Paula Fortenberry v. Continental Casualty Company

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-418

PAULA FORTENBERRY

VERSUS

CONTINENTAL CASUALTY COMPANY, ET AL.

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2005-560
HONORABLE RONALD F. WARE, DISTRICT JUDGE

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ULYSSES GENE THIBODEAUX
CHIEF JUDGE

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Court composed of Ulysses Gene Thibodeaux, Chief Judge, John D. Saunders, and
David Kent Savoie, Judges.

REVERSED AND REMANDED.

Roger G. Burgess
Kilburn S. Landry
Baggett, McCall, Burgess, Watson & Gaughan, LLC
3006 Country Club Road
Lake Charles, LA 70605
Telephone: (337) 478-8888
COUNSEL FOR:
Plaintiff/Appellee - Paula Fortenberry

Emmett Cary Sole
Henry Alan McCall
Stockwell, Sievert, Viccellio, Clements & Shaddock, L.L.P.
P. O. Box 2900
Lake Charles, LA 70602
Telephone: (337) 436-9491
COUNSEL FOR:
Defendants/Appellants - Edward Kelly Bauman and Continental
Casualty Company

THIBODEAUX, Chief Judge.

Edward Bauman and his legal malpractice insurer, Continental

Casualty Company (Continental), appeal the trial court’s granting of partial

summary judgments to the plaintiff, Paula Fortenberry, on the issue of liability

alone. Finding that material issues of fact preclude summary judgment, we reverse

the judgments of the trial court and remand the case for further proceedings

consistent with this opinion.

I.

ISSUE

We must decide whether the trial court erred in granting the plaintiff’s

motions for partial summary judgment on liability alone against the defendant

attorney and his insurer.

II.

FACTS AND PROCEDURAL HISTORY

Paula Fortenberry’s vehicle was struck while stopped on the I-10

bridge in Lake Charles, Louisiana, on February 1, 2003. She contacted attorney Ed

Bauman to represent her in a property damage and personal injury suit against the

driver of the offending vehicle, Sammie Ruiz, and the owner of the vehicle,

passenger Susan Strong, both of whom were Texas residents. On February 7,

2003, Strong’s insurer, USAA Liability Insurance Company (USAA), paid for the

minimal property damage to Fortenberry’s vehicle. Mr. Bauman filed suit for Ms.

Fortenberry in Lake Charles on February 6, 2004. USAA refused to settle the

personal injury suit in Louisiana on the basis of prescription, though Mr. Bauman

argued that prescription had been interrupted by USAA’s payment of the property

damage on February 7, 2003. Mr. Bauman continued to negotiate with USAA on

Ms. Fortenberry’s behalf, citing Texas law favoring a timely suit in Texas, where

the statute of limitation for personal injury is two years instead of one year. Mr.

Bauman also attempted to locate a Texas attorney for Ms. Fortenberry. In the

meantime, he suggested that she seek advice of other counsel.

In July 2004, Ms. Fortenberry contacted attorney Stephen Durio of

Lafayette, who advised her to pursue her personal injury claim in Texas through a

Texas attorney, as Mr. Bauman now had a conflict issue regarding the potential

malpractice claim. Mr. Durio further advised Ms. Fortenberry that, given the

uncertainty of whether she would ultimately be damaged by Mr. Bauman’s error,

he would not recommend a malpractice suit against Mr. Bauman at that time. Mr.

Durio gave Ms. Fortenberry his suggested deadline in case she decided to pursue a

malpractice claim against Mr. Bauman through another attorney. In August 2004,

Mr. Bauman wrote Ms. Fortenberry advising her of her rights to sue him in

malpractice or to directly contact Continental, his malpractice carrier. He also

informed her that he was withdrawing as counsel in the Louisiana suit. Ms.

Fortenberry did not pursue the personal injury claim in Texas.

In February 2005, Ms. Fortenberry filed a direct action lawsuit against

Continental for all damages, including severe bodily injuries and psychological

injuries, arising from the failure of attorney “John Doe” to file pleadings in a

timely fashion.

Four years and nine months later, in November 2009, she filed a

motion for partial summary judgment against Continental, which was heard and

granted in 2010, though it was not designated as final by the trial court.

