Bcm, L.L.C. v. Roy Clifton Cheatwood

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

12-411

BCM, L.L.C., ET AL.

VERSUS

ROY CLIFTON CHEATWOOD, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-2009-2807
HONORABLE KRISTIAN DENNIS EARLES, DISTRICT JUDGE

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ELIZABETH A. PICKETT
JUDGE

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Court composed of John D. Saunders, Elizabeth A. Pickett, and James T. Genovese,
Judges.

AFFIRMED.

Scott Webre
Scott Webre, APLC
102 Versailles Boulevard, Suite 310
Lafayette, LA 70501
(337) 237-5051
COUNSEL FOR PLAINTIFFS-APPELLANTS:
BCM, L.L.C.
Nawlins Kajun Foods, L.L.C.

Lawrence P. Simon, Jr.
Joseph C. Giglio, Jr.
Renee Z. Berard
Liskow & Lewis
P. O. Box 52008
Lafayette, LA 70505-2008
(337) 232-7424
COUNSEL FOR DEFENDANTS-APPELLEES:
Roy C. Cheatwood
Nancy Scott Degan
Baker, Donelson, Bearman, Caldwell& Berkowitz,
A Professional Corporation

Richard C. Stanley
William M. Ross
Stanley, Reuter, Ross,
Thornton & Alford, LLC
909 Poydras Street, Suite 2500
New Orleans, LA 70112
(504) 523-1580
COUNSEL FOR DEFENDANTS-APPELLEES:
Roy C. Cheatwood
Nancy Scott Degan
Baker, Donelson, Bearman, Caldwell & Berkowitz,
A Professional Corporation

PICKETT, Judge.

Plaintiffs appeal the trial court‟s grant of summary judgment dismissing

their claims for legal malpractice. We affirm.

FACTS

BCM, L.L.C. (“BCM”) and Nawlins Kajun Foods, L.L.C. (“Nawlins”)

appeal the dismissal of their legal malpractice claims against their former

attorneys, Roy Cheatwood, Nancy Degan, and Baker, Donelson, Bearman,

Caldwell & Berkowtiz, A Professional Law Corporation, and their attorneys‟

insurer. The defendants were engaged by the plaintiffs as counsel in prior

litigation captioned Walter A. Glod, Jr., MD vs. W. Gregory Baker, Docket No. 97-

5864 in the Fifteenth Judicial District Court for the Parish of Lafayette (“Glod”).

In Glod, BCM and Nawlins were among the plaintiffs who sued Copeland‟s

of New Orleans (“Copeland‟s”) and its principals, including Al Copeland and

William Copeland, for damages totaling over $14 million dollars based upon the

termination of two Copeland‟s restaurant franchises. BCM and Nawlins claimed

they relied to their detriment on the actions and inactions of Copeland‟s and its

principals in investing significant sums of money to open and continue operating

the restaurants. They also claimed Copeland‟s and its principals approved, by their

conduct, acceptance, and silence over the years, actions of the franchisees that

were later cited as grounds to terminate the franchise agreements. Lastly, the

plaintiffs claimed Copeland‟s and its principals had taken and used their property

without consent to continue operating the restaurants after the franchises were

terminated.

In early December 2006, a jury trial was conducted on BCM and Nawlins‟

claims for detrimental reliance and conversion. At the conclusion of the trial, the

trial court instructed the jury on detrimental reliance, in pertinent part:

The first thing you have to know about is the theory of detrimental
reliance. To prove detrimental reliance under the law, a party must
show by a preponderance of the evidence, or the weight of the
evidence more probably than not, three things: one, that a
representation exists by conduct or word; two, that there‟s justifiable
reliance; three, that there is a change in position to one‟s detriment
because of that reliance.

Now, the reliance of a party on another may also be based on
silence or inaction; but, in those cases, the party claiming detrimental
reliance cannot avail himself of the silence or inaction of the other
party if he had actual knowledge or a ready and convenient means of
learning the true facts circumstance, or understanding of the parties
but failed to do so.

After deliberations began, the jury sent a request to the trial court, seeking

clarification of the definition of detrimental reliance in “layman terms,” including

“1) representation by conduct or word; 2) justifiable reliance[;] and 3) a change in

position to one‟s detriment because of the reliance.”

After discussion with counsel, the trial court issued this supplemental

instruction (emphasis added):

Under the detrimental reliance doctrine in Louisiana law, a
party is permitted to recover for economic harm whenever the
defendant made a representation by word or conduct upon which the
plaintiff justifiably relied and because of which the plaintiff changed
his position to his detriment. This is because the basis of the
detrimental reliance doctrine is designed to prevent injustice by
barring or stopping a party from taking a position contrary to his prior
acts, admissions, representations, or silence.

