Marchand v. Miazza

• Decision Date: 07 January 1963
• Docket Number: No. 897,897
• Citation: 151 So.2d 372
• Parties: Gloria DELESDERNIER, Wife of Paul MARCHAND v. K. K. MIAZZA, James H. Drury, R. Cornelius Smith and Louis C. Phillips.
• Court: Court of Appeal of Louisiana — District of US

Page 372

151 So.2d 372

Gloria DELESDERNIER, Wife of Paul MARCHAND v. K. K. MIAZZA, James H. Drury, R. Cornelius Smith and Louis C. Phillips.

No. 897.

Court of Appeal of Louisiana, Fourth Circuit.

Jan. 7, 1963.

Rehearing Denied April 1, 1963.

Luke A. Petrovich, Buras, for plaintiff and appellant.

H. Martin Hunley, Jr., and Lemle & Kelleher, New Orleans, for K. K. Miazza and James H. Drury, defendants and appellees.

Reuter, Reuter & Schott, Arthur C. Reuter, New Orleans, for Louis C. Phillips, defendant and appellee.

Charles E. Richards, New Orleans, for R. Cornelius Smith, defendant and appellee.

Before SAMUEL, JANVIER and TURNER, JJ.

HENRY F. TURNER, Judge pro tem.

The plaintiff appealed from a judgment of the lower court maintaining a plea of prematurity filed by all the defendants in this case. In her original and supplemental petitions plaintiff alleges that she employed the first three named defendant attorneys who were empowered under the terms of her contract to employ additional counsel at their expense, whereupon they employed the fourth named defendant. Under the terms of a written contract dated September 13, 1950, between plaintiff and the first three named defendants, they agreed to represent her in certain legal matters which are essentially as follows:

'Whereas, party of the first part is or may be the owner of certain rights and interests to property, movable and immovable, located in the Parishes of Orleans, Jefferson and Placquemines, State of Louisiana and elsewhere through inheritance in the succession of her paternal grandmother, Mrs. Jula Loga, wife of George W. Delesdernier, and may be entitled to certain rights and interests in properties, movable and immovable, through inheritance in the succession of her father, Chester O. Delesdernier, said properties being located in Florida and elsewhere, and whereas other parties are claiming the ownership and rights to properties belonging to party of the first part, and it is necessary that the said party of the first part should take legal action against said claimants, or any of them or their assignees, vendees, or any other claimants, in order to have vindicated the rights of ownership of said party of the first part to said property.

'And the party of the first part declares that she does by these presents grant, bargain, sell, convey, transfer, assign, set over, abandon and deliver unto party of the second part, their heirs and assigns, a forty percent interest in and to all property, real and personal, movable and immovable, of whatever nature, kind and description recovered in the above described successions through the efforts of party of the second part.

'And the said parties declare that this transfer is made in consideration of the professional services rendered by the said party of the second part, and to be rendered by him in bringing whatever action or actions party of the second part may deem necessary or proper in order to secure judgment in favor of said party of the first part against any and all adverse claimants of said property and in vindication of the rights of the party of the first part.'

This suit is predicated on the allegation that the attorneys neglected to properly represent her and protect her property rights, resulting in a loss to her of more than $2,000,000.

The record shows that after the defendants had not satisfied the plaintiff as to their progress and success in their representation of her, she obtained a release from them and employed other counsel. The other counsel filed four lawsuits, three in the Twenty-Fifth Judicial District Court for the Parish of Plaquemines and one in the U.S. District Court for the Southern District of Florida, in which plaintiff set forth the claims which she had employed the defendants to prosecute initially. These cases are now pending. For her cause of action against the defendants, she enumerates their alleged negligence and improper handling of her business as follows:

1. Failing to assert plaintiff's right of collation in the Succession of George W. Delesdernier, her grandfather, who died in 1952.

2. Allowing the appeal taken by defendants from a judgment against plaintiff in suit No. 2767 on the docket of the 25th Judicial District Court for the Parish of Plaquemines to be lost by inaction for five years in the Court of Appeal for the Parish of Orleans (now Fourth Circuit).

3. Failing to assert her rights as heir of her brothers, Chester and Warren Delesdernier.

4. Failing to attack tutorship proceedings in which plaintiff's mother was named her tutor in the Succession of Julia Loger Delesdernier on the basis of non-residence of minors in Plaquemines Parish where the succession and tutorship were opened and on the basis of the valuation of the minors' interest in the sale of the property which took place under court order in that succession.

5. Failing to attack a tax sale to plaintiff's grandfather, George W. Delesdernier, from Delesdernier Estate Incorporated.

6. Failing to assert her rights in the Succession of George O. Delesdernier, her uncle.

7. Failing to investigate plaintiff's interest in Jefferson Parish property inventoried in the succession of her grandmother, Julia Loger Delesdernier.

8. Failing to investigate properties omitted from inventories in the successions of Julia Loger Delesdernier, plaintiff's grandmother, George O Delesdernier (her uncle) and George W. Delesdernier (her grandfather).

9. Failing to determine the whereabouts of certain shares of stock.

10. Failing to investigate plaintiff's interest in property in Plaquemines Parish which was not described.

11. Failing to prosecute plaintiff's interest in the succession of her father, Chester O. Delesdernier which was opened in 1924 in the State of Florida where he died.

In her four lawsuits now pending she has alleged substantially the same amounts as she now seeks in damages from these defendants because of the loss of such rights. In other words, her position in the suits now pending is that she has the rights which she claims in this action have been lost and for which she seeks damages from the defendants because of either a breach of contract or negligence amounting to malpractice, that is to say, tort. Her counsel throughout his brief appears to treat the case as one of damages because of a breach of contract. However, he appears to have some apprehension as to prescription. The lower court held that the cause of action in this case is premature until such time as the pending lawsuits are decided, and if the decisions in those cases bear out ...