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Reynolds v. Voelkel

United States District Court, E.D. Louisiana

July 23, 2018

RICHARD L. REYNOLDS
v.
CHRISTINE L. VOELKEL, JACQUES F. BEZOU, JR., CONTINENTAL CASUALTY CO., JACQUES F. BEZOU, JACQUES F. BEZOU, A PROFESSIONAL CORP.

         SECTION A(3)

          ORDER AND REASONS

          JUDGE JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.

         The following motions are before the Court:

         Motion for Summary Judgment (Rec. Doc. 75) [peremption] filed by defendants Jacques F. Bezou, Jr., Jacques F. Bezou, Jacques F. Bezou, APC, and Continental Casualty Co.

         Motion for Summary Judgment (Rec. Doc. 76) [causation for damages] filed by defendants Jacques F. Bezou, Jr., Jacques F. Bezou, Jacques F. Bezou, APC, and Continental Casualty Co.

         Motion for Summary Judgment (Rec. Doc. 77) [judicial estoppel/stay] filed by defendants Jacques F. Bezou, Jr., Jacques F. Bezou, Jacques F. Bezou, APC, and Continental Casualty Co.

         Motion for Declaratory Relief (Rec. Doc. 80) [burden of proof] filed by plaintiff Richard L. Reynolds.

         Motion for Partial Summary Judgment (Rec. Doc. 84) [liability] filed by plaintiff Richard L. Reynolds.

         Motion for Leave to File Third Supplemental and Amending Complaint (Rec. Doc. 142) filed by plaintiff Richard L. Reynolds.

         All motions are opposed.

         The motions, submitted for consideration on April 18, 2018, May 2, 2018, and July 11, 2018, are before the Court on the briefs without oral argument.

         I. BACKGROUND

         This is a legal malpractice claim brought by Richard L. Reynolds against his former attorneys, Christine L. Voelkel, Jacques F. Bezou, Jr., Jacques F. Bezou, and the Bezou Law Firm.[1] Defendant Continental Casualty Co. is Defendants' professional liability insurer. The crux of the complaint is that Defendants were negligent in allowing Reynolds' injury claims arising from a 2008 automobile crash to be dismissed on summary judgment as to certain defendants.

         On March 15, 2008, Reynolds was involved in a serious automobile collision caused by an intoxicated driver. The airbags in Reynolds' Infiniti G35 did not deploy and Reynolds has always maintained that this exacerbated the injuries that he sustained in the crash. The G35 was a total loss but Reynolds (through his then-fiancée Ms. Linda Lentz) asked his insurer, ACIIE[2], to preserve the vehicle for potential litigation. ACIIE attempted to preserve the vehicle with a third-party, IAAC, [3] but the vehicle was ultimately auctioned and dismantled for parts.

         Reynolds met with Bezou on March 4, 2009, a date approaching the one year anniversary of the accident. Bezou agreed to take Reynolds' case.[4] Bezou assigned the case to defendant Christine Voelkel, an attorney working for Bezou's firm at the time. Voelkel filed suit (“the Underlying Case”) on behalf of Reynolds against the driver (Robert Bordelon), his father, ACIIE, IAAC, and Nissan North America, Inc. The claim against ACIIE and IAAC was for negligent spoliation in light of the lost G35; the claim against Nissan was a products liability claim in light of the G35's airbags that did not deploy.

         The Underlying Case proceeded in the 22nd JDC, Parish of St. Tammany, as the parties conducted discovery and engaged in motion practice. In 2011, Bezou, Jr. graduated from law school and was admitted to the bar. He joined his father's firm, and Voelkel moved two doors down to start her own firm. Voelkel took the firm's physical file for Reynold's case when she moved and continued to represent Reynolds.[5]

         During the course of the litigation, ACIIE and IAAC challenged the negligent spoliation claim as being a cause of action unrecognized under Louisiana law. Ultimately, the trial judge granted those defendants' exceptions.[6] The court of appeal affirmed in a published decision. Reynolds v. Bordelon, 154 So.3d 570 (La.App. 1st Cir. 2014).

