Don Leger v. John Haas Weinstein

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CW 03-1497 consolidated with CW 03-1498, CW 03-1616

DON LEGER, ET AL.

VERSUS

JOHN HAAS WEINSTEIN, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2003-3265-B
HONORABLE JULES DAVID EDWARDS III, DISTRICT JUDGE

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JOHN D. SAUNDERS
JUDGE

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Court composed of John D. Saunders, Michael G. Sullivan, and Elizabeth A. Pickett,
Judges.

WRITS DENIED IN PART, GRANTED IN PART, REMANDED.

Marc W. Judice
Michael Wayne Adley
Judice and Adley
P. O. Drawer 51769
Lafayette, LA 70505-1769
(337) 235-2405
Counsel for: Defendant/Applicant
John Haas Weinstein

Mark L. Ross
Attorney at Law
600 Jefferson, #512, Box 23
Lafayette, LA 70501
(337) 266-2345
Counsel for: Plaintiff/Respondent
Noelle Leger
Sarah Leger
Lon M. Baronne
Lon M. Baronne, Jr
Benjamin Baronne
Jeanette Leger
Karen Baronne
Don Leger

SAUNDERS, J.

The issue upon which Defendants have sought supervisory writs arises from

his allegedly negligent representation of Plaintiffs. Don Leger, individually and on

behalf of his minor children, retained the services of John Haas Weinstein, APLC and

John Haas Weinstein, Esq. (hereinafter collectively referred to as “Weinstein”) to

bring a malpractice action against Fred Bailey and Fred Bailey, APLC (hereinafter

collectively referred to as “Bailey”). Plaintiffs alleged that Bailey was negligent in

handling matters related to their grandfather’s estate. Weinstein failed to take any

steps in the prosecution of the action against Bailey for three years and the case was

dismissed. Plaintiffs filed a second malpractice action against Weinstein for allowing

the first malpractice action against Bailey to be abandoned.

FACTS AND PROCEDURAL HISTORY

On behalf of Plaintiffs, Weinstein filed a Petition for Damages for legal

malpractice against Bailey on October 16, 1996. Plaintiffs became dissatisfied with

Weinstein’s representation so they retained their current counsel of record, Mark

Ross, to handle the suit against Bailey. A joint Motion to Substitute counsel was

signed on March 12, 2002 and Mr. Ross commenced his representation of Plaintiffs.

Shortly thereafter, on May 2, 2002, Bailey filed an ex parte Motion to Dismiss the suit

alleging that it had been abandoned. Bailey’s motion was granted and the case was

dismissed on May 10, 2002. Without the consent of his former clients, Weinstein

moved to set aside the dismissal of the case against Bailey. Weinstein’s motion to set

aside the dismissal was originally scheduled for hearing on August 5, 2002; however,

it was continued without date.

On September 20, 2002, approximately four months after the dismissal was

granted and before the hearing on Weinstein’s motion to set aside the dismissal,

Plaintiffs brought a malpractice action against Weinstein on the grounds that he

allowed the case against Bailey to be abandoned and dismissed. Subsequently, on

November 21, 2002, prior to the hearing on Weinstein’s motion to set aside the

dismissal, Weinstein filed an Exception of Prematurity. Weinstein claimed that any

malpractice action was premature until the court ruled on his motion to set aside the

dismissal because, if the dismissal was set aside, there would be no grounds for

malpractice. The exception was granted on December 24, 2002; however, the trial

judge refused to dismiss the case at that time. Weinstein then sought a supervisory

writ from this court arguing that the case against him had to be dismissed because the

Exception of Prematurity was granted. We held that, after the exception was granted,

the trial court had no authority to act further in the case. The trial court dismissed the

action against Weinstein without prejudice on June 2, 2003. Plaintiffs re-filed the

current action on June 19, 2003.

Weinstein’s motion to set aside the dismissal was heard on January 15, 2003.

At that hearing, the trial court concluded that Weinstein lacked standing to challenge

the dismissal of the suit against Bailey. This court affirmed that ruling on August 13,

2003, after the first malpractice action against Weinstein was dismissed as premature.

