96-448 La.App. 3 Cir. 12/11/96, Dinger v. Shea

Decision Date11 December 1996
Citation685 So.2d 485
Parties96-448 La.App. 3 Cir
CourtCourt of Appeal of Louisiana — District of US

Toxie L. Bush, Jr., Abbeville, for Alton F. Dinger, Jr., et ux.

L. Lane Roy, Lafayette, for John R. Shea.

Before YELVERTON, WOODARD and AMY, JJ.

[96-448 La.App. 3 Cir. 1] WOODARD, Judge.

Alton and Jesserene Dinger brought suit against John Shea, an attorney who represented Jesserene Dinger in an auto accident case and in a workers' compensation case. The Dingers seek damages for Shea's alleged malpractice which they claim ultimately led to a denial of any reward for medical expenses in both cases. Shea filed a motion for summary judgment claiming that he never entered into an attorney-client relationship with Alton Dinger. At a hearing on the motion, Judge Hugh E. Brunson, granted summary judgment in favor of Shea as to all claims by Alton Dinger. We affirm the trial court's ruling. We find that Alton Dinger never entered into an attorney-client relationship with Shea and that, therefore, Mr. Dinger has no cause of action in this legal malpractice claim.

FACTS

This suit for legal malpractice stems from two underlying suits. The first is a workers' compensation action, No. 92-3939, District 05, Louisiana Department of Labor, Division of Workers' Compensation, relating to an alleged work-related [96-448 La.App. 3 Cir. 2] accident of Jesserene Dinger, which occurred on March 30, 1991. Alton Dinger was not a party to those proceedings. The tribunal rejected the claims of Mrs. Dinger, finding that she did not remain disabled after August 1991. She was therefore denied benefits after that date, including medical expenses. The Dingers allege that Shea committed legal malpractice in that proceeding because he failed to attend an emergency rule nisi hearing in which the medical expenses were at issue.

The second underlying suit is Dinger v. Jory, No. 90-3457, Fifteenth Judicial District Court, Lafayette Parish, in which Jesserene Dinger and her husband, Alton Dinger, brought suit against Michelle Jory seeking damages for alleged injuries sustained in a collision involving Jesserene Dinger and Jory. Attorney A.J. Paul Fredrickson filed the original petition for damages on July 17 1990. In the petition, Jesserene Dinger sought damages for emotional distress, medical expenses, and past and future lost wages, resulting from the accident. Alton Dinger also sought damages, specifically for loss of consortium and mental anguish.

On July 2, 1992, Alton Dinger filed, and was subsequently granted, a Motion for Partial Judgment of Dismissal to voluntarily dismiss with prejudice his loss of consortium and mental anguish claims. Fredrickson also filed this motion. No supplemental petition seeking additional damages on behalf of Alton Dinger was ever filed. Jesserene Dinger remained in the suit seeking damages for past and future pain and suffering and past and future medical expenses.

On September 22, 1993, John Shea enrolled as counsel of record for Jesserene Dinger in the underlying case, more than one year following the dismissal of Alton Dinger's claims. On June 10, 1994, prior to the commencement of trial, Mrs. Dinger attempted to fire Shea as her attorney. Pursuant to that request, Shea filed a motion to withdraw on June 13, 1994. The trial judge denied the motion. On June 16, a jury rendered a verdict assessing 50% fault to Jory and 50% to Jesserene Dinger, but awarded no damages to Jesserene.

Immediately following the trial, Jesserene fired Shea and filed various motions in proper person, including a motion for a new trial and JNOV, all of which were denied. Subsequently, she hired a new attorney who also filed motions on her behalf. These motions were also denied by the trial court. On September 26, 1994, the time for taking a devolutive appeal from the trial court judgment expired. Mrs. Dinger never filed a notice of appeal.

[96-448 La.App. 3 Cir. 3] On June 22, 1995, the Dingers collectively and in forma pauperis, filed suit against Shea for damages arising from his alleged legal malpractice at the earlier trial and for his failure to appear at an emergency rule nisi hearing in a workers' compensation action filed by Jesserene. On December 7, 1995, Shea filed peremptory exceptions of no right of action and motions for summary judgment. Hearings on both motions were held on January 29, 1996. On February 8, 1996, the trial judge granted Shea's exception of no right of action and the summary judgment motion as to all claims asserted by Alton Dinger, concluding that no attorney-client relationship ever existed between Shea and Alton Dinger, either in Dinger v. Jory or in the workers' compensation case. This appeal stems from the grant of summary judgment in favor of Shea against Alton Dinger.

