author: KNOLL, J. JOHNSON, Justice,

text:
    MB INDUSTRIES, LLC v. CNA INSURANCE COMPANY, et al.
    Nos. 2011-C-0303, 2011-C-0304.
    Supreme Court of Louisiana.
    Oct. 25, 2011.

      Allen & Gooch, James Huey Gibson, David J. Ayo, Lafayette, LA, for Applicant (No. 2011-C-0303).
    Kenneth Michael Wright, LLC, Kenneth Michael Wright, Lake Charles, LA, Keogh, Cox & Wilson, Ltd., Gracella Gail Simmons, Collin Joseph LeBlanc, Baton Rouge, LA, The Carmel Group, Inc., Elisa Devall Davis, Lafayette, LA, Rick Fayard, Attorney at Law, M.F. “Rick” Fayard, Jr., Bossier City, LA,' for Respondent (No. 2011-C-0303).
    Keogh, Cox & Wilson, Ltd., Gracella Gail Simmons, Collin Joseph LeBlanc, Baton Rouge, LA, for Applicant (No. 2011-C-0304).
    Allen & Gooch, James Huey Gibson, David J. Ayo, Lafayette, LA, Kenneth Michael Wright, LLC, Kenneth Michael Wright, Lake Charles, LA, Rick Fayard, Attorney at Law, M.F. “Rick” Fayard, Jr., Bossier City, LA, The Carmel Group, Inc., Elisa Devall Davis, Lafayette, LA, for Respondent (No. 2011-C-0304).
   KNOLL, J.

| TThis civil case involves a legal malpractice claim brought by MB Industries, LLC (“MBI”) against attorneys Steven Durio and John Weinstein. Durio and Weinstein represented MBI in an ultimately unsuccessful lawsuit against former MBI employees Mark Massey and Sam Lavergne. Rather than appeal the unfavorable judgment, MBI chose to file the instant malpractice action.

There are two issues that need clarification in disposing of this case: first, whether a party’s failure to appeal an underlying judgment waives any right to bring a legal malpractice claim based on that judgment. Second, whether summary judgment was properly granted in light of MBI’s failure to introduce expert testimony to establish the applicable standard of care which would demonstrate the attorneys’ actions fell below that standard.

After our careful study and analysis, we find, in response to the first issue, Louisiana law does not impose a per se rule requiring an appeal before a malpractice action may be filed. However, in answer to the second issue, we find a party alleging legal malpractice must introduce expert testimony to establish the standard of care except in those rare cases involving malpractice so egregious that |2a lay jury could infer the defendant’s actions fell below any reasonable standard of care. In conclusion, as explained in greater detail below, under the particular circumstances of this case we find there are no genuine issues of material fact and plaintiff has failed to establish it will be able to satisfy its evidentiary burden of proof at trial; therefore, defendants are entitled to judgment as a matter of law. Thus, the judgment of the court of appeal is reversed, and the trial court judgment is reinstated.

FACTS AND PROCEDURAL HISTORY

The events leading up to this lawsuit began in 1998 when Mark Massey, a petroleum engineer, began to consider purchasing the assets of Nautica Marine Services, a company which was undergoing bankruptcy. Nautica Marine was in the business of manufacturing, leasing, and selling modular steel buildings, primarily to the petrochemical industry.

Massey asked Fred Gossen, Jr. to help evaluate the potential purchase. Gossen, in turn, brought in Sam Lavergne, an attorney with an engineering background. Massey and Gossen formed Moon Ventures, LLC, with Massey as majority owner, and in September 1998 Moon Ventures purchased the residual assets of Nautica Marine. At Gossen’s urging, the employees of Moon Ventures, including Massey and Lavergne, signed non-compete agreements covering twelve specific parishes in southwestern and southern Louisiana.

Moon Ventures was no more successful than Nautica Marine. Within a year, it too was placed into involuntary bankruptcy. In September 1999, just before Moon Ventures went into bankruptcy, its assets were transferred to MBI, a newly formed company run by Dave Dooley and Fred Gossen.

Shortly thereafter, Sam Lavergne and Mark Massey formed two new businesses, J. Bass, LLC and Hunter Buildings, LLC, both of which directly compete with MBI. On February 14, 2000, MBI, through its attorney John | sWeinstein, filed suit against Lavergne and Massey alleging violation of the non-compete agreements they had signed with Moon Ventures. MBI also claimed Lavergne and Massey misappropriated confidential MBI trade secrets including customer lists, job information, and proprietary engineering data and drawings. The case was soon removed to federal bankruptcy court because of its close connection to the ongoing Moon Ventures bankruptcy proceedings.

On August 1, 2000, Steven Durio enrolled as co-counsel along with Weinstein. On or about March 15, 2001, Fred Gossen delivered a box containing original documents and exhibits to Durio’s firm. Gos-sen avers he spent weeks compiling and organizing this evidence, which included “all relevant agreements, contracts, documents, legal strategy, and other sensitive, confidential and attorney/client privileged information.” One of Durio’s associates turned the box over to opposing counsel as part of plaintiffs document production. Crucially, he neglected to make copies of the documents before turning them over.

On July 9, 2001, Durio withdrew as co-counsel, leaving Weinstein to represent MBI in the proceedings before the bankruptcy court. In early 2002, the defendants filed a motion for summary judgment, which the bankruptcy court denied. On March 27, 2002, the bankruptcy court remanded the case to state court.

Some time before November 2002, MBI asked Durio to reenroll as counsel and take over the case. From this time forward, Weinstein took no active part in the litigation. However, it was several months before Durio filed a formal motion to enroll and Weinstein filed a formal motion to withdraw.

14On November 20, 2002, Lavergne and Massey filed a motion to set a trial date. The court set a bench trial for May 27, 2003, and issued a pretrial scheduling order setting deadlines for, among other things, propounding discovery and amending pleadings. Weinstein formally withdrew from representation on February 28, 2003, at which time he incorrectly represented to the court that no trial date had been set. On April 3, 2003, Durio filed a motion to continue trial. The defendants agreed to postpone the trial date in light of Dave Dooley’s recent heart surgery, but opposed reopening discovery or continuing any of the pretrial deadlines. The trial date was continued to November 10, 2003.

Durio officially enrolled as counsel in July 2003. At the same time, he filed a motion requesting leave to file an amended petition, add additional defendants, and request trial by jury. The court denied the motion as untimely under its pretrial scheduling order and refused to allow MBI to add the additional defendants.

On March 11, 2003, Gossen emailed Du-rio to ask what had happened to the box of documents he had prepared. It was apparently at this time that Durio realized the box was missing, and he made several attempts to find out who had it. In the summer of 2003, Durio and Gossen went to the offices of Frank Neuner, attorney for Massey and Lavergne, where they were able to recover most of the contents of the box. However, some documents were missing, and the rest were out of order and disorganized.

MBI was apparently displeased with the quality of Durio’s representation. Fred Gossen spoke with attorney Milo Nickel, who suggested MBI should consider the possibility of filing a malpractice suit. MBI then contacted attorney Scott Love, who advised that a malpractice claim was possible if MBI were to lose at trial. |sLove began preparing for a malpractice action, and one of the associates at his firm sat in on the trial to take notes on Durio’s conduct.

Trial was held before the Hon. Thomas Duplantier in November 2003. At the close of trial, the court entered judgment for the defendants. Judge Duplantier found MBI failed to produce any evidence it had any valid trade secrets or that Lavergne or Massey had wrongfully used any of MBI’s proprietary information. With respect to the noncompetition agreement, the court found the only competition took place in East Baton Rouge Parish, which was not one of the twelve parishes listed under the noncompetition agreement. The court found no evidence the defendants competed with MBI in any of those twelve parishes.

Formal judgment was entered on December 2, 2003. On December 8, 2003, Durio sent an email to Gossen and Dooley stating the chances of a successful appeal were less than fifty percent. He also said he would not continue to represent MBI on a contingency basis and would only file an appeal if he were paid by the hour.

On December 10, 2003, Dave Dooley wrote a letter to Durio asking him to forward all MBI litigation files to Scott Love. The next day, Love wrote to Durio and Weinstein explaining that he had been retained to determine whether an actionable malpractice lawsuit existed. Durio responded with a letter agreeing to surrender the files and warning MBI of the approaching deadlines to file an appeal. MBI did not appeal Judge Duplantier’s ruling, and the judgment became final.

MBI filed the instant malpractice litigation on March 16, 2004. The petition as amended alleges both Durio and Weinstein failed to meet the trial court cutoff dates to amend the petition, add additional defendants, and request a jury trial. As to Durio alone, MBI alleges he negligently lost the box of documents, some of which were privileged or proprietary, and failed to seek a protective order with respect to those documents. MBI also alleges Durio failed to elicit necessary | (¡testimony and evidence at trial. As to Weinstein alone, MBI alleges he mishandled the case by failing to pursue certain claims in bankruptcy court, by withdrawing from the case while a trial date was looming, and by falsely representing to the court that no trial date had been set when he filed a motion to withdraw.

Durio and Weinstein filed separate motions for summary judgment on August 10, 2009, more than five years after the beginning of the litigation. The Hon. Edward Rubin granted Durio’s motion for summary judgment on September 28, 2009, and formal judgment was entered on October 6, 2009.

MBI appealed, and the Third Circuit reversed. MB Industries, LLC v. CNA Ins. Co., 10-321 (La.App. 3 Cir. 11/3/10), 52 So.3d 168. While the lower courts have been faced with the troubling issues raised by defendants’ motions for summary judgment in this legal malpractice proceeding, this Court has not directly addressed this area of law. We granted defendants’ writs at MB Industries, LLC v. CNA Ins. Co., 10-303, 10-304 (La.6/3/11), 63 So.3d 1024, 1025 to further study the proper treatment in disposing of these issues as guidance to the lower courts for their consideration of such cases.

DISCUSSION

I. MBI’s Failure to Appeal the Underlying Judgment

As a threshold question, we must decide whether MBI waived its right to bring a legal malpractice suit by not timely appealing the underlying judgment against it. Defendants argue, under the principles of equitable estoppel, a defendant who fails to perfect an appeal effectively waives his right to seek a remedy in malpractice. Although defendants cite several court of appeal decisions supporting this theory, the issue is res nova for this Court.