Thereafter, Defendants filed an Exceptions of Prematurity, Res Judicata, and

Peremption alleging that the subsequent suit against Weinstein should be dismissed

and Plaintiffs filed an Exception of Res Judicata on the issue of liability for the

abandonment of the Bailey matter. These exceptions were argued on November 3,

2003 and judgment was rendered in favor of Plaintiffs on all issues.

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ASSIGNMENTS OF ERROR

1) The trial court erred when it denied the Exception of Prematurity.

2) The trial court erred when it denied the Exception of Res Judicata.

3) The trial court erred when it denied the Exception of Peremption.

4) The trial court erred when it granted Plaintiffs’ Exception of Res

Judicata.

STANDARD OF REVIEW

When reviewing questions of law, appellate courts are to determine if the trial

court’s ruling was legally correct or not. Cleland v. City of Lake Charles, 02-0805

(La.App. 3 Cir. 3/5/03), 840 So.2d 686, writ denied, 03-1380 (La. 9/19/03), 853

So.2d 644.

ASSIGNMENT OF ERROR NUMBER ONE

Defendants argue that the most recent malpractice action is premature because

the malpractice action against Bailey is still going through the appellate process.

Until that process is exhausted, Weinstein argues, there is no final judgment of

dismissal in the Bailey matter and any suit against Defendant based upon that

dismissal is premature.

This assignment lacks merit for two reasons. First, there is now a binding final

judgment of dismissal in the Bailey matter. The only issue remaining was whether

Weinstein had standing to challenge the order of dismissal in that case. This court,

agreeing with the trial court, dismissed Weinstein’s appeal of the trial court’s ruling

that he lacked standing to challenge the dismissal. Leger v. Bailey, 03-0806, 03-0820

(La.App. 3 Cir. 8/13/03), 852 So.2d 3. We took the same action on rehearing. Leger

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v. Bailey, 03-0806, 03-0820 (La.App. 3 Cir. 1/28/04), 864 So.2d 909. Finally, the

supreme court denied certiorari. Leger v. Bailey, 04-0513 (La. 4/8/04), 870 So.2d

276. Accordingly, the Bailey matter has concluded and the judgment of dismissal is

now final.

Second, in Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d 1291 the

supreme court overruled prior jurisprudence dealing with the prematurity of legal

malpractice actions. The supreme court held that a client does not have to wait until

a matter that was negligently handled by his attorney has been through the complete

appellate process before a malpractice action may be brought. Accordingly, we find

that Defendants’ argument that the case was premature because the appellate process,

which is now complete, was still ongoing is without merit. The trial judge’s ruling

in this regard is affirmed.

ASSIGNMENT OF ERROR NUMBER TWO

Defendants argue that the prematurity issue is res judicata. The basis of this

argument is that the previous suit brought against Weinstein was dismissed as

premature. The fundamental difference between that action and the case at bar is that

the first case was deemed premature because the judge presiding over the Leger v.

Bailey matter had not yet decided whether Weinstein had standing to challenge the

order of dismissal in that case. Accordingly, the trial judge in the prior Weinstein

case determined that the case was premature until there was a judgment in the Bailey

matter bearing upon Weinstein’s standing. By the time the present action was filed,

the judge in the Bailey matter ruled that Weinstein lacked standing to challenge the

dismissal of that action. These standing issues, therefore, are not present in this

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matter. This assignment lacks merit and the ruling of the trial court is affirmed.

ASSIGNMENT OF ERROR NUMBER THREE

By assigning the trial court’s failure to sustain the Exceptions of Prematurity

and Peremption as error, Defendants are essentially claiming that Plaintiffs’

malpractice claim expired before it came into existence. Defendants cite Reeder, 701

So.2d 1291, in support of this argument. In Reeder, defendant attorney represented

a client in an action against the alleged perpetrators of a Ponzi scheme. Id. Suit was

originally brought in the Eastern District of Louisiana for violations of various federal

and state securities laws; however, it was summarily dismissed with prejudice. Id.

