Fred Henry Smith VS Franz L. Zibilich and XYZ Insurance Company
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NOT DESIf FOR PL VATED BLICATION STATE OF LOUISIANA iJRT C OF APPEAL FIRST CIRCUIT NO 20I2 CA I123 FRED HENRY S1 ZITH VERSUS FRANZ L ZIBILICH AND XYZ INSL COMPANY RANCE G Judg ment Rendered FebruarJ 1 S 2013 xa Appealed from the 18th Judicial Dis4rict Court In and for the Parish ofPointe Coupee State of Louisiana Case No 35193 The Honorable James J Best Judge Presiding ri Niles B Counsel for Plaintiff Appellant Baton Fred fIenry Smith Haymer Rouge Louisiana Gus A Fritchie III Edward W Trapolin Counsel for Defendant Appellee Franz Zibilich John ll Garrett New Orleans Louisiana David S Daly Elliot M Lonker Counsel for Defendant Appellee Continental Casualty Company Metairie Louisiana BEFORE GUIDRY CRAIN AND THERIOT JJ Gyi THERIOT J This is an appeal from the Eighteenth Judicial District Court s judgment sustaining exceptions of no right of action and peremption and granting an alternative motion for summary judgment in favor of the Appellees Franz L Zibilich and Continental Casualty Company Continental and against the Appellant Fred Henry Smith dismissing the Appellant claims with prejudice For the following reasons we affirm s FACTS AND PROCEDURAL HISTORY Fred Smith and Leotha Kimble Smith were legally divorced on October 16 1990 in the 18 JDC in Pointe Coupee Parish Mr Smith later filed a petition to partition the community property in the same parish on September 25 1991 At the time these proceedings were filed Mr Smith was represented by attorneys Joseph M Thibaut and Joseph W Cole who also represented Mr Smith through most of the litigation in these matters Over the course of time Mr Smith terminated Thibaut and Cole s s representation and subsequently hired Mr Franz Zibilich as his attorney While Mr Smith has averred that he hired Mr Zibilich for all his legal matters Mr Zibilich claimed that he was retained by Smith for one specific purpose Mr Zibilich was retained by Mr Smith on September 17 1997 Mr Zibilich claims he is primarily a criminal defense attorney and advertises At the time of the filing of his petiHon Mr Fred Henry Smith was ot aware ofthe name of Mr Zibilich s insurer and initially named the insurer XYZ Insurance Company As soch the coutt did not rule in favor of Continenta by name Also the trial court judgment signed on June 9 2010 only ruled in favor of Mr s Zibilich Conti subsequently joined in the appeal and filed its own briefs ental Docket number 25301 l 3 Docket number 26543 No employment contract between Mr Smith and Mr Zibilich exists in the record however Mc Smith testified on June 17 2008 as follows in his depositioo A the time James Dewey made mention that I t needed a criminal lawyer he said because Judge Marionneaux is going to put you in jail for mo you are ey not showing up with James Dewey was retained as Mr Smith attorney at the time of tbe conversation s Mc Smith referenced 2 himself as such He claims his specialization was known by Mr Smith when he was retained Mr Zibilich appeared far Mr Smith on October 13 1997 on a civil contempt hearing against Mr Smith and successfully moved to continue the hearing to November 20 1997 The civil contempt stemmed from an alleged violation by Mr Smith regarding a court order enjoining both Mr and Mrs Smith from disposing alienating or otherwise encumbering any assets from the community of acquets and gains until they could be partitioned Mrs Smith accused Mr Smith of withdrawing funds from various accounts to conceal the money from her and the court In particular was one Merrill Lynch account On the November 20 1997 court date both Mr and Mrs Smith were ordered by the court to not touch the money in the Merrill Lynch account for any reason including transfening to another account Mrs Smith filed another rule for contempt against Mr Smith on October 23 1998 claiming that he had withdrawn 94 from an Oryx 81 671 retirement account which was part of the community in contravention of a court order not to do so previous to the order regarding the Merrill Lynch account On December 3 1998 Mr Smith was ordered by the court to pay to Mrs Smith 70 that was determined to be due to her from the Merrill 482 Lynch account on or before December 18 1998 On