author: WHIPPLE, C.J. McCLENDON, J., dissenting.

text:
    The LATHAN COMPANY, INC. v. The STATE of Louisiana, DEPARTMENT OF EDUCATION, RECOVERY SCHOOL DISTRICT & John White in his Official Capacity as the State of Louisiana Superintendent of Education
    Guarantee Company of North America v. State of Louisiana, Department of Education, Recovery School District
    2016 CA 0913 Consolidated With 2016 CA 0914
    Court of Appeal of Louisiana, First Circuit.
    DECEMBER 06, 2017
    Lloyd N. Shields, Elizabeth L Gordon, Andrew G. Vicknair, Adrienne C. May, New Orleans, Louisiana Counsel for Plaintiff/Appellant The Lathan Company, Inc.
    John B. Dunlap, III, Jennifer A. Fiore, Hunter R. Bertrand, Baton Rouge, Lousiana Counsel for Plaintiff/Appellee Guarantee Company of North America
    Steven F. Griffith, Jr.. Benjamin W. Janke. Camalla M. Kimbrough. New Orleans, Louisiana. Kaye C. Templet, Aaron J. Lawler, Douglas K. Foster, Baton Rouge, Louisiana Counsel for Defendants/Appellees Jacobs/CSRS Consortium, Marvin Daniels & Nick Amort Counsel for Defendant/Appellee Progressive Insurance Company
    Jimmy A. Castex, Jr., Scott J. Hedlund, Brian S. Schaps, New Orleans, Louisiana Counsel for Defendant/Appellee Billes Partners, LLC
    Tina Crawford White, Michael E. Botnick, J. Douglas Rhorer, New Orleans, Louisiana Counsel for Defendant/Appellee State of Louisiana, Department of Education, Recovery School
    BEFORE: WHIPPLE, C.J., GUIDRY, McCLENDON, CHUTZ, and PENZATO, JJ.
   WHIPPLE, C.J.

Plaintiff, The Lathan Company, Inc., appeals a judgment of the trial court granting summary judgment in favor of Jacobs Project Management Co./CSRS Consortium and dismissing with prejudice plaintiff's claims against this defendant. For the following reasons, we reverse and remand.

FACTS AND PROCEDURAL HISTORY

On August 13, 2010, The Lathan Company, Inc., entered into a public works contract with the State of Louisiana, Department of Education, Recovery School District ("the RSD") to renovate William Frantz School in New Orleans. Billes Partners, LLC ("Billes") served as architect on the project. Jacobs Project Management Company/CSRS Consortium ("Jacobs"), through a contract with the RSD, served as the construction manager on the project.

On May 14, 2012, Lathan filed a "Petition for Mandamus," naming the RSD and John White, in his official capacity as the Louisiana Superintendent of Education, as defendants, seeking an order requiring the RSD to make payment of all undisputed amounts owed for Lathan's work. In an amended petition filed on August 1, 2014, Lathan added Billes and Jacobs as defendants.

Lathan's lengthy amended petition, consisting of twenty-five pages and two hundred eighteen paragraphs, alleged, in pertinent part, that Jacobs owed a duty to Lathan to conduct constructability reviews and to oversee and administer the project according to the standard of care of similar professionals in the industry, which Jacobs did not do. In pertinent part, the amended petition alleged:

(1.) The original bid documents and design drawings contained flaws, including the failure to disclose certain mold conditions and an underground fuel tank, which resulted in Lathan performing additional work, and for which Lathan's contract was not adequately extended for the time required to address these undisclosed conditions;

(2.) As a result of the faulty design documents, Lathan submitted in excess of 400 requests for information ("RFIs") to Billes and despite numerous promises to timely respond by Billes and Jacobs, Lathan's RFIs were not timely responded to, resulting in project delays;

(3.) Billes and Jacobs did not perform inspections in the manner prescribed by industry standards; and

(4.) Billes and Jacobs failed to review, certify and/or approve the amounts due to Lathan, causing Lathan to incur additional costs, delaying the project, and preventing Lathan from having access to contract funds to pay subcontractors and suppliers.

