Mb Industries, LLC v. Cna Insurance Co.

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 10-321

MB INDUSTRIES, LLC

VERSUS

CNA INSURANCE COMPANY, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF ACADIA, NO. 200810466
HONORABLE EDWARD D. RUBIN, DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Jimmie C. Peters, Billy Howard Ezell, and Shannon J. Gremillion,
Judges.

REVERSED AND REMANDED.

James Ronald Clary, Jr.
Clary & Overton
850 North Blvd.
Baton Rouge, LA 70802
(225) 926-6788
Counsel for Defendants/Appellees:
Steven Gerald Durio
Durio, McGoffin, Stagg & Ackermann
Steven G. Durio, P.C.

Gracella Gail Simmons
Collin Joseph LeBlanc
Keogh, Cox, & Wilson
P. O. Box 1151
Baton Rouge, LA 70821
(225) 383-3796
Counsel for Defendants/Appellees:
John Haas Weinstein
Continental Casualty Company
John Haas Weinstein, APLC

Glen Scott Love
Robert Graves
320 Somerulos Street
Baton Rouge, LA 70802
(225) 387-6966
Counsel for Plaintiff/Appellant:
MB Industries, LLC

James Huey Gibson
Allen & Gooch
P. O. Box 81129
Lafayette, LA 70598-1129
(337) 291-1000
Counsel for Defendants/Appellees:
Durio, McGoffin, Stagg & Ackermann
Continental Casualty Company
Steven G. Durio, P.C.
Steven Gerald Durio

Milo Addison Nickel, Jr.
Elisa D. Davis
714 E. Kaliste Saloom Road, D-1
Lafayette, LA 70508
(337) 504-3647
Counsel for Plaintiff/Appellant:
MB Industries, LLC

Gary Russo
Nadia Marie de la Houssaye
Jones Walker
P. O. Drawer 3408
Lafayette, LA 70502-3408
(337) 262-9000
Counsel for Plaintiff/Appellant:
MB Industries, LLC

Juliette Busby Wade
P. O. Box 51308
Lafayette, LA 70505-1305
(337) 233-0300
Counsel for Plaintiff/Appellant:
MB Industries, LLC

EZELL, JUDGE.

MB Industries, LLC appeals a trial court decision granting summary judgment

in favor of Steven Durio and John Weinstein and dismissing its legal malpractice

claims against them.

FACTS

MB Industries (MBI) manufactures blast-resistant buildings. MBI initially

received its assets from another company, Moon Ventures LLC, which had been

placed in bankruptcy. Mark Massey was an owner in Moon Ventures, and Sam

Lavergne was an employee with Moon Ventures. Shortly after the asset transfer from

Moon Ventures to MBI, Mr. Lavergne started Hunter Buildings, LLC, which also

manufactures blast-resistant buildings. Later, Mr. Massey joined Mr. Lavergne at

Hunter Buildings. MBI filed the underlying lawsuit in 2000 against Mark Massey,

Sam Lavergne, and J. Bass, LLC claiming breach of noncompetition and trade secrets

agreements, misappropriation of trade secrets, unfair and deceptive trade practices,

and conversion of property. During different times Mr. Durio and Mr. Weinstein

represented MBI in the proceedings. The underlying lawsuit was primarily based on

the Defendants’ competition with MBI for blast-resistant buildings at Exxon’s

refinery in Baton Rouge. Apparently, Mr. Massey and Mr. Lavergne had signed

noncompetition agreements with Moon Ventures, which was the basis for the lawsuit.

