Shanell Mary Lavigne v. Veronica "Vicky" Jones d/b/a Veronica "Vicky" Jones, Attorney at Law, LLC and XYZ Insurance Company

NOT DESIGNATED FOR PUBLICATION

COURT OF APPEAL

FIRST CIRCUIT

NO. 2024 CA 0353

SHAMELL MARY LAVIGNE

VERSUS

VERONICA" VICKY" JONES D/ B/ A VERONICA" VICKY19 JONES,
ATTORNEY AT LAW, LLC AND XYZ INSURANCE COMPANY

Judgment Rendered.- DEC 2 0 2024

Appealed from the
19th Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
Case No. 0706056

The Honorable Wilson E. Fields, Judge Presiding

Managan L. Johnson Counsel for Plaintiff/Appellant
Baton Rouge, Louisiana Shamell Mary Lavigne

Gus A. Fritchie, III Counsel for Defendant/Appellee
Edward W. Trapolin Veronica " Vicky" Jones d/ b/ a/
Chris H. Irwin Veronica " Vicky" Jones, Attorney
New Orleans, Louisiana at Law, LLC

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ.

THERIOT, J.

Shamell Mary Lavigne appeals the 19" Judicial District Court' s January 9,

2024 judgment dismissing her legal malpractice claims against Veronica " Vicky"

Jones with prejudice. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On January 7, 2019, Shamell Mary Lavigne retained attorney Veronica

Vicky" Jones to represent her in a child support and custody matter against Tyrell

Braud in the 23rd Judicial District Court for the Parish of St. James, Louisiana (" St.

James Parish"). Lavigne paid Jones $ 5, 500. 00 in advance for her legal. services.

A hearing in Lavigne' s child support and custody case was set: for April 1,

2019. Jones did not request Braud' s income information or propound discovery

prior to the scheduled hearing date. Rather, on the day of the hearing, Braud' s

attorney provided to Jones a partial check stub as proof of Braud' s income.' In lieu

of a hearing, the parties agreed after some discussion that Braud would pay to
Lavigne $ 1, 135. 96 per month in child support. This agreement and other related

stipulations were memorialized in a stipulated judgment signed by the trial court
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on May 20, 2019 (" 2019 Stipulated Judgment" ).

Lavigne' s child support and child custody case became active again in

March 2020 when Braud sought a reduction in child support. Lavigne hired new

representation for these proceedings and, on June 25, 2020, filed a petition to

t On March 29, 2019, Jones' s firm emailed Lavigne to request Lavigne' s last six check stubs and
her 2018 tax return and/ or W-2 in advance of the April 1, 2019 hearing.
2 The 2019 Stipulated Judgment states in relevant part:

IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that child
support is set in the amount of $1, 135. 96 per month, retroactive to August 21,
2018, payable in equal installments on the 1St and 15th of each month. Retroactive
support is set in the amount of $ 3, 830.42 through March 31, 2019, including
credit for payments made. [ Brand] shall provide a paycheck stub within five ( 5)
days to verify income used[.]

The 2019 Stipulated Judgment also set forth the minor child' s physical custody schedule
and designated Lavigne as the domiciliary parent.

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nullify the 2019 Stipulated Judgment in St. James Parish. She alleged that the

income information provided by Braud prior to the April 1, 2019 hearing was

misleading and/or fraudulent. Lavigne further alleged that the amount of child

support awarded in the 2019 Stipulated Judgment had been calculated incorrectly

based upon Braud' s misleading income information. She asked the court to

rescind the 2019 Stipulated Judgment based upon that error of fact. On September

28, 2021, following a hearing on the matter, the trial court signed a judgment

nullifying the 2019 Stipulated Judgment.'

At issue in this appeal is a legal malpractice suit filed by Lavigne against

Jones on March 30, 2021 in the 19" Judicial District Court for the Parish of East

Baton Rouge, Louisiana (" East Baton Rouge Parish"). Lavigne alleged that Jones

was required by statute and local district court rules to obtain certain proofs of

Braud' s income prior to the April 1, 2019 hearing. Lavigne argued that Jones' s

failure to obtain the required income information constituted legal malpractice.