2

Subsequently, in September 2010, Ms. Fortenberry filed a

supplemental petition naming Mr. Bauman as the (John Doe) defendant attorney in

her lawsuit against Continental.

In October 2013, Ms. Fortenberry filed this motion for partial

summary judgment against Mr. Bauman, which was heard and granted in 2014. At

that time, by agreement, both partial summary judgments were certified as final by

the trial court. Mr. Bauman and Continental appealed the judgments against them.

We dismissed their appeal due to the defects in both judgments for lack of decretal

language showing the relief granted. Because of the lack of finality bestowing

jurisdiction on this court, we remanded the matter to the trial court for further

proceedings. See Fortenberry v. Continental Cas. Co., 14-953 (La.App. 3 Cir.

10/15/14), __So.3d __ (unpublished opinion). On remand, the trial court amended

both judgments, stating that each was a partial summary judgment granted in favor

of the plaintiff “as to liability only” against each respective defendant, Mr. Bauman

and Continental, and certifying each judgment as final according to La.Civ.Code

art. 1915(B)(1). For the reasons that follow, we reverse both summary judgments

granted in this legal malpractice case.

III.

STANDARD OF REVIEW

The grant or denial of a motion for summary judgment is reviewed de

novo, “using the same criteria that govern the trial court’s determination of

whether summary judgment is appropriate; i.e. whether there is any genuine issue

of material fact, and whether the movant is entitled to judgment as a matter of

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law.” Samaha v. Rau, 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83

(citations omitted); La.Code Civ.P. art. 966.

IV.

LAW AND DISCUSSION

The elements of proof in a legal malpractice action have been well-

established. The Louisiana Supreme Court stated the following in Costello v.

Hardy, 03-1146, pp. 9-10 (La. 1/21/04), 864 So.2d 129, 138:

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.
Finkelstein v. Collier, 636 So.2d 1053, 1058 (La.App. 5
Cir.1994); Barnett v. Sethi, 608 So.2d 1011, 1014
(La.App. 4 Cir.1992), writs denied, 613 So.2d 993, 994
(La.1993). A plaintiff can have no greater rights against
attorneys for the negligent handling of a claim than are
available in the underlying claim. See, e.g., Spellman v.
Bizal, 99-0723, p. 11 (La.App. 4 Cir. 3/1/00), 755 So.2d
1013, 1019; Couture v. Guillory, 97-2796, p. 7 (La.App.
4 Cir. 4/15/98), 713 So.2d 528, 532, writ denied, 98-1323
(La. 6/26/98), 719 So.2d 1287.

Mr. Bauman and his insurer, Continental, contend that the trial court

erred in granting partial summary judgments to Fortenberry on the issue of liability

in Fortenberry’s legal malpractice suit where Ms. Fortenberry failed to refute Mr.

Bauman’s evidence regarding the third prong of Ms. Fortenberry’s malpractice

claim. We agree.1

In the recent decision of Matte v. Brown, 14-644, pp. 4-5 (La.App. 3

Cir. 123/10/14), 154 So.3d 774, 777-78, which also turned on the third prong of the

1
Because Continental’s liability depends upon Mr. Bauman’s liability, we will discuss Mr.
Bauman’s opposition to Ms. Fortenberry’s motion for partial summary judgment first.

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malpractice claim, this court outlined the criteria for obtaining summary judgment

in conjunction with the criteria for legal malpractice, as follows:

Although amended multiple times in the last three
years, summary judgment proceedings are still favored
and are “designed to secure the just, speedy, and
inexpensive determination of every action, except those
disallowed by Article 969.” La.Code Civ.P. art.
966(A)(2). That article further provides:

The judgment sought shall be
rendered forthwith if the pleadings,
depositions, answers to interrogatories, and
admissions, together with the affidavits, if
any, admitted for purposes of the motion for
summary judgment, 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)(2).

Moreover, the burden of proof remains the same:

The burden of proof remains with the
movant. However, if the movant will not
bear the burden of proof at trial on the
matter that is before the court on the motion
for summary judgment, the movant’s burden
on the motion does not require him to negate
all essential elements of the adverse party’s
claim, action, or defense, but rather to point
out to the court that there is an absence of
factual support for one or more elements
essential to the adverse party’s claim, action,
or defense. Thereafter, if the adverse party
fails to produce factual support sufficient to
establish that he will be able to satisfy his
evidentiary burden of proof at trial, there is
no genuine issue of material fact.

