Jay Anthony Duhon v. Dean Peter Duhon

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

03-898

JAY ANTHONY DUHON, ET AL.

VERSUS

DEAN PETER DUHON, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 98-1104
HONORABLE JULES D. EDWARDS, III, PRESIDING
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir and Glenn B. Gremillion,
Judges.

AFFIRMED.

Robert H. Matthews
830 Union St., 4th Floor
New Orleans, LA 70112
(504) 523-4542
COUNSEL FOR PLAINTIFFS/APPELLANTS:
Jay Anthony Duhon, et al.

Edward P. Landry
Landry, Watkins, Repaske & Breaux
211 E. Main Street
P.O. Drawer 12040
New Iberia, LA 70562-2040
(337) 364-7626
COUNSEL FOR APPELLEE:
Oats & Hudson, Attorneys and Counselors at Law

COOKS, Judge.

David, Jay, and Dean Duhon are brothers who became business partners in a

residential and golf club development project in Carencro, Louisiana. The project was

to be constructed partially on family owned land and partially on land of an adjacent

owner, Phylip Domingue. The brothers were to own the business venture one-third

each, and to share profits from the sale of residential properties and the operation of

the golf course equally.

From its inception, there were numerous problems. While the golf course

became operational, it was short-lived and the business venture between the brothers

fell apart. In an attempt to dissolve the project and settle the differences between the

brothers, a meeting was hastily arranged at the law offices of Oats & Hudson on the

evening of February 24, 1997. At the beginning of the meeting, Stephen Oats

informed the brothers he could not represent any of them individually with regard to

the dispute. The meeting continued into the early morning hours of February 25,

1997, when there was a tentative agreement reached between the brothers. However,

according to Dean Duhon, he informed his brothers he could not finalize any

agreement without first discussing the matter with his wife, who was not present at the

meeting. The tentative agreement was never reduced to writing. Dean Duhon

described the meeting in his testimony as follows:

I know that Steve (Oats) had walked around with a pad, just kind of
getting everyone’s complaints and what people wanted – what the three
(3) of us wanted to see happen with the situation. And it – There was
pretty much a general outline of where we were going to go, what we
had all decided would be feasible if it worked out. And he kind of let us
– The meeting kind of ended with, you know, “Okay. So far these are
the guidelines we have. Let’s see if these are accomplishable.”

. . . some of the things that we were trying to accomplish was that my
two (2) brothers would end up with the majority of the property or
everything in a line that the golf course was sitting on, the operational
part of the golf course. And I was to receive the seven (7) lots that are

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along Trappey Road as a builder. And we were trying to separate the
properties. Generally speaking, that’s pretty much what was going to
happen, “You take the property with the golf course, and I take my side.”

According to Dean, when he discussed the proposal with his wife the next

morning, she informed him they were too heavily mortgaged for the proposal to be

feasible for them. Dean then informed his brothers that his wife was not interested in

the proposal submitted at the meeting; thus, they would not agree to the proposal.

As a result of Dean’s refusal to enter into the proposed agreement, a lawsuit was

brought by David Duhon, Jay Duhon, and Marlissa Duhon (Jay’s wife) against Dean

Duhon, Mary Louise Holden Duhon (Dean’s wife), the Oats & Hudson law firm and

MidSouth National Bank (a party involved in the financing of the project). Prior to

trial, plaintiffs settled their claims with MidSouth and it was dismissed from the

lawsuit.

Oats & Hudson filed an Exception of Prescription based on the accrual of the

peremptive period of La.R.S. 9:5605 as to any and all alleged acts of negligence. Oats

& Hudson also filed an exception of no cause of action. After a hearing on the

exceptions, the trial court granted the exception of prescription as to the alleged acts

of negligence prior to the meeting of February 24-25, 1997, but denied the exception

as to any acts of negligence which allegedly occurred at the time of the meeting. The

court also denied the exception of no cause of action.

The case proceeded to trial. Because of the earlier ruling on the exceptions, the

trial court excluded evidence of all of Oats & Hudson’s alleged acts of negligence

prior to the February, 1997 meeting. When it became apparent that the claims against

Dean and Mary Duhon could not proceed in tandem with the claims against Oats &

Hudson before the same jury, plaintiffs elected to dismiss their claims against the

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Duhons and proceed against Oats & Hudson. After the close of plaintiffs’ case in

chief, Oats & Hudson filed a motion for directed verdict alleging that the agreement

in dispute was a “tentative, conditional agreement.” The trial court granted the

motion. Following instructions from the court, the jury returned a verdict finding Oats

& Hudson did not deviate from the standard of care at the meeting.

