Joseph Williams v. Mark Roberts

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-169

JOSEPH WILLIAMS AND STACY WILLIAMS

VERSUS

MARK ROBERTS AND MCCOY, ROBERTS, &
BEGNAUD, LTD.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 76,252
HONORABLE FRED C. SEXTON, JR., DISTRICT JUDGE AD HOC

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J. DAVID PAINTER
JUDGE

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Court composed of Oswald A. Decuir, Glenn B. Gremillion, and J. David Painter,
Judges.

AFFIRMED.

James B. Gardner
P.O. Box 1534
Shreveport, LA 71165-1534
Counsel for Defendants-Appellees:
Mark Roberts and McCoy, Roberts
& Begnaud, Ltd.

Kenneth N. Simmons
298 Pico Street
Many, LA 71449
Counsel for Plaintiffs-Appellants:
Joseph Williams and Stacy Williams

Jack L. Simms, Jr.
103 N. Third Street
Leesville, LA 71446
Counsel for Plaintiffs-Appellants:
Joseph Williams and Stacy Williams

PAINTER, Judge.

In this legal malpractice case, Plaintiffs, Joseph Williams and Stacy Williams

(“the Williams Brothers”), appeal the trial court’s grant of summary judgment in

favor of Defendants, Mark Roberts and McCoy, Roberts, and Begnaud, Ltd. For the

reasons that follow, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On October 7, 2003, the Williams Brothers filed suit against Mark Roberts and

the law firm of McCoy, Roberts, and Begnaud, Ltd. The Williams Brothers alleged

that Roberts was their attorney in the formation of a Louisiana limited liability

company named “Weight Loss Development - Denver, L.L.C.” (“the L.L.C.”).

Apparently, the Williams Brothers, along with Thomas C. Litton (“Litton”) and

Robert Dockens (“Dockens”), formed the L.L.C. to enter into a franchise agreement

with LA Weight Loss Centers, Inc. Litton was to be the managing member. The

Williams Brothers alleged that they were under the impression that the L.L.C. would

be controlled by fifty-one percent of the membership. The Williams Brothers further

alleged that the operating agreement, which was prepared and revised by Roberts, did

not provide for fifty-one percent control as they had requested, but instead vested

Litton with sole control and contained other provisions that were extremely adverse

to the Williams Brothers. The malpractice suit alleged that Roberts had a fiduciary

relationship with them and other members of the L.L.C. The Williams Brothers

further contended that because Roberts failed to consult with them and to advise them

as to the contents of the operating agreement and the other terms and conditions of

the agreements that the Williams Brothers alleged to be severely adverse to them,

Roberts committed legal malpractice.

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On April 20, 2004, Defendants filed a motion for summary judgment which

alleged that at no time did Defendants receive a request for representation from

Plaintiffs, agree to represent Plaintiffs, or assume the representation of Plaintiffs with

respect to any documents prepared for the creation of the L.L.C. or its operation. In

support of the motion, Defendants attached the affidavits of Roberts, Litton

(managing member of the L.L.C.), and Dockens (a non-manager, investor member in

the limited liability company). In opposition to the motion for summary judgment,

the Williams Brothers attached their own affidavits.

Written reasons for judgment were read into the record on April 22, 2005, and

on July 5, 2005, the trial court signed a judgment granting Defendants’ motion for

summary judgment and dismissing Plaintiffs’ suit with prejudice. This ruling was

based on the trial court’s finding that there was no express agreement for Roberts to

represent Plaintiffs. Plaintiffs then moved for a new trial, which was denied by

judgment signed September 19, 2005. This appeal by Plaintiffs followed. On appeal,

Plaintiffs assert the sole assignment of error that “the trial court committed manifest

error in granting the defendants’ motion for summary judgment.” In sum, Plaintiffs

argue that summary judgment was inappropriate in this case because the evidence

establishes that the Williams Brothers reasonably believed that Roberts was their

attorney.

DISCUSSION

In Sinegal v. Kennedy, 04-299, p. 3 (La.App. 3 Cir. 9/29/04), 883 So.2d 1079,

1081, writ denied, 04-268 (La. 1/7/05), 891 So.2d 683, we stated:

Appellate courts, in determining whether summary judgment is
appropriate in a case on appeal, review evidence de novo under the same
criteria that govern the trial court's determination of whether summary
judgment is appropriate. Succession of Granger v. Worthington,
02-0433 (La.App. 3 Cir. 10/30/02), 829 So.2d 1108. The determination
of materiality of a particular fact can be made only in light of the

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substantive law applicable to the case. Rener v. State Farm Mut. Auto.
Ins. Co., 99-1703 (La.App. 3 Cir. 4/5/00), 759 So.2d 214.

