Soderquist v. Kramer

• Decision Date: 26 February 1992
• Docket Number: No. 23342-CA,23342-CA
• Citation: 595 So.2d 825
• Parties: Bob H. SODERQUIST, et ux., Plaintiffs-Appellants, v. Michael E. KRAMER, et al., Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 825

595 So.2d 825

Bob H. SODERQUIST, et ux., Plaintiffs-Appellants, v. Michael E. KRAMER, et al., Defendants-Appellees.

No. 23342-CA.

Court of Appeal of Louisiana Second Circuit.

Feb. 26, 1992.

Kidd & Culpepper by Paul Henry Kidd, Monroe, for plaintiffs-appellants.

Theus, Grisham, Davis & Leigh by David H. Nelson, Monroe, for defendants-appellees.

Before LINDSAY, BROWN and STEWART, JJ.

STEWART, Judge.

Plaintiffs, Bob and Margaret Soderquist, appeal summary judgment which was entered against them and in favor of defendants, Michael E. Kramer and Home Insurance Company. The issue before us is whether a summary judgment may be granted to an attorney defendant in a legal malpractice case where the basis of the motion for summary judgment rests entirely on a settlement agreement (1) which the attorney was not a party to, (2) which he advised his client to sign, and (3) which specifically released the attorney from any claims by the client arising from his representation.

FACTS

Bob Henry Soderquist and Winnsboro State Bank, Inc. (WSB) were parties to litigation involving Franklin Broadcasting Co. which was owned by Soderquist, and to a loan for which WSB and Soderquist were, respectively, creditor and debtor. Soderquist and WSB entered a "settlement and consulting contract" which was executed on or about July 8, 1987 between WSB and Bob H. Soderquist. Michael Kramer, an attorney, represented the Soderquists in the litigation and settlement negotiations with WSB. The settlement agreement contained the following paragraph:

It is agreed that as additional consideration between WSB and Soderquist that they do hereby release any and all claims and rights which they may have against each other and all parties involved in these transactions including but not limited to Eddie Fritts, Franklin Parish Broadcasting, Inc., Michael E. Kramer, Samuel T. Singer, Glen W. Butler, and George Borsari.

The Soderquists filed this suit against their former lawyer, Michael Kramer, and his insurer, Home Insurance Co., for legal malpractice due to and arising from his alleged misrepresentations, and/or acts and omissions, in their litigation with WSB which resulted in the July 8, 1987 settlement agreement.

In their answer, defendants affirmatively set forth the defenses of estoppel, extinguishment of the obligation because of the release in the compromise agreement, compromise, and no right of action.

Defendants, Michael Kramer and Home Insurance Co., moved for summary judgment asserting that, since this suit was filed, the Soderquists have, on two separate occasions, made judicial admissions of the fact that the July 8, 1987 agreement is a valid binding release. Finding that the settlement agreement between WSB and Soderquist was a valid agreement, the trial court signed a judgment of dismissal. The Soderquists appeal. We reverse.

DISCUSSION

Appellees, Kramer and Home Insurance Company, argue that the Soderquists may not now challenge the operation of the release as a bar to this malpractice action because of their judicial admissions of the validity of the settlement agreement which contains the release.

According to the briefs, the Soderquists filed suit on April 8, 1988 against WSB, claiming that WSB had breached the July 8, 1987 settlement agreement. Also, on April 8, 1988, the Soderquists filed the instant malpractice action against Michael Kramer and his insurer. Appellees argue that the Soderquists later moved for partial summary judgment against WSB, requesting that the trial court uphold the July 1987 settlement agreement and find that WSB had breached the agreement. Appellees assert that the trial court held that the agreement was valid and binding in the suit against WSB, but denied the Soderquists' motion and granted a motion for summary judgment in favor of WSB. The Soderquists did not appeal that judgment.

Appellees argue that the instant summary judgment was correct, in part because the Soderquists' suit against WSB, and their motion for partial summary judgment against WSB, were judicial admissions of the validity of the settlement agreement.

Louisiana law recognizes that it is sometimes necessary for parties to maintain alternative, inconsistent, and even mutually exclusive positions in the course of litigation. Braud v. New England Insurance Co., 576 So.2d 466, 469 (La.1991); LSA-C.C.P. Art. 892. Thus, the mere fact that the Soderquists' legal malpractice claim against Kramer may be inconsistent with the Soderquists' position vis-a-vis WSB does not prevent Soderquist from asserting his claim against Kramer as a separate suit. See Braud, supra at 470.

The validity of the settlement agreement as it relates to the rights of Soderquist and WSB is not an issue before this court. The pivotal issue is whether the summary judgment statute, LSA-C.C.P. Art. 966, may be used to grant summary judgment in favor of Kramer under the facts and circumstances of this case.