Murphy v. Gilsbar, 02-205 (La.App. 1 Cir. 12/31/02), 834 So.2d 669, writ denied, 03-676 (La.5/30/03), 845 So.2d 1057, is a state court legal malpractice proceeding arising out of the alleged mishandling of a federal employment discrimination action. During a status conference in the underlying federal case, the magistrate judge informed attorney Denise Vinet that her client’s claim was untimely under federal law. Id. at 670. The defendant filed a motion for summary judgment based on this apparent untimeliness, which was granted. Murphy responded by filing a malpractice suit against Vinet in state court. Meanwhile, additional legal research revealed Murphy’s original claim had actually been timely filed, and the defendant openly admitted its motion for summary judgment was ill-founded. In response, Vinet filed a motion for relief from judgment under Fed.R.Civ.P. 60(b). Despite numerous requests from Vinet, Murphy refused to participate in the motion for relief from judgment. The federal court found Vinet lacked standing to bring a motion for relief on Murphy’s behalf without her consent, and thus refused to set aside the summary judgment. Id. at 671.

Vinet then moved for summary judgment on Murphy’s malpractice claim. The trial court granted the motion, finding Murphy’s refusal to participate in the motion for relief from judgment acted as “absolute estoppel” to any malpractice claim. The court of appeal agreed, holding “the trial court did not err in concluding that, by refusing to participate in the hearing that could have resurrected her discrimination suit, Murphy waived her right to proceed with her malpractice suit.” Id. at 672.

In Gross v. Pieno, 04-820 (La.App. 5 Cir. 12/28/04), 892 So.2d 662, writ denied, 05-218 (La.4/22/05), 899 So.2d 582, the court applied the basic principle |sset forth in Murphy v. Gilsbar to a different set of facts. Attorney Larry Pieno was hired to represent the Gross family in a lawsuit, but performed no work on the case for over three years. Shortly thereafter, the defendants filed a successful motion for dismissal based on abandonment. Pieno filed a motion to set aside the dismissal and requested a hearing. Before the motion was set for hearing, the Gross family fired Pieno and hired a new attorney who negotiated a settlement on the underlying tort suit and filed a malpractice suit against Pieno. Id. at 663.

The trial court entered summary judgment for Pieno, finding the settlement es-topped the Gross family from pursuing a malpractice claim. Plaintiffs appealed, arguing they settled in an attempt to recover something from the lawsuit and thereby mitigate the damages caused by Pieno’s malpractice. Id. at 665. The court of appeal nonetheless affirmed, as it found Pieno’s motion to set aside the judgment raised valid arguments which may have justified granting the requested relief. By settling the suit, plaintiffs effectively waived those potentially meritorious claims. Id.

The parties also cite American Reliable Ins. Co. v. Navratil, 445 F.3d 402 (5th Cir.2006). American Reliable hired Boris Navratil to defend its insured, Eli Prud-homme, in a lawsuit in state court. The case resulted in an unfavorable jury verdict against American Reliable in the full amount of the $25,000 policy limit and an additional judgment of more than $420,000 against Prudhomme alone. Navratil advised American Reliable there were valid grounds for an appeal. American Reliable instead settled the claim for $550,000 (over $100,000 more [9than the jury verdict) and filed a malpractice lawsuit against Navratil in federal court. The trial court granted Navratil’s motion for summary judgment, citing Gross v. Pieno for the proposition that American Reliable’s voluntary settlement barred its malpractice suit. Id. at 403-04.

The Fifth Circuit reversed, holding the “settlement of the underlying claim did not have the preclusive effect of barring the client from bringing an independent action for legal malpractice.” Id. at 404. While a “client has a duty to mitigate damages caused by its attorney’s malpractice,” the duty does not “require the client to undertake measures that are unreasonable, impractical, or disproportionately expensive considering all of the circumstances.” Id. at 406. The court noted a strict rule requiring an appeal in every case “could cause the client to miss a favorable but fleeting opportunity to make a financially favorable settlement; and settlement may often be a better method of damage mitigation than is appeal.” Id. at 406-07. The court found American Reliable had acted reasonably in settling the case rather than filing a “risky and speculative appeal” and thus had not waived its right to file a malpractice suit.

Defendants, following the lead of Murphy v. Gilsbar, couch their arguments in terms of equitable estoppel. Equitable estoppel is a jurisprudential doctrine involving “the voluntary conduct of a party whereby he is precluded from asserting rights against another who has justifiably relied upon such conduct and changed his position so that he will suffer injury if the former is allowed to repudiate the conduct.” Morris v. Friedman, 94-2808 (La.11/27/95), 663 So.2d 19, 25 (quoting John Bailey Contractor, Inc. v. State, Dept. of Transportation and Development, 439 So.2d 1055, 1059 (La.1983) and American Bank and Trust Co. v. Trinity Universal Ins. Co., 251 La. 445, 205 So.2d 35, 40 (1967)). There are three elements required to establish equitable estoppel: (1) a representation by conduct 110or work; (2) justifiable reliance thereon; and (3) a change of position to one’s detriment because of the reliance. Id.

A claim of waiver by failure to appeal is thus not “equitable estoppel” as the doctrine has been defined by this Court. Strictly speaking, equitable estoppel applies only where a party has made false or misleading representations of fact and the other party justifiably relied on the representation. State v. Mitchell, 337 So.2d 1186, 1188 (La.1976). We must narrowly construe this argument, as “estoppel is not favored in our law,” Id., and estoppel is a “doctrine of last resort.” Howard Trucking Co., Inc. v. Stassi, 485 So.2d 915, 918 (La.1986). Because MBI’s decision not to pursue an appeal was not a representation of fact which Durio or Weinstein justifiably relied on to their detriment, equitable es-toppel does not apply.

The issue is more properly framed as a failure to mitigate damages under Civil Code article 2002, which states: “An obli-gee must make reasonable efforts to mitigate the damage caused by the obligor’s failure to perform. When an obligee fails to make these efforts, the obligor may demand that the damages be accordingly reduced.” Id. If an aggrieved party could have cured the effects of an unfavorable judgment by appeal, its decision not to appeal may be a failure to mitigate under article 2002. The failure to mitigate damages is an affirmative defense, and the burden of proof is on the party asserting the defense. Wooley v. Lucksinger, 09-571 (La.4/1/11), 61 So.3d 507, 607; A Better Place, Inc. v. Giani Investment Co., 445 So.2d 728, 732 (La.1984).

The scope of a party’s duty to mitigate depends on the particular facts of the individual case, and a party is not required to take actions which would likely InProve unduly costly or futile. In Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968), this Court held a duty to mitigate encompassed only what a “reasonably prudent man” would have done to lessen his damages, given the facts known to him at the time and avoiding the temptation to view the ease through hindsight. Id. at 826. The plaintiff, John Un-verzagt, hired Young Builders, Inc. to install a home swimming pool. The pool soon developed cracks, and Unverzagt sued for faulty installation. The defendant countered that Unverzagt should have mitigated his damages by making repairs at an estimated cost of between $1,000 and $1,500. Id. at 825. However, other experts opined that testing would be necessary to find the true cause of the defects in the pool and warned the repairs suggested by the defendant may prove ultimately fruitless. This Court held Unverzagt had no duty to make those repairs because “the record does not affirmatively establish that the work mentioned could have been completed for this sum or that it would have averted the ultimate disaster.” Id. at 827.

Defendants urge this Court to adopt a per se rule requiring an appeal in all cases before a legal malpractice action may be pursued. However, the defendants do not cite, and this Court has not found, any reported decision imposing such a per se rule. Instead, the “theory of abandonment of a legal malpractice claim has 112been traditionally narrow, allowed only when an adverse judgment in the underlying action would likely have been corrected on appeal.” Steven Witsoski, Appellate Malpractice, 4 J.App. Prac. & Process 577, 585 (2002).

We agree with plaintiff that a per se rule would be untenable, as there are many types of malpractice which would effectively preclude any possibility of a successful appeal. For instance, if an attorney neglects to file a petition before the expiration of a prescriptive period, the client would have no remedy on appeal. In this case, MBI argues that Durio failed to elicit necessary testimony at trial, therefore creating an inadequate factual record. If MBI is correct, an appeal would have been pointless because the record on appeal is necessarily limited to facts properly before the trial court. There is no benefit in requiring an aggrieved party to file a frivolous appeal. Moreover, requiring a party to wait until the completion of the appellate process would, in some circumstances, cause peremption to run on the malpractice claim.

In American Reliable v. Navratil, the federal Fifth Circuit predicted this Court would adopt a “reasonable person” standard similar to the one set forth in Unverzagt:

113Although as a general principle, a client has a duty to mitigate damages caused by its attorney’s malpractice, such a duty cannot require the client to undertake measures that are unreasonable, impractical, or disproportionately expensive considering all of the circumstances.

American Reliable Ins. Co. v. Navratil, 445 F.3d 402, 406 (5th Cir.2006).

Similarly, a leading treatise on legal malpractice states failure to pursue an appeal or other legal review is “not a defense unless pursuit of the remedy would have made a difference.” Mallen & Smith, Legal Malpractice, § 22.12 (2011 ed.) These authorities are in accord with this Court’s holding in Unverzagt v. Young Builders, Inc., 252 La. 1091, 215 So.2d 823 (1968), which applies a “reasonably prudent man” standard. Id. at 826.

We therefore hold a party does not waive its right to file a legal malpractice suit by not filing an appeal of an underlying judgment unless it is determined a reasonably prudent party would have filed an appeal, given the facts known at the time and avoiding the temptation to view the case through hindsight. This analysis is heavily dependent on the specific facts of the case. A court should take into account any relevant factors including, but not limited to, the nature of the alleged malpractice, the likelihood an appeal would have been successful, the likely expense of the appeal, and the possibility the peremp-tive period on the legal malpractice claim would have expired during the course of the appeal.

Having established the failure to appeal is not a impediment to a legal malpractice action, we now address the issue urged by defendants in the present case. As this case arises on a motion for summary judgment, we must give the benefit of the doubt to MBI as the non-moving party and draw any reasonable factual inferences in its favor. Hill v. Shelter Mutual Ins. Co., 05-1783 (La.7/10/06), 935 So.2d 691, 693. We cannot say, as a matter of law, MBI’s decision 114not to appeal was outside the bounds of a reasonably prudent actor. First, MBI had reason to believe the likelihood of reversal on appeal was relatively low. MBI consulted two attorneys, Durio and Love, both of whom advised any appeal was unlikely to be successful. This is especially true where the judgment was entered after a full trial on the merits, meaning the trial judge’s ruling would have been reviewed under the strict standard of the manifest error doctrine.

