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Kaye v. Karp

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2017

ALAN KAYE, MD
v.
RONALD A. KARP AND LAW OFFICE OF KARP, WIGODSKY, NORWIND & GOLD, P.A.

         ON APPEAL FROM THE FIRST PARISH COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 158-893, DIVISION "B" HONORABLE JOHN J. LEE, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, ALAN KAYE, MD Paul A. Lea, Jr.

          COUNSEL FOR DEFENDANT/APPELLEE, RONALD A. KARP AND LAW OFFICE OF KARP, WIGODSKY, NORWIND & GOLD, P.A. Wiley J. Beevers, Shayna Beevers Morvant, Steven M. Mauterer

          Panel composed of Judges Jude G. Gravois, Marc E. Johnson, and Robert A. Chaisson

          JUDE G. GRAVOIS, JUDGE

         In this suit on an open account, plaintiff, Dr. Alan Kaye, appeals a trial court judgment that granted an exception of lack of personal jurisdiction filed by defendant, Law Office of Karp, Wigodsky, Norwind & Gold, P.A. (the "law firm"), dismissing plaintiffs suit with prejudice. For the following reasons, we reverse the trial court's grant of the exception of lack of personal jurisdiction and remand the matter for further proceedings.

         FACTS AND PROCEDURAL BACKGROUND

         On March 28, 2016, Dr. Kaye, an anesthesiologist who practices and lives in Jefferson Parish, Louisiana, filed a Petition in Suit on Open Account in the First Parish Court for the Parish of Jefferson against defendant, a Maryland law firm. In his petition, Dr. Kaye alleged that he was personally contacted and retained by the law firm in 2015 as a medical expert to testify in the medical malpractice claim the law firm was handling as per a fee schedule sent to the law firm by Dr. Kaye. The petition further alleged that the law firm agreed to pay Dr. Kaye for his services and directed him to examine the patient out of state, review numerous and voluminous medical records, and provide deposition and trial testimony as an expert; however, the law firm had refused to pay the balance of his bill for services rendered, despite demand. The suit also named Ronald A. Karp individually as a defendant.

         In response to the petition, defendants filed various exceptions, including, pertinent to this appeal, an exception of lack of personal jurisdiction over the law firm.[1] A hearing was held on the exceptions on June 20, 2016. At the conclusion of the hearing, the trial court orally denied the exception of lack of personal jurisdiction filed by the law firm. A written judgment was signed by the trial court on June 22, 2016 denying the exception.[2]

         On July 21, 2016, the law firm filed a writ application with this Court, seeking this Court's supervisory review of the trial court's denial of its exception of lack of personal jurisdiction over the law firm. In a disposition rendered on September 1, 2016, a majority of a five-judge panel of this Court granted the writ application, finding that "[t]he petition fails to contain allegations such that [the law firm] performed any work in Louisiana, that any [law firm] lawyer is licensed to practice law in Louisiana, or one ever travelled to Louisiana." This Court further found that "[t]he petition merely states that Dr. Kaye performed the majority of his work in Louisiana." This Court granted the law firm's exception of lack of personal jurisdiction, and remanded the matter to the trial court for further proceedings.[3]

         In response to this Court's writ disposition, on November 18, 2016, with leave of court, Dr. Kaye substituted his First Amended Petition with a Second Amended Petition in Suit on Open Account. The amended petition specifically alleged that the law firm contacted him to retain his services as a medical expert, rather than the other way around. The amended petition further reiterated and expanded on all of the various services that Dr. Kaye had performed at the request and under the direction of the law firm in connection with his retention by the law firm as an expert witness. According to the amended petition, the services performed by Dr. Kaye were requested and accomplished mainly through emails and telephone calls. Dr. Kaye asserted that he performed services for the law firm under the retention agreement both in Louisiana and out of state. The amended petition also, however, contained the following allegation of the law firm's activities within this state in connection with its retention of Dr. Kaye as an expert witness in its malpractice case, to-wit:

Additional tasks carried out pursuant to the terms of the parties' agreement and in furtherance of [the law firm's] business on the said [client] matter include, but are not limited to, [the law firm's] travel to, and preparation for and attendance/defense of, Dr. Kaye's pretrial deposition here in Jefferson Parish.

         Thus, the amended petition specifically alleges that Dr. Kaye's deposition for the law firm's malpractice case was taken in Jefferson Parish, and that a member of the law firm traveled to Louisiana to prepare for, attend, and defend Dr. Kaye's deposition.

         On December 8, 2016, the law firm filed a second exception of lack of personal jurisdiction, asserting that Dr. Kaye still had not established a constitutional basis for the assertion of personal jurisdiction by Louisiana over the out-of-state law firm. Dr. Kaye opposed the exception, attaching various exhibits to his memorandum in opposition, including his affidavit which further expounded on the various actions and activities taken by both he and the law firm in connection with the retention agreement. A hearing on the exception was held on April 19, 2017, at which time the parties presented argument but no witnesses. Over the law firm's objection, the trial court admitted the affidavit and exhibits attached to Dr. Kaye's opposition to the exception.[4] At the conclusion of the hearing, the trial court orally granted the exception of lack of personal jurisdiction filed by the law firm and dismissed ...


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