A bench trial was held on November 10, 12, and 13, 2003, on the underlying

lawsuit. By that time, Mr. Weinstein had withdrawn as counsel of record. Mr. Durio

represented MBI at trial. The trial court ruled against MBI. MBI filed a lawsuit

against Mr. Durio and Mr. Weinstein on March 16, 2004, claiming that it lost the

lawsuit due to the malpractice of its attorneys before trial began. Specifically, MBI

claims that both Mr. Durio and Mr. Weinstein failed to meet the trial court’s cutoff

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dates for amending the petition, adding parties, and conducting discovery. It also

claims that they failed to conduct adequate discovery. Another allegation by MBI is

that Mr. Durio lost a box of evidentiary materials and failed to seek a protective order

of such evidence. MBI additionally alleged that Mr. Weinstein withdrew from the

matter, indicating to the trial court that no trial date had been set, when he knew that

a date had been set.

In August 2009, Mr. Durio and Mr. Weinstein filed motions for summary

judgment. A hearing on the motions was held on September 28, 2009. The trial court

granted both motions for summary judgment, dismissing MBI’s claims against them.

MBI then filed the present appeal.

SUMMARY JUDGMENT

MBI argues that the trial court focused on only a portion of its claims against

its former attorneys and failed to consider all of the claims set forth in its petition.

MBI suggests that there are genuine issues of material fact which warrant a trial on

the merits.

Summary judgments are reviewed de novo on appeal, with the
reviewing court using the same criteria that govern the trial court’s
determination of whether summary judgment is appropriate; whether
there is any genuine issue of material fact, and whether the movant is
entitled to judgment as a matter of law. Power Marketing Direct, Inc.
v. Foster, 05-2023 (La.9/6/06), 938 So.2d 662, 669; Smith v. Our Lady
of the Lake Hosp., Inc., 93-2512 (La.7/5/94), 639 So.2d 730, 750.

A motion for summary judgment will be granted “if the pleadings,
depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to
material fact, and that mover is entitled to judgment as a matter of law.”
La.Code Civ. Proc. art. 966(B). This article was amended in 1996 to
provide that “summary judgment procedure is designed to secure the
just, speedy, and inexpensive determination of every action . . . The
procedure is favored and shall be construed to accomplish these ends.”
La.Code Civ. Proc. art. 966(A)(2).

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La. Safety Ass’n of Timbermen Self-Insurers Fund v. La. Ins. Guar. Ass’n, 09-23, p.

5 (La. 6/26/09), 17 So.3d 350, 353-54.

“Once the motion for summary judgment has been properly supported by the

moving party, the failure of the non-moving party to produce evidence of a material

factual dispute mandates the granting of the motion.” Id. at 354.

In order to establish a claim for legal malpractice, a plaintiff must prove that

(1) there was an attorney-client relationship; (2) the attorney was negligent in his

representation of the plaintiff; and (3) plaintiff sustained a loss as a result of the

attorney’s negligence. Costello v. Hardy, 03-1146 (La. 1/21/04), 864 So.2d 129;

Morgan v. Simon, 00-1556 (La.App. 3 Cir. 2/28/01), 780 So.2d 626.

In the lower court Mr. Durio and Mr. Weinstein argued several grounds that

they claim entitle them to summary judgment in this case. They first make several

arguments regarding MBI’s inability to establish the third prong of a legal

malpractice claim claiming that MBI cannot establish a loss as a result of any alleged

malpractice. Mr. Durio and Mr. Weinstein first argue that MBI is estopped from

asserting a legal malpractice claim against them because it failed to appeal the

decision of the trial court. Mr. Durio and Mr. Weinstein also argue that MBI cannot

prove a legal malpractice claim, because a legal malpractice claimant possesses no

greater rights against an attorney than are available in the underlying claim citing

Costello, 864 So.2d 129. Specifically, they argue that the trial court in the underlying

suit found that even if the noncompetition agreement applied, it did not cover East

Baton Rouge Parish, which is the parish that Hunter was doing business in resulting

in the lawsuit filed by MBI.

In opposition to these arguments, MBI claims that the acts of malpractice it

complains about occurred before trial and affected the outcome of the trial and that

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an appeal would have been futile. It argues that it should not be required to appeal

a case when it would be unreasonable, impractical, or disproportionately expensive

considering all of the circumstances, citing American Reliable Insurance Co. v.

