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Howell Construction, Inc. v. Andry Lerner, L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

October 24, 2018

HOWELL CONSTRUCTION, INC.
v.
ANDRY LERNER, L.L.C., ANDRY LAW GROUP, L.L.C., JOHNATHAN B. ANDRY AND CHRISTINA E. MANCUSO

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-00673, DIVISION "L-6" Honorable Kern A. Reese, Judge

          ROBERT 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 PLAINTIFF/APPELLANT

          LEWIS O. UNGLESBY JORDAN L. BOLLINGER UNGLESBY LAW FIRM AND DAVID S. DALY FRILOT, LLC COUNSEL FOR DEFENDANT/APPELLEE

          (Court composed of Judge Edwin A. Lombard, Judge Daniel L. Dysart, Judge Paula A. Brown)

          Edwin A. Lombard Judge

         This 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 court judgment.

         Relevant Facts and Procedural History

         On April 20, 2010, the Deepwater Horizon (a semi-submersible offshore oil drilling rig) exploded in the Gulf of Mexico.[1] 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.

         To 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").

         In July 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.[2] 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.

         On January 17, 2014, [3] 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.[4] 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.

         This devolutive appeal was timely filed.

         Standard of Review

         A 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, 353.

         Applicable Law

         Summary Judgment

         Summary 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. 966(A)(3).

         A 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 (citations omitted).

         Legal Malpractice

         To 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).

         Pr ...


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