Dawn Marie Brassette VS Hugh B. Exnicious, Exnicious Legal Center and ABC Insurance Company
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2011 CA 1439 K D 9 DAWN MARIE BRASSETTE VERSUS HUGH B EXNICIOS EXNICIOS LEGAL CENTER AND THE ABC INSURANCE COMPANY Judgment Rendered MAY 14 2012 Appealed from the Twenty Second Judicial District Court In and for the Parish of St Tammany State of Louisiana Docket Number 2008 1 6506 The Honorable Allison H Penzato Judge Presiding Jacques F Bezou Joseph A Kott Jacques F Bezou Jr Covington LA Counsel for PlaintiffAppellant Alfred B Shapiro Baton Rouge LA Counsel for DefendantsAppellees Dawn Marie Brassette Hugh B Exnicios and the Exnicios Legal Center BEFORE WHIPPLE KUHN AND GUIDRY PETTIGREW AND WELCH JJ wl ru c rom WHIPPLE J This matter is before us on appeal by plaintiff Dawn Marie Brassette from a judgment of the trial court denying plaintiffs motion for summary judgment and granting the motion for summary judgment filed by defendants Hugh B Exnicios and the Exnicios Legal Center collectively defendant For the following reasons the judgment of the trial court is reversed and the matter is remanded to the trial court for further proceedings FACTS AND PROCEDURAL HISTORY Brassette retained Exnicios the sole owner and proprietor of the Exnicios Legal Center to represent her in her claim against the United States of America S through the U Food Administration FDA and Drug Administration and General Services and their employee Alex S Davis for injuries sustained by Brassette on August 17 2005 as a result of an automobile accident with Davis who was acting within the course and scope of his employment at all pertinent times Defendant filed a lawsuit on behalf of Brassette on August 7 2007 in the United States District Court for the Eastern District of Louisiana bearing civil action number 07 4016 On August 4 2008 counsel for the FDA filed a motion in the civil action captioned United States Motion to Limit the Ad Damnum which was set for hearing on August 27 2008 at 10 a before the Honorable 00 m Martin L C Feldman United States District Judge Section F On August 25 2008 Judge Feldman issued an Order stating that Local Rule 07 of the 5E Eastern District of Louisiana requires that memoranda in opposition to a motion be filed and a copy be delivered to chambers eight days prior to the date set for hearing on the motion and that no memorandum in opposition had been timely sfailure to subinitted on behalf of Brassette by defendant Thus the defendant timely file an opposition resulted in the matter at issue in the motion being 2 deemed submitted and unopposed Accordingly the motion was granted as unopposed thereby limiting Brassette claim for recovery to 30 which s 00 000 Brassette now contends was far lower than the amount of damages she was actually entitled to considering the injuries she sustained as a result of the accident According to Brassette Fsubsequently called her to advise that he xnicios had settled her case for 22 although Brassette 00 000 1 had not been consulted and had given no authority for him to do so and 2 was still seeking treatment for her injuries On October 2 2008 Brassette wrote a letter to Judge Feldman wherein she stated in part I am represented by defendant in the captioned lawsuit where he claims to have settled my case for 22 without my 00 000 permission I told him he had no authority to do so but he said there was nothing 1 could do about it By letter dated November 13 2008 Brassette terminated defendant s representation of her in the underlying matter advising defendant that she was no longer in need of his counsel as ordered by Judge Feldman and requesting that her original files be forwarded to her as soon as possible Brassette subsequently entered a settlement agreement with the FDA for 22 on 00 000 November 14 2008 whereby she agreed to settle and compromise each and every claim ofany kind whether known or unknown arising directly or indirectly from the acts or omissions that gave rise to the above captioned action under the terms and conditions set forth in the Settlement Agreement On December 1 2008 Brassette tiled the instant petition asserting a 0 claim for legal malpractice against defendant and defendant insurer and s requesting damages for the loss of her claim due to the incompetence and malpractice of defendant On September 21 2009 Brassette filed a motion for partial summary judginent contending that the defendant failure to file an s 3 opposition to the FDA motion to limit damages in and of itself constituted s negligence which was exacerbated by the defendant sfailure to obtain a copy of the medical report ofher treating chiropractor On June 15 2010 defendant filed a motion for summary judgment contending that because Brassette settled the underlying case her legal