Okay. The law states that, when silence is asserted as grounds
for detrimental reliance, a duty to speak must exist. For such a duty to
speak to exist, there must be proof that: one, the defendant had the
opportunity to speak or act; two, the defendants had full knowledge of
the facts, circumstances, and understandings between the parties;
three, the defendant intended to mislead or at least had a willingness
that the plaintiff be deceived; four, the plaintiff must have been

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ignorant of and without convenient or ready means of learning the
true facts, circumstances, and understandings of the parties; and, five,
the plaintiff must have been misled into doing what he would not have
done except for the silence of the defendant.

The defendants did not object to the original or the supplemental instructions, and

the first paragraph of the trial court‟s supplemental instruction was actually

included in BCM and Nawlins‟ proposed jury instructions.

After the supplemental instruction was given, the jury returned to

deliberations and thereafter returned a verdict denying BCM and Nawlins‟ claims

for detrimental reliance but awarding them damages on their conversion claims.

The defendants filed a motion for judgment notwithstanding the verdict and in the

alternative, for new trial. In their motion, the defendants urged the use of the term

“party” to refer to “the defendant” in one sentence of the supplemental instruction

and then to refer “the plaintiff” in the following sentence confused the jury such

that BCM and Nawlins were entitled to a new trial. The trial court denied the

motion, and this court refused to consider their assignment of error pertaining to

this instruction because the defendants did not object to the portion of the

supplemental jury instruction that is the basis of this appeal. Glod v. Baker, 08-355

(La.App. 3 Cir. 11/19/08), 998 So.2d 308, writ denied, 08-2937 (La. 2/20/09), 1

So.3d 497.

BCM and Nawlins filed this suit, claiming the defendants committed

malpractice in Glod. They argue (1) the jury instructions on detrimental reliance in

Glod were incorrect and/or confused or misled the jury such that the jury could not

render a fair and informed verdict on the evidence and (2) the defendants‟ failure

to object to the instructions constituted legal malpractice. The defendants

answered the suit and filed a counterclaim against BCM and Nawlins, seeking

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payment of the legal fees BCM and Nawlins incurred in Glod. The defendants

then filed a motion for partial summary judgment, asserting the jury instructions

were legally correct and, therefore, not confusing or misleading. BCM and

Nawlins filed a cross motion for summary judgment, urging the instructions were

incorrect and/or confused or mislead the jury. The trial court granted summary

judgment in favor of the defendants and dismissed BCM and Nawlins‟ claims

against them; it denied BCM and Nawlins‟ motion for summary judgment. The

trial court certified the judgment dismissing BCM and Nawlins‟ claims as final;

they appealed.1

ASSIGNMENTS OF ERROR

BCM and Nawlins‟ assign three errors. Pursuant to their assignments of

errors, we must decide whether the trial court erred in (1) holding the jury

instructions on detrimental reliance, which by the defendants‟ own admission

confused the jury, were legally correct and did not require the defendants to object

and (2) granting summary judgment in favor of the defendants.

DISCUSSION

Summary Judgment

Appellate courts review summary judgments de novo, using the same

criteria applied by the trial courts to determine whether summary judgment is

appropriate. Greemon v. City of Bossier City, 10-2828, 11-39 (La. 7/1/11), 65

So.3d 1263. A motion for summary judgment will be granted “if the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

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Before the hearing on the parties‟ motions for summary judgment was held, the parties
resolved their fee dispute; BCM and Nawlins reserved their rights regarding their malpractice
claims against the defendants.

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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.P. art. 966(B).

The initial burden of proof is on the movant to show that no genuine issue of

material fact exists. La.Code Civ.P. art. 966(C)(2). Unless the mover will bear the

burden of proof at trial, he need not negate all essential elements of the adverse

party‟s claim, but he must point out that there is an absence of factual support for

one or more elements essential to the claim. Id. Once the movant has met his

initial burden of proof, the burden shifts to the adverse party “to produce factual

support sufficient to establish that he will be able to satisfy his evidentiary burden

at trial.” Id.

Legal Malpractice

BCM and Nawlins claim the defendants committed legal malpractice when

they failed to object to the trial court‟s jury instructions on detrimental reliance.

To prove their claim, BCM and Nawlins had to produce “evidence sufficient to

convince a reasonable trier of fact of (1) the existence of an attorney-client

relationship; (2) negligent representation by the attorney; and (3) loss caused by

that negligence” and had to prove the defendants “failed to „exercise at least that

degree of care, skill, and diligence which is exercised by prudent practicing

attorneys in [their] locality.‟” MB Indus., LLC v. CNA Ins. Co., 11-303, 11-304, p.