Moreover, the very nature of the alleged malpractice was such that an appeal could not provide MBI with an adequate remedy. MBI alleges Durio failed to timely file an amended petition, lost a box of relevant documents, and did not elicit crucial testimony at trial. None of these alleged acts of malpractice could be remedied on appeal. For example, if a box of documents has been lost via an attorney’s negligence, filing an appeal will not make those documents reappear. Given these circumstances, we find there is a genuine issue of material fact as to whether MBI acted as a “reasonably prudent party” in choosing not to pursue a costly and time-consuming appeal.

II. Whether There Is a Genuine Issue of Material Fact

Having disposed of the threshold issue, we must decide whether MBI has met its burden of introducing admissible evidence sufficient to create a genuine issue of material fact as to defendants’ liability. Defendants urge MBI’s failure to introduce any expert testimony means it has not met this burden.

On a motion for summary judgment, this Court reviews the record de novo to determine whether there is any genuine issue of material fact, and whether the movant is entitled to judgment as a matter of law. La. Code Civ. Proc. art. 966; Louisiana Safety Association of Timbermen Self-Insurers Fund v. Louisiana Ins. Guaranty Association, 09-23 (La.6/26/09), 17 So.3d 350, 353. A moving party who does not bear the burden of proof at trial must point out an absence of factual support for one or more elements essential to the adverse party’s claim. La. Code Civ. Proc. art. 966(C)(2). If the non-moving party fails to produce contrary factual support sufficient to establish it will be able to satisfy the evidentiary burden of proof at trial, there is no genuine issue of material fact. Id. Whether a particular fact in dispute is “material” for summary judgment purposes is viewed in light of the substantive law applicable to the case. Richard v. Hall, 03-1488 (La.4/23/04), 874 So.2d 131, 137.

In order to establish a valid legal malpractice claim, MBI must show 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. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384 (La.2/1/08), 974 So.2d 1266, 1272. MBI has the burden of proving the defendant failed to “exercise at least that degree of care, skill, and diligence which is exercised by prudent practicing attorneys in his locality.” Ramp v. St. Paul Fire and Marine Ins. Co., 263 La. 774, 269 So.2d 239, 244 (1972). Typically, a plaintiff will retain an expert witness both to establish the standard of care for prudent attorneys in the relevant locality and to show the defendant’s actions fell below the standard of care. See Sunset Ins. Co. v. Gomila, 02-633 (La.App. 5 Cir. 12/30/02), 834 So.2d 654, 657; Morgan v. Campbell, Campbell & Johnson, 561 So.2d 926, 929 (La.App. 2 Cir.1990).

MBI first argues it has no obligation to retain an expert witness at this point in the proceeding because the trial court has not yet set a deadline for completing expert discovery. This argument reflects a fundamental misunderstanding of summary judgment procedure. There is no requirement for the defendant to wait until ah discovery deadlines have passed before filing a motion for summary judgment, and a defendant’s motion for summary judgment “may be made at any time.” La.Code of Civ. Proc. art. 966(A)(1). Once the defendant’s motion is filed, the plaintiff must present sufficient factual support to prove every essential element |1fiof his claim. La.Code of Civ. Proc. art. 966(C)(2). He cannot simply tell the court that the evidence will be forthcoming at some unknown later date. See Samaha v. Rau, 07-1726 (La.2/26/08), 977 So.2d 880, 887-88.

MBI did seek the counsel of attorney Scott Love, who believed Weinstein and Durio committed malpractice. MBI asks this Court to accept Love’s affidavit as expert testimony. However, Love was not hired as an expert witness; he was retained as counsel to sue Weinstein and Durio for malpractice. Nonetheless, this Court has reviewed Love’s affidavit. The affidavit does not demonstrate Love has special “knowledge, skill, experience, training, or education” in the area of legal malpractice and thus does not meet the necessary prerequisites of La.Code Evid. art. 702. Just as importantly, the affidavit does not set forth the relevant standard of care or explain the specific acts by Wein-stein and Durio which, in his opinion, fell below the standard of care.

MBI’s failure to introduce the testimony or affidavit of an expert witness is not necessarily fatal to its claim. In Ramp v. St. Paul Fire & Marine Ins. Co., 263 La. 774, 269 So.2d 239 (1972), this Court recognized (albeit in dicta,) that expert testimony is not necessary where the alleged legal malpractice is “obvious” or the defendant attorney committed “gross error.” Id. at 244. Indeed, the Ramp court suggested an attorney’s malpractice could be so obvious as to be the subject of | ^judicial notice. Accord, Frisard v. State Farm Fire & Cas. Co., 06-2353 (La.App. 1 Cir. 11/2/07) 979 So.2d 494, 498 (attorney’s failure to appear is obvious negligence and no expert testimony is needed); Schlesinger v. Herzog, 95-1127 (La.App. 4 Cir. 4/3/96), 672 So.2d 701, 708 (“judicial notice of obvious legal negligence could be taken regardless of expert testimony”); Watkins v. Sheppard, 278 So.2d 890, 892 (La.App. 1 Cir.1973).

We have applied the same principle in medical malpractice cases: “Expert testimony is not required where the physician does an obviously careless act, such as fracturing a leg during examination, amputating the wrong arm, dropping a knife, scalpel, or acid on a patient, or leaving a sponge in a patient’s body, from which a lay person can infer negligence.” Pfiffner v. Correa, 94-0924, 94-0963, 94-0992 (La.10/17/94), 643 So.2d 1228, 1233.

Therefore, because MBI did not introduce any competent expert witness testimony or affidavit, summary judgment for the defendants is proper unless the undisputed facts establish malpractice which was so obvious that a lay person would recognize it as falling beneath the necessary standard of care. We address the evidence against each defendant in turn.

MBI first argues Weinstein committed malpractice during the course of the Moon Ventures bankruptcy proceeding by, among other things: failing to seek a hearing on injunctive relief, advising MBI to sign a compromise converting its position from a secured position to an unsecured position, testifying to the bankruptcy trustee to the detriment of his client, failing to pursue an action regarding certain allegedly fraudulent statements, and failing to include certain additional claims in the petition. Having reviewed the memorandum and exhibits filed in opposition to the Weinstein motion for summary judgment, we do not find any evidence of a breach of the standard of care which is so clear-cut that a lay jury would recognize it as malpractice. Indeed, these allegations are so far outside the | ^experience of the average juror that expert testimony would be absolutely crucial to establish a breach of the standard of care.

MBI also alleges Weinstein committed malpractice by withdrawing from the case in February 2003, approximately three months before the then-scheduled trial date. MBI urges this violated the Rules of Professional Conduct by withdrawing too close to the trial date and by misrepresenting to the court that no trial date had been set. The mere fact of Wein-stein’s withdrawal is insufficient to establish negligence, as MBI does not explain how it suffered any prejudice as a result. Indeed, Rule 1.16 of the Rules of Professional Conduct provides a lawyer may withdraw unless there will be “material adverse effect on the interests of the client.” MBI has not demonstrated any material adverse effect caused either by Weinstein’s February 2003 withdrawal or by his misleading statement to the court.

Although an attorney’s unexpected withdrawal may be prejudicial if he leaves a client without representation shortly before trial, this is not what happened here. At the time Weinstein withdrew, Durio was lead counsel for MBI. Indeed, according to his billing records, Weinstein had not been working on the case since August 2002, months before the formal withdrawal. MBI knew Weinstein had filed his motion to withdraw, but did not object. Finally, any potential prejudice which Weinstein’s withdrawal might have caused MBI was mooted when trial was continued until November 2003, giving Durio several more months to adequately prepare for trial. For these reasons, we find there is no genuine issue of material fact which would support a verdict in favor of MBI against defendant Weinstein.

We next turn to the allegations against Steven Durio. First, MBI alleges he negligently missed the pretrial deadlines to add additional defendants and request a jury trial. However, MBI does not explain how adding additional defendants, in this case engineering firms EQE and Porta-Kamp, would have changed the eventual outcome of the litigation. MBI lost this case because it was unable to | ,9prove the existence of any valid trade secrets. Simply adding more defendants to the claim would not have changed the outcome. Nor does MBI explain how it was prejudiced by the denial of its request for a jury trial. MBI does not allege that, given the record before him at trial, Judge Duplantier committed any errors of fact. We therefore find no reason or support to believe the result would have been different had the case been tried to a jury. We find this argument seeks, in hindsight view, the proverbial “second bite at the apple.”

MBI also alleges Durio performed inadequately at trial. Specifically, it claims he “did not ask questions of key witnesses, thereby failing to expose and put on the record important facts,” and “did not call all key witnesses to testify, depriving the record of important testimony and corroboration of key facts.” These vague allegations are not sufficient to oppose a motion for summary judgment. MBI makes no attempt to explain how this alleged additional testimony or evidence could have changed the outcome of the case. And again, this is precisely the kind of allegation which requires expert testimony to establish whether Durio’s actions fell beneath the applicable standard of care. Without the assistance of an expert, a lay jury would have no basis for deciding whether the decision to call a particular witness or introduce a certain document was within the standard of care for a reasonably competent attorney in the Lafayette area.

There is one allegation of malpractice on the part of Durio’s firm which is so egregious that a reasonable lay jury could infer his actions fell beneath any | ^reasonable standard of care. In March 2001, Fred Gossen gave Durio a box containing a significant amount of documentary evidence including “all relevant agreements, contracts, documents, legal strategy, and other sensitive, confidential and attorney/client privileged information.” The documents were given to opposing counsel as part of plaintiffs document production. However, Durio’s associate failed to make any copies of the documents first. For two years, the whereabouts of this box was unknown. Although Gossen and Durio eventually managed to recover many of the documents, some remained missing, and the recovered documents were unorganized and out of order. A reasonable lay jury could certainly find handing over a box of client documents without making copies is negligent under any standard. Thus, no expert testimony was necessary to establish these actions fell below the applicable standard of care.

