White v. Golden

• Court: Court of Appeal of Louisiana
• Writing for the Court: Williams
• Citation: White v. Golden, 982 So.2d 234 (La. App. 2008)
• Decision Date: 30 April 2008
• Docket Number: No. 43,076-CA.,43,076-CA.
• Parties: Donna and James WHITE, Plaintiff-Appellant v. Kim GOLDEN, Individually, Stephen Harrison, Individually and The Law Firm of Shafto & Ashbrook and L. Michael Ashbrook, Individually, Defendant-Appellee.

982 So.2d 234

Donna and James WHITE, Plaintiff-Appellant v. Kim GOLDEN, Individually, Stephen Harrison, Individually and The Law Firm of Shafto & Ashbrook and L. Michael Ashbrook, Individually, Defendant-Appellee.

No. 43,076-CA.

Court of Appeal of Louisiana, Second Circuit.

April 30, 2008.

Rehearing Denied May 29, 2008.

Jacques F. Bezou, Covington, Alfred B. Shapiro, Baton Rouge, for Appellant.

David F. Butterfield, Shreveport, for Appellee.

Before BROWN, C.J., and WILLIAMS and CARAWAY, JJ.

WILLIAMS, J.

Plaintiff, Donna White, seeks reversal of the district court's ruling granting summary judgment in favor of defendants, Kim Golden, Michael Ashbrook and the Law Firm of Shafto & Ashbrook.¹ For the reasons that follow, the judgment of the district court is hereby reversed and we remand this matter for further proceedings.

FACTS

On August 22, 1996, Stephen Harrison, an attorney at the law firm of Shafto & Ashbrook ("the law firm"), filed a lawsuit on behalf of plaintiff against her former employer, Infusion Associates, Inc. ("Infusion") and some of its corporate principals. Plaintiff began working at Infusion in October 1995 as the general manager for clinical pharmacies and pharmacy director. Her supervisor was Eric Liew, Infusion's business manager and one of the company's directors and shareholders. Dr. C. Russ Greer, a neurosurgeon in Monroe, was also a director and shareholder.

It was agreed that plaintiff would design, open and manage Infusion, which would be used as a model for other locations in Lafayette, Louisiana and Dallas, Texas. Plaintiff agreed to go to each proposed location to establish and open the business and another pharmacist would be hired for the Monroe location. It was also agreed that plaintiff could acquire a 10% ownership interest in the Infusion businesses by making a one-time payment of $50,000 during the company's first year of operation.

Infusion began accepting patients in April 1996. By mid-May 1996, the business began to founder and plaintiff learned that the business would not be expanded to Lafayette. In June 1996, the board of directors decided to place all of Infusion's employees on probation for 90 days due to the poor financial condition of the company. Dr. Greer testified that the purpose of the 90-day period was to give the board an opportunity to ascertain whether the company's financial condition would improve.

At some point, Ricky Guillot, Infusion's financial advisor, reviewed Infusion's financial status and advised the board that plaintiff's salary, $5,000 per month, was the single largest company expense. Guillot recommended reducing the budget by making plaintiff a part-time pharmacist and re-assigning her managerial duties. Liew recommended terminating plaintiff, but Infusion's board of directors approved Guillot's recommendation to demote plaintiff. Paul David Young assumed the managerial responsibilities of the business.

Prior to informing plaintiff that she would be demoted, Liew testified that he began contacting other pharmacists about a possible part-time pharmacist position, "just in case" plaintiff refused to accept the demotion to part-time status. On June 24, 1996, Liew and Guillot met with plaintiff and informed her of the new budget and her demotion to a part-time pharmacist.

At some point in June 1996, a board meeting was held to discuss complaints that plaintiff had made to Dr. Greer about Liew. Initially, plaintiff was invited to attend the meeting and address the concerns, but the invitation was rescinded because Liew refused to attend the meeting if plaintiff was in attendance.² During this meeting, plaintiff's job performance was also discussed.³ Plaintiff worked as a part-time pharmacist for a short time, but she was terminated on July 1, 1996.

