McClanahan v. McClanahan, 11–CA–284.

• Decision Date: 28 December 2011
• Docket Number: No. 11–CA–284.,11–CA–284.
• Parties: Jack McCLANAHAN, et al. v. Susan Folse McCLANAHAN.
• Court: Court of Appeal of Louisiana — District of US

82 So.3d 530

Jack McCLANAHAN, et al.
v.
Susan Folse McCLANAHAN.

No. 11–CA–284.

Court of Appeal of Louisiana, Fifth Circuit.

Dec. 28, 2011.

[82 So.3d 531]

W. Christopher Beary, Attorney at Law, New Orleans, LA, for Plaintiff/Appellant.

David M. Prados, Attorney at Law, New Orleans, LA, for Defendant/Appellee.

Panel composed of Judges WALTER J. ROTHSCHILD, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.

FREDERICKA HOMBERG WICKER, Judge.

[5 Cir. 2] In this malicious prosecution proceeding, plaintiff/appellant, Jack McClanahan,

[82 So.3d 532]

appeals a judgment granting summary judgment in favor of the defendant/appellee, Susan Folse McClanahan, and dismissing his case. Mr. McClanahan sued his former wife, Ms. Folse, alleging malicious prosecution arising from a community property partition in which Mr. McClanahan prevailed in large part on his ex-wife's reimbursement claims. Upon de novo review, we find that the seminal issues are these: (1) Was the granting of summary judgment premature because of outstanding discovery? (2) Was advice of counsel in this case, a complete defense to Mr. McClanahan's action for malicious prosecution? For the reasons that follow, we affirm the granting of summary judgment. We conclude that the motion for summary judgment was not premature and advice of counsel was a complete defense to Mr. McClanahan's action.

Procedural History

In the community property proceeding, Ms. Folse asserted claims for reimbursement of alleged community funds transferred to various companies. [5 Cir. 3] McClanahan v. McClanahan, 09–182, p. 2 (La.App. 5 Cir. 10/13/09), 27 So.3d 862, 863, writ denied, 09–2455 (La.1/29/10), 25 So.3d 833 (discussing procedural history). After the trial judge rendered judgment, Mr. McClanahan and Ms. Folse appealed. On appeal, we noted that the parties were married for 10 years; prior to the marriage, Mr. McClanahan had a net worth of between 40 and 60 million dollars and at the termination of the marriage he had a net worth of approximately 10 million dollars; Mr. McClanahan attributed this significant downturn primarily to the crash in the oil industry; during the course of the marriage Mr. McClanahan customarily engaged in numerous complicated business transactions; and, many of these transactions were through his primary company which, both parties agreed, he owned prior to the marriage, McClanahan Contractors. McClanahan v. McClanahan, 03–1178, p. 1 (La.App. 5 Cir. 2/23/04), 868 So.2d 844, 847, writ denied, 04–1175 (La.9/3/04), 882 So.2d 609. We affirmed certain of the trial court's reimbursement awards to Ms. Folse and found no legal basis for the trial court's reimbursement award for other claims made by Ms. Folse. See, e.g. McClanahan, supra, at 11–13, 15–16, 852–54.

In 2005, after the appeal, Mr. McClanahan filed a petition ¹ alleging malicious prosecution.² Mr. McClanahan alleged as follows: that of the more than $10 million in reimbursement claims, $176,385.75 were found to be meritorious—less than 2% of the total amount claimed; Ms. Folse asserted a community property interest in Sterling Investments LLC, which was clearly found not to be community property; Ms. Folse did not have an honest belief

