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Jones v. ABC Insurance Co.

Court of Appeals of Louisiana, Fifth Circuit

May 30, 2018

SHANNON JONES AND JENNIFER JONES, INDIVIDUALLY AND ON BEHALF OF THEIR DAUGHTER, HALEY JONES
v.
ABC INSURANCE COMPANY AND COBE CARDIOVASCULAR, INC., ET AL

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 535-525, DIVISION "J" HONORABLE STEPHEN C. GREFER, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, SHANNON JONES AND JENNIFER JONES, INDIVIDUALLY AND ON BEHALF OF THEIR DAUGHTER, HALEY JONES Jennifer Brunell In Proper Person

          COUNSEL FOR DEFENDANT/APPELLEE, GARY B. ROTH AND BOXER & GERSON LLP Gus A. Fritchie, III McDonald G. Provosty

          Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg

          ROBERT A. CHAISSON JUDGE

         This appeal concerns a third-party legal malpractice claim filed by Jennifer Brunelle, in her capacity as court-appointed tutrix of her child, Haley Jones, against third-party defendants, Gary Roth and his law firm, Boxer & Gerson, LLP ("the Roth defendants"). Ms. Brunelle appeals an August 19, 2016 judgment granting a motion for summary judgment filed by the Roth defendants and dismissing with prejudice the legal malpractice claims against them. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         The issue currently before this Court arises from litigation that has a long and complicated procedural history, which we briefly review for the sake of clarity.

         The underlying suit in this case is a medical malpractice action brought in 1999 by Shannon Jones and Jennifer Brunelle, individually and on behalf of their daughter, Haley, for severe injuries Haley sustained as an infant during a February 20, 1998 heart surgery. The petition for damages included a medical malpractice claim against the healthcare providers involved, a products liability claim against the manufacturers of the medical device used during the surgery, and loss of consortium claims for Haley's parents. At the time the petition was filed, Mr. Jones and Ms. Brunelle, then married, retained Gary Roth, an attorney then with the law firm of Gainsburgh, Benjamin, David, Meunier & Warshauer, LLC to represent them and their daughter for all claims arising out of the incident. Mr. Roth left the Gainsburgh firm in 2005 but continued his representation of Mr. Jones, Ms. Brunelle, and Haley.

         In 2006, while still being represented by Mr. Roth, plaintiffs settled their medical malpractice claims against one of the defendants, Ochsner Clinic Foundation. In order to effect the compromise agreement, Mr. Jones and Ms. Brunelle filed (in a separate proceeding in the 24th Judicial District Court) a petition to have Ms. Brunelle confirmed as natural tutrix and Mr. Jones confirmed as natural undertutor for the minor child. Upon receiving letters of tutorship, Ms. Brunelle, in her capacity as tutrix, filed a motion for authority to compromise Haley's medical malpractice claim, and Mr. Jones, in his capacity as undertutor, filed a concurrence. This motion was granted by the trial court in a judgment on March 27, 2006. Subsequently, plaintiffs filed a petition in the underlying medical malpractice proceeding for court approval of the settlement of a medical claim, which was granted in April 2006.

         Shortly thereafter, on June 26, 2006, Ms. Brunelle (who at that time was divorced from Mr. Jones) sent a letter to Mr. Roth in which she discharged him as attorney for herself and Haley. Then, in April 2007, Ms. Brunelle entered into a written contingency fee contract with attorneys from the Gainsburgh firm, Tracy Rannals Bryan and Robert J. David, to represent her individually and on behalf of Haley. Mr. Roth, now with the firm Boxer & Gerson, LLP, continued to represent Mr. Jones and Haley.

         On October 29, 2008, plaintiffs reached an aggregate settlement with the medical device manufacturers in which plaintiffs agreed to release their products liability claim against those defendants for a lump sum of $8.25 million. At the time of this settlement, which was signed by both Mr. Jones and Ms. Brunelle in their individual capacities and on behalf of their minor child, no determination had been made as to how the lump sum would be allocated among plaintiffs for the satisfaction of their individual claims.

         Disputes arose between Mr. Jones and Ms. Brunelle over the establishment of a supplemental care trust for Haley and the proper allocation of settlement funds for the satisfaction of Ms. Brunelle's and Haley's claims.[1] Thereafter, in June 2009, Ms. Brunelle discharged the Gainsburgh firm. Litigation was also commenced in the 22nd Judicial District Court in St. Tammany Parish to determine the proper tutor for Haley.[2] The 2008 settlement agreement was not perfected until November 2009, at which point the $8.25 million in settlement funds were finally deposited into court registries and began earning interest.[3]

         In October 2009, in response to a petition of intervention filed by the Gainsburgh firm to protect its interest in the attorneys' fees due from the settlement, Ms. Brunelle, individually and on behalf of Haley, filed a reconventional demand against her former attorneys, Tracy Rannals Bryan and Robert J. David, the Gainsburgh firm, and their professional liability insurer ("the Gainsburgh defendants"), as well as a third-party demand against the Roth defendants, alleging that these attorneys committed malpractice during the course of negotiating the 2008 settlement with the device manufacturers.