Plaintiff's lawsuit against Infusion was based on allegations of breach of contract, sex discrimination, sexual harassment, defamation, intentional infliction of emotional distress and tortious interference with a contract. The prosecution of the lawsuit was conducted pursuant to a contingency fee agreement. Harrison later left the law firm and defendant, Kim Golden, assumed the representation of plaintiff. Neither Harrison nor Golden filed a motion to withdraw as counsel, and the lawsuit was dismissed as abandoned in May 2003.

Subsequently, plaintiff sued Golden, Harrison, the law firm and Michael Ashbrook, alleging defendants were negligent in allowing her lawsuit to be abandoned. On April 27, 2004, the district court dismissed Harrison as a defendant because he had left the law firm on July 31, 2000, long before the underlying lawsuit was abandoned. On January 27, 2007, the remaining defendants moved for summary judgment and the district court granted summary judgment, dismissing plaintiff's legal malpractice action. This appeal followed.

DISCUSSION

Plaintiff contends summary judgment in favor of the defendants was improper. Plaintiff argues that summary judgment is inappropriate to dispose of a legal malpractice action, thus the district court erred in granting summary judgment.

In determining whether summary judgment is appropriate, appellate courts are to review summary judgments de novo under the same criteria that govern the district court's consideration of whether summary judgment is proper. Suire v. Lafayette City-Parish Consolidated Government, 2004-1459 (La.4/12/05), 907 So.2d 37. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action and shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966(A)(2) and (B).

The burden of proof remains with the movant. LSA-C.C.P. art. 966(C)(2). However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Id.

When a motion for summary judgment is made and supported as provided above, an adverse party may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided above, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be rendered against him. LSA-C.C.P. art. 967(B).

To establish a claim for legal malpractice, a plaintiff must prove: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney and (3) loss caused by that negligence. Costello v. Hardy, 2003-1146 (La. 1/21/04), 864 So.2d 129.

In Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109 (La.1982), the plaintiff filed a legal malpractice action against his two former attorneys, alleging that the attorneys allowed prescription to run before filing suit on a personal injury claim. The attorneys conceded that they did not file the suit until two days after prescription had run. The Supreme Court stated:

Causation, of course, is an essential element of any tort claim. However, once the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney's negligence caused him some loss, since it is unlikely the attorney would have agreed to handle a claim completely devoid of merit. In such a situation, a rule which requires the client to prove the amount of damages by trying the "case within a case" simply imposes too great a standard of certainty of proof. Rather, the more logical approach is to impose on the negligent attorney, at this point in the trial, the burden of going forward with evidence to overcome the client's prima facie case by proving that the client could not have succeeded on the original claim, and the causation and damage questions are then up to the jury to decide.

Id. at 1110.

In the instant case, it is undisputed that an attorney-client relationship existed between plaintiff and defendants. The record contains a retainer agreement between plaintiff and the law firm. On August 22, 1996, Harrison filed a petition on behalf of plaintiff, naming Infusion, Greer and Liew as defendants. It is also undisputed that the lawsuit was abandoned in May 2003. Thus, plaintiff has proved that the law firm and its employees accepted employment and failed to continue prosecution of the claim. Pursuant to Jenkins, supra, plaintiff has established a prima facie case that defendants' negligence caused her some loss.

It was incumbent upon defendants to prove that plaintiff could not have succeeded on her original claims against Infusion. See Jenkins, supra, at 1110. Defendants contend they met their burden of proof. Although they vigorously prosecuted plaintiff's suit against Infusion over a period of time, defendants now argue that there was no validity to the claims plaintiff asserted.

Breach of Contract

In the underlying petition for damages, plaintiff alleged that she entered into the following agreement with Greer and Liew:

Plaintiff would design, open and operate an Infusion pharmacy business in Monroe with the assistance of Greer, Liew and Billy Amos;

Greer and Liew would raise the necessary capital to begin operating the pharmacy business;

The business would be used as a model that could be duplicated...