15 (La. 10/25/11), 74 So.3d 1173, 1184 (quoting Ramp v. St. Paul Fire & Marine

Ins. Co., 263 La. 774, 786, 269 So.2d 239, 244 (1972)).

BCM and Nawlins argue (1) the trial court‟s jury instructions on detrimental

reliance were incorrect and/or confused or misled the jury and (2) the defendants‟

failure to object to the instructions constitutes legal malpractice. In Adams v.

Rhodia, Inc., 07-2110, pp. 5-8 (La. 5/21/08), 983 So.2d 798, 804-05 (citations

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omitted), the supreme court discussed the law and principles applicable to a trial

court‟s responsibility when instructing a jury and the responsibility of appellate

courts when reviewing those instructions, stating:

Louisiana Code of Civil Procedure article 1792(B) requires the
trial court to instruct jurors on the law applicable to the cause
submitted to them. The trial court is responsible for reducing the
possibility of confusing the jury and may exercise the right to decide
what law is applicable and what law the trial court deems
inappropriate.

Adequate jury instructions are those which fairly and
reasonably point out the issues and which provide correct principles of
law for the jury to apply to those issues. The trial judge is under no
obligation to give any specific jury instructions that may be submitted
by either party; the judge must, however, correctly charge the jury. If
the trial court omits an applicable, essential legal principle, its
instruction does not adequately set forth the issues to be decided by
the jury and may constitute reversible error.

Correlative to the judge‟s duty to charge the jury as to the law
applicable in a case is a responsibility to require that the jury receives
only the correct law.

. . . Trial courts are given broad discretion in formulating jury
instructions[,] and a trial court judgment should not be reversed so
long as the charge correctly states the substance of the law. . . .

. . . [W]hen a jury is erroneously instructed and the error
probably contributed to the verdict, an appellate court must set aside
the verdict. In the assessment of an alleged erroneous jury instruction,
it is the duty of the reviewing court to assess such impropriety in light
of the entire jury charge to determine if the charges adequately
provide the correct principles of law as applied to the issues framed in
the pleadings and the evidence and whether the charges adequately
guided the jury in its deliberation. Ultimately, the determinative
question is whether the jury instructions misled the jury to the extent
that it was prevented from dispensing justice.

Determining whether an erroneous jury instruction has been
given requires a comparison of the degree of error with the jury
instructions as a whole and the circumstances of the case. Because
the adequacy of [a] jury instruction must be determined in the light of
jury instructions as a whole, when small portions of the instructions
are isolated from the context and are erroneous, error is not
necessarily prejudicial. Furthermore, the manifest error standard for
appellate review may not be ignored unless the jury charges were so

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incorrect or so inadequate as to preclude the jury from reaching a
verdict based on the law and facts. Thus, on appellate review of a jury
trial the mere discovery of an error in the judge‟s instructions does not
of itself justify the appellate court conducting the equivalent of a trial
de novo, without first measuring the gravity or degree of error and
considering the instructions as a whole and the circumstances of the
case.

The supreme court‟s explanation indicates jury instructions are not reviewed to

determine whether they confused or misled the jury unless they are erroneous. See

also Wooley v. Lucksinger, 09-571, 09-584, 09-585, 09-586 (La. 4/1/11), 61 So.3d

507; Brewer v. J.B. Hunt Transport, Inc., 09-1408, 09-1428 (La. 3/16/10), 35

So.3d 230; Nicholas v. Allstate Ins. Co., 99-2522 (La. 8/31/00), 765 So.2d 1017.

The doctrine of detrimental reliance is codified in La.Civ.Code art. 1967

which provides, in pertinent part:

A party may be obligated by a promise when he knew or should
have known that the promise would induce the other party to rely on it
to his detriment and the other party was reasonable in so relying.
Recovery may be limited to the expenses incurred or the damages
suffered as a result of the promisee‟s reliance on the promise.
Reliance on a gratuitous promise made without required formalities is
not reasonable.
In its initial instruction, the trial court set out the basic legal elements of

detrimental reliance but did not quote La.Civ.Code art. 1967. The trial court

sought to clarify its initial instruction by further addressing the doctrine as the

fourth circuit had in its discussion of the doctrine in Babkow v. Morris Bart,

P.L.C., 98-256 (La.App. 4 Cir. 12/16/98), 726 So.2d 423. In Babkow, the fourth

circuit combined the manner in which two different sources addressed the doctrine.