A trial on Lavigne' s legal malpractice claims was held on December 13,

2023. Both Jones and Lavigne testified. At the close of Lavigne' s presentation of

evidence, Jones moved for a directed verdict, arguing that Lavigne made no

showing that Jones' s actions breached the standard of care for family law attorneys

practicing in St. James Parish. The trial court took the matter under advisement

and, on December 20, 2023, issued a ruling dismissing Lavigne' s legal malpractice

claims with prejudice. In oral reasons, the trial court stated that Lavigne failed to

present evidence relating to the standard of care applicable to Jones. A written

judgment to this effect was signed by the trial court on January 9, 2024. This

appeal by Lavigne followed.

3 The trial court also granted Braud' s motion for reduction of child support and directed that
child support in the amount of $1, 243. 37 per month be garnished from Braud' s pay.

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ASSIGNMENTS OF ERROR

Lavigne assigns the following as error:

1) The trial court manifestly erred in finding that Jones was not
negligent and/ or grossly negligent in failing to seek, through
discovery or any other method, the statutorily required proofs of
income under Louisiana law governing the establishment of child
support.

2) The trial court legally erred in finding that the Louisiana child
support guidelines do not apply to stipulated child support amounts
and that Jones was not negligent in setting an inadequate child support
amount in the absence of the legally required income documentation.

3) The trial court manifestly erred in finding that Jones was not
negligent and/or grossly negligent in relying on a single paystub
containing no name, dates, or employer for the purposes of

determining child support.

4) The trial court erred in finding that Jones was not negligent and/or
grossly negligent in failing to fulfill her " duty to speak" under Rule
1. 4 of the Rules of Professional Conduct and in failing to advise her
client.

5) The trial court legally erred in finding that Lavigne failed to
establish the standard of care for law practice and/ or that expert
testimony was required.

STANDARD OF REVIEW

Although Jones moved for a directed verdict, a directed verdict is only

appropriate in a jury trial. See La. Code Civ. P. art. 1810. Louisiana Code of

Civil Procedure article 1672( B) provides the basis for an involuntary dismissal at

the close of a plaintiff's case in an action tried by the court without a jury.

Nevertheless, that error is one of form rather than substance, as the ultimate object

of both motions is the same. Gillmer v. Par. Sterling Stuckey, 2009- 0901 ( La.

App. 1 Cir. 12/ 23/ 09), 30 So. 3d 782, 785 n.2.

Louisiana Code of Civil Procedure 1672( B) states:

In an action tried by the court without a jury, after the plaintiff has
completed the presentation of his evidence, any party, without

waiving his right to offer evidence in the event the motion is not
granted, may move for a dismissal of the action as to him on the
ground that upon the facts and law, the plaintiff has shown no
right to relief. The court may then determine the facts and render

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judgment against the plaintiff and in favor of the moving party or may
decline to render any judgment until the close of all the evidence.
Emphasis added.)

Thus, Article 1672( B) provides the basis for an involuntary dismissal at the

close of a plaintiff' s case in a bench trial, when a plaintiff has shown no right to

relief based on the facts and law. In determining whether an involuntary dismissal

should be granted, the appropriate standard is whether the plaintiff has presented

sufficient evidence in his case -in -chief to establish a claim by a preponderance of

the evidence, which means taking the evidence as a whole, the fact or cause sought

to be proved is more probable than not. When considering a motion for

involuntary dismissal, a plaintiff is entitled to no special inferences in his favor.

However, absent circumstances in the record casting suspicion on the reliability of

the testimony and sound reasons for its rejection, uncontroverted evidence should

be taken as true to establish a fact for which it is offered. Succession ofArseneaux,

2022- 0638 ( La. App. 1 Cir. 12/ 29/ 22), 360 So. 3d 868, 872, writ denied, 2023-

00135 ( La. 4/ 4/ 23), 358 So. 3d 873.

The trial court' s grant of an involuntary dismissal is subject to the manifest

error standard of review.
Accordingly, in order to reverse the trial court' s grant of

an involuntary dismissal, we must find that there is no factual basis for the trial

court' s finding or that the finding is clearly wrong. The issue is not whether the

trial court was right or wrong, but whether its conclusion was reasonable.