malpractice claims were preempted pursuant to LSA S 5605 R 9 and further contending that contested issues of material fact remained which precluded summary judgment in her favor The cross motions for summary judgment were argued before the trial court on March 30 2011 at the conclusion of which the trial court denied s Brassette motion for summary judgment and granted defendant motion for s summary judgment In granting the defendant smotion for summary judgment the trial court noted that Brassette legal malpractice claim against defendant was s not preempted but that nonetheless Brassette sNovember 14 2008 compromise settlement and release contained no reservation of rights by Brassette thereby entitling defendant to summary judgment as a matter of law A judgment conforming to same and dismissing Brassette claims was signed by the trial s court on April 6 2011 Brassette now appeals contending that the trial court erred in granting s defendant motion for summary judgment where material issues of fact remain and in holding that Brassette settlement of the underlying case in federal court s Louisiana Revised Statute 9 provides in pertinent part 5605 A No action for damages against any attorney at law duly admitted to practice in this state any partnership of such attorneys at law or any professional corporation company organization association enterprise or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law whether based upon tort or breach of contract or otherwise arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act omission or neglect or within one year from the date that the alleged act omission or neglect is discovered or should have been discovered however even as to actions filed within one year from the date of such discovery in all events such actions shall be filed at the latest within three years from the date of the alleged act omission or neglect 11 precludes her from bringing a legal malpractice action against her former counsel DISCUSSION A motion for summary judgment is a procedural device used to avoid a full scale trial when there is no genuine factual dispute Sanders v Ashland Oil Inc 96 1751 La App I Cir 6 696 So 2d 1031 1034 writ 97 20 denied 97 1911 La 10 703 So 2d 29 Summary judgment is properly 97 31 granted if the pleadings depositions answers to interrogatories and admissions on file together with affidavits if any show that there is no genuine issue of material fact and that mover is entitled to judgment as a matter of law LSA P C art 966 B Summary judgment is favored and is designed to secure the just speedy and inexpensive determination of every action LSAC P C art 966 2 A The burden ofproof on a motion for summary judgment remains with the movant However if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment the s movant burden on the motion does not require him to negate all essential elements of the adverse party claim action or defense but rather to point out s to the court that there is an absence of factual support for one or more elements essential to the adverse party claim action or defense s Thereafter if the adverse party fails to produce factual support sufficient to establish that he will 2 I denying Brassette motion s Brassette failed to present any evidence law for the defendant sfailure to file an the underlying proceedings as an act of for summary judgment the trial court noted that to prove her entitlement to judgment as a matter of opposition to the FDA motion to limit damages in s negligence per se Although the denial of a motion for summary judgment is generally non appealable see LSAC art 968 because the P C same issues lie at the heart of the cross motions for summary judgment review of the opposing motions is appropriate See Board of Supervisors of Louisiana State University a uisian gricultural Lo AFinance Authority 20070107 La App 1 Cir 2 984 So 2d 5t 08 8 72 78 n Nonetheless Brassette does not assign error to the trial court denial of her l s motion for summary judgment in this appeal 5 be able to satisfy his evidentiary burden of proof at trial there is no genuine issue of material fact LSA C art 966 P 2 C The initial burden of proof remains with the mover and it is not shifted to the nonmoving party until the mover has properly supported the motion and carried the initial burden of proof Only then must the non moving party submit evidence showing the existence of specific facts establishing a genuine issue of material fact See Scott v McDaniel 96 1509 La App lst Cir 97 9 5 694 So 2d 1189 1191 1192 writ denied 97 1551 La 9 701 97 26 So 2d 991 Ifthe non moving party fails to do so there is no genuine issue of material fact and summary judgment should be granted LSA C arts 966 P and 967 In determining whether summary judgment is appropriate appellate courts review summary judgment