It first stated how the doctrine works, allowing a plaintiff to recover when it

justifiably relied on another to its detriment, then stated the purpose of the doctrine,

preventing injustice. Both statements are correct.

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We have reviewed the entirety of the trial court‟s initial and supplemental

jury instructions and find the instructions correctly stated the law on detrimental

reliance. The instructions did not quote Article 1967 or set forth the purpose of the

doctrine as the courts did in Suire v. Lafayette City-Parish Consolidated

Government, 04-1459, 04-1460, 04-1466 (La. 4/12/05), 907 So.2d 37; Dugas v.

Guillory, 97-398 (La.App. 3 Cir. 10/7/98), 719 So.2d 719, writ denied, 95-2281

(La. 11/27/95), 663 So.2d. 728, and as BCM and Nawlins contend they should

have. The instructions did, however, set out the correct principles of law

applicable to the facts of this case.

BCM and Nawlins cite cases in which they claim courts determined a

confusing or misleading instruction that is legally correct can serve as the basis for

overturning a jury verdict as support for their position. They fashion their

argument around select sentences or phrases in the courts‟ discussions of jury

instructions. None of the cited cases support their arguments. See, e.g., Wooley,

61 So.3d 507; Jones v. St. Francis Cabrini Hosp., 94-2217 (La. 4/10/95), 652

So.2d 1331; Evangeline Farmers Coop. v. Fontenot, 565 So.2d 1040 (La.App. 3

Cir. 1990); Miller v. Fogleman Truck Lines, Inc., 398 So.2d 634 (La.App. 3 Cir.),

writ denied, 401 So.2d 358 (La.1981); Phillips v. Skate Country E., 420 So.2d 730

(La.App. 4 Cir.), writ denied, 423 So.2d 1162 (La.1982).

Review of Jones and Phillips reveals the error of BCM and Nawlins‟ claims.

In Jones, 652 So.2d 1331, a medical malpractice case, the trial court correctly

instructed the jury it did not have to make a finding as to the defendant hospital‟s

liability because the hospital had admitted liability. It also instructed that the

plaintiff, who sought damages for a hip separation and rectal perforation, had “to

demonstrate what damages by kind and by seriousness” were caused by the

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defendant‟s negligence. Id. at 1334. In closing arguments, however, the defendant

argued it did not admit liability for both injuries the plaintiff claimed to have

suffered as a result of the negligence. The supreme court held:

Although the trial court‟s jury instruction, when taken as a whole, was
not an erroneous statement of the law, certain language used in the
instruction, especially if viewed in light of the PCF‟s closing
argument, had the potential to mislead the jury. The combination of
these facts with the jury’s internally inconsistent jury verdict leads to
the conclusion that no weight should be accorded to the jury verdict.

Id. at 1335 (emphasis added). The defendant‟s misrepresentation of the facts in its

closing argument, not the jury instructions, created the reversible error.

In Phillips, 420 So.2d 730, the trial court correctly set forth the principles of

assumption of the risk; however, it failed to instruct the jury that a “skate at your

own risk” sign posted at the rink did not relieve the skate rink owner of his

negligence. The fourth circuit determined this failure “constituted an omission of

an essential legal principle” that misled the jury and concluded the jury‟s verdict

was subject to reversal, but only if it was clearly wrong under the facts of the case.

Id. at 733.

The trial court‟s initial and supplemental instructions on detrimental reliance

were legally correct and correct under the facts of the case. Accordingly, the

instructions were adequate. Moreover, when considered in the context of the

instructions as a whole, the complained of sentences make sense and are not

confusing. As is often the case in hindsight view, the instructions might have been

better constructed; however, they were neither incorrect nor confusing. The trial

court correctly granted of summary judgment in favor of the defendants.

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Motion to Strike

We have reviewed BCM and Nawlins‟ motion to strike the defendants‟ reply

brief and agree with the defendants‟ that no basis exists for the brief to be stricken.

As in all litigation, the defendants, as well as BCM and Nawlins, have recited

and/or interpreted the facts as viewed from their position. This court has

independently reviewed the facts and considered the facts and the law as to all

issues presented. We are well aware that litigation often results in contention

among the parties and zealous representation by attorneys of their clients and have

reviewed the motion from this perspective. We find no representations that

warrant sanctions.

DISPOSTION

The judgment of the trial court granting summary judgment in favor of the

defendants and dismissing BCM and Nawlins‟ claims against them is affirmed.

BCM and Nawlins‟ motion to strike is denied. All costs of this appeal are assessed

to BCM, L.L.C. and Nawlins Kajun Foods, L.L.C.

AFFIRMED.

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