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.

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
John Haas Weinstein, APLC

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 defendant has 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

Plaintiffs’ 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, defendant filed an Exception of Peremption alleging that the second suit

against Weinstein was perempted because it was filed more than one year from the

time that plaintiff obtained knowledge of the malpractice. That exception was argued

on November 3, 2003 and judgment was rendered in favor of plaintiff.

ASSIGNMENT OF ERROR

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

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.

DISCUSSION

By assigning the trial court’s failure to sustain the Exception of Peremption as

error, defendant is essentially claiming that Plaintiffs’ malpractice claim expired

before it came into existence. Defendant cites Reeder v. North, 97-0239 (La.

10/21/97), 701 So.2d 1291, in support of this argument. In Reeder, defendant

attorney represented a client in an action against 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 on 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

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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

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.

Defendant’s 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, here, there is a binding, final judicial

determination that Plaintiffs did not have a cause of action until the suit against

Bailey was finally dismissed. 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 was premature until

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the suit against Bailey was dismissed. 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 Defendant’s 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

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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

Defendant’s 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
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 final judgment of dismissal was rendered in the

Bailey matter. 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 the

dismissal of the action against Bailey became final, Plaintiffs suffered no appreciable

and actual harm. Any injury was purely speculative, therefore, no cause of action for

malpractice had arisen. Accordingly, we believe our prior decision regarding

prematurity of Plaintiffs’ action was based on settled jurisprudence.

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

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

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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

until a final judgment of dismissal is entered. Revised Statute 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, including the instant matter, 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.”

CONCLUSION

We affirm the ruling of the trial court in denying Defendant’s Exception of

Peremption. All costs are assessed against Defendant.

WRITS DENIED.

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