United States District Court, E.D. Louisiana
RICHARD L. REYNOLDS
CHRISTINE L. VOELKEL, JACQUES F. BEZOU, JR., CONTINENTAL CASUALTY CO., JACQUES F. BEZOU, JACQUES F. BEZOU, A PROFESSIONAL CORP.
ORDER AND REASONS
JAY C. ZAINEY UNITED STATES DISTRICT JUDGE.
following motions are before the Court:
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.
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
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
for Declaratory Relief (Rec. Doc. 80) [burden of
proof] filed by plaintiff Richard L. Reynolds.
for Partial Summary Judgment (Rec. Doc. 84)
[liability] filed by plaintiff Richard L. Reynolds.
for Leave to File Third Supplemental and Amending Complaint
(Rec. Doc. 142) filed by plaintiff Richard L.
motions are opposed.
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.
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. 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
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, to preserve the vehicle for potential
litigation. ACIIE attempted to preserve the vehicle with a
third-party, IAAC,  but the vehicle was ultimately auctioned
and dismantled for parts.
met with Bezou on March 4, 2009, a date approaching the one
year anniversary of the accident. Bezou agreed to take
Reynolds' case. 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.
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
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. The court of
appeal affirmed in a published decision. Reynolds v.
Bordelon, 154 So.3d 570 (La.App. 1st Cir.
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. 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).
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
court affirmed as to Nissan, Reynolds v. Bordelon,
172 So.3d 607 (La. 2015), thus conclusively terminating the
litigation as to that defendant.
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
the Supreme Court remanded as to the breach of contract claim
against ACIIE and IAAC, those defendants filed yet another
motion for summary judgment. 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).
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).
Underlying Case against Bordelon remains pending in state
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).
filed a first amended complaint on August 8, 2016, adding
Continental Casualty Co. as Defendants' professional
liability insurer. (Rec. Docs. 11 & 14).
filed a second amended complaint on October 13, 2016, joining
Bezou and Jacques F. Bezou, APC as defendants. (Rec. Docs. 17
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.