Furthermore, in Butler v. DePuy, 04-101, p. 3 (La. App. 3 Cir. 6/9/04), 876 So.2d

259, 261 (citing Smith v. Our Lady of the Lake Hosp., Inc., 93-2512 (La. 7/5/94), 639

So.2d 730), we explained:

The initial burden of proof remains with the mover to show that
no genuine issue of material fact exists. However, if the mover will not
bear the burden of proof at trial, he need not negate all essential
elements of the adverse party's claim, but rather he must point out that
there is an absence of factual support for one or more elements essential
to the claim. La.Code Civ.P. art. 966(C)(2). Once the mover has met
his initial burden of proof, the burden shifts to the non-moving party to
produce factual support sufficient to establish that he will be able to
satisfy his evidentiary burden at trial. Id.

Thus, it is for us to determine whether any genuine issues of material fact exist and

whether the movant is entitled to judgment as a matter of law. La.Code Civ.P. art.

966(B) and (C).

“To establish a claim for legal malpractice, a plaintiff must prove: 1) the

existence of an attorney-client relationship; 2) negligent representation by the

attorney; and 3) loss caused by that negligence.” Costello v. Hardy, 03-1146, p. 9

(La. 1/21/04), 864 So.2d 129, 138. In this case, the issue is whether there was an

attorney-client relationship between Roberts and the Williams Brothers.

In his affidavit introduced in support of his motion for summary judgment,

Roberts stated that he was retained by Litton on October 16, 2002 to create the L.L.C.

and that he drafted the articles of organization, the initial report, and the operating

agreement and transmitted them to Litton via e-mail. Roberts was aware that Litton

was meeting with the Williams Brothers and Dockens, the other member of the

L.L.C., in order to execute the documents that he had prepared. On October 25, 2002,

Litton requested some additions to the operating agreement, which Roberts made and

transmitted to Litton by e-mail. Roberts further stated that at no time did he or his

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firm receive a request from the Williams Brothers to represent them in connection

with the creation of the L.L.C. Roberts further stated that he understood, based on

information furnished to him by Litton, that the Williams Brothers had their own

attorney. Roberts further stated in his affidavit that the first contact he had with the

Williams Brothers was when they came to Roberts’ office to sign franchise

documents, which neither he nor anyone from his firm prepared. Roberts also stated

in his affidavit that he represented the L.L.C. in connection with collection efforts

against the Williams Brothers with respect to their capital contributions to the L.L.C.

Litton’s affidavit was also attached to the motion for summary judgment.

Litton stated that the Williams Brothers told him that they had their own attorney and

that Litton never asked or retained Roberts or his law firm to represent the Williams

Brothers in connection with the formation of the L.L.C.

Roberts and his law firm also submitted the affidavit of Dockens in support of

their motion for summary judgment. Dockens stated that he did not retain Roberts

or his law firm to represent him in connection with the formation of the L.L.C.

Dockens also stated that after the addition to the operating agreement requested by

Litton was done, all of the documents were executed by Litton, Dockens, and the

Williams Brothers on October 25, 2002.

In opposition to the motion for summary judgment, the Williams Brothers each

submitted identical affidavits. In these affidavits, the Williams Brothers stated that

at no time did anyone tell them that Roberts did not represent them or that they should

seek independent legal counsel. The Williams Brothers stated that they believed that

Litton had requested for Roberts to represent all of them in the formation of the

L.L.C. and that they reasonably believed that Roberts represented them.

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In its reasons for judgment, the trial court found that there was no express

agreement for Roberts to represent the Williams Brothers. The trial court also relied

on Bergman v. New England Ins. Co., 872 F.2d 672 (5 Cir. 1989) for the proposition

that it is not unusual for one party’s attorney to prepare a document for several parties

to sign and that the Louisiana Bar would be stunned to learn that in doing so, an

attorney became the attorney for all parties. We agree with the trial court.

There is no dispute that there was no written agreement as to representation

between Roberts and the Williams Brothers and that the Williams Brothers never had

any conversations with Roberts concerning the drafting of the agreements relative to

the L.L.C. The Williams Brothers presented no evidence, other than their affidavits

attesting to their belief that Roberts represented them, tending to show the existence

of an attorney-client relationship. Moreover, we note that even though whether an

attorney-client relationship exists turns largely on one’s subjective believe that it

does, a person’s subjective belief that an attorney represents him must be reasonable

under the circumstances. Exposition Partner, L.L.P. v. King, LeBlanc & Bland,

L.L.P., 03-580 (La.App. 4 Cir. 3/10/04), 869 So.2d 934. Thus, we find that there was

not enough evidence to establish an issue of material fact as to the existence of an

attorney-client relationship.

DECREE

After our de novo review of the record in this case, we conclude that the trial

court correctly granted summary judgment in favor of Defendants, Mark Roberts and

McCoy, Roberts, and Begnaud, Ltd. There are no genuine issues of material fact on

the issue of the existence of an attorney-client relationship. The trial court judgment

in favor of Defendants on the motion for summary and judgment and dismissing

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Plaintiffs’ suit with prejudice is, therefore, affirmed. Costs of this appeal are assessed

to Plaintiffs-Appellants, Joseph Williams and Stacey Williams.

AFFIRMED.

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