Navratil, 445 F.3d 402 (5 Cir. 2006). MBI claims that the underlying case was viable

but for the negligent acts of Mr. Durio and Mr. Weinstein.

Necessity of Appeal

Equitable estoppel has been defined by this court as the barring of an action by

a complaining party against another party when the complaining party’s conduct

resulted in the other party justifiably relying on the complaining party’s conduct such

that he changed his position to his detriment based on such reliance. Roberson v.

Lafayette Oilman’s Sporting Clays Shoot Inc., 02-1275 (La.App. 3 Cir. 4/30/03), 845

So.2d 1267, writ denied, 03-1531 (La. 9/26/03), 854 So.2d 370.

In Murphy v. Gilsbar, Inc., 02-205 (La.App. 1 Cir. 12/31/02), 834 So.2d 669,

writ denied, 03-676 (La. 5/30/03), 845 So.2d 1057, the first circuit applied the

concept of equitable estoppel in ruling that a client could not bring a legal malpractice

claim against her attorney. The client claimed that her former attorney let her

discrimination claim prescribe. However, in an attempt to reinstate the claim, the

client refused to participate, indicating that she no longer had an interest in her

discrimination suit. Her inaction precluded revival of the action, so she waived her

right to proceed with her malpractice suit.

The fifth circuit also applied the doctrine of equitable estoppel in a legal

malpractice proceeding in Gross v. Pieno, 04-820, 04-821 (La.App. 5 Cir. 12/28/04),

892 So.2d 662, writ denied, 05-218 (La. 4/22/05), 899 So.2d 582. Clients had

brought a legal malpractice claim against their former attorney for failure to prosecute

civil claims which resulted in dismissal on the grounds of abandonment. The

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judgment of abandonment was set for hearing, but the clients entered into

negotiations with the defendants and entered into a settlement agreement which

terminated the litigation in the underlying suit. By settling the claim before the issue

of abandonment could be decided, the former clients prevented a determination of

whether the action had been abandoned.

In American Reliable Insurance Co., 445 F.3d 402, the fifth circuit held that

the settlement of an underlying case did not bar the client from bringing a legal

malpractice suit. The clients had proceeded all the way through a jury trial resulting

in a large jury award against them. The fifth circuit distinguished Gross, 892 So.2d

662, because the clients in that case had settled their claims before there was any

hearing on the abandonment issue, making it impossible for a court to determine if

the attorney had in fact caused harm to his clients. The fifth circuit explained that the

attorney’s entire performance could be evaluated from the record of the state trial

court proceedings in the case before it. The court reasoned that, while a client has a

duty to mitigate damages caused by its attorney’s malpractice, that duty cannot

require the client “to undertake measures that are unreasonable, impractical, or

disproportionately expensive considering all the circumstances.” American Reliable

Ins. Co., 445 F.3d at 406. We agree with the reasoning of the fifth circuit.

In Couture v. Guillory, 97-2796 (La.App. 4 Cir. 4/15/98), 713 So.2d 528, writ

denied, 98-1323 (La. 6/26/98), 719 So.2d 1287, the fourth circuit found that while a

client had compromised part of his claim for damages against the employer school

board, he still had the right to assert the claims that were not discharged. The fourth

circuit agreed that the client could still pursue malpractice claims against his attorneys

to establish that he would have been successful in a writ application to the supreme

court to be reinstated to his former position had the attorneys sought a writ.

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In the present case all claimed offenses took place before any appeal. A full

record of the underlying proceeding is available. If it is established there were acts

of malpractice, the attorneys can present evidence that had there been an appeal, they

would have been successful. This goes to the issue of mitigation of damages. While

part of their argument to this court is that an appeal would not be necessary because

the underlying claim had no merit, there remain questions of fact on this issue. MBI

claims that if the underlying case has no value, it is due to the malpractice of Mr.

Durio and Mr. Weinstein.