La.Code Civ.P. art. 966(C)(2).

The most significant change to summary judgment
procedure relates to the requirements of proof. Louisiana
Code of Civil Procedure Article 966(F) (emphasis added)
now provides:

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(1) A summary judgment may be
rendered or affirmed only as to those issues
set forth in the motion under consideration
by the court at that time.

(2) Evidence cited in and attached to
the motion for summary judgment or
memorandum filed by an adverse party is
deemed admitted for purposes of the motion
for summary judgment unless excluded in
response to an objection made in accordance
with Subparagraph (3) of this Paragraph.
Only evidence admitted for purposes of the
motion for summary judgment may be
considered by the court in its ruling on the
motion.

(3) Objections to evidence in support
of or in opposition to a motion for summary
judgment may be raised in memorandum or
written motion to strike stating the specific
grounds therefor.

Matte v. Brown, 154 So.3d 774, 777-78 (emphasis added).

In this case, Mr. Bauman objected to Ms. Fortenberry’s motion by

presenting evidence that she could not be able to prove the third prong under

Costello. Ms. Fortenberry put on no evidence to refute Mr. Bauman’s evidence.

More specifically, Ms. Fortenberry presented her own affidavit, the

attorney-client contract, and the personal injury petition proving that Mr. Bauman

represented her and filed her lawsuit a year and five days after the accident. She

also entered into evidence the August 2004 letter to her from Mr. Bauman

regarding prescription. Mr. Bauman opposed Fortenberry’s motion arguing that

material issues of fact regarding Ms. Fortenberry’s damages precluded summary

judgment. In addition to his own affidavit, Mr. Bauman presented the affidavit of

the owner of the vehicle, Susan Ivy Strong, stating that Ms. Fortenberry was

outside her vehicle standing on the bridge at the time of impact.

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Mr. Bauman also presented the deposition of the driver of Ms.

Strong’s vehicle, Sammie Ruiz, who stated seven times in his deposition that Ms.

Fortenberry was outside her vehicle at the time of impact. While Ms. Strong was

less committal in her deposition than in her affidavit regarding Ms. Fortenberry’s

location at the time of impact, Mr. Ruiz, who was driving the car and braced for

the sudden impact, was unequivocal that Ms. Fortenberry was on her feet on the

bridge at the time of impact. Mr. Ruiz testified that no one was in the Lincoln

Town Car and that Ms. Fortenberry was rendering aid to the person in the car in

front of her when Mr. Ruiz came over the crest of the bridge and saw her for the

first time. In Ms. Strong’s deposition, she testified that Ms. Fortenberry showed no

sign of injury and was “affable” in her demeanor, asking if the people in Strong’s

vehicle were okay, since Strong’s Saturn was crumpled, smoking, and totaled, and

had to be towed away. Strong said she and Fortenberry actually joked about the

Lincoln being a tank, as it only had a couple of dents in the bumper. Strong further

testified that she asked Ms. Fortenberry to open and close the trunk of the Lincoln,

which she was able to do without problem. She further stated that Ms. Fortenberry

drove her Lincoln away once the police cleared the accident scene.

Based upon the above evidence, Mr. Bauman asserts that a serious

factual issue exists regarding whether Ms. Fortenberry was even in the Lincoln

Town Car when it was rear-ended by Ms. Strong’s Saturn, thereby precluding

summary judgment against him on liability. Ms. Fortenberry offered absolutely no

evidence on her motion for summary judgment to counter Mr. Bauman’s evidence

or show that she could be able to prevail at trial on damages. Her position is that

Mr. Bauman’s evidence on the third prong is irrelevant, because she proved the

first two prongs for legal malpractice, representation and negligence. She argues

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that nothing further was required to obtain a judgment on liability alone. We

disagree.