de novo under the same criteria that govern the trial court determination of whether summary judgment is appropriate s Sanders v Ashland Oil Inc 696 So 2d at 1035 Furthermore an appellate court asks the same questions as does the trial court in determining whether surnrnary judgment is appropriate whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law Guardia v Lakeview Regional Medical Center 2008 1369 La App 15t Ci r 09 8 5 13 So 3d 625 627 Because it is the applicable substantive law that determines materiality whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case Board of Supervisors of Louisiana State University v Louisiana Agricultural Finance Authority 984 So 2d at 80 Further when addressing legal issues a reviewing court gives no special weight to the findings of the trial court Campbell y Markel American Insurance Company 2000 1448 La App 1 Cir 9 822 So 2d 617 st 01 21 6 620 writ denied 2001 2813 La 1 805 So 2d 204 02 4 Instead after conducting its de novo review of questions of law the reviewing court renders a u meat Judg on the record Cam bell Ma Campbell v American Insurance Company 822 So 2d at 620 LEGAL MALPRACTICE CLAIM In order to establish a valid legal malpractice claim a plaintiff must show by evidence sufficient to convince a reasonable trier of fact 1 the existence of an attorneyclient relationship 2 negligent representation by the attorney and 3 loss caused by that negligence MB IndustriesLLC v CNA Insurance Company 20110303 La 10 74 So 3d 1173 1184 Thus to 11 25 prevail on the merits Brassette has the burden of proving that the defendant failed to exercise at least that degree of care skill and diligence which is exercised by prudent practicing attorneys in his Locality Ramp v St Paul Fire and Marine Insurance Company 263 La 774 269 So 2d 239 244 1972 Typically a plaintiff will retain an expert witness both to establish the standard of care for prudent attorneys in the relevant locality and to show that the s defendant actions fell below the standard of care CAN Insurance Company 74 So 3d at 1184 MB Industries LLC v The failure to introduce the testimony or affidavit of an expert witness however is not necessarily fatal to the s plaintiff claim particularly where the alleged legal malpractice obvious or the defendant attorney committed gross error is MB Industries LLC v CNA Insurance C 74 So 3d at 11841185 citing Ramp v St ompany Paul Fire and MarineInsurance Company 269 So 2d at 244 At the outset we address Brassette contention that trial court erred in s holding that her settlement of the underlying case precluded her from bringing a legal malpractice action against her former counsel 7 Defendant argues that the failure to oppose the FDA Motion to Limit s the Ad Damnum was not negligent where based on the information available on the date of filing November 16 2005 the damage limitation amount of 00 000 30 was considered more than reasonable for Brassette injuries s Defendant maintains that at no time prior to August 28 2008 was Brassette diagnosed with a herniated disc and further that there is no evidence that the herniated disc was caused by the accident Thus defendant contends no malpractice was committed in the handling of the underlying matter and because Brassette settled the underlying suit with no reservation of rights against defendant she is unable to prove damages and is thereby estopped from pursuing her legal malpractice claim In support defendant relies on Murphy v Gilsbar 2002 0205 La App I Cir 12 31 834 So 2d 669 writ denied 2003 0676 La 5 845 02 03 30 So 2d 1 057 In Murphy another panel of this court held that the plaintiff therein was equitably stopped from bringing a legal malpractice claim where despite the federal court attempts to involve plaintiff in a hearing to s reconsider an adverse judgment finding that plaintiffs claim had prescribed the plaintiff declined to participate and advised the court through a letter that she instead chose to file a legal malpractice claim against her attorney See Murphy v Gilsbar 834 So 2d at 672 In holding that the plaintiff could not thereafter assert a malpractice claim this court stated Plaintiffs entire action for malpractice against defendant rested on the allegation that defendant allowed the action for employment discrimination to prescribe Plaintiffs refusal to participate in the hearing in federal court indicated she no longer had an interest in her discrimination suit tier inaction precluded the revival of that action an event that neither defendant nor CibaGeigy could affect as they lacked standing Clearly the trial court did not err in concluding that by refusing to participate in the hearing that could have resurrected her discrimination suit plaintiff waived her right to proceed with her malpractice suit 0 Murphy v Gilsbar 834 So 2d at 672 