Leonard v. Stephens, 22927-CA

• Decision Date: 30 October 1991
• Docket Number: No. 22927-CA,22927-CA
• Citation: 588 So.2d 1300
• Court: Court of Appeal of Louisiana — District of US
• Parties: Dennis R. LEONARD, Plaintiff-Appellant, v. Sonny N. STEPHENS, et al., Stephens & Stephens, Attorneys at Law, et al., Defendants-Appellees. 588 So.2d 1300

Page 1300

588 So.2d 1300

Dennis R. LEONARD, Plaintiff-Appellant, v. Sonny N. STEPHENS, et al., Stephens & Stephens, Attorneys at Law, et al., Defendants-Appellees.

No. 22927-CA.

588 So.2d 1300

Court of Appeal of Louisiana Second Circuit.

Oct. 30, 1991.

Dennis R. Leonard, in pro. per.

Sonny N. Stephens, Winnsboro, for defendants-appellees.

Before MARVIN, C.J., and VICTORY and STEWART, JJ.

MARVIN, Chief Judge.

In this action for damages founded on legal malpractice and breach of contract, Dennis R. Leonard appeals the trial court's judgment granting defendants' motion for summary judgment on November 8, 1990. In this appeal Leonard also complains that the trial court denied his motion for summary judgment on July 16, 1990.

Leonard further complains of the court's failure to require defendants to answer interrogatories and to comply with his requests for production of documents, and of the court's failure to grant Leonard expenses that arise out of his motion to compel discovery.

We reverse the judgment granting defendants' motion for summary judgment while affirming the judgment denying Leonard's motion for summary judgment. Because of our dispositions and because the record does not include an express ruling on Leonard's motion to compel discovery, we remand to allow a ruling on that issue to be made by the court below.

FACTS

Leonard was convicted of aggravated burglary and aggravated battery upon his guilty pleas. The convictions were upheld by this court on appeal. State v. Leonard, 514 So.2d 695 (La.App. 2d Cir.1987). We hereafter refer to defendants singularly as Stephens, who was not Leonard's lawyer until after Leonard's conviction was final.

On February 26, 1988, Stephens first visited Leonard, who was then incarcerated, to discuss an application for post-conviction relief or a further appeal on Leonard's behalf. Leonard paid Stephens $332.50 for this initial visit. Stephens agreed to represent Leonard in PCR proceedings and was thereafter paid $3,500 in separate installments. About a year later, on February 3, 1989, Leonard demanded that Stephens withdraw as his counsel, return all records, and refund all fees advanced him.

On May 2, 1989, Leonard filed his petition seeking return of the fees and $1,575,000 damages for breach of contract, fraud, negligence, malpractice and malfeasance. Leonard alleged that Stephens had not filed any pleadings on Leonard's behalf. In May 1989, Stephens refunded Leonard $2,750 through his new attorney, Culpepper. Stephens answered Leonard's petition with a general denial on December 21, 1989.

Leonard filed a motion for a summary judgment on May 18, 1990. This motion was denied July 16, 1990. On September 7, 1990, Leonard filed interrogatories and requests for production of documents. Leonard then filed a motion to compel answers to discovery on October 9, 1990. On October 26, 1990, Stephens filed a motion for summary judgment which was granted November 8, 1990, by the trial court after a lengthy pre-trial conference.

SUMMARY JUDGMENT

The sole purpose for the motion for summary judgment is to determine in advance of trial whether a genuine issue of material fact exists between the litigants. Indus. Sand and Abrasives v. L. & N.R. Co., 427 So.2d 1152 (La.1983); Dixon v. Perlman, 528 So.2d 637 (La.App. 2d Cir.1988).

A motion for summary judgment should be granted if, and only 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. CCP Art. 966; Thornhill v. Black, Sivalls, & Bryson, Inc., 394 So.2d 1189 (La.1981); Watson v. Cook, 427 So.2d 1312 (La.App. 2d Cir.1983). A summary judgment is not appropriate as a vehicle for the disposition of a case, the ultimate decision in which will be based on opinion evidence. Dixon, supra; Verrett v. Cameron Telephone Co., 417 So.2d 1319 (La.App. 3d Cir.1982), writ denied.