In Costello, which also turned on the third prong of the malpractice

claim, the supreme court held that the plaintiff could not establish allegations of

negligence against the defendant attorney where she failed to produce any factual

support for her damage claim in legal malpractice. Thus, in legal malpractice

claims, liability for negligence does not attach until the third prong is proved. In

discussing the burden of proof in La.Code Civ.P. art. 966(C)(2), the supreme court

quoted Paragraph (C)(2), and stated as follows:

This court has explained the effect of the 1997
amendment as follows:

This amendment, which closely
parallels the language of Celotex Corp. v.
Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986), first places the burden
of producing evidence at the hearing on the
motion for summary judgment on the mover
(normally the defendant), who can ordinarily
meet that burden by submitting affidavits or
by pointing out the lack of factual support
for an essential element in the opponent’s
case. At that point, the party who bears the
burden of persuasion at trial (usually the
plaintiff) must come forth with evidence
(affidavits or discovery responses) which
demonstrates he or she will be able to meet
the burden at trial. 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. [Citations omitted.]

Costello, 864 So.2d at 137-38 (quoting Babin v. Winn-Dixie Louisiana, Inc., 00-78,

p. 4 (La. 6/30/00), 764 So.2d 37, 39-40) (emphasis added).

8

As shown above, liability does not attach against an attorney for

malpractice until it is shown that the plaintiff could have prevailed on the

underlying suit but for the negligence of the attorney. Also as shown above,

summary judgment is only proper if the non-moving party fails to produce

evidence of a material factual dispute regarding an essential element of the

mover’s claim. And here, Mr. Bauman produced evidence of a material factual

dispute regarding Ms. Fortenberry’s ability to prove damages.

Ms. Fortenberry contends that she does not have to address the third

prong regarding the success or failure of the underlying suit because that burden

was shifted to the defendant attorney in Jenkins v. St. Paul Fire and Marine Ins.

Co., 422 So.2d 1109 (La.1982). However, Jenkins did not involve a pre-trial

motion for summary judgment that would prevent the inextricable and ultimate

issue of liability in a legal malpractice case from reaching the jury.

In Jenkins, after a trial on the merits and a jury verdict in favor of the

plaintiff, the trial court rendered an $87,000.00 judgment against two attorneys for

the late filing of suit on behalf of a plaintiff who was struck by a train and woke up

in the hospital. The second circuit reversed, finding that the plaintiff could not

have recovered on the underlying suit because he was contributorily negligent. At

that time, before comparative fault principles were legislated, a negligent plaintiff

could not recover any amount from the tortfeasor. Id. The Louisiana Supreme

Court affirmed the court of appeal and found in favor of the defendants. However,

it announced that once the plaintiff proved the first two prongs, the burden of

proving the third prong, that the plaintiff was not damaged by the attorney’s

negligence, was the burden of the defendant attorney. By stopping her analysis

here, where summary judgment is involved, and where she is the moving party and

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Mr. Bauman is the non-moving party, Ms. Fortenberry misapplies Jenkins and

La.Code Civ.P. art. 966. Ms. Fortenberry cannot escape her burden of proving

injuries at trial. Even if Mr. Bauman were charged with proving that his alleged

negligence did not change the outcome, Ms. Fortenberry has to prove underlying

injuries.2

Her misapplication of Jenkins is born out in Costello which involved

legal malpractice and summary judgment, where the court found that after the

defendant addressed the third prong, the burden shifted back to the plaintiff to

show that she could prove damages at trial. There, where the moving party was the

defendant attorney, the supreme court found that the attorney established that

summary judgment was proper as to the third element of the plaintiff’s malpractice

claim. The court then stated: “At this point in the proceedings, the burden shifted

to Mrs. Costello to produce factual support sufficient to establish that she will be

able to satisfy her evidentiary burden at trial of proving damages sustained as a

result of Hardy’s alleged malpractice.” Costello, 864 So.2d at 139. When Ms.

Costello failed to produce any factual support for her damage claim, the court

found that the defendants had met their evidentiary burden of negating an essential

element of the plaintiff’s claim, loss or damages.