Broussard v. Voorhies, 2006- 2306 ( La. App. I Cir. 9/ 19/ 07), 970 So. 2d 1038,

1041- 42, writ denied, 2007- 2052 ( La. 12/ 14/ 07), 970 So. 2d 535. Because an

involuntary dismissal of an action pursuant to Article 1672( B) is based on the

facts and law," a review of the substantive law applicable to the plaintiff' s case is

necessary. Lakeshore Chrysler Dodge Jeep, Inc. v. Windstream Commc' ns, Inc.,

2017- 0841 ( La. App. 1 Cir. 12/ 21/ 17), 240 So. 3d 939, 943.

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Generally speaking, Louisiana law recognizes a legal malpractice cause of

action in favor of a client injured as a result of his attorney' s negligent

representation. Bias v. Haley, 2023- 0281 ( La. App. 1 Cir. 11/ 3/ 23), 383 So. 3d

175, 183. A legal malpractice claim in Louisiana is a negligence claim, albeit a

professional negligence claim, and thus derives from La. Civ. Code arts. 2315 and

2316. Guilbeau Marine, Inc. v. Ledet, 2023- 0065 ( La. App. 1 Cir. 9/ 15/ 23), 375

So. 3d 977, 985, writ denied, 2023- 01369 ( La. 12/ 19/ 23), 375 So. 3d 411. A legal

malpractice plaintiff must prove three different elements to successfully bring a

legal malpractice action: ( 1) the existence of an attorney- client relationship; ( 2)

negligent representation by the attorney or professional impropriety in the

attorney' s relationship with the client; and ( 3) loss caused by that negligence or

misconduct.
Failure to prove any one of these elements is fatal to the plaintiff' s

claim. Bias, 383 So. 3d at 183- 84.

The standard of care that an attorney must exercise in the representation of a

client is that degree of care, skill,
and diligence that is exercised by prudent

practicing attorneys in his locality. Bias, 383 So.3d at 184. The attorney is not

required to exercise perfect judgment in every instance. However, the attorney' s

license to practice and his contract for employment hold out to the client that he

possesses certain minimal skills, knowledge, and abilities. Leonard v. Reeves,

2011- 1009 ( La. App. 1 Cir. 1/ 12/ 12), 82 So. 3d 1250, 1257.

DISCUSSION

Assignment of Error # 5

Lavigne argues that the trial court erred in finding that expert testimony was
required to establish the applicable standard of care. At trial, Lavigne had the

burden of proving that Jones failed to exercise at least that degree of care, skill, and

diligence exercised by prudent practicing attorneys in St. James Parish, the venue

of Lavigne' s child support and custody case. Typically, a plaintiff will retain an

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expert witness both to establish the standard of care for prudent attorneys in the

relevant locality and to show that the defendant' s actions fell below the standard of

care. MB Indus., LLC v. CNA Ins. Co., 2011- 0303 ( La. 10/ 25/ 11), 74 So. 3d 1173,

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Our Supreme Court has held that expert testimony must be introduced in

legal malpractice cases to establish the applicable standard of care, except in those

rare cases where the malpractice is so egregious that the trier of fact could infer the

defendant' s actions fell below any reasonable standard of care.` See Guilbeau

Marine, Inc., 375 So. 3d at 986, citing MB Indus., LLC, 74 So. 3d at 1184.

Examples of obvious acts of professional negligence by an attorney for which no

expert testimony is needed include the failure to timely assert a claim and the

failure to appear and defend a client when that client faces substantial

ramifications. See Benware v. Means, 98- 0203 ( La. App. 1 Cir. 5/ 12/ 00), 760

So. 2d 641, 648- 49; see also Guilbeau Marine, Inc., 375 So. 3d at 986 n. 11.

The trial court ruled that Lavigne failed to establish the standard of care

applicable to family law attorneys practicing in St. James Parish. In so finding, the

trial court implicitly concluded that expert testimony was necessary to set forth the

applicable standard of care. In other words, the trial court' s ruling indicates that it

did not find Jones' s acts to be so egregious that it could infer that Jones' s actions

fell below any reasonable standard of care. See Guilbeau Marine, Inc., 375 So. 3d

at 986. Accordingly, we must determine whether the acts of alleged legal

malpractice are " obvious" or constitute " gross error"
such that expert testimony is

4 In many cases, the trial court, which is of necessity familiar with the standards of practice in its
community, is competent to make such a determination without the assistance of expert
witnesses. Bias, 383 So. 3d at 184. However, Lavigne' s initial custody and child support case
and subsequent petition to nullify the 2019 Stipulated Judgment were filed in St. James Parish,
while her legal malpractice petition was tiled in East Baton Rouge Parish district court, which
does not have jurisdiction over family matters. Thus, the two suits were filed in different
parishes which may or may not have their own unique standards of practice.

