94-0178 La.App. 4 Cir. 1/19/95, Beis v. Bowers

• Decision Date: 19 January 1995
• Citation: 649 So.2d 1094
• Parties: 94-0178 La.App. 4 Cir
• Court: Court of Appeal of Louisiana — District of US

Page 1094

649 So.2d 1094

94-0178 La.App. 4 Cir. 1/19/95

Joyce BEIS v. W. Lloyd BOWERS, Esq., Wiedemann & Fransen, a Professional Law Corporation, and the XYZ Insurance Company.

No. 94-CA-0178.

Court of Appeal of Louisiana Fourth Circuit.

Jan. 19, 1995.

Writ Denied March 30, 1995.

Law Offices of Darleen M. Jacobs, Andre' P. Guichard, Darleen M. Jacobs, New Orleans, for plaintiffs/appellants.

Hailey, McNamara, Hall, Larmann & Papale, Richard A. Chopin, Brian T. Carr, Nelson W. Wagar, Metairie, for defendants/appellees.

Before SCHOTT, C.J., and BARRY, KLEES, PLOTKIN and LANDRIEU, JJ.

[94-0178 La.App. 4 Cir. 1] BARRY, Judge.

In this legal malpractice suit, Peggy and Robert Chehardy, Jr., who are substitute plaintiffs for their deceased mother, Joyce Beis, appeal a summary judgment.

Mrs. Beis sued Wiedemann & Fransen, PLC, its insurer, and Lloyd Bowers, the attorney who represented her in a medical malpractice claim. Mrs. Beis alleged that Dr. James Diamond committed medical malpractice on November 28, 1984. On December 3, 1987 a Medical Review panel unanimously issued an opinion which found no malpractice. Mrs. Beis claimed that Bowers and the law firm did not timely file her medical malpractice action within ninety (90) days after the panel's opinion and the firm failed to advise her of the opinion. The defendants admitted those allegations, but claimed that Mrs. Beis did not suffer compensable damages as a result of their legal malpractice.

[94-0178 La.App. 4 Cir. 2] The trial court noted the plaintiffs did not submit countervailing evidence to show damages and that defendants carried their burden of proof that Mrs. Beis did not suffer any damage.

THE LAW

Appellate courts review summary judgments de novo and use the same criteria as the trial court. Summary judgment is a drastic remedy and should be granted only if the pleadings, depositions, interrogatory answers and admissions on file, together with affidavits (if any) show there is no genuine issue of material fact and movers are entitled to a judgment as a matter of law. La.C.C.P. art. 966; Melancon v. Hartford Insurance Company, 545 So.2d 557 (La.App. 4th Cir.1989), writ not considered, 548 So.2d 1221 (La.1989). The mover's pleadings, affidavits, and documents are scrutinized closely while those of the opponent are indulgently treated. Any doubt is resolved against summary judgment and in favor of trial on the merits. Morgan v. Campbell, 561 So.2d 926 (La.App.2d Cir.1990).

To prove a claim for legal malpractice a plaintiff must prove: (1) there was an attorney-client relationship; (2) the attorney was negligent and (3) that negligence caused plaintiff some loss. Scott v. Thomas, 543 So.2d 494 (La.App. 4th Cir.1989); Evans v. Detweiler, 466 So.2d 800 (La.App. 4th Cir.1985). [O]nce the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney's negligence caused him some loss, since it is unlikely the attorney would have agreed to handle a claim completely devoid of merit. In such a situation, a rule which requires the client to prove the amount of damages by trying [94-0178 La.App. 4 Cir. 3] 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.

Jenkins v. St. Paul Fire & Marine Insurance Company, 422 So.2d 1109, 1110 (La.1982). See also Finkelstein v. Collier, 636 So.2d 1053 (La.App. 5th Cir.1994); Drury v. Fawer, 527 So.2d 423 (La.App. 4th Cir.1988).

A plaintiff can recover for unintentional or negligent infliction of emotional distress unaccompanied by physical injury. Bordelon v. St. Frances Cabrini Hospital, 640 So.2d 476 (La.App. 3rd Cir.1994). See also F. Stone, 12 La. Civil Law Treatise: Tort Doctrine, §§ 155-56 (1977). Mental anguish damages may be awarded in a legal malpractice case which sounds in tort. Henderson v. Domingue, 626 So.2d 555 (La.App. 3rd Cir.1993), writ denied, 630 So.2d 799 (La.1994).