Defendant then filed a second suit, this time in state court, that was based upon the

same course of conduct as the federal suit. Id. The state court suit was ultimately

dismissed when our supreme court ruled that plaintiff was precluded from asserting

the state law claims because they were not alleged in the federal suit filed on July 10,

1989. Id. Plaintiff then filed a malpractice action, on September 15, 1994, against

defendant for negligently failing to bring all claims in the first action. Id. That suit

was subsequently dismissed by the trial court because of peremption. Id.

Plaintiff appealed and the dismissal was reversed. Id. The appellate court held

that peremption does not begin to run until the facts have “ripened into a viable cause

of action sufficient to support a lawsuit.” Id. at 1295. Based upon this reasoning, that

court held that the cause of action arose on February 28, 1994 when the Supreme

Court of the United States denied certiorari; therefore, the suit was not perempted

because it was filed within one year of that date. Our supreme court disagreed with

the appellate court. Id. Despite recognizing that a claim for malpractice may very

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well be extinguished before it accrues, the court held that the peremptive period

begins to run on the date of the alleged malpractice or the date on which the client

discovers or should have discovered the malpractice. Id.

Defendants’ reliance on Reeder is misplaced. In that case, plaintiff only argued

that, had he filed suit for malpractice before the supreme court ruled on the

underlying case, it may have been dismissed as premature. Plaintiff’s argument was

based on speculation regarding acts that a court may take in the future. Reeder is

distinguishable from the case at bar because, in that case, there was no judicial

determination that plaintiff did not have a cause of action. Here, Plaintiffs’ prior suit

agains Weinstein was dismissed because there was no ruling on Weinstein’s standing

in the Bailey matter. That judgment is the law of this case. The law of the case

doctrine essentially provides that final judgments rendered during the course of

litigation become the law of the parties to that litigation. Barnett v. Jabusch, 94-819

(La.App. 3 Cir. 2/1/95), 649 So.2d 1158. Utilization of this doctrine is discretionary;

however, its application is called for when it is necessary to produce consistent results

in the same litigation. Id.

There will be no consistency of result if the doctrine is not applied to the

instant matter. We have already determined that Plaintiffs’ claim had to be dismissed

when the trial judge ruled that it was premature until the issue of Weinstein’s standing

was resolved. See Braud v. New England Ins. Co., 576 So.2d 466 (La.1991). We

cannot think of a more inconsistent result than now holding that the same claim is

perempted. To do so would be to hold that the claim is premature and perempted at

the same time. This inconsistency was recognized by the trial judge at the hearing on

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Defendants’ last Exception of Prematurity, wherein the following dialogue took

place:

THE COURT: So this is a case that is perpetually
premature until it is prescribed?

MS. REGAN: Or until there was a final finding by the
Third Circuit or as to the underlying claim.

THE COURT: So this is a claim that cannot be
adjudicated, it is either premature, or it has prescribed, but
it cannot be heard?

MS. REGAN: At this time.

Holding that the claim was premature until it is perempted results in the patently

inconsistent results the law of the case doctrine is intended to avoid.

Obtaining consistent results, however, is not sufficient to justify application of

the doctrine. Its use should be declined if “it will ‘accomplish an obvious injustice

or where the former appellate decision was manifestly erroneous.’” Thomas v.

Browning-Ferris, Inc., 03-1518, p. 3 (La.App. 3 Cir. 3/31/04), 871 So.2d 1161, 1164

(quoting Dodson v. Cmty. Blood Ctr. of La., Inc., 633 So2d 252, 255 (La.App. 1 Cir.

1993), writs denied, 93-3158 (La. 3/18/94), 634 So.2d 850, and 93-3174 (La.

3/18/94), 634 So.2d 851). We see no possible way that injustice could result from

application of the law of the case doctrine here. In fact, we believe serious injustice

will occur if the doctrine is not applied. Failing to adhere to the law of this case

would result in Plaintiffs having a viable claim for malpractice that courts are not

allowed to hear. The trial judge expressed this same concern at the hearing on

Defendants’ Exception of Peremption in stating:

THE COURT: I cannot think – well, I cannot – I believe,
in any case in which the defendants assert that the case is

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premature and can’t be litigated until such time passes until
it – the claim is – has passed the peremptive period, that
has got to be an absurd result.