Although we find the facts of the instant case readily distinguishable from those set forth above in Murphy the jurisprudential doctrine of equitable estoppel in Murphy was recently discussed and limited in its application by the Louisiana Supreme Court in MB Industries LLC v CNA Insurance Company 1 201 0303 La 10 74 So 3d 1173 In MB Industries the defendant 11 25 therein argued that under the principles of equitable estoppel a defendant who fails to perfect an appeal of an underlying judgment effectively waives his right to a remedy in malpractice In its discussion the Supreme Court noted that although the theory of equitable estoppel was supported by several appellate court decisions the issue was res nova for the Supreme Court See MB Industries LLC v CNA Insurance Company 74 So 3d at 1179 As the Louisiana Supreme Court explained therein equitable estoppel is a jurisprudential doctrine involving the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct MB Industries LLC v CNA Insurance Company 74 So 3d at 1180 citing Morris v Friedman 94 2808 La 11 663 So 2d 1 25 95 27 9 establish equitable estoppel There are three elements required to 1 a representation by conduct or work 2 justifiable reliance thereon and 3 a change of position to one detriment s because of the reliance MB Industries LLC v CNA Insurance Company 74 So 3d at 1180 As the Louisiana Supreme Court further explained A claim of waiver by failure to appeal is thus not equitable estoppel as the doctrine has been defined by this Court Strictly speaking equitable estoppel applies only where a party has made false or misleading representations of fact and the other party justifiably relied on the representation State v Mitchell 337 So 0 2d 1 186 1188 La 1976 We must narrowly construe this argument as estoppel is not favored in our law Id and estoppel is a doctrine of last resort Howard Trucking Co Inc v Stassi s 485 So 2d 915 91 La 1986 Because MB1 decision not to 8 pursue an appeal was not a representation of fact which Durio or Weinstein justifiably relied on to their detriment equitable estoppel does not apply The issue is more properly framed as a failure to mitigate damages under Civil Code article 2002 which states An obligee must make reasonable efforts to mitigate the damage caused by the obligor failure to perform When an s obligee fails to make these efforts the obligor may demand that the damages be accordingly reduced Id If an aggrieved party could have cured the effects of an unfavorable judgment by appeal its decision not to appeal may be a failure to mitigate under article 2002 The failure to mitigate damages is an affirmative defense and the burden of proof is on the party asserting the defense Wooley v Lucksinger 09 571 La 4 61 So 3d 11 1 507 607 A Better Place Inc v Gianii Investment Co 445 So 2d 728 732 La 1984 MB Industries LLC v CNA Insurance Company 74 So 3d at 1180 1181 footnote omitted added emphasis Ultimately the Louisiana Supreme Court held in MB Industries that A party does not waive its right to file a legal malpractice suit by not filing an appeal of an underlying judgment unless it is determined a reasonably prudent party would have filed an appeal given the facts known at the time and avoiding the temptation to view the This analysis is heavily case through hindsight dependent on the specific facts of the case A court should take into account any relevant factors including but not limited to the nature of the alleged malpractice the likelihood an appeal would have been successful the likely expense of the appeal and the possibility the peremptive period on the legal malpractice claim would have expired during the course ofthe appeal MB Industries LLC v CNA Insurance Cam aEy 74 So 3d at 11821183 Thus applying the analysis set forth in MB Industries we now conclude that a party does not waive its right to file a legal malpractice suit by settling an underlying suit unless it is determined that a reasonably prudent party would not have settled the underlying case given the facts known at the time and avoiding the temptation to view the case through hindsight See MB Industries 10 LLC v CNA Insurance Company 74 So 3d at 1182 1 183 As such rather than considering defendant sargument under principles of equitable estoppel to determine whether the defendant was entitled to summary judgment herein as a matter of law we must consider whether Brassette waived her right to pursue a legal malpractice claim against the defendant by entering into a settlement agreement with the FDA Thus the relevant inquiry is whether a reasonably prudent party would have settled her underlying case The scope of a party duty to mitigate depends on the particular facts of s the individual case and as recognized by the Louisiana Supreme Court a party is not required to take actions which