However, it is not enough to simply show Durio acted negligently. MBI must also introduce evidence of causation. Although this Court disavowed the “case within a case” doctrine in Jenkins v. St. Paul Fire & Marine Ins. Co., 422 So.2d 1109, 1110 (La.1982), we reiterated that causation “is an essential element of any tort claim.” At the very least, MBI must establish some causal connection between the alleged negligence and the eventual unfavorable outcome of the litigation. Id. It has not done so.

Although MBI claims some documents were lost, it does not explain which specific documents were never recovered. Nor does it explain how the introduction of those documents prejudiced its ability to win this lawsuit. MBI has therefore failed to establish a “prima facie case that the attorney’s negligence caused [it] some loss.” Id. Therefore, we find entry of summary judgment is proper.

CONCLUSION

For the above-stated reasons, we find there is no genuine issue of material fact and judgment for defendants should be entered as a matter of law. The 12i judgment of the Court of Appeal is hereby reversed, and the judgment of the District Court is reinstated.

REVERSED; DISTRICT COURT JUDGMENT REINSTATED.

JOHNSON, J., concurs in part, dissents in part, and assigns reasons.

JOHNSON, Justice,

concurs in part and dissents in part.

hi concur with the majority’s finding that the failure to appeal an unfavorable judgment is not an absolute impediment to bringing a legal malpractice action. I agree there is no per se rule requiring an appeal in all cases before a legal malpractice action may be pursued. Such a requirement would prove futile in many cases, and would simply serve to require the filing of frivolous lawsuits. I also agree with the majority’s holding that a party does not waive its right to file a legal malpractice suit by not filing an appeal of an underlying judgment unless it is determined a reasonably prudent party would have filed an appeal.

However, I respectfully disagree with the majority’s finding that summary judgment is proper in this case. The majority generally holds that a party alleging legal malpractice must introduce expert testimony to establish the standard of care except in those rare cases involving malpractice so egregious that a lay jury could infer the defendant’s actions fell below any reasonable standard of care. The majority equated this principle to the one applied in medical malpractice cases. I find such application and comparison to be inappropriate. La. R.S. 9:2794 sets forth statutory 12requirements in medical malpractice cases addressing the standard of care and burden of proof. However, no such statutory requirements exist in legal malpractice cases. As the majority points out, our jurisprudence has provided that 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. Teague v. St. Paul Fire & Marine Ins. Co., 07-1384 (La.2/1/08), 974 So.2d 1266, 1272 (citing Costello v. Hardy, 03-1146, p. 10 (La.1/21/04), 864 So.2d 129, 138). Unlike medical malpractice cases, there is no requirement that a plaintiff prove the standard of care in legal malpractice cases, and there is no corresponding requirement of expert testimony to prove standard of care.

In my view, it is error to enter summary judgment in this case based on the Plaintiffs failure to submit expert testimony to prove the standard of care. Therefore, I would affirm the court of appeal’s decision.

      .According to the "legend” prepared by Gos-sen, the box included: documents regarding the formation and foundation of Moon Ventures and MBI; evidence of transactions between Moon Ventures/Mark Massey and MBI; the non-compete agreements; information about the sales accounts managed by Sam Lavergne; correspondence by Sam Lavergne and Mark Massey; correspondence with engineering firms Wilfred Baker Engineering and EQE Engineering; agreements and correspondence between MBI and Exxon; and alleged MBI client lists.

      . The record does not make clear the reason for this delay.

      . Because Durio was still not enrolled as counsel, attorney Gary Russo was retained as special counsel solely for the purposes of filing the motion to continue trial.

      . We certified these questions to the parties to specifically address in their briefs.

      . This doctrine is sometimes referred to as "abandonment.” Mallen & Smith, Legal Malpractice, § 22.12 (2011 ed.)

      . For contrary authority, see Tanner v. Travelers Ins. Co., 389 So.2d 721, 724 (La.App. 4 Cir.1980)(on rehearing), holding that an attorney accused of malpractice has standing to move to annul the underlying judgment against his client to protect his own rights.

      .The then-effective version of La.Code of Civ. Proc. art. 561 stated: "An action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of three years.”

      . Although we are not bound by the pronouncements of federal courts regarding questions of state law, we give those opinions due consideration in guiding our analysis. Chittenden v. State Farm Mutual Auto. Ins. Co., 00-0414 (La.5/15/01), 788 So.2d 1140, 1149 n. 21.

      . Although article 2002 is found in Book III, Title IV, titled “Conventional Obligations and Contracts,” the duty to mitigate applies equally to victims of a delict. Aisole v. Dean, 574 So.2d 1248, 1253-54 (La.1991).

      . See Merrell v. State, 415 So.2d 660, 666-67 (La.App. 3 Cir. 1982) (No reduction of damages where plaintiff had not undergone risky surgery which, even if successful, would only have reduced his disability by a small amount); Dupre v. Tri-Parish Flying Seivice, Inc., 355 So.2d 554, 557 (La.App. 3 Cir.1978)("an injured person may recover to the full extent of his injury where he shows reasonable grounds for his failure to make an effort to lessen his damages”); St. Charles Parish Waterworks Dist. No. 2 v. Point Landing, Inc., 332 So.2d 517, 522 (La.App. 4 Cir.1976)("While it is well settled that a plaintiff must take reasonable steps to minimize damages he is not required to undertake a risky venture.”)

        . See Segall v. Segall, 632 So.2d 76, 78 (Fla.Dist.Ct.App.1993): "We are unable to establish a bright-line rule that complete appellate review of the underlying litigation is a condition precedent to every legal malpractice action.” Under Florida law, the doctrine of abandonment only applies if the court finds the underlying judgment was a result of "judicial error” which "would most likely have been corrected on appeal.” Id. Accord, Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345, 349 (2002)("the attorney defendant has the burden of proof to establish that an appeal would have been successful”); Flint v. Hart, 82 Wash.App. 209, 917 P.2d 590, 596 (1996).

        . See Eastman v. Flor-Ohio, Ltd., 744 So.2d 499 (Fla.Dist.Ct.App.1999), where the defendant firm’s failure to comply with strict Florida laws regarding notice of a rent increase led to a judgment against plaintiff. Because this malpractice could not be remedied on appeal, plaintiff was deemed not to have abandoned his claim by choosing not to file an appeal. Id. at 502-04.

      . Merrill v. Theard, 187 La. 55, 174 So. 107, 108 (1937); Distefano v. B & P Constr., Inc. 04-25 (La.App. 5 Cir. 5/26/04), 874 So.2d 407, 411.

      . In Reeder v. North, 97-239 (La.10/21/97), 701 So.2d 1291, this Court held that a pending appeal does not toll the expiration of the statutory peremptive period for a legal malpractice claim. See La.Rev.Stat. § 9:5605.

      . Specifically, the court held: "We are instead convinced that were the Supreme Court of Louisiana to decide this as a case of first impression today, it would distinguish Pieno and hold that [the] settlement of the underlying case did not have the preclusive effect of barring the client from bringing an independent action for legal malpractice.” American Reliable, 445 F.3d at 404.

      . If a motion for summary judgment is filed early in the proceedings, before a party has had reasonable time to retain an expert, the trial court may continue the hearing on the motion in order to give the party an adequate opportunity to find an expert and obtain his testimony. La.Code of Civ. Proc. art. 966(B). However, MBI did not ask for a continuance and, even if it had, the continuance should have been denied. This case had been ongoing for over 5 years when the motion for summary judgment was filed. This is more than enough time for MBI to find and hire an appropriate expert. See Newsome v. Homer Memorial Medical Center, 10-0564 (La.4/9/10), 32 So.3d 800, 802.

      . We note MBI has since filed suit against Love and his firm, alleging that he committed malpractice in his prosecution of this litigation. Given the allegations it made in that case, it is exceedingly odd that MBI now claims Love is a qualified expert.

      . Fred Gossen testified that he “wholeheartedly agreed” with Judge Duplantier’s conclusion that MBI had failed to meet its burden of producing evidence of valid corporate trade secrets, given the evidence Durio presented at trial.

      . The deposition testimony of Fred Gossen describes, in general terms, some of the evidence which Gossen claims should have been introduced. However, Gossen was not present during the trial and did not read the trial transcript. He therefore lacks personal knowledge to testify whether or not that evidence had actually been introduced. Somewhat incredibly, MBI never deposed Durio or Weinstein despite having over five years to do so.


source: Caselaw Access Project

license: Public Domain

text:
    STATE ex rel. Ricky Earl HILLS v. STATE of Louisiana.
    No. 2010-KH-2688.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re Hills, Ricky Earl;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of E. Baton Rouge, 19th Judicial District Court Div. L, No. 10-08-0427; to the Court of Appeal, First Circuit, No. 2010 KA 0910.

Denied.

JOHNSON, J., would grant.


text:
    STATE ex rel. Robert Kevin McCARTNEY v. STATE of Louisiana.
    No. 2010-KH-2707.
    Supreme Court of Louisiana.
    Oct. 14, 2011.
   In re McCartney, Robert Kevin;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Rapides, 9th Judicial District Court Div. D, No. 284,925; to the Court of Appeal, Third Circuit, No. KH 10-00718.

Denied. La.C.Cr.P. art. 930.8; State ex rel. Glover v. State, 93-2830 (La.9/5/95), 660 So.2d 1189; State v. Parker, 98-0256 (La.5/8/98), 711 So.2d 694.


text:
    STATE of Louisiana v. Edward ALLEN et al.
    No. 2011-KD-2269.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. L, No. 491-394; to the Court of Appeal, Fourth Circuit, No. 2011-K-1455.

Stay denied; writ denied.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Erik TRACZYK.
    No. 2011-KK-2314.
    Supreme Court of Louisiana.
    Oct. 21, 2011.
   In re State of Louisiana;—Plaintiff; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District

Court Div. I, No. 473-300; to the Court of Appeal, Fourth Circuit, No. 2011-K-1234.

Denied.

GUIDRY, J., would grant.


text:
    STATE of Louisiana v. Erik TRACZYK.
    No. 2011-KD-2362.
    Supreme Court of Louisiana.
    Oct. 26, 2011.
   In re Traczyk, Erik;—Defendant; Applying For Supervisory and/or Remedial Writs, Parish of Orleans, Criminal District Court Div. I, No. 473-300; to the Court of Appeal, Fourth Circuit, No. 2011-K-1501.