         In January 2010, in response to this third-party demand, the Roth defendants filed a peremptory exception of no right of action. Following a hearing on the matter, the trial court issued a judgment granting the exception of no right of action with respect to Ms. Brunelle's individual claims for legal malpractice after finding that no attorney-client relationship existed between Mr. Roth and Ms. Brunelle at the time of the alleged malpractice. With respect to the malpractice claims filed on behalf of Haley, the trial court denied the exception of no right of action.

         Subsequently, both the Gainsburgh defendants and the Roth defendants filed motions for summary judgment seeking to have the legal malpractice claims against them dismissed. As to the motion for summary judgment filed by the Gainsburgh defendants, the trial court partially granted and partially denied the motion, finding that there were genuine issues of material fact as to the representations made by the Gainsburgh attorneys to Ms. Brunelle during the settlement negotiations which precluded granting the motion for summary judgment in its entirety. As to the motion for summary judgment filed by the Roth defendants, the trial court granted the motion and dismissed the legal malpractice claim filed against them by Ms. Brunelle on Haley's behalf. Ms. Brunelle, both individually and on Haley's behalf, appealed these judgments as well as a judgment on the allocation of the settlement funds.[4]

         Upon review of those judgments, this Court found genuine issues of material fact existed which precluded granting summary judgment in favor of either the Gainsburgh defendants or the Roth defendants, and we reversed the trial court and remanded the matter. Jones v. ABC Ins. Co., 11-632 (La.App. 5 Cir. 12/12/13), 130 So.3d 35. Following the remand, the parties litigated the legal malpractice claims in the trial court for another two and one-half years.[5], [6]

         On May 2, 2016, the Roth defendants filed a second motion for summary judgment. On August 19, 2016, the trial court issued a judgment in favor of the Roth defendants and dismissed the legal malpractice claim against them. Ms. Brunelle took a devolutive appeal of this judgment and filed a motion to designate the record on appeal. The motion to designate was denied for failure to specify which records were to be designated. The trial court subsequently granted an amended order allowing for the designation of the record on appeal in which Ms. Brunelle specified those documents to be included in the record.

         On appeal, Ms. Brunelle, appearing pro se and in her capacity as Haley's tutrix, raises multiple assignments of error, alleging that the trial court failed to apply the law of the case doctrine, denied Haley due process and equal protection under the law, and committed various additional factual and legal errors that warrant a reversal of the trial court's judgment.

         ASSIGNMENTS OF ERROR

         Ms. Brunelle specifically raises the following six assignments of error in this appeal:

1. In granting summary judgment in favor of the Roth Defendants the Trial Court deprived Haley Gabrielle Jones of her fundamental rights to due process and equal protection under the law by failing to acknowledge that her individual right to pursue legal malpractice claims against Gary Roth and Boxer & Gerson, LLP belong to her and her alone;
2. The Trial Court was clearly wrong for failing to recognize that Haley Jones and the fictitious entities "Jennifer Brunelle on behalf of Haley Jones, " "Jennifer Jones on behalf of Haley Jones" and "Shannon Jones on behalf of Haley Jones" are not one in the same and that the claims from which the Roth Defendants were seeking relief did not exist as a matter of law;
3. The Trial Court was clearly wrong for dismissing the legal malpractice claims of Haley Gabrielle Jones based on the lack of attorney-client relationship between Gary Roth and Jennifer Brunelle;
4. The Trial Court's holding that the fictitious entity "Shannon Jones on behalf of Haley Jones" was the only person who could bring a legal malpractice action against Gary Roth on behalf of Haley Gabrielle Jones is contradictory to the law;
5. The Trial Court erred in failing to determine whether or not an attorney client relationship existed between Gary Roth and Haley Gabrielle Jones at the time of the $8.25 million aggregate settlement; and
6. The Trial Court was clearly wrong for failing to apply the law of the case doctrine.

         DISCUSSION

         Appellate courts review summary judgments de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. O'Krepki v. O'Krepki, 16-50 (La.App. 5 Cir. 5/26/16), 193 So.3d 574, 577. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(2). After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting ...


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