That result is the situation of a case that can never be
tried. I cannot imagine under any circumstances that
would be justice; that would be the law of Louisiana. It
cannot be. [emphasis added]

We agree and, therefore, find no injustice in application of the law of the case

doctrine.

Furthermore, we do not believe that our prior decision regarding prematurity

and accrual of the claim was manifestly erroneous. Plaintiffs’ first action against

Weinstein was brought before a judgment regarding Weinstein’s standing in the

Bailey matter was rendered. The supreme court has held that a malpractice suit may

be brought against an attorney whenever “appreciable and actual harm” is suffered.

Braud, 576 So.2d at 468. The court, however, also concluded that “speculative harm,

or the threat of future harm” is not sufficient to create a cause of action. Id. Until

Weinstein’s standing was determined, Plaintiffs suffered no appreciable and actual

harm because Weinstein conceivably could have had the dismissal set aside. Any

injury was purely speculative; therefore, no cause of action for malpractice had arisen.

We believe our prior decision regarding the necessity of dismissing a case that was

deemed premature was proper.

Moreover, the three elements of an action for legal malpractice are: the

existence of an attorney-client relationship, negligent representation by the attorney,

and loss to the client caused by that negligence. Prestage v. Clark, 97-0524 (La.App.

1 Cir. 12/28/98), 723 So.2d 1086, writ denied, 99-0234 (La. 3/26/99), 739 So.2d 800.

In the case of a malpractice action based on abandonment, the client suffers no injury

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until a final judgment of dismissal is entered. Louisiana Revised Statutes 9:5605,

however, states that the peremptive period begins to run on the date of the alleged

malpractice or the date on which the client discovers or should have discovered the

malpractice. Thus, a literal reading of the statute reveals that the elements of a

malpractice action are at odds with the limitations on that action. Instead of

maintaining consistency in the law, the element requiring actual harm and the statute

of limitation are in open and direct conflict. To hold that the peremptive period for

a legal malpractice claim begins to run before the client suffers harm is to hold that

the legislature intended to change the substantive elements of a legal malpractice

action. There are several instances in which this change would render it impossible

for someone to timely bring an action for legal malpractice. We see no evidence that

this is what the legislature intended.

We agree with the trial judge that it is impossible to “imagine under any

circumstances that would be justice; that would be the law of Louisiana. It cannot

be.”

ASSIGNMENT OF ERROR NUMBER FOUR

Defendants argue that the trial judge erred in granting Plaintiffs’ Exception of

Res Judicata. Weinstein argues that exceptions are procedural devices available only

to defendants and that Plaintiffs’ motions should properly have been styled as a

Motion for Summary Judgment. Furthermore, Weinstein argues, a Motion for

Summary Judgment would have been untimely when the pleading was filed because

it was filed by Plaintiffs before Defendants answered the Petition. We agree.

Article 921 of the Louisiana Code of Civil Procedure states that “[a]n exception

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is a means of defense . . . used by a defendant.” Furthermore, La.Code Civ.P. art. 923

provides that a peremptory exception is a device for dismissing a plaintiff’s action.

Accordingly, we agree that a Motion for Summary Judgment was the proper

procedural device for accomplishing Plaintiffs’ goals. We also agree that, had

Plaintiffs styled the pleading as a Motion for Summary Judgment, it would have been

untimely. A plaintiff may not file a Motion for Summary Judgment until after the

defendant has answered the Petition. La.Code Civ.P. art. 966. Defendants had not

yet answered the Petition; therefore, the motion would have been untimely. The trial

court’s judgment in this regard is reversed and the matter is remanded for proceedings

in accordance with this opinion.

CONCLUSION

We affirm the ruling of the trial court in denying Defendants’ Exceptions of

Prematurity, Res Judicata, and Peremption. We reverse the trial court’s granting of

Plaintiffs’ Exception of Res Judicata and remand the matter for further proceedings

in accordance herewith. All costs are assessed against defendant.

WRITS DENIED IN PART, GRANTED IN PART, REMANDED.

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