Denied.


author: MARC E. JOHNSON, Judge.

text:
    STATE of Louisiana v. Edgar L. OLIVIERI.
    No. 10-KA-1064.
    Court of Appeal of Louisiana, Fifth Circuit.
    Sept. 13, 2011.

      Paul D. Connick, District Attorney, Terry M. Boudreaux, Assistant District Attorney, Parish of Jefferson, Gretna, LA, for Plaintiff/Appellee.
    Frederick J. Kroenke, Jr., Attorney at Law, Louisiana Appellate Project, Baton Rouge, LA, for Defendant/Appellant.
    Panel composed of Judges SUSAN M. CHEHARDY, FREDERICKA HOMBERG WICKER, and MARC E. JOHNSON.
   MARC E. JOHNSON, Judge.

| ^Defendant pled guilty to three counts of armed robbery on August 24, 2010, and was sentenced, on each count, to 30 years’ imprisonments to be served concurrently and without benefit of parole, probation, or suspension of sentence. In his sole assignment of error on appeal, defendant challenges the validity of his waiver of conflict-free counsel.

Defendant claims he was denied his constitutional right to effective and conflict-free counsel because his waiver of conflict-free counsel was not knowing and intelligent. He contends that although he had notice of a potential conflict, he was left on his own to determine whether an actual conflict existed. He argues the trial court failed to ensure that he was fully informed of the consequences of proceeding with conflicted counsel. Defendant further asserts he was never informed of his right to obtain other counsel. As such, defendant seeks to have his conviction and sentence reversed.

|,.¡The State contends defendant is precluded from raising this issue on appeal because he pled guilty, there was no adverse ruling, and he did not reserve his right to appeal under State v. Crosby, 338 So.2d 584 (La.1976). Although a guilty plea normally waives all non-jurisdictional defects in the proceedings prior to the plea, the Louisiana Supreme Court recently explained that the Sixth and Fourteenth Amendments and La. Const, art. I, § 2 and § 13 protect a defendant pleading guilty. To that extent, the supreme court stated that “[w]hen a defendant enters a counseled plea of guilty, this court will review the quality of counsel’s representation in deciding whether the plea should be set aside.” State v. West, 09-2810 (La.12/10/10), 50 So.3d 148, 149 (per curiam ). In West, the supreme court found that the appellate court erred to the extent it implied that the defendant’s claim of ineffective assistance of counsel was a non-jurisdictional defect that was waived by his guilty plea.

In the present case, defendant does not specifically challenge the effectiveness of his counsel. However, the Louisiana Supreme Court has held that “an attorney laboring under an actual conflict of interest cannot render effective legal assistance to the defendant whom he is representing.” State v. Reeves, 06-2419 (La.5/5/09), 11 So.3d 1031, 1081, cert. denied, — U.S. —, 130 S.Ct. 637, 175 L.Ed.2d 490 (2009).

As noted by the Third Circuit in State v. Holder, 99-1747 (La.App. 3 Cir. 10/11/00), 771 So.2d 780, 781, there is no jurisprudence indicating that a guilty plea waives an actual conflict of interest. In Holder, the Third Circuit ultimately addressed the defendant’s claim that her counsel had a conflict of interest despite the fact she pled guilty and did not reserve her right to appeal under Crosby.

^Considering the above jurisprudence and because of the possible implications of defendant’s constitutional rights relating to his guilty plea, we will address defendant’s claim that he did not knowingly and intelligently waive his right to conflict-free counsel prior to entering his guilty plea.

Every criminal defendant is entitled not only to counsel but also to conflict-free counsel. U.S. Const. Amend. 6 and 14; La. Const. Art. I, § 13; State v. Franklin, 400 So.2d 616, 620 (La.1981). After the trial court has been alerted that a conflict of interest exists, the judge must take the proper steps to assure that the defendant’s Sixth Amendment right to effective assistance of counsel is not violated. State v. Cisco, 01-2732 (La.12/3/03), 861 So.2d 118, 132, cert. denied, 541 U.S. 1005, 124 S.Ct. 2023, 158 L.Ed.2d 522 (2004).

When the issue of a conflict of interest is raised pre-trial, the judge is required to either appoint other counsel or take adequate steps to determine whether the risk of a conflict of interest is too remote to warrant other counsel. Id., referencing Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). These steps require the trial judge to first have the attorney disclose the basis of the conflict. If the judge determines the conflict is not too remote, he should explain the conflict to the defendant and inform the defendant of his right to conflict-free representation. If the defendant chooses to proceed with conflicted counsel, a narrative form statement should be prepared that indicates the defendant is fully aware of his right to conflict-free counsel but has chosen to knowingly and intelligently waive his right. Before a defendant can knowingly and intelligently waive his right to conflict-free counsel, he must be told (1) that a conflict of interest exists; (2) the consequences to his defense from continuing with conflict-laden counsel; and (3) that he has a right to obtain other counsel. Cisco, 861 So.2d at 132-33.

IfiThe record shows that the trial court held a hearing on May 4, 2010, during which defendant waived any potential conflict of interest involving his attorney, who stated he represented a co-defendant in a different matter in another parish. During the hearing, the trial judge questioned defendant’s counsel about his representation in the other matter. Counsel explained that the judge in the other parish had asked him to withdraw from representation to allow another attorney to handle all of the co-defendant’s matters in that parish. Counsel stated that he was inclined to withdraw and was doing so.

The trial judge expressed her concern that based on her limited knowledge of the case, there may be some conflict. The prosecutor also voiced his concern that a problem might exist if a defendant represented by counsel was “flipped” to testify against another defendant represented by the same counsel. The judge then told defendant that his counsel’s representation of the co-defendant in another matter may impose a potential conflict of interest to which defendant responded, “I doubt it.” The judge inquired as to whether defendant had spoken to his attorney about the conflict of interest and defendant stated that he had. The judge asked defendant if he wished to waive any potential conflict, and he replied affirmatively.

The prosecutor further attempted to explain what he perceived to be the potential conflict. Before the prosecutor could fully explain, defendant stated that his understanding of the conflict was that the State wanted defendant’s nephew and son to testify against him. The prosecutor responded, “[pjotentially, yes.” The prosecutor then explained that the conflict might put his attorney in a position where he is advising defendant of one thing while thinking of the other client’s best interest. In response, defendant stated that he trusted his attorney and wanted him to stay as his counsel. He again indicated he waived any conflicts. Later in | fithe hearing, the prosecutor noted that the State had been in negotiations with the co-defendant at issue to testify against defendant.

Based on this exchange, we do not find defendant knowingly and intelligently waived his right to conflict-free counsel. Although the trial court and prosecutor recognized there might be a conflict of interest, defendant waived any conflict before the particulars of his counsel’s representation of the co-defendant and consequences of said representation were determined. Additionally, the record does not reflect defendant was ever informed that he had the right to obtain other counsel.

Having determined that defendant’s waiver of conflict-free counsel was invalid, we must address what effect, if any, the invalid waiver has on defendant’s conviction. The mere possibility of a conflict is insufficient to impugn a criminal conviction. Cuyler v. Sullivan, 446 U.S. 335, 350, 100 S.Ct. 1708, 1719, 64 L.Ed.2d 333 (1980). It is only when an actual conflict exists that the reversal of a conviction may be required. See Mickens v. Taylor, 535 U.S. 162, 168, 122 S.Ct. 1237, 1242, 152 L.Ed.2d 291 (2002), citing Holloway v. Arkansas, 435 U.S. 475, 481, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978).

An actual conflict is defined as follows:

If a defense attorney owes duties to a party whose interests are adverse to those of the defendant, then an actual conflict exists. The interest of the other client and the defendant are sufficiently adverse if it is shown that the attorney owes a duty to the defendant to take some action that could be detrimental to his other client.

State v. Kahey, 436 So.2d 475, 484 (La.1983), citing Zuck v. Alabama, 588 F.2d 436 (5th Cir.1979), cert. denied, 444 U.S. 833, 100 S.Ct. 63, 62 L.Ed.2d 42 (1979). “An actual conflict of interest is established when the defendant proves that his attorney was placed in a situation inherently conducive to divided loyalties.” Kahey, 436 So.2d at 484. The Louisiana Supreme Court has explained that “a 17defense attorney required to cross-examine a current or former client on behalf of a current defendant suffers from an actual conflict.” Cisco, 861 So.2d at 130.

The United States Supreme Court has set forth two different standards for determining whether reversal of a conviction is required when an actual conflict exists. If an actual conflict exists and the defendant objects to his counsel’s representation pre-trial but is forced to continue with conflicted counsel, prejudice is presumed and reversal is automatic. Holloway, 435 U.S. at 488, 98 S.Ct. at 1181. If the defendant does not object to the conflicted representation until post-trial, he must prove actual prejudice; in other words, that the actual conflict adversely affected the adequacy of his counsel’s performance. Sullivan, 446 U.S. at 350, 100 S.Ct. at 1719. Thus, the time at which the defendant raises the conflict of interest issue is determinative of whether the Holloway or Sullivan standard is applied. State v. Wille, 595 So.2d 1149, 1153 (La.1992), cert. denied, 506 U.S. 880, 113 S.Ct. 231, 121 L.Ed.2d 167 (1992).

Although the State and the trial judge expressed concern of a possible conflict, at no time did either defendant or defense counsel object to counsel’s continued representation. The fact the State expresses concern over a potential conflict, does not in and of itself give rise to the presumption of prejudice contained in the Holloway standard. See State v. Castaneda, 94-1118 (La.App. 1 Cir. 6/23/95), 658 So.2d 297, 305. Defendant did not object to his counsel’s representation until this appeal. Thus, we find the Sullivan standard applies and that defendant must show that an actual conflict of interest adversely affected his counsel’s performance.

We find the record inadequate to show whether an actual conflict of interest existed. While the trial judge attempted to question defense counsel regarding any potential conflict, her inquiry halted when defendant insisted on waiving any | sconflict. Additionally, the extent of defense counsel’s representation of a co-defendant in another matter is unknown, and it is not evident from the record whether counsel advised defendant to plead guilty under divided loyalties. Further, defendant in this case pled guilty so no actual conflict relating to cross-examining a current or former client presented itself.

