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Hubbard v. Oswalt

Court of Appeal of Louisiana, Second Circuit

June 24, 2015

TAMARA HUBBARD, ET AL., Plaintiffs-Appellants

Page 761

Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. 110,203. Honorable Clarence W. Manning, Judge.

NELSON & HAMMONS, By: John L. Hammons, Chaile M. Allen, Counsel for Appellant.

DEUTSCH, KERRIGAN & STILES, LLP, By: Nancy J. Marshall, Counsel for Appellee.



Page 762

[49,936 La.App. 2 Cir. 1] BROWN, CHIEF JUDGE

Plaintiffs, Tamara Hubbard, Brandee Noid, and Latonia Hubbard, are the surviving daughters of Brenda Faye Noid, who died on February 14, 2009. Plaintiffs hired an attorney, Mason Oswalt, in May 2009 to pursue a medical malpractice/wrongful death claim arising out of their mother's death. On February 8, 2010, Oswalt filed a complaint with the Division of Administration on plaintiffs' behalf, naming three separate defendants: Dr. Robert Kerry, Dr. Louis Crook, and St. Francis Medical Center.

By letter dated February 18, 2010, the Patient's Compensation Fund (" PCF" ) informed Oswalt that each of the medical malpractice defendants was a qualified health care provider and that, by statute, he had 45 days, or by April 5, 2010, to remit a filing fee of $300. Payment was not timely sent, however, and by letter dated April 20, 2010, the PCF notified Oswalt that his clients' claim was not going to be considered because payment had not been made within the 45-day period. Oswalt sent a $300 check to the PCF on May 6, 2010, requesting that plaintiffs' complaint be reinstated because his failure to pay the filing fee timely was based on a clerical error. This request was denied by the PCF via letter dated May 12, 2010.

On June 16, 2010, Oswalt sent plaintiffs a letter informing them of a possible legal malpractice claim they might have against him as a result of the loss of their medical malpractice claim based upon his failure to timely remit the filing fee to the PCF, and plaintiffs retained their present attorneys, who filed the instant legal malpractice action against defendant, Mason Oswalt. In their petition, plaintiffs alleged that Oswalt's failure to timely remit the filing fee fell below the applicable professional standards and [49,936 La.App. 2 Cir. 2] constituted legal malpractice that deprived them of their opportunity to seek compensation from the medical malpractice defendants. After a general denial was filed by Oswalt, plaintiffs filed a motion for summary judgment on the issue of liability, which was unopposed by their former attorney. On February 24, 2012, the trial court signed a judgment granting plaintiffs' motion for summary judgment, finding that Oswalt's actions constituted legal malpractice. The sole issue remaining was plaintiffs' entitlement to damages based upon a loss caused by Oswalt's negligence. See White v. Golden, 43,076 (La.App.2d Cir. 04/30/08), 982 So.2d 234.

A " trial within a trial" of the underlying medical malpractice claim plaintiffs previously had was held, with attorney Oswalt's legal malpractice defense counsel stepping into the shoes of the medical malpractice defendants Oswalt would have sued on behalf of plaintiffs had the claim not prescribed. Medical experts for both sides testified, including one of the physicians named in the initial claim, as did the individual

Page 763

plaintiffs, and their mother's voluminous medical records were introduced into evidence. The trial court found that defendant, Mason Oswalt, met his burden of proving by a preponderance of the evidence that plaintiffs could not have succeeded on their original medical malpractice/wrongful death claim and on August 29, 2014, signed a judgment in favor of defendant, dismissing plaintiffs' claim. It is from this adverse judgment that plaintiffs have appealed.

[49,936 La.App. 2 Cir. 3] Discussion

To establish a claim for legal malpractice, plaintiffs must prove the existence of an attorney-client relationship; negligent representation by the attorney; and loss caused by that negligence. Costello v. Hardy, 03-1146 (La. 01/21/04), 864 So.2d 129; White, supra , Jenkins v. Washington & Wells, L.L.C., 46,825 (La.App.2d Cir. 01/25/12), 86 So.3d 666, writ denied, 12-0427 (La. 04/09/12), 85 So.3d 705. Absence of proof of one of these elements is fatal to plaintiffs' claim. Id.

A critical element in any tort claim is proving factual cause. In the instant case, the only issue is whether plaintiffs sustained a loss as a result of their attorney's negligence, the other two elements having been established via summary judgment. After years of following the " case within a case" requirement, the Louisiana Supreme Court, in Jenkins v. St. Paul Fire & Marine Insurance Co., 422 So.2d 1109 (La. 1982), modified this theory for legal malpractice cases. As stated by the court in Jenkins, 422 So.2d at 1110:

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 left up to the jury to decide.

[49,936 La.App. 2 Cir. 4] The court in Jenkins held that a plaintiff proves his prima facie case upon showing that the former attorney is negligent; in Jenkins, as in the instant case, the attorney's negligence consisted of the failure to timely file his client's action. The burden then shifts to the former attorney to overcome a ...

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