THE RECORD

The defendants' motion for summary judgment alleged that Mrs. Beis did not have a valid medical malpractice claim. Defendants candidly admit that Mrs. Beis' claim was never filed and she was not timely notified of the Medical Review panel's opinion. Hence, the first two criteria of Scott v. Thomas, 543 So.2d 494, are satisfied. The only issue is whether Mrs. Beis suffered a loss. Defendants attached as exhibits the Medical Review panel's opinion and affidavits of panel members Dr. William Perez, Dr. Ralph Nix and [94-0178 La.App. 4 Cir. 4] Dr. George Ellis, Sr., who concluded that Dr. Diamond met the applicable standard of care.

In their opposition plaintiffs pointed to Mr. Wiedemann's April 6, 1988 letter to Mrs. Beis which acknowledged that the cause of action against Dr. Diamond had prescribed prior to Mrs. Beis receipt of the review panel's opinion. Mr. Wiedemann said the firm would have recommended against filing suit if the claim had been properly handled, which we note is a self serving statement. Mr. Wiedemann suggested Mrs. Beis could pursue a legal claim against the law firm.

Plaintiffs attached Mrs. Beis' March 27, 1991 deposition in which she stated that during her interview with Mr. Wiedemann he told her that she "very definitely" had a medical malpractice claim against Dr. Diamond. She hired Mr. Wiedemann to represent her and later found out that Mr. Bowers was assigned to handle the matter. She said she left telephone messages for both attorneys but never heard back. Mrs. Beis claimed that weeks and months passed without any contact from her lawyers. Mrs. Beis testified as to what she told a secretary during one telephone call: " 'Look, if Mr. Bowers doesn't want to talk to me, tell me.' And I said, 'I'll do something else.' " At that point in the deposition Mrs. Beis became upset and had to stop. She explained that she had been very aggravated when the attorneys would not talk to her. Mrs. Beis said she called every morning and afternoon for a week, and about that time her husband died. When she returned from the funeral in Missouri "there was a registered letter from Mr. Wiedemann ... saying that something had expired." Mrs. Beis testified: "I thought everything was going along, but then [94-0178 La.App. 4 Cir. 5] they don't call you, and they don't want to talk to you." At another point in the deposition she stated: "I can't hardly talk about this without crying."

ANALYSIS

In this matter Mrs. Beis made two allegations. She properly alleged that her medical malpractice claim prescribed because Mr. Bowers and the law firm failed to timely file suit. Defendants admitted those allegations "as they relate to the failure to timely file." During oral argument Mrs. Beis' counsel conceded that she could not locate a medical expert to testify and Mrs. Beis had no viable claim for damages relating to medical malpractice. Therefore, we are not concerned with damages as to the medical malpractice suit.

However, Mrs. Beis also alleged, and defendants admit, that they did not timely notify her that the medical review panel had rendered its judgment. Mrs. Beis alleged that she suffered emotional stress and strain because of the defendants' legal malpractice. Mrs. Beis testified that Mr. Wiedemann told her she definitely had a case and she relied upon his advice. She clearly expressed mental anguish and frustration because the law firm ignored her calls and did not keep her informed. Mrs. Beis believed that her case was viable until she received the certified letter which informed her that any hope of recovery had prescribed.

Summary judgment was improper. There remain issues of material fact as to whether Mrs. Beis suffered emotional distress as a result of the defendants' admitted legal malpractice.

The summary judgment is reversed and the matter remanded for further proceedings.

REVERSED; REMANDED.

PLOTKIN, J., concurs with written reasons.

LANDRIEU, J., dissents in part and concurs in part.

[94-0178 La.App. 4 Cir. 1] PLOTKIN, Judge, concurring with written reasons.

I agree with the majority's conclusion that the trial court improperly granted the motion for summary judgment filed by the defendant attorneys; however, I disagree with the majority's analysis. Thus, I respectfully concur.

The majority is correct in finding that the trial judge improperly granted the motion for summary judgment because genuine issues of material fact concerning whether Ms. Beis suffered emotional distress as a result of the defendants' admitted legal malpractice exist. However, the majority is incorrect in concluding that "we are not concerned with damages as to the medical malpractice suit" because Mrs. Beis's attorney admitted during oral argument that "she could not locate a medical expert to testify and Mrs. Beis had no viable claim for damages relating to medical malpractice." Mrs. Beis's attorney did not admit that Mrs. Beis had no viable claim for damages relating to medical malpractice; the majority improperly concludes that no viable claim exists.

In the most recent pronouncement by the Louisiana Supreme Court on the standard for granting motions for summary judgment, the court once again stated that motions for summary judgment should be employed only "cautiously and sparingly." Smith v. Our Lady of the Lake Hospital, 639 So.2d 730, 751 (La.1994). In deciding whether a trial court properly granted a motion for summary judgment, an appellate court is to conduct a de novo review, asking the same questions the trial court is required to ask: "whether there is any genuine issue of material fact, and whether the mover ... is entitled to judgment as...