CARR v. ABEL
| Decision Date | 29 March 2011 |
| Docket Number | NO. 10-CA-835,10-CA-835 |
| Parties | EARL T. CARR, JR. v. DANIEL G. ABEL AND XYZ INSURANCE CO. |
| Court | Court of Appeal of Louisiana — District of US |
OPINION TEXT STARTS HERE
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 652-869, DIVISION "O"
HONORABLE ROSS P. LADART, JUDGE PRESIDING
WALTER J. ROTHSCHILD
Panel composed of Judges Clarence E. McManus, Walter J. Rothschild,
and Fredericka Homberg Wicker
DAVID L. BROWNE
Attorney at Law
COUNSEL FOR PLAINTIFF/APPELLANT
AARON F. BROUSSARD
DANIEL G. ABEL
Attorneys at Law
COUNSEL FOR DEFENDANT/APPELLEE
AFFIRMED
In this legal malpractice proceeding, plaintiff appeals from a judgment of the trial court dismissing his original action. Plaintiff also argues that the trial court erred in failing to strike the entire reconventional demand filed by defendant. For the reasons stated herein, we affirm.
Earl T. Carr, Jr. filed the instant petition against his former attorney, Daniel G. Abel and Abel's insurer alleging that he retained Abel to represent him and his company Carr & Associates in underlying litigation filed against Carr in St. Tammany Parish by the Louisiana State Bar Association ("LSBA"). Carr alleged that Abel was negligent in his representation and was therefore liable for damages, penalties and costs.
In the underlying litigation, the LSBA sought an injunction against Carr, an insurance adjuster, on the basis of his alleged unauthorized practice of law. During the course of the proceedings, the trial court granted a temporary restraining order and preliminary injunction in favor of the LSBA and against Carr. According to the instant petition, Carr informed Abel that he desired to appeal from this ruling, yet Abel failed to initiate the appeal process in a timely manner. Carr alleged that a timely filing of an appeal would have resulted in a reversal of the trial court's injunction, and that Abel's failure to perfect the appeal caused him substantial damage.
In response to Carr's petition, Abel filed a pleading entitled, Exceptions, Affirmative Defenses, Reconventional Demand, Answer and Notice of La. C.C.Art. 863 Violations. Essentially, Abel alleged that after the entry of the preliminary injunction, Carr retained new counsel, Scandurro & Layrisson, L.L.C., and that the trial court subsequently ruled against Carr and granted a permanent injunction in favor of the LSBA. Further, Abel alleged that following the entry of the preliminary injunction against Carr, he took a writ directly to the Louisiana Supreme Court, which denied writs and failed to reverse the lower court's ruling. According to Abel's allegations, both the entry of a permanent injunction and the denial of writs by the Supreme Court absolved Abel of any negligence due to his actions in representing Carr in this matter.
In his reconventional demand, Abel named several defendants: Carr, Carr & Associates, the law firm of Scandurro &Layrisson, L.L.C., Jean-Paul Layrisson and their insurers. Abel alleged that both Carr and his current counsel, Layrisson, were aware of the baseless allegations contained in the legal malpractice proceeding filed against Abel. Abel thus sought damages in tort for abuse of process, negligent misrepresentation, negligent misinformation and defamation.
In response to Abel's pleading, Carr filed a Motion to Strike the pleading in whole or in part on that basis that it was both premature as well as immaterial and it contained scandalous and unethical allegations. In addition, defendants-in-reconvention, Jean-Paul Layrisson and Scandurro & Layrisson, filed a special Motion to Strike pursuant to La. C.C.P. art. 971. Defendants also filed Exceptions of Prematurity and No Cause of Action to Abel's pleadings.
Following a hearing in this matter on September 24, 2009, the trial court took note of the fact that the permanent injunction judgment was not yet final as Carr had taken a supervisory writ. The trial court thus stayed all proceedings in this legal malpractice action pending a ruling from the Louisiana Supreme Court in the underlying litigation between the LSBA and Earl Carr.
On May 6, 2010, Daniel Abel filed a Motion to Lift Stay and Dismiss Carr's Original Action on the basis that the Supreme Court denied Carr's writ application seeking review of the trial court's permanent injunction. On May 13, 2010, Jean-Paul Layrisson and the law firm of Scandurro & Layrisson, L.L.C. filed a similar Motion to Strike as well as a motion to Reset its Exceptions for Hearing.
