggrieved party has sought supervisory writs and the appellate court makes a ruling which constitutes the law of the case See Judson v Davis 041699 pp 78 La App 1st Cir 05 29 6 916 So 2d 1106 111213 writ denied 05 1998 La 2 924 So 2d 167 citing 06 10 Landry v Leonard J Chabert Medical Center 021559 p 5 n La App lst Cir 5 858 4 03 14 So 2d 454 461 n writs denied 031748 031752 La 10 855 So 2d 761 In the 4 03 17 instant case the prior ruling of this court on the defendants supervisory applications were not substantive rulings on the merits and therefore did not become law of the case so as to have precluded our reconsideration of the issue of whether the August 17 2005 judgment was proper 2 The Herlitz opinion provides in part When the overruling of the exception is arguably incorrect when a reversal will terminate the litigation and when there is no dispute of fact to be resolved judicial efficiency and fundamental fairness to the litigants dictates that the merits of the application for supervisory writs should be decided in an attempt to avoid the waste of time and expense of a possibly useless future trial on the merits Herlitz 396 So 2d at 878 In order to establish a claim for legal malpractice a plaintiff must prove that 1 there was an attorney client relationship 2 the attorney was negligent in his representation of the plaintiff and 3 plaintiff sustained a loss as a result of the s attorney negligence Moreover a plaintiff can have no greater rights against attorneys for the negligent handling of a claim than are available in the underlying claim Costello v Hardy 031146 pp 910 La 1 864 So 129 138 04 21 2d Our de novo review of the record reveals that the Walkers actions of settling all of their claims against the personal injury defendants without seeking an appeal of the adverse ruling in the August 17 2005 judgment or reserving their right to pursue any claims for Mr Walker alleged cervical and lumbar injuries dismissed s pursuant to the August 17 2005 judgment precluded them from being able to pursue any claims relative to those injuries And likewise the Walkers action of agreeing to such a complete settlement of their claims in the underlying personal injury suit precluded the malpractice defendants from being able to possibly establish that they did not negligently cause the trial court to render the August 17 2005 judgment The malpractice defendants have consistently maintained that the trial court erred in rendering the August 17 2005 judgment and as they are barred from proving this defense by the Walkers settlement the Walkers must likewise be barred from pursuing their legal malpractice claim premised on the non reviewable judgment See Gross v Pieno 04820 La App 5th Cir 1 892 So 2d 04 28 2 662 writ denied 05 0218 La 4 899 So 2d 582 see also Murphy 834 So 05 22 2d at 672 Moreover in settling their claims against the personal injury defendants the Walkers agreed to an amount in full satisfaction regarding all injuries Mr Walker sustained in the September 2003 accident As the only damages asserted by the Walkers in their legal malpractice claim are those based on Mr Walker cervical s Loj and lumbar injuries they are estopped from taking the position that they were not adequately compensated for those injuries when their complete settlement of the personal injury lawsuit indicates otherwise Compare Wharton v Bell 10 0377 La App 1st Cir 10 unpublished opinion Thus we find that summary 25 judgment was properly rendered In so finding we pretermit discussion of the Walkers second assignment of error CONCLUSION Based on the foregoing de novo review of the summary judgment appealed herein we find no error in the trial court legal conclusions and therefore affirm s the summary judgment dismissing the Walkers claims All costs of this appeal are cast to the appellants Frederick and Irma Walker AFFIRMED 10
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