Lathan summarized Jacobs's wrongful acts as: (1.) its unreasonable refusal to approve Lathan's payment applications and schedules; (2.) its extremely delayed responses to Lathan's questions and submittals; (3.) its refusal to give needed responses to reasonable questions; (4.) its refusal to properly recommend substantial completion; (5.) its refusal to properly manage the oversight of the project; and (6.) its overall interference with the progress and completion of the project. Accordingly, Lathan alleged that it was entitled to damages under general tort law for Jacobs's negligent professional undertaking and under the Louisiana Unfair Trade Practices Act ("LUTPA").

In response, Jacobs filed a motion for summary judgment, seeking a dismissal of Lathan's claims against it. In its memorandum in support of its motion, Jacobs asserted that Lathan's general negligence claims must fail because Jacobs owed no duty to Lathan, since Lathan was not a party to the contract between Jacobs and the RSD. Jacobs additionally urged that because it owed no duty to Lathan, Lathan's LUTPA claims must fail as a matter of law. Notwithstanding whether a duty was owed, Jacobs also argued that Lathan's allegations did not rise to the level of an unfair trade practice that is actionable under LUTPA. Alternatively, Jacobs argued that a majority of Lathan's claims against it were prescribed.

Lathan opposed the motion, contending that Jacobs owed it a duty given the high degree of control and power that Jacobs, as a learned professional, held and had exercised (or failed to exercise) over Lathan. Additionally, Lathan argued that its claims against Jacobs were timely because: (1) Billes and Jacobs are joint tortfeasors and thus, the 2012 suit against Billes interrupted prescription as to Jacobs; and (2) Jacobs was still performing work on the project and thus, Lathan's claims against Jacobs are governed by the continuing tort doctrine.

Following argument, the trial court granted Jacobs's motion for summary judgment, finding that Jacobs owed Lathan no duty. As such, the trial court concluded that in the absence of a duty, Lathan could not recover under its negligence theory or LUTPA claims.

On September 24, 2015, the trial court signed a judgment granting Jacobs's motion for summary judgment and dismissing Lathan's claims against Jacobs with prejudice. However, the written judgment was silent as to the prescription argument that was raised by Jacobs in support of the motion of summary judgment, and which the trial court stated, in its oral reasons for judgment, that it would deny. Lathan subsequently filed a motion for new trial, which was denied by the trial court.

Lathan then filed the instant appeal, assigning the following as error:

(1) The trial court improperly granted Jacobs's motion because Jacobs, being and acting as a licensed construction professional, and under the facts of this case, owed a duty to Lathan.
(2) The trial court improperly granted Jacobs's motion by making a credibility determination as to the record evidence.
(3) The trial court improperly granted Jacobs's motion by making an improper factual determination of disputed evidence on summary judgment concerning Jacobs's scope of duties properly reserved for the trier of fact-here, a jury.
(4) The trial court erred in failing to deny Jacobs's motion as premature considering the woefully inadequate state of discovery.
(5) The trial court erred in denying Lathan's motion because the underlying summary judgment ruling was contrary to binding First Circuit authority.
(6) The trial court erred in denying Lathan's motion by finding that newly-discovered evidence on the issue of Jacobs's professional duties did not present an issue of fact warranting a new trial.

DISCUSSION

An appellate court reviews a trial court's decision to grant a motion for summary judgment de novo, using the same criteria that govern the district court's consideration of whether summary judgment is appropriate. Smith v. Our Lady of the Lake Hospital Inc., 93-2512 (La. 7/5/94), 639 So.2d 730, 750. A motion for summary judgment shall be granted only if the pleadings, depositions, answers to interrogatories, and admissions, together with the affidavits, if any, admitted for purposes of the motion for summary judgment, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. LSA-C.C.P. art. 966 B(2). The summary judgment procedure is favored and is designed to secure the just, speedy, and inexpensive determination of every action. See LSA-C.C.P. art. 966 A(2).