Plaintiffs filed a motion for new trial on two grounds: first, that the trial court’s

exclusion of evidence regarding claims of negligence was based on an

unconstitutional statute (La.R.S. 9:5605) and prevented them from presenting

evidence critical to their legal malpractice claim; and second, that the uncontradicted

evidence relating to an attorney’s standard of care coupled with the trial court’s

directed verdict on the existence of a tentative, conditional agreement mandated a

finding that the defendant deviated from the standard of care in not reducing the

agreement to writing.

The trial court denied the motion for new trial on both grounds, giving the

following reasons:

It seems to me that there was sufficient evidence presented during the
course of this trial for this jury to come out with this result. On the other
hand, had the case been tried to me under the evidence presented, I
would have found that there was a duty to write down, to document this
tentative, conditional agreement, or explain why it was too nebulous to
document where the terms and conditions were too incoherent to
accurately document at that time.

But I don’t think that there is – that there was insufficient evidence
for the jury to come to the conclusion that it came to.

The trial court also refused to declare La.R.S. 9:5605 unconstitutional, noting

plaintiffs failed to raise the constitutionality issue pre-trial.

Plaintiffs appealed the trial court’s judgment, asserting the following

assignments of error:

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1. The trial court erred in partially granting defendant’s Exception of
Prescription because La.R.S. 9:5605 is unconstitutional.

2. The trial court erred in excluding evidence critical to plaintiffs’ legal
malpractice claim based on La.R.S. 9:5605 because that statute is
unconstitutional.

3. The jury’s finding exculpating the defendant from fault was clearly
contrary to the law and the evidence.

4. The trial court erred in denying plaintiffs’ motion for new trial
because the verdict and judgment were clearly contrary to the law and
evidence.

ANALYSIS

In its first two assignments of error, plaintiffs attack the constitutionality of

La.R.S. 9:5605. The effect of La.R.S. 9:5605 on this case, according to plaintiffs, is

that its application prevented the jury from hearing the evidence that Oats had been

involved in representing the family in developing the project from the beginning.

Instead, the jury was told that Oats was merely a “good Samaritan” attorney who at

the last minute interjected himself into a family dispute to help out.1 The partial

granting of defendant’s Exception of Prescription limited the jury to evidence of the

February 24-25 meeting.

Plaintiffs argue La.R.S. 9:5605 is unconstitutional under Louisiana Constitution

Article 2 and Article 5 because it subverts the Louisiana Supreme Court’s authority

to regulate all facets of the practice of law and under Article 1, Sections 2 and 3

because it denies plaintiff equal protection and due process of laws. Plaintiffs also

contend the statute is violative of the Fourteenth Amendment of the United States

1
We do note that after reviewing the record there were numerous references made in the
testimony to Oats’ past involvement in the project. In our view, plaintiffs’ contention that the jury
was fooled into believing Oats became involved at the last minute to help the family is not supported
by the record.

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Constitution. Although we find plaintiffs’ constitutional objections present interesting

questions, we need not address them to resolve the present case.

Although plaintiffs theorize the jury would have reached a different result had

it been informed of Oats’ prior involvement with the project, we find this argument

speculative at best. Plaintiffs’ legal malpractice case was premised on Oats’ failure

to document the tentative agreement reached at the meeting on February 24-25, 1997;

however, this failure did not automatically require the jury to find Oats committed

legal malpractice.

Plaintiffs do not seriously dispute that the tentative agreement reached in the

early morning hours of February 25, 1997, could not have been signed that evening

(even if reduced to writing) because indispensable parties were not present.

Essentially, what plaintiffs are arguing is that Oats breached the standard of care by

simply failing to document the tentative agreement in writing or in refusing to explain

why the tentative agreement should/could not be reduced to writing.

Plaintiffs relied on the testimony of their expert, Bernard H. McLaughlin, Jr.,

to support their position that Oats deviated from the standard of care and breached the

rules of professional conduct. McLaughlin stated that he believed a written settlement

agreement should have been signed at the culmination of the February, 1997 meeting.

McLaughlin noted that in “[a]lmost all the mediations I do the [parties’] lawyers are

present. . .” None of the parties were represented by legal counsel at this meeting, and

Oats informed all the parties present at the beginning of the meeting that he could not

represent them in any further legal actions. In his testimony, McLaughlin repeatedly

referred to the provisions of the Louisiana Mediation Act in reaching his conclusion

that Oats deviated from the standard of care. As Oats & Hudson notes, this section

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of the Louisiana statutes did not become effective until January 1, 1998, which was

after the meeting in question.