The party who moves for summary judgment has the burden of clearly showing that there is no genuine issue of material fact in dispute. In determining if the mover has satisfied his burden, the court will closely scrutinize the pleadings, affidavits and documents of the mover and will resolve any reasonable doubt as to the existence of a genuine issue of material fact against the mover and in favor of trial on the merits. Dixon, supra; Watson, supra.

If the supporting documents presented by the moving party are insufficient to resolve all material fact issues, summary judgment must be denied. If sufficient, the burden shifts to the opposing party to present supporting evidence showing that material facts are still at issue. CCP Art. 967; Dixon, supra. A summary judgment is not a substitute for a trial on the merits. Sanders v. City of Blanchard, 438 So.2d 714 (La.App. 2d Cir.1983).

Leonard contends that the trial court erred in failing to grant his motion for summary judgment. An appeal does not lie from the court's refusal to grant any judgment on the pleading or a summary judgment. CCP Art. 968.

Comment (d) to CCP Art. 968 states that because a trial court's overruling a motion for summary judgment is an interlocutory judgment causing no irreparable injury, it can only be appealed with the final judgment rendered in the case. Schaefer v. Lynch, 406 So.2d 185 (La.1981). See also Magill v. Owen Const. Co., Inc., 434 So.2d 520 (La.App. 2d Cir.1983).

The summary judgment in favor of Stephens is an appealable judgment. The denial of Leonard's motion for summary judgment is reviewable in this appeal. The issues whether Stephens breached the contract with Leonard, whether Stephens committed malpractice, malfeasance, acts of negligence or fraud, and whether Leonard suffered damages, remain material factual issues.

We find that neither Leonard nor Stephens is entitled to a summary judgment. Leonard's motion for summary judgment stated,

There are no material facts in support of defendant's contention that plaintiff suffered no damages as a result of the actions and failure of the defendant to act.

Attached to Leonard's motion for summary judgment were the following:

--a March 2, 1988, letter from Stephens to Leonard in which he agreed to file an appeal on Leonard's behalf for $3,000-$3,500;

--a May 9, 1988, letter from Stephens to Leonard that confirmed a $2,931.33 payment and stated that he would start post-conviction relief pleadings immediately;

--a December 28, 1988, letter from the Richland Parish Clerk of Court's Office to Leonard stating that there was no information in their files indicating that an attorney was enrolled in Leonard's case;

--a February 3, 1989, letter from Leonard to Stephens demanding that Stephens withdraw from the case, return all records, and refund all fees advanced;

--a copy of a check from Stephens for $2,750 made payable to Leonard's new lawyer;

--a copy of a writ which was granted by this court on May 3, 1990, which conditionally vacated Leonard's convictions and sentences to allow the trial court to hold a hearing and to make the determination as to whether the plea was knowingly and intelligently entered after Leonard was counseled about his sentencing exposure;

--a statement of undisputed facts; and

--an affidavit by Leonard which partially stated that Stephens failed to enroll as counsel, begin work and/or actual litigation in reference to a post-conviction relief application in Leonard's behalf.

The pleadings, affidavits and documents of the mover suggest, but do not prove Stephens breached the agreement between the parties, committed malpractice, malfeasance, acts of negligence or fraud, or whether Leonard suffered any damages. Leonard did not satisfy his burden of proving that there is no genuine issue of material fact in dispute. The trial court therefore did not err in denying Leonard a summary judgment.

For the same reasons, we find the trial court erred in granting Stephens' motion for summary judgment. Several genuine issues of material fact are in dispute. Leonard's petition alleges that Stephens' failure to act with reasonable diligence and promptness in representing Leonard and to prepare an application for post-conviction relief or an out-of-time appeal on Leonard's behalf...