Following a hearing which was held on June 1, 2010, the trial court lifted the stay and granted Abel's Motion to Dismiss Carr's original legal malpractice action. The trial court also granted the Exceptions of Prematurity as to all of Abel's third party demands against Sandurro & Layrisson, L.L.C. and Jean-Paul Layrisson and against Earl Carl, Jr. and Carr & Associates, Inc. Finally, the trial court granted in part Carr's Motion to Strike certain paragraphs of Abel's reconventional demand. The trial court also certified this judgment as appealable pursuant to La. C.C.P. art. 1915(B). This appeal follows.
On appeal, Carr contends that the trial court erred in granting Abel's Motion to Dismiss his legal malpractice claims. Carr argues that Abel was negligent in his representation during the preliminary injunction stage of the proceedings, and this negligence caused Carr to suffer economic damages. Carr argues that although the Supreme Court denied writs on the permanent injunction ruling, it did not negate Abel's acts of malpractice in failing to timely appeal the preliminary injunction nor did it mean Carr did not suffer damages as a result of Abel's malpractice. Further, Carr alleges he should have been allowed to pursue his claims to recover the amounts paid to Abel for unsatisfactory legal work.
To establish a claim for legal malpractice, a plaintiff must prove the existence of an attorney-client relationship, negligent representation by the attorney, and loss caused by that negligence. Failure to prove any one of these elements is fatal to the claim. Holland v. Hornyak, 07-394 (La.App. 5 Cir. 11/27/07), 971 So.2d 1227, 1231, writ denied, 08-333 (La. 4/28/08), 978 So.2d 366; Costello v. Hardy, 03-1146, (La. 1/21/04), 864 So.2d 129, 138.
An attorney is liable to his client for the damages caused by the attorney's negligence in handling the client's business, providing that the client proves by a preponderance of the evidence that such negligence is the proximate cause of the loss claimed. Bauer v. Dyer, 00-1778 (La.App. 5 Cir. 2/28/01), 782 So.2d 1133, writ denied, 01-0822 (La.5/25/01), 793 So.2d 162. The proper method of determining whether an attorney's malpractice is a cause in fact of damage to his client is whether the performance of that act would have prevented the damage. Id.
In his claim for legal malpractice, Carr alleged that Abel was negligent in failing to properly and timely appeal the trial court's ruling granting a preliminary injunction and this failure caused him to suffer economic damage. However, the record in this case indicates that after the entry of the preliminary injunction, the trial court entered a permanent injunction based on the same evidence presented at the hearing of the preliminary injunction. Although Carr alleges the preliminary injunction was not properly appealed, the entry of the permanent injunction negated any loss that Carr could have suffered as a result of any negligence. Further, the record indicates that the judgment issuing the permanent injunction was affirmed on appeal to the First Circuit, and the Supreme Court denied Carr's application for supervisory writs. See, Louisiana State Bar Ass'n v. Carr and Associates, Inc., 08-2114 (La.App. 1 Cir. 5/8/09), 15 So.3d 158, writ denied, 09-1627 (La. 10/30/09), 21 So.3d 292.
As the propriety of the injunction entered against Carr has now become a final judgment, Carr cannot prove his claim for legal malpractice, i.e., that the preliminary injunction would have been reversed on appeal or that Abel's negligence in failing to properly and timely appeal the injunction caused any loss to Carr. Under these circumstances, the trial court correctly granted Abel's Motion to Dismiss Carr's claims for legal malpractice. Further, although Carr contends he is entitled to pursue a claim to recover attorney's fees paid to Abel, we find that the entry of a final permanent injunction against Carr precludes Carr's efforts to claim the injunction and damages arising therefrom were due to Abel's negligence. Accordingly, we find no error in the trial court's ruling dismissing Carr's original action for legal malpractice against Abel.
Carr next contends that the trial court erred in failing to strike the entire pleading filed by Abel in response to the legal malpractice proceedings filed against him as it contained immaterial, impertinent and scandalous allegations. Carr argues that the trial court's action in striking certain enumerated paragraphs of the pleading pursuant to La. C.C.P. art. 964 was insufficient. Further, Carr contends the trial court erred in failing to granting a special motion to strike Abel's reconventional demand pursuant to La. C.C.P. art. 971, although this same motion was granted in favor of the Scandurro & Layrisson law firm.
The judgment of the trial court indicates that the Exceptions of Prematurity were granted in favor of all the defendants-in-reconvention. Thus, the claims raised by Abel in his reconventional demand may not proceed until the trial court's judgment on the underlying legal malpractice proceedings become final. Nevertheless, the trial court also struck portions of Abel's pleading which were deemed to be immaterial to the claims against Carr. Although both parties filed a special motion to strike pursuant to La. C.C.P. art. 971 as to other allegations of the pleading, the trial court only struck claims as to the Layrisson defendants.
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