Dixon v. Perlman

• Decision Date: 04 May 1988
• Docket Number: No. 19575-CA,19575-CA
• Citation: 528 So.2d 637
• Parties: Cain DIXON, Plaintiff/Appellant, v. Jerald L. PERLMAN, Attorney, et al., Defendant/Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 637

528 So.2d 637

Cain DIXON, Plaintiff/Appellant, v. Jerald L. PERLMAN, Attorney, et al., Defendant/Appellee.

No. 19575-CA.

Court of Appeal of Louisiana Second Circuit.

May 4, 1988.

Jo Ann Gines-Shepherd, Shreveport, for plaintiff/appellant.

Cook, Yancey, King & Galloway by Eskridge E. Smith, Jr., Shreveport, for defendant/appellee.

Before HALL, FRED W. JONES, Jr., and LINDSAY, JJ.

HALL, Chief Judge.

This is a legal malpractice action. The plaintiff is Cain Dixon. The defendant is Jerald L. Perlman, a Shreveport, Louisiana attorney. The basis for this malpractice action was the dismissal, on a plea of prescription, of a tort suit that Perlman filed on Dixon's behalf. See Dixon v. Houck, 466 So.2d 57 (La.App. 2d Cir.1985). The tort suit, alleging that the accident occurred on February 4, 1983, was filed on January 23, 1984. The plea of prescription was sustained on a finding that the accident happened on January 4, 1983.

Subsequent to the dismissal of his tort suit, Dixon filed suit against Perlman individually and the law firm of Walker, Feazel, Tooke, Grubb and Perlman. ¹ Perlman individually filed a motion for summary judgment in which he contended that the handling of Dixon's tort suit had been transferred to him by another member of his firm; that he relied on information already in the file to determine the prescription date, and that he was not aware that the accident date contained in the file was wrong until the exception of prescription was filed by the defendants in the tort suit. The trial court granted Perlman's motion for summary judgment and dismissed Dixon's legal malpractice action against Perlman. Dixon appealed and for reasons expressed herein, we reverse the judgment of the trial court and remand for further proceedings.

Facts

In early 1983, while incarcerated in the Ruston City Jail, Cain Dixon slipped and fell in the shower injuring his head, back and leg. He received emergency treatment in Ruston at Lincoln General Hospital and then was returned to the jail. An incident report prepared by police officers, Dixon's handwritten account of the accident, and the Lincoln General records all reflect that this accident occurred on January 4, 1983.

Dixon re-entered Lincoln General on January 24, 1983 for treatment of back and leg pain. He remained hospitalized there until January 28, 1983. In February another incident involving Dixon's legs occurred at the jail. This incident led to his being admitted to LSU Medical Center in Shreveport for tests in early March 1983.

Dixon's personal injury claim against the City of Ruston and Lincoln Parish officials was handled by at least two attorneys. Barry G. Feazel, a partner in the law firm of Walker, Feazel, Tooke & Grubb, stated in his deposition that he worked on Dixon's file from February, 1983 until at least August, 1983 and possibly longer. He stated that he did not know how Dixon came to be a client of the firm and that he did not remember who gave Dixon's file to him. He stated that the file had already been "set up" when he received it, that the prescription date was already on the file, and that interview notes were in the file. Feazel stated however that he did not know who had conducted the interviews. Feazel also testified that he never met Dixon and that he did not recall any conversations with Dixon. He stated that he assumed that he spoke with Dixon on the phone on one or two occasions but that he did not recall asking Dixon about the accident that occurred when he slipped and fell in the shower at the jail nor did he recall discussing with Dixon the legal significance of the date of the accident. He stated that he does not specifically recall Dixon telling him that the accident occurred on February 4, 1983. He did remember that Dixon contended that he had two separate accidents. ²

Feazel testified in his deposition that Mr. Dixon contacted him regularly by correspondence and that on August 1, 1983, in response to a letter from Dixon inquiring whether pleadings had been filed, Feazel wrote him a letter describing the status of his case. It stated in part: "I will file your suit immediately." Feazel did not file suit immediately and eventually the responsibility for handling Dixon's file was shifted to Perlman. According to Feazel this transfer took place in either August, September or October of 1983.