would likely prove unduly costly or futile MB Inustries LLC v CNA Insurance Company 74 So 3d at 1181 A duty to mitigate encompasses only what a reasonably prudent man would have done to lessen his damages given the facts known to him at the time and avoiding the temptation to view the case through hindsight Builders Unverza t v Yours Inc 252 La 1091 21 So 2d 823 826 1968 5 Although as a general principle a client has a duty to mitigate damages caused by his s attorney malpractice such a duty cannot require the client to undertake measures that are unreasonable impractical or disproportionately expensive considering all of the attendant circumstances American Reliable Insurance Moreover 3we note that in a recent case similar to the instant case Walker v Harris 2011 0141 L App I Cir 9 unpublished opinion this panel affirmed a judgment a 11 14 dismissing plaintiffs legal malpractice claim finding that the plaintiffs were equitably estoppel from asserting an action for legal malpractice against their former counsel where the plaintiffs had settled the underlying lawsuit on which the legal malpractice claim was based The Louisiana Supreme Court granted the plaintiff writ application and remanded s the case to this court for reconsideration specifically in light of its subsequent decision in MB So 3d Industries See Walker v Harris 2011 2531 La 2 12 3 Thus we must consider the holdings set forth in MB Industries in our resolution of the issues set before us in the instant appeal We further note that MB Industries holding that a party does not waive its right to file a legal malpractice claim by not filing an appeal of an underlying judgment has since been applied by this court in Evanston Insurance Company Kimbel 2011 0526 La App v 1st Cir 12 un pub I i shed opinion 11 14 Company v Navratil 445 F 402 406 5 Cir 2006 3d Moreover failure to pursue an appeal or other legal review is not a defense unless pursuit of the remedy would have made a difference MB Industries LLC v CNA Insura mpany Co 74 So 3d at 1182 In the instant case if Brassette could have cured the effects of the federal s court limitation of her damage award her decision to settle her underlying suit might constitute a failure to mitigate However as the record reflects after Brassette learned that defendant failed to oppose the motion to limit damages Brassette requested a relative Friziala Wiggins a lawyer in New Orleans to review the federal court pleadings to see if there was any action Brassette could take to challenge the 30 damage limitation resulting from the federal 00 000 court ruling Brassette was advised by her relative that the limitation was set and there was no action she could take to challenge it Accordingly Brassette entered into the settlement agreement with the FDA As such Brassette argues on appeal that her conduct was reasonable under the circumstances and her acceptance of the settlement funds could not serve to hinder her ability to recover inasmuch as there existed no action that the defendant could have taken to recover any damages in excess of the limit once the Motion to Limit the Ad Damnum was granted as unopposed due to the defendant inaction s On review of the trial court grant of defendant motion for summary s s judgment we agree that defendant failed to establish as a matter of law that sdecision to settle her underlying suit given the damage award limit Brassette imposed therein was outside the bounds of a reasonably prudent actor given the facts known to her at the time Instead on the record before us we find that genuine issues of material fact remain as to whether Brassette acted as a reasonably prudent party in entering into the settlement agreement herein which precludes the grant of summary judgment in either party favor s 12 Specifically such a determination of the reasonableness of her actions can only be made after the trial court consideration of the facts and circumstances s surrounding her decision to settle in view of the procedural posture of the underlying federal suit and the extent of her medical treatment and damages Because we find merit to this assignment of error we pretermit discussion of Brassette alternative arguments on appeal s CONCLUSION For the above and foregoing reasons the April 6 2011 judgment ofthe trial court is reversed and this matter is remanded to the trial court for further proceedings consistent with the views expressed herein Costs of this appeal are assessed against the defendants Hugh B Exnicios and the Exnicios Legal Center REVERSED AND REMANDED 13 DAWN MARIE BRASSETTE FIRST CIRCUIT COURT OF APPEAL VERSUS STATE OF LOUISIANA HUGH B EXNICIOUS EXNICIOUS LEGAL CENTER AND THE ABC INSURANCE COMPANY NUMBER 2011 CA 1439 KUHN J dissenting 1 disagree with the majority sconclusion reversing the trial court grant of s summary