October 29 1999 Mrs Smith filed another motion for contempt against Mr Smith alleging he had never transferred to her any funds from the Merrill Lynch account as the court had ordered The contempt hearing was scheduled for December 14 1999 While Mr Smith was present for that hearing his attorney Mr Zibilich was inexplicably absent Mrs Smith presented as evidence of Mr Smith contempt a letter from Merrill Lynch s s legal department stating they were unable to transfer any funds to her 3 because Mr Smith had refused to give them authorization to do so Mr Smith presented no evidence or testimony in his defense The court then ardered Mr Smith to serve sixty 60 days in jail or purge his jail sentence by paying to Mrs Smith the full sum that was owed her After spending approximately nine 9 days in jail Mr Smith transferred to Mrs Smith 482 70 from the Merrill Lynch account and was released from jail Mr Smith filed a damages petition for legal malpractice against Mr Zibilich on November 16 2000 Mr Smith claims in the petition that Mr Zibilich was retained to represent him in the community property litigation although Mr Zibilich disputes this Mr Smith petition speaks at length of s events befalling him that occurred befare Mr Zibilich was retained but does allege that Mr Zibilich failed to inform him of court dates failed to present a proper case to the court on his behalf and failed to attend court on his behalf all of which resulted in his incarceration and liability for various subsequent monetary damages In his brief Mr Smith is more succinct in his complaint against Mr Zibilich alleging only Mr Zibilich absence in s court on December 14 1999 as the cause ofhis damages The brief does not address any other acts or omissions of legal malpractice on the part of Mr Zibilich Mr Smith moved far preliminary default on Mr Zibilich on February 20 2001 and a default judgment was entered against Mr Zibilich on May 15 2001 Mr Zibilich filed a morion for new trial on July 30 2001 on grounds that the default judgment was an absolute nullity Although the arder granting the morion for new trial is missing from the record one was evidently granted because after about four years of apparent inactivity Mr s Smith filed an amended petition to name Continental as a defendant Litigation in the matter progressed at times rather slowly until Mr Zibilich 4 filed exceptions raising the objections of no right of action and peremption and in the alternative a motion for summary judgment against Mr Smith on December 29 2009 Continental adopted the exceptions The court granted the exceptions filed by Mr Zibilich and dismissed Mr Smith petition with s prejudice on June 9 2010 Mr Smith motion for new h was denied on s December 28 2011 and the trial court judgment was timely appealed on s February 1 2012 ASSIGNMENTS OF ERROR Mr Smith assigns three assignments of error the first being the trial court erred by sustaining the exception of no right of action the second being the trial court erred by sustaining the exception ofperemption and the third being the trial court erred by granting Mr Zibilich motion for s summary judgment and dismissing Mr Smith suit with prejudice s STANDARD OF REVIEW A judgtnent granting a peremptory exception is generally reviewed de novo because the exception raises a legal question Metairie II v Poche Const Inc 2010 p 3 App 4 Cir 9 49 So 446 449 0353 La 10 29 3d writ denied 2010 La 9 69 So3d 1138 2436 ll 16 However when exceptions of prescription or peremption have evidence introduced at a hearing the trial court finding of fact on the issue is subject to the manifest s errar standard of review Southern Ins Co v Metal Depot 2010 La 1899 App 1 Cir 6 70 So 922 925 writ denied 2011 La 11 10 3d 1763 11 14 10 74 3d So 215 The appellate court standard of review of summary judgment is also de novo Brunet v Fullmer 2000 p 3 0644 La 5 App 4 Cir 1 777 So 1240 1241 see also Adams v ANCeneauz O1 10 d 1440 2000 La App l Cir 6 809 So 190 193 O1 22 2d 194 DISCUSSION The case before us is a suit far legal malpractice In Mr Smith s brief the sole act or omission of which he complains is Mr Zibilich failure s to appear in court on his behalf on December 14 1999 and he attributes the adverse ruling and his incarceration to Mr Zibilich sabsence on that day If