HOWELL CONSTRUCTION, INC.
ANDRY LERNER, L.L.C., ANDRY LAW GROUP, L.L.C., JOHNATHAN B. ANDRY AND CHRISTINA E. MANCUSO
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00673,
DIVISION "L-6" Honorable Kern A. Reese, Judge
H. MATTHEWS PAULINE M. WARRINER MATTHEWS & WARRINER,
L.L.C. AND-JEAN-PAUL LAYRISSON TIMOTHY D. SCANDURRO KRISTA M.
ELEEW SCANDURRO & LAYRISSON, L.L.C. COUNSEL FOR
O. UNGLESBY JORDAN L. BOLLINGER UNGLESBY LAW FIRM AND DAVID
S. DALY FRILOT, LLC COUNSEL FOR DEFENDANT/APPELLEE
composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart,
Judge Paula A. Brown)
A. Lombard Judge
appeal is from a summary judgment rendered in favor of the
defendants, dismissing the plaintiff's legal malpractice
claims. After review of the record in light of the applicable
law and arguments of the parties, we affirm the district
Facts and Procedural History
April 20, 2010, the Deepwater Horizon (a semi-submersible
offshore oil drilling rig) exploded in the Gulf of
Mexico. In re Oil Spill by Oil Rig Deepwater
Horizon in Gulf of Mexico, On April 20, 2010, 910
F.Supp. 2nd 891, 900 (E.D. La. 2012). A massive
discharge of oil into the Gulf continued for nearly three
months, resulting in thousands of lawsuits filed for damages
resulting from the oil spill. A federal class action
settlement was reached in April 2012 wherein businesses that
suffered economic damages as a result of the oil spill could
file for Business Economic Loss ("BEL") damages
under the Settlement Agreement. Thus, pertinent to this
lawsuit, a "B1" damage claim could be filed if the
plaintiff: (1) owned, operated, or leased a facility in the
Gulf Coast area between April 20, 2010; and (2) sold products
in those areas directly to consumers or end users.
Additionally, a service business with one or more full-time
employees who were physically present performing services in
the Gulf Coast area between April 20, 2010, and April 16,
2012, could file a damage claim. Clearly, inherent in
qualifying for economic loss damages is an implicit
requirement that a business owner show an economic loss.
participate in the settlement program, a claimant was
required to submit claim forms with required documentation
for evaluation and processing by the Court Supervised
Settlement Program. Throughout the existence of the program,
the claims administrator issued policies and orders pertinent
to various changes, including changes to deadlines relevant
to filing claims, opting out of the settlement, and
revocation of prior opt-outs to the Settlement Agreement.
Notably, failure to timely and properly opt-out of the
settlement agreements foreclosed a party from bringing a
separate claim under the Oil Pollution Act ("OPA").
2012, the plaintiff, Howell Construction, Inc., an Arkansas
company registered as a business in Louisiana, entered into a
contingency agreement for legal representation to pursue a
claim for economic damages from the oil spill with the
defendants, Andry Lerner, L.L.C., Andry Law Group, L.L.C, and
Jonathan B. Andry. On November 1, 2012, after consulting with
the defendants, the plaintiff signed documents to opt-out of
the BP settlement. On or about January 29, 2013, the
defendants sent a certified letter terminating their
professional relationship with the plaintiff.
January 17, 2014,  the plaintiff filed this lawsuit against
the defendants, alleging breach of contract and, by amended
petition filed on November 5, 2014, asserting a legal
malpractice claim. On August 11, 2017, the defendants filed a
motion for summary judgment. The plaintiff filed its
opposition to summary judgment on November 30, 2017. The
defendants filed a reply brief on December 8, 2017. After a
hearing on the motion, the district court rendered judgment
in favor of the defendants on February 6, 2017, finding that
the plaintiff would be (1) unable to prove as a matter of law
that the defendants were negligent in the handling of its BP
oil spill claim and (2) unable to prove that it suffered any
loss caused by the defendants' alleged negligence.
devolutive appeal was timely filed.
motion for summary judgment is reviewed de novo on
appeal, using the same criteria as the district court, to
determine the existence of a genuine issue of material fact
and whether the movant is entitled to judgment as a matter of
law. La. Code Civ. Proc. art. 966; Louisiana Safety
Association of Timbermen Self-Insurers Fund v. Louisiana Ins.
Guaranty Association, 09-23 (La. 6/26/09), 17 So.3d 350,
judgment, designed to secure just, speedy, and inexpensive
determinations of legal actions, is favored in Louisiana
"and shall be construed to accomplish these ends."
La. Code Civ. Proc. art. 966(A)(2). A motion for summary
judgment shall be granted when "the motion, memorandum,
and supporting documents show that there is no genuine issue
as to material fact and that the mover is entitled to
judgment as a matter of law." La. Code Civ. Proc. art.
moving party who does not bear the burden of proof at trial
is not required to negate all essential elements of the
adverse party's claim but need only point out an absence
of factual support for one or more elements essential to the
adverse party's claim. La. Code Civ. Proc. art.
966(D)(1). Accordingly, once the mover has pointed out the
absence of factual support, the burden is on the adverse
party to produce factual support sufficient to establish the
existence of a genuine issue of material fact or that the
mover is not entitled to judgment as a matter of law.
Id. Vague allegations are insufficient to oppose a
motion for summary judgment. MB Indus., LLC v. CNA Ins.
Co., 2011-0303 (La. 10/25/11), 74 So.3d 1173, 1186.
Whether a particular fact in dispute is "material"
for summary judgment purposes is viewed in light of the
substantive law applicable to the case. Richard v.
Hall, 03-1488, p. 5 (La.4/23/04), 874 So.2d 131, 137
establish a valid legal malpractice claim, a plaintiff must
show evidence sufficient to convince a reasonable trier of
fact of (1) the existence of an attorney-client relationship;
(2) negligent representation by the attorney; and (3) loss
caused by that negligence. An attorney's license to
practice and a contract for employment both indicate
possession of certain minimal skills, knowledge, and
abilities but, although an attorney is obligated to exercise
at least that degree of care, skill, and diligence which is
exercised by prudent local practicing attorneys, an attorney
is "not required to exercise perfect judgment in every
instance." Crescent City Prop. Redevelopment
Ass'n, LLC v. Hardy, 2011-1292, p. 7 (La.App. 4 Cir.
4/18/12), 89 So.3d 1270, 1274-75, writ denied,
2012-1429 (La. 10/8/12), 98 So.3d 859 (citation omitted).