Being unable to determine whether an actual conflict of interest existed from the record before us, we find that the interest of justice and judicial economy would best be served by remanding the case for an evidentiary hearing so that the issue can be promptly resolved. Accordingly, we conditionally affirm defendant’s conviction and sentence and remand the case to the district court for purposes of conducting an evidentiary hearing on the question of whether defendant’s trial counsel labored under an actual conflict of interest that adversely affected his performance. See State v. Waters, 780 So.2d 1053, 1058 (La.2001). We further reserve defendant’s right to appeal an adverse determination.

We have reviewed the record for errors patent in accordance with La.C.Cr.P. art. 920, State v. Oliveaux, 312 So.2d 337 (La.1975), and State v. Hicks, 08-402, p. 13 (La.App. 5 Cir. 12/16/08), 3 So.3d 539, 547, and find no errors that require remedial action.

For the foregoing reasons, defendant’s conviction and sentence are conditionally affirmed and the case is remanded to the district court for further proceedings consistent with this opinion.

CONVICTION AND SENTENCE CONDITIONALLY AFFIRMED; CASE REMANDED

      . See also, State v. Roberts, 08-1026 (La.App. 3 Cir. 3/4/09), 4 So.3d 1011, 1014, where the Third Circuit found the defendant did not waive his claim that the bill of information was defective and that his counsel failed to sufficiently advise him of the accusations against him when he pled guilty because his claim related to the entering of the guilty plea.


author: MAX N. TOBIAS, JR., Judge.

text:
    STATE of Louisiana in the Interest of B.C.
    No. 2011-CA-0638.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 14, 2011.
    Katherine M. Franks, Louisiana Appellate Project, Abita Springs, LA, for Appellant, B.C.
    Leon A. Cannizzaro, Jr., District Attorney, Matthew Caplan, Assistant District Attorney, New Orleans, LA, for Appellee, State of Louisiana.
    (Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge MAX N. TOBIAS, JR., Judge EDWIN A. LOMBARD).
   MAX N. TOBIAS, JR., Judge.

|2B.C. has filed the instant appeal from the judgment of the Juvenile Court of Orleans Parish, which adjudicated him delinquent for the charges of unauthorized use of a motor vehicle and hit-and-run driving where there is death or serious bodily injury. Because the parties agree that the adjudication should be amended, we do so and remand the matter back to the trial court for sentencing.

Between 8:00-8:30 a.m. on 23 November 2010, an automobile accident occurred at the corner of Daneel and Delachaise Streets in New Orleans. Chris Thomas, who was in the parking lot of the Post Office on the same intersection, observed the collision and called 911. New Orleans Police Department (“NOPD”) Officer Eric Carr responded to the call, but by the time he arrived at the scene, the driver of a white Nissan Armada involved in the accident had already fled.

Mr. Thomas saw the Armada driver because the driver was facing in Mr. Thomas’ direction before he fled. Mr. Thomas told Officer Carr that he saw an individual wearing “either a dark gray or light black tee-shirt with black jeans” and sporting a “twist hairdo,” like the one B.C. wore at his adjudication hearing, exit the Armada and run down Delachaise Street towards S. Claiborne Avenue; that description was broadcast to other officers in the area.

| -Approximately 20 minutes after the accident, an individual matching the description given was apprehended by an unidentified NOPD officer and brought back to the scene. While sitting in the police car, Mr. Thomas identified B.C. as the individual who exited the Armada and fled.

Meanwhile, Officer Carr had learned, by running the vehicle’s Vehicle Identification Number through the National Crime Information Center database, that the Armada had been stolen the previous day, November 22, and had not been recovered. Officer Carr discovered, after speaking to the Armada’s owner, that B.C. did not have permission to drive the SUV, even although B.C. was in possession of the key. It was alleged that B.C. himself stated to the apprehending officer that he “was driving the car ... ”, but insisted he had permission to drive the vehicle.

The two passengers in the other car involved in the collision, a black Hyundai Sonata, were both injured in the wreck; the extent of their injuries was not introduced at the adjudication hearing.

B.C. was charged with unauthorized use of a motor vehicle, in violation of La. R.S. 14:68.4, and hit-and-run, in violation of La. R.S. 14:100. B.C.’s adjudication hearing was originally set for 26 January 2011, but was continued at the request of the state and over the objection of the defense due to the absence of the victims. On 9 February, the hearing was held. Only two witnesses testified: Officer Carr and Mr. Thomas. The passengers who were hit and sustained injury, along with the officer who apprehended B.C., were not present. Following the hearing, B.C. was found guilty of the unauthorized use of a motor vehicle and the Chit and run where death or serious bodily injury occurs. A disposition of incarceration for a maximum of one year on Count 1 and until B.C. reached the age of twenty-one on Count 2 (approximately five years), to be served concurrently, was handed down on 23 February.

B.C. has assigned three errors for our review. However, as pointed out by the state, these three assignments of error say the same thing: the adjudication of delinquency as hit-and-run with death or serious bodily injury, in violation of La. R.S. 14:100 C(2), is not supported by the evidence adduced at the adjudication hearing. In response, the state agrees that it did not prove the crime for which B.C. was charged, but did prove the lesser included offense, hit-and-run driving where there is no death or serious bodily injury. As such, the state agrees that the adjudication should be amended and the matter remanded to the court below for resentenc-ing.

The standard for testing the sufficiency of the evidence requires that a conviction be based on proof sufficient for any rational trier of fact, viewing the evidence in the light most favorable to the prosecution, to find the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The Jackson standard applies to juvenile proceedings. Interest of T.E., 00-1810, p. 4 (La.App. 4 Cir. 4/11/01), 787 So.2d 414, 417.

La. R.S. 14:100 provides in pertinent part:

C. (l)(a) Whoever commits the crime of hit-and-run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars or imprisoned for not more than six months, or both.
(b) Whoever commits the crime of hit- and-run driving where there is no death or serious bodily injury shall be fined not more than five hundred dollars, imprisoned for not less than ten days nor more than six | .^months, or both when: (i) there is evidence that the vehicle operator consumed alcohol or used drugs or a controlled dangerous substance prior to the accident; (ii) the consumption of the alcohol, drugs, or a controlled dangerous substance contributed to the accident; and (iii) the driver failed to stop, give his identity, or render aid with the knowledge that his actions could affect an actual or potential present, past, or future criminal investigation or proceeding.
(2) Whoever commits the crime of hit- and-run driving, when death or serious bodily injury is a direct result of the accident and when the driver knew or should have known that death or serious bodily injury has occurred, shall be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than ten years, or both. [Emphasis supplied.]

Because neither occupant of the other vehicle was present to testify regarding the injuries sustained in the accident, the state did not prove that B.C. was guilty of § 100 C(2), but instead proved that he was guilty of § 100 C(l)(a). Therefore the sentence imposed by the court below was in error.

We therefore amend the adjudication from hit-and-run driving when death or serious bodily injury occurs to hit-and-run driving where there is no death or serious bodily injury in violation of La. R.S. 14:100 C(l)(a). Accordingly, we remand the matter to the trial court for sentencing.

JUDGMENT AMENDED; RENDERED; REMANDED.

      . B.C. filed a motion to suppress his statement, which was granted by the trial court at the end of the hearing.


author: TERRI F. LOVE, Judge. TOBIAS, J.,

text:
    Willie J. WILSON v. CALAMIA CONSTRUCTION COMPANY.
    No. 2011-CA-0639.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.

      Willie J. Wilson, New Orleans, LA, in Proper Person, Plaintiff/Appellant.
    Robert S. Reich, Leah R. Rhodes, Reich Album & Plunkett, L.L.C., Metairie, LA, for Defendant/Appellee, Calamia Construction Company.
    (Court composed of Judge TERRI F. LOVE, Judge MAX N. TOBIAS, JR., Judge PAUL A. BONIN).
   TERRI F. LOVE, Judge.

11 Appellant, Willie Wilson, filed a disputed claim for compensation alleging that he was injured in the course and scope of his employment with Calamia Construction Company. Appellant alleges that he was injured when a Calamia employee stepped on a pipe, and the pipe fell into a hole that Appellant was working in and struck him. Calamia filed a motion for summary judgment, which was granted by the workers’ compensation judge. The court dismissed all of Mr. Wilson’s claims with prejudice. Appellant seeks review of the workers’ compensation court’s judgment.

We find that service in this matter did not comport with due process requirements. Therefore, we vacate the judgment granting summary judgment in favor of Calamia and remand this matter to the workers’ compensation court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL BACKGROUND

Willie Wilson (“Mr. Wilson”) filed a disputed claim for compensation in 2009. The claim alleged that Mr. Wilson sustained an injury on November 10, 2008, while in the course and scope of his employment with Calamia Construction 12Company (“Calamia”). Mr. Wilson alleged that he was working in a hole when a co-worker stepped on an iron pipe and averred that the iron pipe fell into the hole; Mr. Wilson alleges that he sustained injuries when the pipe struck him in the back of the neck.

Calamia answered the claim, denying that an injury occurred. Calamia noted that Mr. Wilson was terminated on November 13, 2008, for an altercation with a co-worker in which Mr. Wilson brandished a knife. Calamia asserted that Mr. Wilson was attempting to perpetuate a fraud.

After discovery was conducted, Calamia filed a motion for summary judgment. In the memorandum in support of the motion, Calamia asserted three separate arguments entitling Calamia to summary judgment. First, Calamia argued that Mr. Wilson violated La. R.S. 23:1208, the anti-fraud provision of the Louisiana Workers’ Compensation Act. Alternatively, Calamia argued that Mr. Wilson would not be able to meet his burden of proof with regard to causation. Lastly, Calamia argued that in the event Mr. Wilson prevailed, Calamia was entitled to off-set the disability payments that Mr. Wilson has received from the Social Security Administration.

Before the workers’ compensation court, Mr. Wilson stated that he was in the hospital for surgery and was released on January 13th or 14th. Mr. Wilson indicated that he did not receive a copy of the motion for summary judgment. Mr. Wilson stated that he called the workers’ compensation office on January 13th or 14th and that is when he learned of the hearing date. Mr. Wilson stated that he received a copy of the motion for summary judgment on January 16th or 17th. The hearing was scheduled for January 21, 2011. Mr. Wilson stated that he did not have the time to go over the specifics of the motion. The hearing proceeded on | a June 21, 2011. Thereafter, the court rendered judgment granting the motion for summary judgment, dismissing with prejudice all of Mr. Wilson’s claims asserted against Calamia. The court did not issue reasons for judgment. Mr. Wilson timely filed a motion for an appeal.