The burden of proof is on the mover. See LSA-C.C.P. art. 966 C(2). However, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion, the mover's burden does not require that all essential elements of the adverse party's claim, action, or defense be negated. Instead, the mover must point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, the adverse party must produce factual evidence sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial. If the adverse party fails to meet this burden, there is no genuine issue of material fact, and the mover is entitled to summary judgment as a matter of law. LSA-C.CP. art. 966 C(2); Temple v. Morgan, 15-1159 (La. App. 1st Cir. 6/3/16), 196 So.3d 71, 76. Because the applicable substantive law determines materiality, whether a particular fact in dispute is material can be seen only in light of the substantive law applicable to the case. Lemann v. Essen Lane Daiquiris, Inc., 05-1095 (La. 3/10/06), 923 So.2d 627, 632.

With regard to the negligence claim, Louisiana courts have adopted a duty-risk analysis in determining whether to impose liability under general negligence principles. Daniels v. USAgencies Cas. Ins. Co., 11-1357 (La. App. 1st Cir. 5/3/12), 92 So.3d 1049, 1055. For liability to attach under a duty-risk analysis, a plaintiff must prove five separate elements: (1.) the defendant had a duty to conform her conduct to a specific standard of care (the duty element); (2.) the defendant failed to conform her conduct to the appropriate standard of care (the breach of duty element);

(3.) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4.) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of protection element); and (5.) the actual damages (the damage element). Daniels, 92 So.3d at 1055.

Duty is a question of law and is a threshold issue in any negligence action. Simply put, the inquiry is whether a plaintiff has any law-statutory, jurisprudential, or arising from general principles of fault-to support the claim. In deciding whether to impose a duty in a particular case, the court must make a policy decision in light of the unique facts and circumstances presented. When no factual dispute exists and no credibility determinations are required, the legal question of the existence of a duty is appropriately addressed by summary judgment. Daniels, 92 So.3d at 1055.

Louisiana jurisprudence imposes a duty on professionals to perform in accordance with the generally accepted standards of their respective industry. See Calandro Development, Inc. v. R.M. Butler Contractors, Inc., 249 So.2d 254, 265 (La. App. 1 Cir. 1971). In Calandro, this court held that an engineer, who designed and supervised construction of a subdivision, provided surveying services, and prepared plans and contract documents, owed a duty to the general contractor's surety to adequately supervise work to ensure completion in accord with the contract plans and specifications. Calandro, 249 So.2d at 260-61. In reaching this conclusion, this court specifically noted that a "third party who is not in privity may, nevertheless, have an action in tort against an architect or engineer," because "[a]n engineer or architect must be deemed and held to know that his services are for the protection, not only of the interests of the owner " but also to third parties who must "rely on the architect or engineer to produce a completed project conformable with the contract plans and specifications." Calandro, 249 So.2d at 264-65 (Emphasis added.).

Similarly, in Colbert v. B.F. Carvin Construction Co., 600 So.2d 719, 723 (La. App. 5th Cir.), writs denied, 604 So.2d 1309, 1311 (La. 1992), after surveying numerous cases from Louisiana and other jurisdictions, the appellate court held that a contractor had stated a cause of action for negligent professional undertaking against an architect by alleging that the architect: failed to prepare adequate plans and specifications; failed to promptly provide additional instructions and clarifications during the project; provided economic pressure on the owner to withhold payments due to compel the contractor to perform extra work not included in the plan and refused to provide change orders and compensation therefor ; and refused to timely inspect the areas of work that have been completed. Colbert, 600 So.2d at 720-21, 725. In so holding, the Fifth Circuit adopted a balancing test that was to be applied on a case-by-case basis in determining whether a cause of action exists:

"The determination whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury suffered, the moral blame attached to defendant's conduct, and the policy of preventing future harm." [Emphasis added.]

Colbert, 600 So.2d at 725.