[82 So.3d 533]

in the underlying [5 Cir. 4] facts or legal theories regarding the reimbursement claims and the community claim to the interest in Sterling Investments; Ms. Folse's allegations were made with wanton and reckless disregard of his rights and with the intent to obtain an unfair advantage from him so that he would agree to pay more money in settling the community property partition; the lack of probable cause in making the reimbursement claims was evidenced in part by several statements made by this Court in its appellate opinion with respect to her claims in the community property partition; ³ Ms. Folse's knowledge regarding the fact that the reimbursement claims had no legitimate factual or legal basis was evidenced by the fact that she offered to settle the community property proceeding for receipt of the home and $200,000; Ms. Folse made the multi-million-dollar reimbursement claims without probable cause in order to receive a favorable settlement; and, Ms. Folse asserted numerous claims for reimbursement without probable cause and with malice. Mr. McClanahan alleged that in several respects he suffered damages as a result of Ms. Folse's baseless and malicious claims.

Ms. Folse raised, among other defenses, the defense that she relied on the advice of counsel in seeking the reimbursement claims. As a result, Mr. McClanahan sought to disqualify Ms. Folse's counsel, Mr. Robert C. Lowe, who represented her in the partition matter. The trial court granted the motion in 2006.⁴

A few years later, Mr. McClanahan sought Mr. Lowe's records and deposition. Mr. McClanahan urged that he had no alternative means of obtaining the communications and records regarding matters concerning the community property proceeding. He asserted that the information was not protected by a privilege or the work product rule since Ms. Folse waived the privilege by [5 Cir. 5] asserting the advice of counsel defense. On May 20, 2009, the trial court denied the request for the subpoena for the records but granted Mr. McClanahan leave to take Mr. Lowe's deposition. Mr. McClanahan then sought writs. This Court found that the subpoena duces tecum was procedurally defective and that the remaining issues (privilege and work product) had not been presented to the trial court for determination. McClanahan v. McClanahan, 09–182, 09–426, pp. 4–7 (La.App. 5 Cir. 10/13/09), 27 So.3d 862, 865–66, writ denied, 09–2455 (La.1/29/2010), 25 So.3d 833.

Thereafter, Ms. Folse filed a motion for summary judgment urging that Mr. McClanahan could not carry his burden to prove all of the elements necessary to establish his claim. Additionally, she urged her advice of counsel defense, and attached supporting affidavits.

Mr. McClanahan opposed the motion and reurged his discovery requests, seeking a ruling regarding Ms. Folse's alleged privileges. He opposed summary judgment in part as premature due to inadequate discovery. Mr. McClanahan conceded that he had been granted leave to depose Mr. Lowe but had not done so, urging that the deposition would be a futile exercise given opposing counsel's assertion that the matter was privileged. Mr. McClanahan maintained that by pleading the advice of counsel defense, Ms. Folse placed Mr. Lowe's testimony at issue and waived the attorney-client and work product

[82 So.3d 534]

privileges with regard to that testimony.

The trial judge granted the motion for summary judgment and dismissed the case. He also ruled that the discovery motions were therefore moot.

[5 Cir. 6] Analysis

We note at the outset that Mr. McClanahan raises three ⁵ specifications of error claiming legal error in the trial judge's reasons for judgment, which are rendered moot by our de novo review. The applicable standard of review for an appellate court when reviewing a motion for summary judgment is that of de novo, using the same criteria applied by the trial courts to determine whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hosp., Inc., 93–2512 (La.7/5/94), 639 So.2d 730, 750. A de novo review gives no weight to the trial court's findings. Covington v. McNeese State University, 08–505, p. 3 (La.App. 3 Cir. 11/5/08), 996 So.2d 667, 669, writ denied, 09–0069 (La.3/6/09), 3 So.3d 491. Thus, we will not address whether the trial court applied incorrect law. Rather, we will fully conduct a de novo review and address the remaining issues: (1) The district court erred by failing to allow adequate discovery prior to ruling on the motion for summary judgment. (2) Even without allowing for adequate discovery, the circumstantial evidence in this case is sufficient to create genuine issues of material fact as to the presence of malice. (3) Summary judgment is seldom appropriate for determinations based on subjective facts.

We begin our analysis with the settled premise that actions for malicious prosecution have never been...