ASSIGNMENTS OF ERROR

The Dingers claim the following assignments of error:

I. The Trial Court erred in holding that the voluntary (or compensated, whichever may be actually true) withdrawal of the alleged claims of the husband for loss of consortium and mental anguish caused by injuries to the wife in the Dinger v. Jory suit, had the effect of dismissing all of the husband's claims of every nature, and of removing the husband from the lawsuit, including his claims for payment of his wife's medical expenses, past and future, and hence from any attorney-client relationship with the trial attorney, Mr. Shea.

II. The Trial Court erred in failing to recognize that either husband or wife is the proper party plaintiff to enforce a community right, and that when only one spouse is made a party plaintiff for the enforcement of a community right, the other spouse becomes a necessary party and, if the other spouse might be prejudiced by his absence as a party, may even be made an additional party plaintiff by the court on its own motion.

III. The Trial Court erred in failing to recognize that the husband may appear as a party plaintiff in a lawsuit which seeks to enforce a community right, such as a right to the payment of the expenses of medical treatment of the wife, even though the community right may have resulted from an alleged legal malpractice in which the wife may have been the sole party plaintiff, or defendant, i.e., that the husband may have a claim for community losses such as expenses of medical treatment, if it be proved that [96-448 La.App. 3 Cir. 4] those [sic] losses were the result of legal malpractice toward the wife alone.

IV. The Trial Court erred in that if there were any doubt as to whether the medical expenses of the wife's medical treatment were her separate property or community property, then the Trial Court should have allowed the husband to amend the malpractice suit to show that the husband were [sic] an alternative party plaintiff, and he should not have been dismissed as a party plaintiff.

LAW
SUMMARY JUDGMENT

Appellate courts review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Potter v. First Federal Sav. and Loan Ass'n, 615 So.2d 318 (La.1993). A motion for summary judgment is properly granted only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits submitted, if any, show there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La.Code Civ.P. art. 966(B). A fact is "material" if its existence potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the relevant legal dispute. Cormier v. Wise, 93-1434 (La.App. 3 Cir. 6/1/94); 638 So.2d 688. A fact is "at issue" if there exists any reasonable doubt as to its existence. Durrosseau v. Century 21 Flavin Realty, Inc., 594 So.2d 1036 (La.App. 3 Cir.1992).

The law of this state has always supported the proposition that "[s]ummary judgments are not favored and should be used cautiously and sparingly, and any reasonable doubt should be resolved against the mover." Penton v. Clarkson, 93-657, p. 5 (La.App. 1 Cir. 3/11/94); 633 So.2d 918, 922 (citations omitted). However, recent changes have occurred in this area as part of the 1996 legislative tort reform package. 1996 La. Sess. Law. Serv. 1st Ex.Sess. Act 9 (S.B.27) (WEST). In the 1996 special session, La.Code Civ.P. art. 966 was amended and reenacted, effective May 1, 1996. Article 966 now states, in pertinent part:

A. (2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action.... The procedure is favored and shall be construed to accomplish these ends.

[96-448 La.App. 3 Cir. 5] * * * * * *

C. After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted against an adverse party who fails to make a showing sufficient to establish the existence of proof of an element essential to his claim, action, or defense and on which he will bear the burden of proof at trial.

* * * * * *

G. Notwithstanding any other provisions of this Article to the contrary, the burden of proof shall remain with the mover.

The new standard is equivalent to the federal courts' view of the use of summary judgment. In other words, pursuant to the statute, summary judgment is now favored and should be applied liberally.

In the past, any doubt regarding the existence of material facts was to be resolved against granting the summary judgment, even if grave doubts existed as to a party's ability to establish disputed facts at trial. Penton, 633 So.2d 918 (citations omitted). The amendment does not change the law regarding burdens of proof, as the mover is still required to prove the absence of a genuine issue and his entitlement to judgment. Short...

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