         Likewise, Nissan challenged Reynolds' products liability claim. Through Voelkel's efforts, Reynolds successfully avoided summary judgment twice, once by relying on an affidavit from expert Claude Mount. After Nissan was able to subsequently have Mount excluded on Daubert grounds, Nissan filed its third motion for summary judgment contending that Reynolds could not create an issue of fact as to liability under any of the theories provided by the LPLA.[7] On August 14, 2013, the trial court held oral argument on Nissan's third motion for summary judgment. Nissan challenged and the trial court excluded many of Reynolds' exhibits on the basis of hearsay, relevance, and lack of authentication-all problems that presumably could have been avoided had Voelkel followed the governing rules of procedure. The trial court granted summary judgment in favor of Nissan by judgment dated August 23, 2013. The court of appeal affirmed in an unpublished decision. Reynolds v. Bordelon, No. 14-121, 2014 WL 4667570 (La.App. 1st Cir. Sept. 19, 2014) (unpublished).

         The Louisiana Supreme Court granted review as to both decisions-the one regarding negligent spoliation in favor of ACIIE and IAAC and the one regarding Nissan's third motion for summary judgment. On June 30, 2015, the Supreme Court issued two separate opinions. The Court affirmed as to ACIIE and IAAC insofar as the lower courts had declined to recognize a tort for negligent spoliation of evidence. Reynolds v. Bordelon, 172 So.3d 589 (La. 2015). But the court evaluated the petition to determine whether it stated any valid cause of action, and concluded that the petition alleged sufficient facts to support a breach of contract cause of action. Id. at 600. The court therefore reversed the judgment that granted the exception of no cause of action and remanded the case to the trial court for consideration of the contract claim. Id. The court ended with: “We offer no opinion as to the ultimate success of this cause of action or to any defense thereto.”[8] Id.

         The court affirmed as to Nissan, Reynolds v. Bordelon, 172 So.3d 607 (La. 2015), thus conclusively terminating the litigation as to that defendant.

         It is undisputed that Reynolds obtained and/or received copies of both Supreme Court decisions near the June 30, 2015 publication date, or at the latest some date in early July 2015.

         After the Supreme Court remanded as to the breach of contract claim against ACIIE and IAAC, those defendants filed yet another motion for summary judgment.[9] At or about this time both Reynolds and the Bezou law firm lost all contact with Ms. Voelkel, who again possessed the client's physical file. The task of responding to the two motions for summary judgment fell upon Bezou, Jr. On October 26, 2015, Bezou, Jr. wrote a letter to Reynolds that stated:

After reviewing the pleadings and facts available, we do not have a viable opposition to these motions. Although breach of contract was pled in the Petition, the facts to support the essential elements of a contractual agreement so as to give rise to liability for these two defendants beyond the now dead negligent spoliation of evidence simply do not exist. As such, we will not be opposing the two motions for summary judgment filed by ACIIE and IAA.

(Rec. Doc. 98-15, Reynolds' opposition).

         On November 9, 2015, Reynolds emailed Bezou, Jr.'s paralegal, Lisa Richardson, asking for clarification. (Rec. Doc. 96-18, Reynolds' opposition). On that same date Bezou, Jr. sent a letter to Reynolds to clarify why he had determined that oppositions should not be filed. In short, Bezou, Jr. could find no legitimate basis to oppose the arguments made in the motions in light of the opinion issued by the Louisiana Supreme Court. (Id.). On that same day, Bezou, Jr. wrote to opposing counsel to inform them that no opposition to the pending motions for summary judgment would be filed. (Rec. Doc. 98-18).

         The Underlying Case against Bordelon remains pending in state court.

         Reynolds filed his original complaint for legal malpractice in this Court on May 25, 2016. The only defendants named were Christine Voelkel and Bezou, Jr. (Rec. Doc. 1).

         Reynolds filed a first amended complaint on August 8, 2016, adding Continental Casualty Co. as Defendants' professional liability insurer. (Rec. Docs. 11 & 14).

         Reynolds filed a second amended complaint on October 13, 2016, joining Bezou and Jacques F. Bezou, APC as defendants. (Rec. Docs. 17 & 19).

         A jury trial had been scheduled for October 22, 2018. The Court granted the parties' consent motion to continue deadlines and the trial in light of the pending motions. (Rec. Doc. 154). If Defendants' dispositive motions are not granted, the case will move forward presumably with additional discovery and motion practice.

         II. ...


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