Further, it is certainly reasonable that the jury may have found the February 24-

25 meeting was far too spontaneous and chaotic to amount to a mediation. The

meeting was not set up until the afternoon of February 24, 1997, when Jay Duhon

spoke with Oats’ secretary to see if a meeting could be arranged. As stated earlier,

there were no lawyers representing any of the parties. The meeting took place after

hours, and there were no secretaries or assistants present. Two indispensable parties

to the proceedings were not present, Mary Duhon and Marlissa Duhon.2 On cross-

examination, McLaughlin admitted when parties to a mediation make it clear they will

not sign an agreement without discussing it with other parties, there is no need to write

up the agreement:

Q: We have one party – Look at it from a hypothetical sense. You
have a mediation, if you want to call it a mediation. You’ve got one
party that says and is telling us in this case, “I wasn’t signing anything.”
You’ve got another party that wasn’t present who later says, “I’m not
doing the deal.” And you’ve got the other two (2) – one of them which
is agreeing that those arrangements were something that needed to be –
those conditions needed to be completed before we had a deal. And then
they find out soon after that that it didn’t work.

A: In that effect – I understand what you’re getting at. To that effect,
if the conditions couldn’t be met, then, yeah, you don’t have a deal, but
I don’t know if that relieves somebody’s underlying obligation to at least
set it up to see if you could have arrived at a deal. And here there was
no written agreement ever done.

Q: Oh, no, I understand that. But when you get to the end of a
mediation that can’t be completed or somebody says, “You know, Mr.
McLaughlin, I’m not going to sign that agreement tonight. I’m not
agreeing to it. I’m not signing anything until I go talk to somebody
else.”

2
Marlissa Duhon was present at the beginning of the meeting, but stayed only for a short
time and was not present when the tentative agreement was reached.

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A: That occasionally happens.

Q: And if that happened in this case, well, then no harm, no foul, you
just had somebody –

A: If that happened in this case, then, there would be no need to write
up that agreement.

Jay Duhon, when confronted with his earlier deposition testimony,

begrudgingly admitted that he was aware that Dean required the approval of his wife

before he could sign off on the tentative agreement.

David Duhon testified he referred to the February 24-25, 1997 encounter at the

Oats & Hudson law offices as a meeting rather than an arbitration or mediation. He

acknowledged that Oats had “no authority to make me sign” any agreement or to

“force” the parties to do anything that night.

Dean Duhon testified he did not know the purpose of the meeting. When

questioned as to why his wife was not present at the meeting, Dean stated he felt they

were on the same page and he “can represent her and let her know what this meeting

is about. And, you know, if she’s got some input when it’s over with, I’ll relay it and

just kind of let you know what’s happening.” Dean also stated he was unaware that

any agreement was to be signed that night. When asked if he was satisfied with the

tentative agreement reached, Dean stated “[n]o, but I could see at 1:30 in the morning

we wasn’t going to go much further.”

The standard for determining whether an attorney has been guilty of negligence

or professional impropriety was set out in Ramp v. St. Paul Fire & Marine Ins. Co.,

263 La. 774, 269 So.2d 239 (1972):

An attorney is obligated to exercise at least that degree of care, skill, and
diligence which is exercised by prudent practicing attorneys in his
locality. He is not required to exercise perfect judgment in every
circumstance.

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The test is whether Oats’ actions or inactions fell below the applicable standard of

care for attorneys in his locality. At trial, even plaintiffs’ expert could not

unequivocally testify that Oats’ alleged failure fell below the applicable standard of

care. Further, an attorney can only be liable to his client for damages caused by the

attorney’s negligence in handling the client’s business, if the client proves by a

preponderance of the evidence that such negligence is the proximate cause of the loss

claimed. Toomer v. Breaux, 146 So.2d 723 (La.App. 3 Cir.1962); Arrington v. Law

Firm of Aucoin & Courcelle, L.L.C., 02-642 (La.App. 5 Cir. 10/16/02), 832 So.2d

319; Bauer v. Dyer, 00-1778 (La.App. 5 Cir. 2/28/01), 782 So.2d 1133, writ denied,

01-0822 (La. 5/25/01), 793 So.2d 162. The record in no way supports the allegation

that Oats’ failure to document the tentative agreement was a legal cause of plaintiffs’

loss. Dean Duhon testified he would not have signed any agreement that night

without first checking with his wife, who was a co-owner with him in the business

venture. His wife, when informed of the substance of the tentative agreement, was

adamant that it would not be acceptable to her and Dean.

Where two permissible views of the evidence exist, the factfinder’s choice

between them cannot be manifestly erroneous or clearly wrong. Stobart v. State

Through Dept. of Transp. and Development, 617 So.2d 880 (La.1993). The issue

which the reviewing court must resolve is not whether the trier of fact was right or

wrong, but whether the factfinder’s conclusion was a reasonable one. Id. Even if the

appellate court would have decided differently had it been the original trier of fact, the

trial court’s judgment should be affirmed unless it is clearly wrong or manifestly

erroneous. Id. Therefore, we will not disturb the jury’s verdict, nor will we overturn

the trial court’s denial of the motion for new trial.

DECREE

For the foregoing reasons, the judgment appealed from is affirmed. Costs of

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this appeal are assessed to plaintiffs-appellants.

AFFIRMED.

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