Leonard v. Reeves

• Decision Date: 12 January 2012
• Docket Number: No. 2011 CA 1009.,2011 CA 1009.
• Citation: 82 So.3d 1250
• Parties: Don Michael LEONARD v. John R. REEVES and First Mercury Insurance Company.
• Court: Court of Appeal of Louisiana — District of US

82 So.3d 1250

Don Michael LEONARD

v.John R. REEVES and First Mercury Insurance Company.

No. 2011 CA 1009.

Court of Appeal of Louisiana, First Circuit.

Jan. 12, 2012.

Corbett L. Ourso, Jr., Hammond, LA, for Plaintiff–Appellant Don Michael Leonard.

Jack E. Truitt, Nancy N. Butcher, Covington, LA, for Defendants–Appellees John R. Reeves and First Mercury Insurance Company.

Before GAIDRY, McDONALD, and HUGHES, JJ.

GAIDRY, J.

[1 Cir. 2] A former client of an attorney appeals a summary judgment dismissing his legal malpractice action against the attorney. We affirm.

FACTS AND PROCEDURAL HISTORY

The plaintiff-appellant, Don Michael Leonard, and his ex-wife, Cynthia Leonard Probst, were divorced on July 24, 1990. On August 8, 1995, they agreed to entry of a consent judgment in the 24th Judicial District Court for the Parish of Jefferson, relating to the support of their two minor sons. Mr. Leonard was ordered to pay $543.00 per month in support and to provide health insurance coverage for the minors. He was further ordered to pay 75% of extraordinary medical expenses not covered by insurance.¹ Mr. Leonard subsequently became a domiciliary of the State of Mississippi, and Ms. Probst established her domicile in Ponchatoula in Tangipahoa Parish.

On September 16, 2002, venue of the child support proceeding was transferred to the 21st Judicial District Court for the Parish of Tangipahoa. On May 15, 2003, Ms. Probst filed a petition to make the 1995 consent judgment executory and a combined motion for contempt, to increase child support, and for sole custody. The hearing on the motion was fixed for June 23, 2003. Ms. Probst's attorney attempted to serve Mr. Leonard by certified mail, pursuant to the Louisiana Long Arm Statute, La. R.S. 13:3201, et seq. , at his last-known address in Mississippi. In the meantime, the hearing was continued to August 18, 2003. Notices of the certified mail were left at the Mississippi address on June 9, 16, and 24, 2003, but the certified mail was returned to Ms. Probst's attorney on July 3, 2003, marked “unclaimed.” Ms. Probst's attorney did not file an affidavit verifying the service by certified [1 Cir. 3] mail, and there was no evidence that Ms. Probst's attorney served Mr. Leonard with notice of the new hearing date of August 18, 2003.²

The hearing on Ms. Probst's motions proceeded as scheduled on August 18, 2003. Based upon Ms. Probst's testimony and documentary evidence submitted, the trial court awarded Ms. Probst $36,612.83 in past due medical expenses for the minors. Mr. Leonard's child support obligation was further increased to $843.00 per month, retroactively to the date the motion was filed, the increase being predicated upon the cost of health insurance to be procured by Ms. Probst directly. The trial court's judgment, signed on December 2, 2004, also held Mr. Leonard in constructive contempt of court, awarded Ms. Probst sole custody, and terminated Mr. Leonard's visitation privileges.

In March 2007, Mr. Leonard retained John R. Reeves, a Mississippi attorney, to represent him in proceedings in that state initiated by Ms. Probst to attempt to enforce the 2004 judgment (the “default judgment”). The Mississippi court refused to enforce the default judgment on the grounds that service of process did not meet Mississippi's procedural due process standards.

On January 31, 2008, Ms. Probst filed a petition in the Louisiana trial court to “reaffirm” the default judgment and a motion for contempt, alleging that Mr. Leonard had failed to pay $20,066.64 in court-ordered child support and $36,612.83 in medical expenses for the minors. Brenda Braud, a Louisiana attorney, filed a motion on Mr. Reeves's behalf to admit him to practice pro hac vice in the Louisiana child support proceeding. The order granting the motion was signed on March 24, 2008.

[1 Cir. 4] A hearing on Ms. Probst's petition to reaffirm the default judgment and motion for contempt was apparently scheduled in June 2008. Mr. Reeves appeared on behalf of Mr. Leonard. The trial court evidently ruled that there was no legal basis for the petition, but the hearing on the contempt motion was continued to August 18, 2008. In a letter to Mr. Leonard dated June 22, 2008, advising him of the results of the hearing, Mr. Reeves stated:

The judge advised that the only way to set aside that earlier [default] judgment is by a petition to annul the judgment. I am working on that now and will get it filed in due course....