Underlying Litigation

A plaintiff can have no greater rights against attorneys for the negligent

handling of a claim than are available in the underlying claim. Costello, 864 So.2d

129.

The underlying case was a complicated commercial litigation case involving

questions of breach of a noncompetition agreement, alleged violations of the

Louisiana Unfair Trade Practices Act and the Louisiana Trade Secrets Act,

conversion of property. Issues involved whether the noncompetition agreements were

even enforceable by MBI since they were signed by Mr. Lavergne and Mr. Massey

when Moon Ventures was doing business as Nautica. Furthermore, it is clear that

East Baton Rouge Parish, the major parish where Hunter competed with MBI for

Exxon’s business, was not included in the noncompetition agreement. Reading Fred

Gossen’s deposition, the current president and CEO of MBI, it appears that there was

some question of whether Hunter had competed in Calcasieu Parish with MBI.

Calcasieu Parish had been included in the noncompetition agreement. The trial court

also found that no trade secrets existed and if they did, MBI failed to carry its burden

establishing the trade secrets and whether they were violated. Once again, Mr.

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Gossen discussed what he considered trade secrets and his opinion that his attorneys

failed to put on proper evidence concerning these issues. Part of MBI’s allegation is

that Mr. Durio lost a box of evidence which would have established a violation of

trade secret agreements. Included in these allegations is the assertion that the

attorneys failed to meet deadlines to add parties who MBI alleged had violated

agreements and used MBI’s research for the benefit of Hunter.

We find that there is a question of fact as to whether the underlying litigation

had merit. The issue remains to be determined is whether it was the negligent

handling by the attorneys that caused MBI’s loss in the trial court.

Expert Testimony

Mr. Durio and Mr. Weinstein further claim that, regardless of what issues may

be out there, MBI cannot establish its claim for legal malpractice because it has

offered no expert testimony that they breached the standard of care in handling the

case.

An attorney’s paramount duty to his client is a greater duty of trust than in any

other agency relationship. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La.

2/1/08), 974 So.2d 1266. The standard of care an attorney must exercise in

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

practicing attorneys in his locality. Id.

Expert testimony is certainly admissible to establish the standard
of care based on practices of attorneys in the community. In certain
cases the opinions of experts may be essential to prove the standard of
care an attorney must meet. In many cases, however, 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. There may also be cases in which the
failure of the practitioner to use due care under any reasonable standard
of conduct may be so obvious as to make expert testimony unnecessary.

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Watkins v. Sheppard, 278 So.2d 890, 892 (La.App. 1 Cir. 1973); Frisard v. State

Farm Fire and Cas. Co., 06-2353 (La.App. 1 Cir. 11/2/07), 979 So.2d 494.

The allegations against Mr. Durio and Mr. Weinstein include the claim that

both of them failed to meet the trial court’s cutoff dates for amending the petition,

adding parties, and conducting discovery. MBI further claims that both attorneys

failed to conduct adequate discovery. MBI has also alleged that Mr. Durio lost a box

of evidentiary material that affected the prosecution of the case. There is also an

allegation that Mr. Weinstein withdrew from the matter after a trial date had been set

and informing the court that no trial date had been set.

While the underlying case involved complicated issues, the allegations against

Mr. Durio and Mr. Weinstein are not so complicated as to require expert testimony.

While the facts are contested, whether these alleged acts of malpractice were

negligent and whether they caused damage to MBI can be litigated without the aid of

expert testimony. Frisard, 979 So.2d 494.

For the reasons set forth in this opinion, the judgment of the trial court,

granting summary judgment in favor of Steven Durio; Steve G. Durio, P.C.; Durio,

McGoffin, Stagg & Ackermann; Continental Casualty Company; John Haas

Weinstein; John Haas Weinstein, APLC; and Continental Casualty Company LLC,

and dismissing MB Industries’ claims against them, is reversed. This matter is

remanded to the trial court for further proceedings. All costs of this appeal are

assessed equally between the Durio parties and the Weinstein parties.

REVERSED AND REMANDED.

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