Cabot, Cabot & Forbes v. Brian, Simon, Peragine

• Decision Date: 21 July 1983
• Docket Number: Civ. A. No. 80-2060.
• Citation: 568 F. Supp. 371
• Parties: CABOT, CABOT & FORBES COMPANY, Plaintiff, v. BRIAN, SIMON, PERAGINE, SMITH & REDFEARN, A Louisiana Ordinary Partnership, A. Morgan Brian, Jr., Deutsch, Kerrigan & Stiles, A Louisiana Ordinary Partnership, Imperial Casualty & Indemnity Company, and XYZ Insurance Company, Defendants.
• Court: U.S. District Court — Eastern District of Louisiana

568 F. Supp. 371

CABOT, CABOT & FORBES COMPANY, Plaintiff, v. BRIAN, SIMON, PERAGINE, SMITH & REDFEARN, A Louisiana Ordinary Partnership, A. Morgan Brian, Jr., Deutsch, Kerrigan & Stiles, A Louisiana Ordinary Partnership, Imperial Casualty & Indemnity Company, and XYZ Insurance Company, Defendants.

Civ. A. No. 80-2060.

United States District Court, E.D. Louisiana.

July 21, 1983.

Peter J. Butler, Gayle A. Reynolds, New Orleans, La., Jerome P. Facher, Boston, Mass., for plaintiff.

Robert N. Ryan, New Orleans, La., for defendants Brian, Simon, Peragine, Smith, etc., A. Morgan Brian, Jr., Imperial Cas. & Indem. Co.

Francis G. Weller, New Orleans, La., for defendant Deutsch, Kerrigan & Stiles.

CASSIBRY, District Judge:

I. INTRODUCTION

Plaintiff, Cabot, Cabot & Forbes Company ("Cabot"), brought this malpractice action against an attorney, A. Morgan Brian, the two law firms in which Mr. Brian was a partner when the alleged malpractice occurred, and their insurers. Brian represented Cabot in a state court action against Cabot for certain cost overruns incurred in a Baton Rouge construction job. After a bench trial, the state trial court rendered a judgment against Cabot for $830,305.05.

In this action, Cabot claims that Brian's failure to timely file a brief on Cabot's behalf with Louisiana's First Circuit Court of Appeal resulted in that court's dismissing Cabot's appeal as abandoned. Cabot also claims that Brian concealed that failure from Cabot and that as a result, Cabot suffered damages. When it brought the action, Cabot demanded trial by jury on all issues. Defendants moved to strike the jury demand on the issue of whether the Louisiana appellate court would have reversed the Louisiana trial court's decision if Brian had not failed to timely file Cabot's appeal. Finding this issue to be a question of law, not fact, for the court alone to decide, I granted defendants' motion to strike. After carefully studying Louisiana law pertaining to appellate legal malpractice, I ordered the parties in a March 3, 1982 Minute Entry to brief the following issues presently before me:

(1) Would the state appellate court have reversed the state trial court's decision casting Cabot, Cabot & Forbes in judgment?

(2) What damages should be awarded to Cabot, Cabot & Forbes in the event that it is determined that the state appellate court would have reversed the trial court's decision?

Before any trial on the merits of the malpractice claim could proceed, I noted, resolution of these legal issues was necessary because a showing that the appellate court would have reversed but for the attorney's negligence is an essential element of a legal malpractice action under Louisiana law. See, e.g., C/M of Baton Rouge, Inc. v. Wood, 341 So.2d 1181 (La.App. 1st Cir.1976). The reasoning behind this requirement is simple: if Cabot would not have won on appeal anyway, it could not show that Brian's alleged negligence — that is, his failure to timely file Cabot's appeal — caused it damage.

The Minute Entry further provided that if the state appellate court would have reversed the trial court's judgment, a jury trial would be held on Brian's liability for negligence and fraudulent concealment, as well as on other issues. Conversely, the order provided, if the state appellate court would not have reversed the trial court's judgment, Brian could not be liable for negligence under Louisiana law, and trial could proceed only on the remaining issues.

II. Cabot's Motion to Vacate March 3, 1982 Order: The Effect of Jenkins

About seven months after I issued the March 3, 1982 Minute Entry directing the parties to brief these two issues, the Supreme Court of Louisiana decided Jenkins v. St. Paul Fire & Marine Insurance Co., 422 So.2d 1109 (La.1982). Cabot now claims that Jenkins changed Louisiana jurisprudence in attorney malpractice actions so fundamentally that it requires this court to vacate the March 3 order. After careful study of Jenkins and its application to this case, I find that it does not mandate vacating or changing in any way the first question posed in the order, i.e., the question whether the state appellate court would have reversed the state trial court's decision casting Cabot in judgment. However, Jenkins does require vacating the Minute Entry's second part, posing the question what damages should be awarded if the appellate court would have reversed the state trial court's judgment.