The purpose of LSA-C.C.P. Art. 966 is to enable the court to expedite the decision of a case where it has been established that there is no genuine issue of material fact present. Howard v. General Motors Acceptance Corp., 324 So.2d 834 (La.App.2d Cir.1975), cited in Analysts Inc. v. McNamara, 504 So.2d 898 (La.App. 1st Cir.1987). Use of summary judgment, however, must not be unbridled as it denies the adverse party his day in court. Simon v. Fasig-Tipton Co. of New York, 524 So.2d 788, 791 (La.App. 3d Cir.1988), writ denied, 525 So.2d 1048, 1049 (La.1988). A summary judgment is no substitute for a trial on the merits. Swindle v. Haughton Wood Co., Inc., 458 So.2d 992 (La.App.2d Cir.1984); Analysts Inc., supra.

On a motion for summary judgment, the court must first determine whether the supporting documents presented by the moving party are sufficient to resolve all material fact issues. If they are not sufficient, summary judgment must be denied. Only if they are sufficient does the burden shift to the opposing party to present evidence showing that material facts are still at issue; only at this point may he no longer rest on the allegations and denials contained in his pleadings.

Sanders v. Hercules Sheet Metal, Inc., 385 So.2d 772, 775 (La.1980). The mover has the burden of proving that there are no genuine issues of material fact. This burden is a great one. Swindle, supra; Williams v. Airport Appliance & Floor Covering, Inc., 445 So.2d 764, 770 (La.App.2d Cir.1984), writ denied, 447 So.2d 1070, 1071 (La.1984). Only when reasonable minds must inevitably concur is a summary judgment warranted. Swindle and Williams, both supra.

Summary judgment cannot be granted once the judge detects the existence of a disputed material fact.

A fact is material if its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Facts are "material" if they potentially insure or preclude recovery, affect the litigants' ultimate success or determine the outcome of a legal dispute.

Swindle, supra; see also Sanders v. City of Blanchard, 438 So.2d 714 (La.App.2d Cir.1983). All doubt concerning dispute as to a material issue of fact must be resolved against granting the motion and in favor of trial on the merits. Summary judgment may not be used as a substitute for trial. If there is any doubt concerning an absence of dispute as to a material fact, a motion for summary judgment must be denied and the matter resolved in favor of trial on the merits. McCoy v. Physicians & Surgeons Hosp., 452 So.2d 308 (La.App.2d Cir.1984), writ denied, 457 So.2d 1194, 1195 (La.1984); See also Odom v. Hooper, 273 So.2d 510 (La.1973); Simon and Swindle, both supra.

The court should not seek to determine whether it is likely the mover will prevail on the merits but rather whether there is an issue of material fact. Oller v. Sharp Electric, Inc., 451 So.2d 1235 (La.App. 4th Cir.1984), writ denied, 457 So.2d 1194 (La.1984). The weighing of conflicting evidence on material fact has no place in a summary procedure. Simon, supra.

The undisputed allegations in the petition reveal the following scenario:

Sometime after Christmas 1986, the Soderquists employed Kramer to represent them in their litigation with WSB. On February 26, 1987, unbeknownst to the Soderquists, WSB instituted a suit to have a receiver appointed for Franklin Parish Broadcasting, Inc. Service of the petition was made upon Kramer as agent for Franklin Parish Broadcasting, Inc. During the course of a June 11, 1987 trial, WSB seized, under a writ of fieri facias, all of the assets of Franklin Parish Broadcasting, Inc. In July 1987, Bob Soderquist and WSB executed a settlement agreement to permit dismissal of the Chapter 11 Reorganization petition of Franklin Parish Broadcasting, Inc., and release Kramer, and others from all liability for claims against them. According to the pleadings, this agreement was executed by Bob Soderquist under duress and without the benefit of effective counsel. Kramer advised the Soderquists to execute the settlement agreement because it was the best deal that could be made under the circumstances. ¹

In opposition to the motion for summary judgment, plaintiff contended unsuccessfully that he could not release his own attorney for acts of malpractice in a document primarily designed to settle the differences between two parties in litigation, when his own attorney advised him on the document and, in fact, was the notary signing the document.

In its reasons for judgment, the trial court stated it had previously upheld this agreement and had sustained a motion for summary judgment based upon the document. The court noted that Soderquist himself had judicially admitted the validity of this agreement. The court stated it is very clear that both Winnsboro State Bank and Trust Company and Soderquist released each other and "all parties involved" from all claims and rights that they had at the time the document was signed on July 8, 1987....