VA

unnecessary. See MB Indus., LLC, 74 So. 3d at 1184- 85. With these principles in

mind, we turn to the remaining assignments of error.

Assignments of Error # 1 and # 3

Lavigne argues that the trial court erred in not finding Jones to be grossly

negligent in failing to seek proof of the opposing party' s income as required by La.

R.S. 9: 315, et seq. and in relying upon a single, incomplete check stub when

calculating child support.

Documentation is essential to the setting of child support. . St. Philip v.

Montalbano, 2016- 0254 ( La. App. 1 Cir. 10/ 31/ 16), 206 So. 3d 909, 912, writ

denied, 2016- 2110 ( La. 1/ 13/ 17), 215 So. 3d 255. Louisiana Revised Statutes

9: 315. 2( A) provides:

A. Each party shall provide to the court a verified income
statement showing gross income and adjusted gross income,
together with documentation of current and past earnings.

Spouses of the parties shall also provide any relevant information with
regard to the source of payments of household expenses upon request
of the court or the opposing party, provided such request is filed in a
reasonable time prior to the hearing. Failure to timely file the request
shall not be grounds for a continuance. Suitable documentation of
current earnings shall include but not be limited to pay stubs or
employer statements. The documentation shall include a copy of
the party' s most recent federal tax return. A copy of the statement
and documentation shall be provided to the other party. When an
obligor has an
ownership interest in a business, suitable

documentation shall include but is not limited to the last three
personal and business state and federal income tax returns, including
all attachments and all schedules, specifically Schedule K- 1 and W-2
forms, 1099 forms, and amendments, the most recent profit and loss
statements, balance sheets, financial statements,
quarterly sales tax
reports, personal and business bank account statements, receipts, and
expenses. A copy of all statements and documentation shall be
provided to the other party. ( Emphasis added.)

At trial, Jones admitted that she never propounded discovery on Braud. She

testified that she could not recall contacting Braud' s attorney to obtain his income

information prior to the hearing set for April 1, 2019. However, Jones further

testified that La. R.S. 9: 315. 2 does not require her to obtain any documentation in

order to reach a stipulation and instead requires each party to provide their own

income information to the court.

Jones acknowledged that Lavigne expressed concerns about the validity of

Braud' s first check stub, which was missing Braud' s name and the pay period date.

According to Jones, Braud represented that the check stub provided was his most

recent. The parties used this check stub to calculate child support, but stipulated

that Braud would provide a check stub within five days to verify his income.'

Using Lavigne' s income and the check stub provided by Braud, Jones calculated

that Braud was obligated to pay $ 1, 135. 96 in monthly child support. Jones

testified that she presented Lavigne with that amount but did not advise Lavigne

whether she should agree. Jones further testified that Lavigne knew what

information had been provided and that Lavigne eventually chose to stipulate to

the amount of child support after the calculations were done. She also testified that

the parties negotiated several other issues aside from child support.

Lavigne testified that Jones did not provide any guidance regarding the 2019

Stipulated Judgment. She testified that Braud' s check stub, combined with his

assertion that it was his most recent, indicated that he was making $ 90, 000. 00 a

year. Lavigne testified that, after she retained new counsel, she subpoenaed

Braud' s employment records and determined that he was making twice that

amount. She alleged that she received $ 500. 00 less in child support each month

while the 2019 Stipulated Judgment was in effect as a result of Jones using Braud' s

misleading income information to calculate child supporta

Importantly, Louisiana Revised Statutes 9: 315. 2( A) requires each party to

provide a verified income statement with documentation of current and past

5 Jones testified that Braud' s attorney later provided her with a second check stub, but she did
not use the new information to recalculate child support. The second check stub included
Braud' s name but was not dated.
6 Lavigne also alleged that she incurred approximately $ 22, 210. 00 in attorney' s fees and court
costs as a result of Jones' s alleged malpractice.