STANDARD OF REVIEW

Appellate courts review the granting of summary judgment de novo under the same criteria governing the trial court’s consideration of whether summary judgment is appropriate. Martinez v. American Steelway Industries, L.L.C., 09-0339, p. 3 (La.App. 4 Cir. 9/2/09), 20 So.3d 526, 528, citing Reynolds v. Select Props., Ltd., 93-1480 (La.4/11/94), 634 So.2d 1180, 1183. A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law. La. C.C.P. art. 966(B). If the court finds that a genuine issue of material fact exists, then summary judgment must be rejected. Martinez, 09-0339, p. 3, 20 So.3d at 528, citing Oakley v. Thebault, 96-0937, p. 3 (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. The burden of proof does not shift to the party opposing summary judgment until the moving party presents a prima facie case that no genuine issues of material fact exist. Id. At that point, if the party opposing the motion “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. C.C.P. art. 966(C)(2). Summary judgment should then be granted. Martinez, 09-0339, p. 4, 20 So.3d at 528, citing Lomax v. Ernest Mortal Convention Center, 07-0092, pp. 2-3 (La.App. 4 Cir. 7/11/07), 963 So.2d 463, 465.

LPROOF OF SERVICE

In conducting a de novo review, we found the record devoid of proof of service of the hearing date as to Mr. Wilson. We, therefore, ordered the parties to file supplemental briefs addressing whether the record demonstrates that Mr. Wilson received service of the January 21, 2011 hearing date. In response, Calamia filed a Motion for Leave to File Additional Attachments to its appellate brief and a supplemental brief addressing service of Mr. Wilson. However, the documents Calamia seeks to attach to its brief were not introduced into evidence at the hearing.

It is well established that “evidence not properly and officially introduced cannot be considered, even if physically placed in the record. Documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal.” Ritter v. Exxon, 08-1404, p. 9 (La.App. 4 Cir. 9/09/09), 20 So.3d 540, 546, citing Denoux v. Vessel Management Services, Inc., 07-2143 (La.5/21/08), 983 So.2d 84. Thus, we are unable to consider any document that was not admitted into evidence or otherwise properly made a part of the record, even if attached to Calamia’s appellate brief.

Further, the documents that Calamia seeks to attach to its brief do not establish that Mr. Wilson was properly served with notice of the hearing. The summary judgment motion, memorandum in support thereof, and any supporting affidavits are to be served within the time limits provided in District Court Rule 9.9. La. C.C.P. art. 966(B). District Court Rule 9.9 provides:

When a party files an exception or motion, that party shall concurrently furnish the trial judge and serve on all other parties a ^supporting memorandum that cites both the relevant facts and applicable law. The memorandum shall be served on all other parties so that it is received by the other parties at least fifteen calendar days before the hearing, unless the court sets a shorter time.

District Court Rule 9.9(a). The documents sought to be attached by Calamia indicate that on January 14, 2011, the workers’ compensation office sent, via certified mail, a notice of signing of order setting Cala-mia’s motion for summary judgment for hearing on January 21, 2011. Mr. Wilson signed for the documents on January 17, 2011. There is no proof that the workers’ compensation court set a shorter time period. Thus, Mr. Wilson was untimely served with the memorandum less than one week prior to the hearing. Mr. Wilson, appearing in proper person, stated several times during the hearing that he did not have sufficient time to prepare. We agree.

Calamia argues that it mailed out a copy to Mr. Wilson and that the workers’ compensation court also mailed out a notice of hearing on December 30, 2011. Nevertheless, when a pleading or order sets a court date, service shall be made by registered or certified mail. La. C.C.P. art. 1313(C). Service may also be made by the sheriff. La. C.C.P. art. 1314. And, in workers’ compensation cases, all pleadings subsequent to the disputed claim for compensation requiring service shall be served in any manner provided by law or by certified mail. La. R.S. 23:1310.3(B). Thus, the order setting the hearing for January 21, 2011, should have been served on Mr. Wilson by certified mail, registered mail, or the sheriff.

The essential elements of due process are notice and the opportunity to respond. La. Const. art. I, § 2; Williams v. Belle of Orleans, L.L.C., 03-1203, p. 11 (La.App. 4 Cir. 12/1/04), 890 So.2d 670, 676. In this case, the record lacks proof that Mr. Wilson was served by certified mail, registered mail, or the sheriff at least | (¡fifteen calendar days prior to the January 21, 2011 hearing. As service in this matter did not comport with due process requirements, the judgment granting Calamia’s motion for summary judgment is thereby vacated.

DECREE

Accordingly, we vacate the judgment granting summary judgment in favor of Calamia and remand this matter to the workers’ compensation court for further proceedings consistent with this opinion.

MOTIONS FOR LEAVE DENIED; JUDGMENT VACATED; REMANDED

TOBIAS, J., concurs.

TOBIAS, J.,

concurs.

| Although Rule 2-1.11 of the Louisiana Uniform Rules of the Courts of Appeal states:

Subpoenas, notices, and returns may be omitted from the record, unless they are at issue. Such items may be supplied upon timely application to this court by any party, upon showing their materiality.

Mr. Wilson, appearing pro se in this matter, complained to the trial court that he did not have adequate notice. Our requests for supplementation of the record establishes that he did not have timely notice of the hearing on the motion for summary judgment, and the trial court should not have proceeded to hear the matter.

      . November 6, 2008, also appears in the record as the day Mr. Wilson sustained an injury while working for Calamia. For the purpose of this Court’s review, the date is immaterial.

      . Mr. Wilson also filed a motion for leave to file additional attachments, which is denied because attachments are not entered in the record on appeal.


author: ROLAND L. BELSOME, Judge. LOVE, J.,

text:
    Dr. Susan HOOPER, D.C. v. TRAVELERS INSURANCE COMPANY and Robert and Leah Payne.
    Nos. 2010-CA-1685, 2011-CA-0220.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 28, 2011.

      Louis R. Koerner, Jr., Koerner Law Firm, Houma, LA, for Plaintiff/Appellant.
    Timothy Thriffiley, George Pivach II, Pivach Pivach Hufft Thriffiley & Nolan, L.L.C., Belle Chasse, LA, for Defendants/Appellees, Robert and Leah Payne.
    Celeste D. Elliott, Lugenbuhl Wheaton Peck Rankin & Hubbard, New Orleans, LA, for Defendant/Appellee, Travelers Property Casualty Company of America, etc.
    (Court composed of Judge CHARLES R. JONES, Judge PATRICIA RIVET MURRAY, Judge TERRI F. LOVE, Judge EDWIN A. LOMBARD, Judge ROLAND L. BELSOME).
   ROLAND L. BELSOME, Judge.

| ,Dr. Susan Hooper is appealing the trial court’s dismissal of her claims pursuant to the granting of summary judgment in favor of Robert and Leah Payne and Traveler’s Casualty Insurance (collectively referred to as “defendants”). Dr. Hooper is also appealing the trial court’s ruling to exclude the expert testimony of Dr. Patricia Salvato.

On April 19, 2000, Dr. Hooper leased commercial office space from Robert and Leah Payne. The office was located at 8584 A Belle Chasse Highway, Belle Chasse, Louisiana. Dr. Hooper operated her chiropractic clinic at that location until November of 2003.

During the time she was operating her clinic at the leased property, Dr. Hooper began to experience adverse health effects. In May of 2003, she was informed that the office was contaminated with toxic mold. A certified mold remediator inspected the property and test results revealed that high quantities of |2Stachybotrys mold were present in the gypsum board lining the of the treatment room and also in the return air duct.

Subsequently, Dr. Hooper notified the Paynes that there was mold in the building and that she was experiencing health problems. Sometime in September of 2003, the Paynes began making repairs during which time Dr. Hooper claims her symptoms increased. She vacated the premises on November 1, 2003. Dr. Hooper then filed a Petition for Damages alleging economic losses and physical injury due to the defective condition of the property.

Prior to trial, the defendants filed a motion to exclude the expert testimony of Dr. Patricia Salvato. Dr. Salvato is an internal medicine specialist and Dr. Hooper’s treating physician. Dr. Salvato has diagnosed Dr. Hooper with chronic fatigue syndrome. She relates Dr. Hooper’s condition to mold exposure. The defendant’s challenged her methodology in developing that opinion under the Daubert standard. The trial court accepted briefing and oral argument on the motion to exclude and found that Dr. Salvato was not qualified to give her expert opinion as to the causation of Dr. Hooper’s health problems.

The defendants then filed a motion for summary judgment claiming that without expert testimony Dr. Hooper could not meet her burden of proof regarding the causation of her alleged injuries. Dr. Hooper motioned the court for a continuance to obtain a report from another expert. That motion was denied and the trial court granted summary judgment dismissing all of Dr. Hooper’s claims against the defendants. This appeal followed.

|sOn appeal, Dr. Hooper contends that the trial court erred by: 1) excluding the expert testimony of Dr. Patricia Salvato; 2) not granting the requested continuance in order to obtain the affidavit of the new treating physician and expert, Dr. Michael Gray; 3) granting summary judgment dismissing the case with prejudice because there are genuine issues of material fact; 4) finding that there was no evidence of significant levels of mold, despite contrary evidence, thus improperly making a factual determination; 5) finding that the plaintiff cannot prove causation for any level of mold exposure or damage, even acute damage; and 6) dismissing all claims of plaintiff, when the only claims of plaintiff that were asked to be dismissed in the motion were the chronic medical conditions, and there was no discussion of the acute mold-exposure symptoms or of the plaintiffs claims for breach of the warranty against vices in leased property and constructive eviction.

Exclusion of Dr. Salvato’s Testimony

The defendants challenged Dr. Salvato’s expert testimony under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). The Daubert standard requires that scientific expert testimony not only be relevant but also reliable. Id. at 590-593, 597, 113 S.Ct. 2786. The Supreme Court in Daubert required a “preliminary assessment [by the trial court] of whether the reasoning or methodology underlying the [expert’s] testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue.” Id. at 593, 113 S.Ct. 2786. That “gatekeeping” function was further expanded by the |4United States Supreme Court’s opinion in Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S.Ct. 1167, 1176, 143 L.Ed.2d 238 (1999), to apply to all expert testimony, including opinion evidence based solely on special training or experience.