judgment in favor of defendants Hugh B Exnicios and the Exnicios Legal Center collectively Exnicios Although MB Industries LLC v CNA Ins Co 201 0304 La 10 74 So 1173 does not permit a per se preclusion 1 11 25 2d of a malpractice claim by a client against her former attorney when she has failed to appeal the underlying case and instead settles it it also should not permit a per se right of a malpractice action in every instance that a client settles her underlying claim without appealing it or taking other action to maintain it In this case Dawn Marie Brassette sdecision not to reopen the limitation of ad damnum order of the district court was unreasonable in light of the evidence that she had at the time she settled her case against the FDA Nothing precluded her from either appealing the order of limitation of ad damnum see FRAP 3 permitting an appeal from a district court order or amending her pleadings see FRCP Rule 15 28 U permitting amendment of pleadings during and b A C S after trial see also 28 U A C S b 2675 an action under the Tort Claims Procedure shall not be instituted for any sum in excess of the amount of the claim presented to the federal agency except where the increased arnount is based upon newly discovered evidence not reasonably discoverable at the time of presenting the claim to the federal agency or upon allegation and proof of intervening facts relating to the amount of the claim On August 28 2008 three days after the order was signed by the district court judge limiting ad damnum Brassette had the result of her MRI showing herniations in her neck and thoracic spine A reasonably prudent client would have pursued reopening the ad damnum limitation with the newly discovered evidence Having failed to do so Brassette left defendant Exnicios without any opportunity to seek redress for his alleged error of failing to provide an opposition to the s FDA motion to limit ad damnum damages Accord Evanston Ins Co v Kimmel 2011 0526 La App 1st Cir 12 2011WL6288045 unpublished Because 11 14 a reasonably prudent party would have reopened the ad damnum limitation s Brassette decision to settle her claim rather than appeal or amend her pleading during or after the trial amounted to a waiver of her right to file a malpractice claim See M Industries LLC v CNA Ins Co 74 So at 118283 B 2d I find problematic the majority holding that a party does not waive its s right to file a legal malpractice suit by settling an underlying suit unless it is determined that a reasonably prudent party would not have settled the underlying case given the facts known at the time and avoiding the temptation to view the case through hindsight In the framework of a motion for summary judgment where a moving party who does not bear the burden of proof at trial need only point out an absence of factual support for one or more elements essential to the adverse party claim s the showing is apparently impossible How can the determination of whether a reasonably prudent party would have settled her claim be pointed out by the defendant until after such time as the trier of fact concludes that the party was reasonably prudent Has the majority holding s effectively removed resolution of legal malpractice claims by summary judgment the statutorily favored procedure for resolution of claims under La C art P 2 966A where the client has chosen to settle her underlying suit and thereby removed all opportunities for a defendant to redress the alleged error N Exnicios showed the facts known at the time that Brassette settled her claim which was less than three months after the motion to limit ad damnum was granted and a mere three days before she obtained medical evidence demonstrating a disc herniation that more likely than not was caused by the accident These facts demonstrate that a reasonably prudent party would not have settled her underlying case but would have reopened the ad damnum limitation before settling with the tortfeasor In response to this showing Brassette failed to produce factual support sufficient to rebut this showing If these facts established by Enxicios in support of the motion for summary judgment are not sufficient to demonstrate that a reasonably prudent client would have reopened the ad damnum limitation rather than settled with the tortfeasor there are I suppose absolutely no facts that would permit the granting of the motion for summary judgment This is as egregious a result as the per se rule that required the plaintiff in a legal malpractice action to appeal the underlying ruling before she was able to maintain her legal malpractice claim For these reasons I disagree with the majority and would affirm the grant of summary judgment in favor of the Exnicios defendants dismissing Brassette s claims 3
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