2
Ms. Fortenberry refers to a writ ruling from a panel of this court in 2013, but the earlier
ruling does not support her position on summary judgment. More specifically, in 2013, the trial
court supplied its hearing transcript as written reasons for an interlocutory ruling in favor of
Continental and Bauman in 2011 that was never reduced to writing. The ruling granted the
defendants’ motion in limine and for declaratory judgment that Ms. Fortenberry had the burden
of proof for all three prongs of the malpractice claim and was limited to the collectible amount in
the underlying suit. Ms. Fortenberry filed a writ application with this court, docketed as
Fortenberry v. Continental Casualty Company, 13-609. The writ was granted and the 2011
ruling was set aside. The writ panel provided a one-paragraph disposition stating the plaintiff’s
burden for all three prongs, citing Costello, but then indicated that the defendant attorney bears
the burden of proving that the client could not have recovered on the underlying claim regardless
of the attorney’s negligence. The writ ruling did not address in any way a motion for summary
judgment or partial summary judgment, which was not before the panel.

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Here, because Mr. Bauman is not the mover asking to get out of the

suit early on summary judgment, he does not have to show that Ms. Fortenberry’s

suit will certainly fail at trial. He only needs to show that there are material factual

disputes regarding an essential element of the plaintiff’s claim under Costello.

Jenkins is inapposite because it does not address what happens after the defendant

attorney addresses the third prong before a trial on the merits, raising a material

issue of fact that the plaintiff then fails to refute. Jenkins is also distinguishable

because it was rendered in a case where damages due to a collision with a train

were never disputed. The plaintiff was hit by a train and woke up in a hospital. It

was never argued that the plaintiff was not injured in the collision. There was an

inference of damages in Jenkins that does not exist here. Mr. Bauman was not

named in the malpractice suit until 2010, five years after it was filed in 2005. Mr.

Bauman began to gather evidence in opposition to Fortenberry’s motion for partial

summary judgment filed against him in 2013, eight years after the suit was filed.

Unlike the jury verdict and clear evidence of underlying damages in

Jenkins’s collision with the train, here, we have affidavits and deposition testimony

stating that Fortenberry was not in her vehicle at impact; that she was not cut or

bruised or bleeding; that she said nothing about injuries; that she was “affable” in

her demeanor and checking to see if people in front and in back of her were okay;

that she opened and closed the trunk of her Lincoln and then drove her barely

damaged car away after the accident. This evidence raises material issues of fact

regarding whether the plaintiff was injured in the underlying accident, and the

plaintiff made no effort to present evidence to the contrary on her motion for

partial summary judgment.

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We are cognizant that under La.Code Civ.P. art. 966(A), a plaintiff or

a defendant may move for summary judgment for part of the relief requested; and

that under La.Code Civ.P. art. 966(E), summary judgment may be rendered

“dispositive of a particular issue” even though the judgment does not dispose of the

entire case as to that party. However, where liability for legal malpractice does not

attach until it is shown that the plaintiff suffered damages for which she would

have recovered but for the attorney’s mishandling of the suit, and where the

attorney establishes a material issue of fact regarding the plaintiff’s underlying

damages, summary judgment was granted in error. The plaintiff cites no case

where a motion for partial summary judgment was granted against an attorney on

the issue of liability alone without addressing the third prong of the legal

malpractice claim against the attorney.

Based on our analysis of the law pertaining to summary judgment in

conjunction with the elements of a legal malpractice claim, we find questions of

law and fact sufficient to preclude a finding of liability on summary judgment. In

our de novo review, we further have questions regarding the fact that no exception

of prescription was filed in the underlying suit until Ms. Fortenberry attempted to

file one herself in her own suit in November 2009, over five years after Mr.

Bauman told her that he could not represent her.

Because we find that material issues of fact and law preclude

summary judgment on the damage prong of the plaintiff’s claim against Mr.

Bauman, we reverse the partial summary judgments on liability entered against Mr.

Bauman and his insurer, Continental.

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V.

CONCLUSION

Based upon the foregoing, we find that the trial court erred in granting

partial summary judgments on the issue of liability to the plaintiff, Paula

Fortenberry, against Edward Bauman and Continental Casualty Company.

Accordingly, we reverse both partial summary judgments and remand to the trial

court for further proceedings consistent with this opinion. Costs of this appeal are

assessed to the plaintiff, Paula Fortenberry.

REVERSED AND REMANDED.

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