Evans v. Detweiler, CA-1233

• Decision Date: 12 March 1985
• Docket Number: No. CA-1233,CA-1233
• Citation: 466 So.2d 800
• Parties: Robert B. EVANS, William J. Scheffler, III, M.H. Deloney and T.D. Jenkins v. William M. DETWEILER, and XYZ Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

Page 800

466 So.2d 800

Robert B. EVANS, William J. Scheffler, III, M.H. Deloney and T.D. Jenkins v. William M. DETWEILER, and XYZ Insurance Company.

No. CA-1233.

Court of Appeal of Louisiana Fourth Circuit.

March 12, 1985.

Douglas A. Kewley, Bruce A. North, Ernest A. Burguieres, III, Molony, Nolan, North & Riess, Metairie, for plaintiffs-appellants.

Avery T. Waterman, Jr., Henri Wolbrette, III, McGlinchey, Stafford, Mintz, Cellini & Lang, New Orleans, for defendants-appellees.

Bruce G. Reed, Reed & Reed, New Orleans, for defendant-appellant.

Before REDMANN, C.J., and WILLIAMS and ARMSTRONG, JJ.

ARMSTRONG, Judge.

Plaintiffs, Robert Evans, William Scheffler, M.H. Deloney, and T.D. Jenkins, brought this action for legal malpractice against defendant, William Detweiler. Detweiler filed a third party demand against Gilsbar, the corporation that administers Lawyer's Professional Liability Insurance on behalf of the Louisiana State Bar Association. The District Court maintained Detweiler's exception of no cause of action and dismissed plaintiffs' suit. Plaintiffs filed this appeal. The sole issue is whether plaintiffs' petition and papers appended thereto state a cause of action for legal malpractice.

The exception of no cause of action addresses itself to the legal sufficiency of the petition. For the purpose of its trial, all well-pleaded allegations of fact are accepted as true. The reviewing court must determine, based solely on the facts alleged in the petition and the papers appended thereto, whether under any legal theory a remedy is afforded to anyone under the circumstances alleged. No evidence is admissible to support or controvert the exception. If the petition alleges sufficient facts which would entitle plaintiff to any remedy under any theory of law, the exception must be overruled. Mott v. River Parish Maintenance, Inc., 432 So.2d 827 (La.1983); Allied Chemical v. Iberville Parish Police, 426 So.2d 1336 (La.1983); Scariano Brothers, Inc. v. Hammond Construction Division of Scheyd-Brennan, Inc., 428 So.2d 564 (La.App. 4th Cir.1983).

To state a claim for legal malpractice plaintiffs must allege that there was an attorney-client relationship, that the attorney was negligent in his representation of the client and that this negligence caused plaintiffs some loss. An attorney is negligent in handling a case if he fails "to exercise at least that degree of care, skill and diligence which is exercised by prudent practicing attorneys in his locality." Ramp v. St. Paul Fire and Marine Ins. Co., 263 La. 774, 269 So.2d 239 (1972). An attorney is negligent if he accepts employment and fails to assert timely a viable claim or causes the loss of opportunity to assert a claim for recovery. Jenkins v. St. Paul Fire and Marine Ins. Co., 422 So.2d 1109 (La.1982).

The essence of plaintiffs' action against Detweiler is that he negligently allowed certain of their claims under federal and state law to prescribe. Plaintiffs have thus attached to the malpractice petition a certified copy of a complaint previously filed by them in federal court against certain named defendants, and a certified copy of a judgment of dismissal of that suit on grounds of prescription.

The facts alleged in the malpractice petition and the attached federal complaint are essentially as follows:

Sometime after October 1975--the date is not specifically stated--the plaintiffs purchased interests in a partnership, a drilling venture known as Mony Oil and Gas, Ltd. Drilling Program No. 1 (Mony No. 1). Mony Oil and Gas Ltd. (Mony Corp.) was the general partner, and Angelo Marsalone was Mony Corp.'s president. Sam Recile was a de facto officer and director of Mony Corp. and was the party who solicited the plaintiffs and sold to them their interests in the partnership. A geological report by the firm of Rockwood and Roth was used by Recile in promoting the sale.

Plaintiffs Evans, Scheffer, and Deloney each purchased a 1% interest in the drilling venture for $12,500.00 and contributed $900.00 for completion costs on the first well. Plaintiff Jenkins paid $40,200.00 plus completion costs for a 3% interest.

Plaintiffs allege that according to the terms of their partnership agreement, Mony Corp., as general partner, obligated itself to drill to casing five wells on certain lands located in Jefferson and Plaquemines Parishes. As of late 1976, however, Mony Corp. had failed to show signs of performing under the agreement, so the plaintiffs sought to recoup their investments from the partnership. To that end, they retained the services of an attorney named William M. Detweiler. After the passage of approximately eighteen months, Detweiler had not filed suit on behalf of any of the plaintiffs, and in April 1978, he returned their files.

Thereafter, the plaintiffs retained other legal counsel who on June 30, 1978 filed a federal court action in their names against Mony Corp. (the general partner), Mony No. 1, (the partnership), Marsalone, Recile, and the firm of Rockwood and Roth. Civil Action No. 78-2129, United States District Court for the Eastern District of Louisiana. No proceedings were instituted in state court.

The federal court petition alleged that as yet, Mony Corp. had begun drilling only three of the five wells it had promised to drill, and that of those three, only the first of those had been completed; that despite amicable demand, Mony Corp. refused to complete drilling on the second and third wells, and refused to begin operations on the fourth and fifth wells; that the named defendants had misappropriated the plaintiffs' investments in order to finance other operations; that the defendants had made material misrepresentations to the plaintiffs to induce them to join Mony Corp.'s oil drilling venture; and that the defendants induced the...