In Harris Builders, L.L.C. v. URS Corp., 861 F.Supp.2d 746 (E.D. La. 2012), the federal district court likewise concluded that a cause of action for "negligent professional undertaking" may exist in favor of a general contractor, Harris, against a company, URS, alleged to be an "engineer, consultant, construction manager, and Owner representative," with whom Harris had no privity of contract. Harris Builders, 861 F.Supp.2d at 753. The federal court noted that while Louisiana courts had generally applied the theory to architects, such reasoning could apply to URS. In utilizing the balancing test enunciated in Colbert, the court noted:

URS's construction plan preparations and instructions to Harris [general contractor] to redo certain work were acts that URS had to have known would directly affect Harris. It was foreseeable and fairly certain that Harris would suffer economic harm if URS managed the project poorly, and URS's development of project specifications directly affected the work Harris performed. In short, Harris asserts a high degree of economic control by URS that was the purpose recognized in Colbert as supporting a cause of action.
[Emphasis added.]

Harris Builders, 861 F.Supp.2d at 753.

Herein, Lathan asserts that while the defendants in Calandro, Colbert, and Harris Builders were classified as architects or engineers, the rationale and legal principles set forth therein support the proposition that a duty to third parties, even absent direct contractual privity, should not be confined to only those construction professionals holding the title of ''architect" or "engineer." Rather, Lathan avers that the focus is necessarily on the management responsibilities and supervisory authority that the particular construction professional holds or practices on the project that may warrant extending the duty owed by that construction professional to a third party not in privity. Accordingly, Lathan contends that given the scope of Jacobs's extensive management responsibilities and supervisory authority over the disputed construction project herein, Jacobs owed Lathan a duty to exercise this authority to a professional standard, which it allegedly failed to do; or, at the very least, that there are issues of fact that must be resolved by a trier of fact before a determination can be made as to whether or not Jacobs owed and breached a duty to Lathan.

Jacobs counters that the uncontested facts show that Jacobs did not serve as an architect, engineer, or design professional on the project, did not control Lathan, and did not owe Lathan a duty. Jacobs maintains that Lathan's claims must fail because they are predicated on an erroneous assertion that Jacobs independently owed Lathan a duty to approve Lathan's pay applications and schedules, respond to submittals, recommend substantial completion, and manage the project. Jacobs asserts that it owed no such duty to Lathan, contractually or otherwise, and therefore, the trial court did not err in granting summary judgment and dismissing Lathan's claims against Jacobs.

In support of its motion for a summary judgment on the basis that it owed no duty, Jacobs submitted the affidavit of Nicholas Amort, a project manager for Jacobs who was involved in the management of the project at the William Frantz School, Mr. Amort attested that Jacobs did not draft specifications or prepare design documents for the project, but merely provided recommendations to the RSD based on its knowledge of how construction projects are supposed to proceed. Mr. Amort further attested that Jacobs did not sign any change order or any of the twenty-two construction change directives ("CCDs") issued on the project. Mr. Amort also attested and acknowledged that Jacobs was not expected to respond to any request for information ("RFIs"), as they were created by Lathan and responded to by Billes. Mr. Amort further attested that any work-change proposal requests were issued by Billes to Lathan, that Jacobs did not sign these forms, and that Jacobs was neither obligated nor expected to respond.

In opposition to the motion for summary judgment, Lathan submitted the contract between Jacobs and the School District. The contract provides that Jacobs's project management team shall include a Louisiana licensed architect or engineer, and a Louisiana licensed contractor or a certified project management professional . Moreover, the contract outlines more than eighty tasks that Jacobs Project Management Company was responsible for in connection with the project, including:

