Jonathan Stelly v. Morrow, Morrow, Ryan, and Bassett

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

10-1353

JONATHAN STELLY

VERSUS

MORROW, MORROW, RYAN & BASSET, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2009-1715-A
HONORABLE JOHN D. TRAHAN, DISTRICT JUDGE
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SYLVIA R. COOKS
JUDGE

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Court composed of Sylvia R. Cooks, Jimmie C. Peters and Marc T. Amy, Judges.

AFFIRMED.

Maurice Le Gardeur
Le Gardeur Ltd.
222 N. Massachusetts St.
Covington, LA 70433
(985) 892-1420
COUNSEL FOR PLAINTIFF/APPELLANT:
Jonathan Stelly

Adam S. Lambert
517 Huntlee Dr.
New Orleans, LA 70131-5221
(504) 433-0289
COUNSEL FOR PLAINTIFF/APPELLANT:
Jonathan Stelly

James H. Gibson
Allen & Gooch
2000 Kaliste Saloom Rd., Suite 400
P.O. Drawer 3768
Lafayette, LA 70502-3768
(337) 291-1300
COUNSEL FOR DEFENDANTS/APPELLEES:
Morrow, Morrow, Ryan & Basset, et al.

COOKS, Judge.

This case arose from the treatment of Jonathan Stelly by Dr. Mehmood Patel,

a cardiologist who worked and performed surgeries at Lafayette General Hospital.

Dr. Patel began treating Jonathan when he was a young child and placed him on

Tenormin, a high blood pressure medication. In 2002, when Jonathan was twenty-

four (24) years old, Dr. Patel performed an angiogram allegedly because he detected

a low heart rate. Dr. Patel then informed Jonathan he would require insertion of a

permanent pacemaker. The pacemaker was installed by Dr. Patel in January, 2003.

Subsequent visits with other cardiologists called into question the necessity of

the pacemaker implanted in Jonathan. It was eventually determined he did not need

it, and it was turned off. Jonathan, a professional baseball player, alleged the

installation of the unnecessary pacemaker ended his baseball career and may keep

him from pursuing his chosen second profession in the United States Navy. A

medical malpractice suit was filed on his behalf against Dr. Patel.

Defendants represented Jonathan along with many other plaintiff patients of

Dr. Patel. Subsequent to his treatment of Jonathan, Dr. Patel was convicted of

performing numerous unnecessary cardiologic procedures and billing Medicare and

Medicaid. He was sentenced to ten years in prison for the offenses. Eventually a

class action settlement was approved by the District Court of Lafayette. Notice was

sent to Jonathan regarding the terms of the Class Action Settlement, along with the

following letter, which read in part:

The criminal trial of Dr. Patel is scheduled for August 28, 2008. If we
do not accept this settlement and Dr. Patel is convicted, then his
insurance company will pay nothing since the policy does not apply to
intentional acts of wrongdoing. For this reason, we do not think we will
be able to recover anything from Dr. Patel other than the available
insurance policy.

According to Jonathan, after reading this letter, he felt compelled to accept what he

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believed to be his only viable avenue for relief. He completed the forms to participate

in the class settlement.

Defendants then retained a medical doctor, Dr. Harris Lappin, to review the

individual medical claims of the class members to place them in tiers for settlement

purposes. According to Jonathan, Dr. Lappin was not provided with sufficient

information to evaluate his condition properly, which Dr. Lappin acknowledged in

an e-mail sent to defendants. However, rather than waiting for additional

information, Dr. Lappin decided to “write a report for the inappropriate

catheterization and invasive studies– just not for the pacemaker.” Consequently,

Jonathan was placed in the lowest tier of plaintiffs, and received only a small part of

what he contends he was entitled.

At the request of defendants, Jonathan and his undersigned counsel signed a

stipulation which allowed the settlement to move forward, but reserve Jonathan’s

right to move forward with the case against his former attorneys. The stipulation

specifically provided that in return for allowing the class to be settled by removing

his objection, Jonathan’s waiver would not be used as a defense, bar, estoppel, etc.

to the claim for damages for the amount of the allocation.1

Defendants filed a motion for summary judgment on several grounds: (1) there

is no evidence to support a finding of medical malpractice on Dr. Patel’s part; (2)

Jonathan’s participation in the class action settlement process estopps him from

pursing this action against Defendants; and (3) Jonathan did not have his legal

position impaired by any actions/inactions of Defendants. Jonathan was granted a

1
The stipulation provided as follows:

The undersigned stipulate that the waiver by Jonathan Stelly of his objection to his
class action allocation in the matter, Barbara Pellerin, et al. v. LAMMICO, et al.,
Docket No. C-20084712, 15th Judicial District Court, will not be used as a bar,
defense, estoppel, or in mitigation of Mr. Stelly’s claim for damages herein for the
amount of said allocation.

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Motion to Continue, over Defendants’ objection, in order to have more time to obtain

an expert medical opinion.2

On June 28, 2010, the hearing on the motion for summary judgment was held.

The trial court granted the motion, finding that Jonathan was in the same legal

position before and after his discharge of Defendants as counsels and, therefore, there

was no legal malpractice committed. The trial court specifically stated that at the

moment Jonathan discharged his previous counsel and hired his current counsel, his

claim had not been finally determined. Thus, at that time Jonathan had the right to

fully pursue his medical malpractice claim and “malpractice didn’t exist at the time

of [Defendants’] discharge.”

Jonathan appealed the trial court’s ruling, asserting the following assignments

of error:

1. The lower court committed an error of law when it granted
summary judgment to the defendants-appellees, despite the existence of
a valid countervailing affidavit from a licensed and recognized expert
witness filed on behalf of the plaintiff-appellant.