Perlman testified in his deposition that he joined the Walker firm ³ in October 1983 and that within a week or ten days of joining the firm he was assigned responsibility for Dixon's file. He testified that there were several pages of handwritten notes in the file when he got it but that he did not recognize the handwriting. He stated that the file also contained some medical records from LSU Medical Center in Shreveport. One of these medical reports indicated that Dixon fell in the Lincoln Parish Jail on February 4, 1983. This report also indicates that Dixon injured his head and back in the fall, lost consciousness after the fall, and lost strength in his lower extremities on February 18. Another LSU Medical Center record dated March 4, 1983 on his admission to LSU Medical Center states that Dixon fell "three weeks ago".

The file also contained a letter dated March 14, 1983 from Dr. Gray, a physician in Ruston, addressed to Feazel in response to a letter Feazel had written requesting information. The letter relates that Dixon slipped and fell while in jail receiving an injury to his back, describes out-patient treatment administered, later hospitalization at Lincoln General, discharge back to jail, another incident a week or so later, treatment for about a week, and then admission to LSU Medical Center. The letter contains no dates of the accident, hospitalization or treatment. Dr. Gray stated that the Sheriff's office had the most complete records, a medical record folder, and suggested that the attorney try to get records from the Sheriff's office and Lincoln General.

Perlman stated in his deposition that he did not conduct an investigation prior to filing suit and that he never at any time discussed the date of the accident with Dixon. He explained that he felt the information in the file was sufficient to state a cause of action and to file a law suit. Perlman stated that Dixon's name first appears on his time records on November 8, 1983. Perlman testified that he never spoke to Dixon in person but that he did speak to him on the phone on at least one occasion, that being on December 2, 1983, and that the subject of the date of the accident did not come up.

Perlman testified that he drafted a petition which alleged that the slip and fall accident occurred on February 4, 1983 and sent it to Dixon, who at that time was incarcerated in Angola, for verification. In a letter dated December 7, 1983 Perlman informed Dixon that the suit must be filed no later than February 4, 1984. Dixon signed the verification affidavit on December 16, 1983 and mailed the papers back to him. He then received a letter from Dixon dated December 19, 1983 which stated that a change (other than the date) needed to be made in the petition. The petition was corrected by Perlman on December 28, 1983 but was not filed until January 23, 1984.

Perlman testified that he became aware of the prescription problem in March, 1984 and that he withdrew as Dixon's counsel in May, 1984. Feazel withdrew from the Walker partnership in March, 1984 and the name of the firm was changed to Walker, Tooke, Grubb, Perlman and Lyons. In May 1985, Dixon filed suit against Perlman individually and the law firm of Walker, Feazel, Tooke, Grubb and Perlman. Dixon filed the suit in proper person but is now represented by counsel who enrolled in the district court prior to the granting of the motion for summary judgment.

Contentions of the Parties

Dixon contends that Perlman was negligent in failing to properly investigate his personal injury claim and in failing to file suit within the one-year prescriptive period. He alleges that Perlman knew that he had suffered head injuries and that he was incarcerated and therefore did not have access to records with which to verify the date of the accident. He contends that knowledge of these circumstances gave rise to a duty on Perlman's part to investigate his claim further and independently verify the date of the accident rather than relying on the LSU Medical Center records in the file to establish the date of the accident. He contends that the person who prepared the medical records did not have first hand knowledge of when the accident occurred and that Perlman should have realized this. Dixon also alleges that he expressed uncertainty about the date of the accident to Perlman and that this gave rise to a duty on Perlman's part to investigate the accident. He complains that Perlman failed to take witness statements and failed to make any notes on the case. Dixon also argues that he was promised in August, 1983 by Feazel that suit would be filed immediately and that Perlman could have filed suit sooner than he did with the information that he had. He contends that there was a failure to communicate information between Feazel and Perlman when the file was transferred and that the lack of a specific office procedure in the Walker firm for the transferring of files constituted negligence. Dixon also contends that the importance of the exact date of the accident was never made known to him.

Perlman, on the other hand, contends that he did not have any indication that the date of Dixon's accident was January 4, 1983 rather than February 4, 1983 and that therefore he was justified in relying on the handwritten notes and the medical records contained in the file. Perlman denies that Dixon ever expressed to him any doubt as to the date that the accident occurred, and in support of this argument cites the fact that he wrote Dixon a letter telling him that the petition had to be filed by February 4 and that Dixon verified the...