Mr Smith had any other complaints against Mr Zibilich they were not briefed and according to Rule 2 of the Uniform Rules of the Louisiana 4 12 Courts of Appeal we consider them to be abandoned Louisiana Revised Statutes Title 9 section 5605 provides the limitations on when an action for legal malpractice can be filed The action must be filed within one year from the date of the alleged act omission or neglect or within one year from the date the alleged act omission or neglect is discovered or should have been discovered There is no question from the record that Mr Smith was present in court on December 14 1999 and Mr Zibilich was not Mr Smith was present in court when the adverse ruling was handed down and clearly he was made aware of it at that moment By the aforementioned clause in La R 9 Mr Smith S 5605 would have had to file his petition by December 14 2000 which he did The statute further provides 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 See Str v Richardson 2011 La App 1 Cir 5 92 aub 1689 12 2 So3d 548 553 writdenied 2012 La 998 So3d 341 1212 12 21 6 In order for La R 9 to apply there must be an attorney S 5605 client relationship Broussard v A F Richard Associates Inc 1998 La 1167 App 3 Cir 3 732 So 578 585 writ denied 1999 La 99 17 2d 1048 99 4 6 744 So 625 The record shows Mr Zibilich was retained by Mr 2d Smith on or about September 17 1997 Any legal services that Mr Smith received prior to that time were not done by Mr Zibilich or any other attorney or staff in his employ so he cannot be liable for any detrimental legal services rendered to Mr Smith prior to that date even though Mr Smith has named none in his brief Since Mr Smith filed his petition for malpractice on November 16 2000 any acts or omissions by Zibilich done on Mr Smith behalf prior to November 16 1997 would be perempted s Again the only act Mr Smith complains of specifically is Zibilich sabsence from court on Dea 14 1999 which fits within the peremptive window Was Mr Zibilich failure to appear on Mr Smith behalf the s s proximate cause of the adverse ruling and imprisonment Mr Smith was found to be in contempt of court for failing to obey the court orders to not s touch funds from the Merrill Lynch account on November 20 1997 and to pay to Mrs Smith that portion of the funds that was due to her on December 3 1998 Mr Smith failed to make the ordered payment to Mrs Smith and nowhere in Mr Smith petition or brief does he allege that Mr Zibilich s advised counseled or instructed him to not make that payment Mr Smith neither alleges that Mr Zibilich interfered in some way with the account to prevent him from paying the money to Mrs Smith The Merrill Lynch letter submitted to the court by Mrs Smith shows that Mr Smith refused to give authorization to transfer the funds Mr Smith never alleged that his refusal was done on the advice of Mr Zibilich The record shows that the failure to 7 transfer the funds due to Mrs Smith was solely due to the acts or omissions of Mr Smith not Mr Zibilich Mr Smith has not shown any acts or omissions by Mr Zibilich that would have attributed to his non with the court order and he has compliance failed to show how Mr Zibilich absence from court on December 14 1999 s was the proximate cause of his being held in contempt when the record shows he was found in contempt for his own refusal to pay the funds that were due to Mrs Smith We can find no genuine issue of material fact in Mr Smith slegal malpractice claim CONCLUSION We adopt the fmdings of the trial court in their entirety Mr Smith s actions occurring before Mr Zibilich was retained cannot be attributed to him While Mr Zibilich absence from court on December 14 1999 is not s preempted any negligent acts or omissions by Mr Zibilich in the scope of his attorney relationship with Mr Smith are preempted by La R client S 5605 9 Mr Smith damages are a direct result of his own acts or failure to s act and were not proximately caused by Mr Zibilich DECREE The judgment of the 18 1DC in favor of the Appellees Franz L Zibilich and Continental Casualty Company is affirmed dismissing with prejudice the petition for damages filed by the Appellant Fred Henry Smith Costs of this appeal are assessed to the Appellant AFFIRMED 8
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