2. The lower court committed errors of law when it failed to apply the
correct legal standard of care for medical practitioners and failed to
apply the correct definition of the medical term “contraindicated” as a
“harmful” action falling below the recognized standard of care for
medical practitioners.

3. The lower court committed an error of law when it prematurely
considered summary judgment when no opportunity for discovery
whatsoever had been given to plaintiff.

4. The lower court committed an error of law when it accepted the
defendants-appellees’ brief and oral argument based upon an
unpublished opinion and considered that unpublished opinion as
precedent in deciding the case sub judice.

2
Defendants filed for writs to this court, which were denied. Writs were then sought to the
Louisiana Supreme Court, which have been stayed, pending the outcome of this appeal.

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ANALYSIS

At the summary judgment hearing, the trial court elucidated his reasons for

granting Defendants’ motion for summary judgment:

THE COURT: Here’s my problem with your interpretation of
the stipulation. To me – To me the question of whether or not Mr. Ryan
committed malpractice, the facts that dictate that decision – whether or
not he committed malpractice in his representation of Mr. Stelly, the
facts that dictate that conclusion have to have existed while he was his
lawyer.
In other words, after he discharged Mr. Ryan the question that I
have to – or the fact-finder would have to decide in this case is did Ryan
commit malpractice. Well, at that moment when he was discharged his
claim had not been finally determined. He hired you. He had the right
to pursue the claim. And who knows what would have come of it. But
I don’t think I can go past that moment in time to determine whether or
not Mr. Ryan committed malpractice.

....

But [the stipulation] can’t bootstrap your client into a malpractice case
when malpractice didn’t exist at the time of Ryan’s discharge.

....

I’m going to grant the motion.

The record reveals the trial court specifically found that at the time Jonathan

discharged Defendants as his attorneys, his claim had not yet been fully determined,

and, when he hired his current counsel, he still had the right to pursue his claim in the

matter, i.e., challenge his allocation in the class. Thus, the trial court held no legal

malpractice existed at the time of discharge since Jonathan still had all of his rights

available in the underlying medical malpractice claim and his legal position was

unchanged. In none of Jonathan’s listed assignments of error, nor in the entirety of

his appellate brief, does he discuss the trial court’s stated reasons for its decision.

Instead, he chooses to reprise issues which were argued below, but did not form any

part of the trial court’s basis for judgment. Despite this, in the interests of justice we

will address the propriety of the trial court’s grant of summary judgment.

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In order to state a claim for legal malpractice, a plaintiff must allege (1) there

was an attorney-client relationship, (2) the attorney was negligent in the

representation of the client, and (3) the negligence caused the plaintiff some loss.

Jenkins v. St. Paul Fire and Marine Ins. Co., 422 So.2d 1109 (La.1982); Dinger v.

Shea, 96-448 (La.App. 3 Cir. 12/11/96), 685 So.2d 485. Plaintiff has the burden of

proving the existence of damages and the causal connection between them and the

negligent act by a preponderance of the evidence.

The Louisiana Supreme Court in Costello v. Hardy, 03-1146 (La. 1/21/03), 864

So.2d 129, held that summary judgment is proper as to the third element of a

plaintiff’s legal malpractice claim, i.e., the “absence of factual support for an essential

element of plaintiff’s claim: loss or damages. The supreme court found the plaintiff

in Costello would be unable to prove any loss as a result of any alleged legal

malpractice. The trial court reached the same conclusion in the present case and

granted summary judgment in favor of Defendants.

The cases have consistently held that when an attorney’s client is in the same

legal position before and after the attorney is removed from the representation, there

can be no legal malpractice. In Oyefodun v. Spears, 95-1472 (La.App. 4 Cir.

2/15/96), 669 So.2d 1261, writ denied, 96-669 (La. 4/26/96), 672 So.2d 672, the court

found the plaintiff’s claim was still viable for almost one year after the defendant

attorney was discharged. Therefore, the court held plaintiff’s legal rights were

unchanged as a result of the defendant attorney’s acts/omissions and affirmed the

grant of summary judgment dismissing the legal malpractice claim.

In Dark v. Marshall, 41,711 (La.App. 2 Cir. 12/13/06), 945 So.2d 246, the

court therein considered whether legal malpractice occurred when a claim allegedly

filed late by the defendant attorney was still viable when the defendant attorney

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withdrew from representation. The court found the claim at issue had not prescribed

before the defendant attorney withdrew; thus, there was no loss caused by the alleged

negligence because the claim could still be filed after the withdrawal.

See also Hudspeth v. Smith, 42,647 (La.App. 2 Cir. 11/7/07), 969 So.2d 793,

wherein summary judgment was affirmed dismissing a legal malpractice claim on the

basis the plaintiff failed to show how the complained of acts resulted in any loss to

her; and Hartz v. Farrugia, 2009 WL 901767 (E.D. La. 2009), where the federal court

relied on Oyefodun for the proposition that the defendants were not liable for loss of

a claim that remained viable after the date the representation ended.

The trial court correctly found no legal malpractice existed at the time of

Defendants’ discharge as attorneys of record since Jonathan still possessed all of his

rights in the underlying medical malpractice action and his legal position was

unchanged.

The language in the stipulation relied upon by Jonathan’s counsel is not

sufficient to bar admission of the evidence regarding Jonathan’s available option to

protect his right to a larger portion of the settlement funds by seeking a tier

reclassification. The stipulation simply says the “waiver” could not be used. The

stipulation was not broad enough to include any reference to the class action

proceedings except perhaps Jonathan’s erroneous placement in tier 3.

DECREE

For the foregoing reasons, the judgment of the trial court is affirmed. All costs

of this appeal are assessed to Plaintiff-Appellant.

AFFIRMED.

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