The hearing date on your ex-wife's petition [ sic ] to find you in contempt of court and on your petition to annul the judgment is August 18, 2008 at 9:30 a.m. ... You and I discussed that you might not want to come inside the courthouse because if the judge rejects our petition to annul and grants their petition [ sic ] to find you in contempt, he might put you in jail right then. If you're not there he can't do it.

Mr. Reeves filed a “Motion to Annul Judgment” on August 15, 2008, seeking the annulment of the default judgment based on lack of proper service and notice of hearing. It was also alleged that the amount of the award for unpaid medical bills was obtained through “inaccurate representations” regarding the amounts actually billed and the amounts actually paid or otherwise credited.

On August 18, 2008, rather than taking evidence and ruling on the pending contempt motion and motion for nullity, the trial court suggested that the parties first attempt to resolve the dispute by negotiation and compromise. The parties and their attorneys then went to the office of Ms. Probst's attorney, where an agreement was eventually reached that, in lieu of seeking to annul the default judgment, Mr. Leonard would settle Ms. Probst's claims by paying the sum of $36,000.00 for unpaid monthly child support and medical expenses in monthly installments of $300.00. During the course of the subsequent hearing, the terms of the parties' agreement [1 Cir. 5] were recited and both parties, upon examination by the trial court, expressed their understanding of and agreement with those terms. The trial court executed a “Stipulated Judgment,” or consent judgment, that day, providing that Mr. Leonard “owes the net sum of [$36,000.00] to [Ms. Probst] for all claims of back [ sic ] due child support and medical expenses,” to “be paid at the rate of no less than $300 per month,” and incorporating an income assignment. The consent judgment was prepared by Ms. Probst's attorney and also signed as “approved” by both parties and Mr. Reeves.

On May 11, 2009, Ms. Probst filed a rule for contempt, alleging that Mr. Leonard had willfully failed to comply with the consent judgment of August 18, 2008. Mr. Leonard, whose representation had been assumed by Ms. Braud, responded with a petition for nullity, seeking to annul the 2004 default judgment and the 2008 consent judgment on the grounds that both were absolute nullities. Specifically, with regard to the latter judgment, Mr. Leonard contended that because it was predicated upon the absolutely null default judgment, his consent was based upon error as to the principal cause underlying the parties' agreement, thereby rendering the agreement and the consent judgment predicated upon it nullities.

Both Ms. Probst's rule for contempt and Mr. Leonard's petition for nullity were assigned for hearing on July 30, 2009. In the course of a pre-hearing conference in chambers, the trial court expressed its opinion that while the default judgment was an absolute nullity, the 2008 consent judgment (the “first consent judgment”) was probably not. The parties and their attorneys then conferred and agreed to compromise the first consent judgment, in the amount of $36,000.00, upon Mr. Leonard's payment of the sum of $20,000.00 in full within 90 days, or by October 30, 2009. It was further agreed that in default of such payment, the first consent judgment [1 Cir. 6] remained valid and enforceable. The terms of the compromise were recited on the record, and both parties, under examination by the trial court, expressed their understanding of those terms. On August 24, 2009, the trial court signed its judgment (the “second consent judgment”), prepared by Ms. Braud, incorporating the terms of the compromise, as well as the court's ruling that the default judgment was an absolute nullity and the first consent judgment was “fully enforceable.” Ms. Probst's rule for contempt was continued without date pending the satisfaction of the judgment.

Mr. Leonard instituted the present action against Mr. Reeves and his professional liability insurer on August 17, 2009. He alleged that Mr. Reeves was negligent in filing a motion to annul the 2004 default judgment, rather than a petition; in agreeing to negotiate Ms. Probst's claims instead of proceeding to the hearing on the motion to annul; and in advising Mr. Leonard to enter into the first consent judgment on that date, despite having been provided with documentation that all monthly child support due under the 1995 judgment had been paid and that Mr. Leonard had maintained health insurance on the minors. Mr. Reeves and his insurer answered the petition, denying liability.

On December 15, 2010, Mr. Reeves and his insurer filed a motion for summary judgment, contending that Mr. Leonard could not demonstrate that Mr. Reeves's actions constituted legal malpractice and that he suffered any damages caused by such actions.

The motion for summary judgment was heard on January 31, 2011. Following argument of counsel, the trial court granted the motion. The trial court's judgment was signed on February 10, 2011, dismissing Mr. Leonard's claims with prejudice. Mr, Leonard appeals, contending that the [1 Cir. 7] trial court erred in finding no genuine issue of material fact and in granting summary judgment on that basis.

ISSUES PRESENTED FOR REVIEW

Mr. Leonard urges that we consider the following issues in the determination of this appeal:

[1.] Whether [Mr. Reeves] had the...