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earnings. The statute does not require that each party conduct discovery; rather,

the onus is on each party to provide his own income information. In reaching its

eventual conclusion, the trial court determined that Jones' s failure to propound

discovery was not an act of obvious negligence such that expert testimony would

be unnecessary. We find no manifest error in this determination. See Broussard,

970 So. 2d at 1041- 42.

Further, considering that the initial check stub was presented through

Braud' s attorney, and considering the parties' eventual agreement that Braud

would provide a complete check stub within five days, we find no manifest error in

the trial court' s failure to find Jones' s reliance upon the opposing party' s purported

income to be grossly negligent. These assignments of error lack merit.'

Assignment of Error #2

Lavigne argues that the trial court erred in finding that Louisiana' s child

support guidelines do not apply to stipulated child support amounts. Lavigne is

referring to the trial court' s finding that both parties stipulated to the amount of

child support memorialized in the 2019 Stipulated Judgment.

Louisiana Revised Statutes 9: 315. 1 states:

D. The court may review and approve a stipulation between the
parties entered into after the effective date of this Part as to the
amount of child support to be paid. If the court does review the
stipulation, the court shall consider the guidelines set forth in this Part
to review the adequacy of the stipulated amount and may require the
parties to provide the court with the income statements and

documentation required by R.S. 9: 315. 2.

However, whether the St. James Parish trial court properly reviewed the stipulation

which was eventually nullified —is not at issue before this court.

7 Lavigne also argues that Jones was negligent in failing to seek proof of Brand' s income as
required by Appendix 23. 0 of the Rules of Louisiana District Courts and Juvenile Courts and
Louisiana Family Law Proceedings. Relevantly, Appendix 23. 0A requires parties litigating child
support issues in St. James Parish to exchange proof of income, among other information, before
4: 00 p.m. on a day that allows one full working day before the scheduled hearing. We find no
manifest error in the trial court' s determination that Jones was not grossly negligent as it related
to the income information presented to her.

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Lavigne further argues that the trial court erred in finding that Jones was not

negligent in setting an inadequate child support amount in the absence of the

legally required documentation. The crux of this argument is whether Jones was

grossly negligent in using the check stub provided by Braud' s attorney to calculate

child support. As expressed above, we find no manifest error in the trial court' s

apparent conclusion that Jones was not grossly negligent in so relying.

Assignment of Error #4

Lavigne argues that Jones failed to fulfill her " duty to speak" under Rule 1. 4

of the Rules of Professional Conduct and failed to advise her client of the

implications of signing the 2019 Stipulated Judgment.$ Lavigne refers to Jones' s

admission that she did not advise Lavigne whether or not to sign the 2019

Stipulated Judgment, as well as Jones' s testimony that she did not consult with

Lavigne before deciding not to issue discovery requests.

An attorney has an affirmative duty under Rule 1. 4 of the Rules of

Professional Conduct to keep his client reasonably informed about the status of the

matter and give the client sufficient information to participate intelligently in

decisions concerning the objectives of the representation and the means by which

there are to be pursued. Lomont v. Ayer -Bennett, 2014- 2483 ( La. 6/ 30/ 15), 172

So. 3d 620, 633. Lavigne argues that Jones failed to give her sufficient information

to allow her to intelligently participate in the case.

Proof of the violation of an ethical rule by an attorney, standing alone, does

not constitute actionable legal malpractice per se or proof of factual causation.

Leonard, 82 So. 3d at 1257. By concluding that Lavigne failed to establish the

standard of care, the trial court evidently determined that Jones was not grossly

8 Lavigne asserts in her appellate brief that the trial court failed to rule on the " duty to speak"
issue despite that issue being litigated at trial. Generally, silence in a judgment of the trial court
as to any issue, claim, or demand placed before the court is deemed a rejection of the claim and
the relief sought is presumed to be denied. Schoolhouse, Inc. v. Fanguy, 2010- 2238 ( La. App. 1
Cir. 6/ 10/ 11), 69 So. 3d 658, 664.

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negligent in allegedly failing to advise or communicate with Lavigne. Considering

the evidence presented at trial, we find no manifest error in that determination.

For the above and foregoing reasons, the 19" Judicial District Court' s

January 9, 2024 judgment granting a directed verdict in favor of Veronica " Vicky"

Jones and dismissing Shamell Mary Lavigne' s legal malpractice claims is

affirmed.
Costs of this appeal are assessed to Appellant, Shamell Mary Lavigne.

AFFIRMED.

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