Daubert set forth some non-exclusive factors for courts to consider in making a determination as to whether an expert’s testimony was relevant and reliable. Those factors include but are not limited to: (1) the testability of the technique or scientific theory; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error; and (4) whether the technique had gained “general acceptance.” Daubert at 593-594, 113 S.Ct. 2786.

In this case, Dr. Salvato was being offered as an expert to establish causation between Dr. Hooper’s exposure to toxic mold and her health problems. As this Court discussed in Watters v. Department of Social Services, 08-977 (La.App. 4 Cir. 6/17/09), 15 So.3d 1128, causation in a toxic mold case must be proven on five levels: “(i) the presence of mold, (ii) the cause of the mold and the relationship of that cause to a specific defendant, (iii) actual exposure to the mold, (iv) the exposure was a dose sufficient to cause health effects (general causation), and (v) a sufficient causative link between the alleged health problems and the specific type of mold found (specific causation).” Id. at 1143.

Dr. Salvato is board certified in internal medicine and has written numerous articles on the topic of chronic fatigue syndrome. During the course of her | ¿treatment with Dr. Salvato, Dr. Hooper was diagnosed with chronic fatigue syndrome. When Dr. Salvato was deposed, she testified that it was her opinion that Dr. Hooper’s current health condition was related to her exposure to toxic mold. It was also her testimony that she had no knowledge of what type of mold Dr. Hooper had been exposed to or at what levels. Further, Dr. Salvato admitted that she was unaware of any medical literature relating chronic fatigue syndrome to mold exposure. And although she had written peer review articles on chronic fatigue syndrome, she had not written any peer review articles or research publications on toxic mold. Nor had she attended any seminars on toxic mold.

At the time that Dr. Hooper began seeing Dr. Salvato, she had been removed from the premises for approximately four years. Dr. Salvato relied on Dr. Hooper’s account of her health history and exposure to mold at the premises to develop a temporal proximity theory. Again, that opinion was formed without any knowledge of the types of mold that had been discovered or the level of exposure. When she was asked: “[w]hat methodology did you use, if any, to arrive at the conclusion that her exposure to mold was the factor that caused her chronic fatigue syndrome?” Dr. Salvato replied: “[t]he fact that she said before that she was fine.”

The trial court determined that Dr. Sal-vato’s testimony did not meet the requirements of Daubert, stating that:

The court finds that the doctor’s sole reliance on the temporal relationship is insufficient to satisfy the Daubert requirement; and ... I[sic], therefore, scientifically invalid.
The court does recognize — and this is a bench trial — that a neurotoxicologist is going to be retained by the plaintiff ...

| ^Appellate Court’s review of a trial court’s decision to allow or exclude expert testimony is conducted under an abuse of discretion standard. Cheairs v. State Dep’t. of Transp. and Dev., 2003-0680 (La.12/3/03), 861 So.2d 536. Given Dr. Sal-vato’s deposition testimony that she formed a temporal proximity theory without having specific information regarding the exposure, we cannot find that the trial court abused its discretion in excluding her as an expert on the issue of causation under Daubert and Watters.

Once Dr. Hooper’s expert’s testimony on causation was excluded, the defendants filed a motion for summary judgment asserting that Dr. Hooper was unable to establish a critical element of her claim.

Defendants’ motion for summary judgment was filed and set for August 5, 2010. From that setting, Dr. Hooper requested a continuance because her counsel had a week-long trial in federal court. The trial court granted that unopposed request and rescheduled the motion for summary judgment for August 30, 2010. Just prior to that hearing date, Dr. Hooper motioned for a second continuance. The reasons provided to the court for the second continuance was that she needed additional time to obtain a medical report and records from her then treating physician, Dr. Michael Gray. Dr. Gray’s office is located in Phoenix, Arizona.

Based on documents in the record, Dr. Gray possesses expertise in the field of clinical, occupational, and environmental medicine and toxicology. Dr. Hooper began treating with Dr. Gray in March 2010. Dr. Hooper’s counsel was relying on Dr. Gray to submit an affidavit prior to the summary judgment hearing. Just |7prior to that hearing, Dr. Gray presented Dr. Hooper’s counsel with a consulting contract that requires a substantial retainer. Dr. Gray would not provide the affidavit necessary for the hearing until the consulting agreement was executed and the retainer was paid.

La. C.C.P. art. 1602 provides that “[a] continuance shall be granted if at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case.... ” Dr. Gray’s opinion on causation was needed to oppose the motion for summary judgment filed by the defendants. The defendants presented the trial court with an expert opinion stating, among other things, that the levels and types of mold that existed in the premises could not have caused Dr. Hooper’s health problems. Without countervailing evidence on the issue of causation Dr. Hooper’s case was dismissed in its entirety. Therefore, the evidence was absolutely material to the case. We must then consider whether due diligence was exercised in attempting to secure the evidence in a timely manner.

The hearing date for the defendants’ motion for summary judgment was approximately six months from the date that the trial court excluded Dr. Salvato’s testimony on causation. In that time frame, Dr. Hooper located Dr. Gray, an out-of-state physician that specializes in toxic mold related illnesses. She anticipated that once he rendered an opinion as to the cause of her health issues, Dr. Gray would provide an affidavit or report outlining his opinion. Based on the representations by Dr. Hooper’s counsel, he and his client were somewhat 18surprised by the necessity of executing the consulting agreement and submitting a retainer prior to Dr. Gray publishing his opinion. Again, as represented by counsel, at the time that he learned of these demands by Dr. Gray, he was participating in another trial that was being conducted out of town. Counsel for Dr. Hooper asserts that the efforts put forth by him and his client evidence due diligence in obtaining the material evidence.

According to Black’s Law Dictionary, due diligence is the “diligence reasonably expected from, and ordinarily exercised by, a person who seeks to satisfy a legal requirement or discharge an obligation.” Black’s Law Dictionary 523 (9th ed.2009). It is evident from the record that actions were taken within the six month period after the exclusion of Dr. Salva-to’s testimony. Although the defendants characterize six months as a monumental interval, we do not find that time frame unreasonable in this context. In the past, courts have found that “when an applicant’s diligence cannot be positively determined, the court should rather grant the continuance. Its allowance produces delay, but its denial may cause irreparable injury.” Matte v. Louisiana Farm Bureau Casualty Insurance Co., 95-1308, p. 6 (La.App. 3 Cir. 6/12/96), 676 So.2d 713, 715 (quoting Brunet v. Wyble, 502 So.2d 241, 243 (La.App. 3 Cir.1987)).

Given the subjective nature of a due diligence standard, and counsel’s representations to the trial court that he fully intended to retain Dr. Gray and produce the evidence required to move this case forward, we find that the trial court abused its discretion in granting the motion for summary judgment and | dismissing Dr. Hooper’s claims. Under these circumstances, the trial court should have allowed counsel additional time to obtain the evidence that could prove critical to his client’s case. Accordingly, we reverse the trial court’s denial of the motion to continue and the granting of summary judgment.

Even though we are reversing the trial court’s granting of the summary judgment, we are not rendering any opinion on the merits of the motion for summary judgment or the weight of any forthcoming evidence. We are simply allowing Dr. Hooper an additional amount of time, to be determined by the trial court, to present evidence in support of her opposition to the motion for summary judgment.

After the trial court granted summary judgment and while this appeal was pending, Travelers and the Paynes filed a motion to tax costs. The motion sought a total award of $10,435.22. Following a hearing, the court awarded the sum of $6,035.22 as stipulated by Dr. Hooper, $900.00 as an expert witness fee to Barbra Lee, and $1,100.00 as an expert witness fee to Dr. Lopez. The court denied an expert witness fee for Dr. Salvato.

Dr. Hooper filed a motion for devolutive appeal; this Court has consolidated that appeal (2011-CA-0220) with the first filed appeal (2010-CA-1685). Given this Court’s determination regarding the dismissal of Dr. Hooper’s claims, we find the trial court’s award of costs to be moot. Thus, that judgment is vacated.

For the reasons discussed, we affirm the trial court’s exclusion of Dr. Patricia Salva-to’s testimony, we reverse the denial of the motion to continue summary judgment hearing, and thus reverse the granting of the motion for | insummary judgment. The judgment taxing costs is vacated and the case is remanded for further proceedings consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; VACATED IN PART; AND REMANDED

JONES, J., concurs in part and dissents in part for the reasons assigned by Judge LOVE.

LOVE, J., concurs in part and dissents in part.

LOVE, J.,

concurs in part and dissents in part.

hi concur in the majority’s affirmation of the trial court’s exclusion of Dr. Patricia Salvato’s expert testimony. However, I respectfully dissent from the majority’s reversal of the trial court’s denial of Dr. Hooper’s second motion for continuance and the reversal of the trial court’s grant of the motion for summary judgment.

The denial of a motion for continuance will not be disturbed absent a showing of an abuse of discretion by the trial court. Newsome v. Homer Medical Center, 2010-0564 (La.4/9/10), 32 So.3d 800. A continuance may be granted in any case if there is a good ground therefor. La.Code Civ. Proc. art. 1601.

In the matter sub judice, Dr. Hooper moved for a continuance in the hearing of a motion for summary judgment 10 days prior to the date of the hearing in that her attorney was scheduled to appear in a week-long trial in federal court. The trial court granted Dr. Hooper’s motion and reset the hearing to August 30, 2010. On August 24, 2010, Dr. Hooper moved for a second continuance, contending that she needed additional time to obtain a medical report and an affidavit from her treating physician, Dr. Michael Gray, who was located in Phoenix, Arizona. Dr. Hooper also maintained that Dr. Gray was not forthcoming with the medical report.

| ^However, I find support in the record for the trial court’s denial of Dr. Hooper’s second motion for continuance. Dr. Hooper was given ample time to obtain the medical documentation necessary to carry her burden of proof and defeat summary judgment. Further, the record reflects that Dr. Hooper was unwilling to pay the $7,500.00 retainer that was requested by Dr. Gray. Thus, under the instant facts, I find that the trial court did not abuse its discretion in denying Dr. Hooper’s second motion for continuance and did not err in granting the motion for summary judgment.

      . Symptoms experienced by Dr. Hooper included joint pain, headaches, chest pain, itchy eyes, upper respiratory and sinus infections, fatigue, and mental cloudiness.