In Jenkins, the plaintiff-client sued his two former attorneys for failing to file suit until two days after prescription had run on his claim for damages for personal injuries sustained in a truck-train collision. A jury found for the plaintiff, but the court of appeals reversed, holding that plaintiff's contributory negligence¹ in causing the collision would have barred his recovery against the railroad company. The Louisiana Supreme Court affirmed but modified the appellate court's holding in one significant respect: the court concluded that once the client proves that his former attorney accepted employment and failed to assert the claim timely, the client has established a prima facie case and the negligent attorney bears the burden of proving that the mishandled claim or litigation would not have succeeded.

This conclusion represented a departure from the so-called "case within a case" approach previously taken by the court of appeals in Jenkins, 393 So.2d 851, and by several other Louisiana courts, see, e.g., Toomer v. Breaux, 146 So.2d 723 (La.App. 3d Cir.1962); Lewis v. Collins, 260 So.2d 357 (La.App. 4th Cir.1972). Under that approach, the plaintiff-client in a legal malpractice case was required to prove not only (1) that the attorney was negligent in handling the client's claim or litigation, but also (2) that the litigation would have been successful but for the attorney's negligence. In Jenkins, the Louisiana Supreme Court concluded that the latter requirement imposed too heavy a burden of proof on the plaintiff:

A rule which requires the client to prove the amount of damages by trying the "case within a case" simply imposes too great a standard of certainty of proof. Rather, the more logical approach is to impose on the negligent attorney, at this point in the trial, the burden of going forward with evidence to overcome the client's prima facie case by proving that the client could not have succeeded on the original claim, and the causation and damage questions are then up to the jury to decide. Otherwise, there is an undue burden on an aggrieved client, who can prove negligence and causation of some damages, when he has been relegated to seeking relief by the only remedy available after his attorney's negligence precluded relief by means of the original claim.

422 So.2d at 1110.

The mandate of Jenkins is, therefore, two-fold: Cabot merely has to show that its former attorney, A. Morgan Brian, Jr., failed to file Cabot's appeal timely.² Then, as Jenkins instructs, Brian must carry the burden of showing that Cabot's appeal would not have succeeded.³

Relying on the above-quoted excerpt from Jenkins, Cabot contends that the jury must decide (1) whether Brian was negligent, (2) whether that negligence caused damage and (3) the amount of damages to be awarded Cabot. Cabot has demanded and is certainly entitled to a jury to resolve all factual questions arising from its legal malpractice claim. Two of the three questions raised by Cabot's claim are questions of fact — Brian's alleged negligence and the amount of damages — questions that a jury must decide under Jenkins, 422 So.2d at 1110.

The third question — whether the defendant's negligence proximately caused plaintiff damage — is usually one of fact. In this case, however, determining whether Brian's failure to appeal caused Cabot any damages requires determining whether that appeal would have been successful. Nelson v. Appalachian Insurance Company of Providence, 399 So.2d 711 (La.App. 1st Cir.1981); C/M of Baton Rouge, Inc. v. Wood, 341 So.2d 1181 (La.App. 1st Cir.1976); Alfonso v. McIntyre, 387 So.2d 1348 (La.App. 1st Cir.1980); Vessel v. St. Paul Fire & Marine Ins. Co., 276 So.2d 874 (La.App. 1st Cir. 1973). The rationale for requiring this determination is as follows: If the appeal would not have succeeded and the Louisiana Court of Appeals would have affirmed the trial judge's decision, Brian's negligence could not have caused Cabot any damage, at least none recognized in Louisiana. Conversely, if the appeal would have succeeded in reversing the lower court's judgment and ultimately obtaining a more favorable result, then Cabot indeed sustained damage because of Brian's negligence. C/M of Baton Rouge v. Wood, 341 So.2d 1181 (La.App. 1st Cir.1976).⁴

Not surprisingly, past Louisiana courts confronted with making this causation determination have not delegated it to the jury; rather, they have consistently recognized that it raises a question of law, not fact, within the exclusive province of the court, not jury, to decide. C/M of Baton Rouge v. Wood, supra; Nelson v. Appalachian Ins. Co. of Providence, supra. Courts in other jurisdictions have done likewise. See, e.g., Chicago Red Top Cab Ass'n, Inc. v. Gaines, 49 Ill.App.3d 332, 364 N.E.2d 328, 7 Ill.Dec. 167 (1977); Croce v. Sanchez, 256 Cal.App.2d 680, 64 Cal.Rptr. 448 (1967), cert. denied, 391 U.S. 927, 88 S.Ct. 1827, 20 L.Ed.2d 666 (1968); McAleenan v. Massachusetts Bonding & Ins. Co., 173 App.Div. 100, 159 N.Y.S. 401 (1916), aff'd 219 N.Y. 563, 114 N.E. 114 (1921). Noting this consensus, two commentators have concluded that "this decision must be made by the trial judge as an issue of law, based upon review of the transcript and record of the underlying action, the argument of counsel, and subject to the same rules of review as should have been applied by the appellate courts." Mallen & Levit, Legal Malpractice, § 583 at 738 (1981).

Moreover, Jenkins does not alter this conclusion. Jenkins did not involve, as th...