2.1 [Jacobs] will serve as an agent and representative of the Owner (RSD).
2.7 [Jacobs] shall be responsible for assisting the RSD in the procurement of, and providing design management of, professional design consultants[.]
2.9 [Jacobs] will be responsible for providing field inspection services as necessary to ensure compliance to schedule, budget, and quality contractual requirements.
3.3.2.9 [Jacobs shall] [v]alidate the professional design consultant's cost estimate and provide value engineering and constructability reviews for the Schematic Design, Design Development, and Construction Documents phases of the projects to ensure compliance with project budget and schedule.
3.3.2.10 [Jacobs shall] [p]rovide document quality assurance/quality control reviews for the Schematic Design, Design Development, and Construction Documents phases of the projects.
3.4.2.6 [Jacobs shall] [p]rovide project construction management services to include: conduct regular jobsite meetings, oversee quality assurance testing and inspection programs, monitor contractor and subcontractor work for deficiencies... expedite communication, processing and documentation of all contractor's submittals including RFI's, payments requests and change orders.
3.4.2.8 [Jacobs shall] [p]rocess and track payment requests for approval within a week of receipt.
3.5.2.2 [Jacobs shall] [p]rocess contractor's payments and verify accuracy of paid quantities.
3.5.3.1 [Jacobs shall] [r]eview contractor's punch lists and attend the professional design consultant's substantial completion inspections. Recommend to the RSD acceptance or rejection of professional design consultant's issuance of the certificate of substantial completion and conduct final acceptance inspections with the RSD.
3.5.3.5 [Jacobs shall] [m]onitor and document and report all Time and Materials change orders.

Accordingly, while Mr. Amort's affidavit may have demonstrated that Jacobs did not draft specifications or prepare design documents for the project, the evidence submitted by Lathan establishes that Jacobs was to provide: (1.) design management services, and (2.) document quality assurance/quality control reviews for schematic design, design development, and construction document phases of the project. Thus, if the architect or engineer on Jacobs's staff, as required by the contract, failed to render such "management services" during the design phase of the project, or was negligent in rendering such services, it is reasonably foreseeable that faulty design documents could result, including design documents that failed to disclose mold conditions and resulting damages due to an undisclosed underground tank, as Lathan alleges occurred herein. Moreover, it is "foreseeable and to a degree certain" that such faulty design documents could delay the entire project and cause economic harm to the general contractor, as Lathan alleges herein. See Harris, 861 F.Supp.2d at 753.

Moreover, while Mr. Amort's affidavit may establish that Jacobs did not sign any change orders or CCD's and that Jacobs was not expected to respond to the RFIs, the evidence submitted by Lathan establishes that Jacobs was responsible for coordinating the management of invoices, contracts, and change orders. And, the evidence submitted by Lathan establishes that Jacobs's duties included the processing and documentation of all contractors' submittals including RFIs, payment requests, and change orders. Thus, if Jacobs improperly delayed the processing of invoices and RFIs, as alleged herein, it is foreseeable and to a degree certain that the project would be delayed, and thereby, adversely affect the work and profits of the general contractor, as Lathan alleges occurred herein.

Additionally, while Jacobs may have established that the certificate of completion can only be signed by the owner and architect, the evidence submitted by Lathan provides that Jacobs was obligated to attend the substantial completion inspection and that Jacobs was responsible for recommending "acceptance" to the owner. Should Jacobs delay the inspections or "negligently" refuse to recommend substantial completion, as Lathan alleges occurred herein, it is foreseeable that its actions could cause economic harm to Lathan, acting as the general contractor on the project.

Accordingly, after careful review of the record herein, we find that although Jacobs was not in direct contractual privity with Lathan, Jacobs must be deemed and held to know that its services were not only for the protection or interests of the owner but also third parties, including, specifically, Lathan, who was acting as the general contractor on the project. As outlined above, it was foreseeable and to a degree certain that Lathan would suffer economic harm if Jacobs failed to perform, or negligently performed, many of its professional duties. See Harris, 861 F.Supp.2d at 753 ; Colbert, 600 So.2d at 725. Moreover, as outlined above, there is a close connection between Jacobs's alleged failure to act according to industry standards, and the alleged economic harm suffered by Lathan. Colbert, 600 So.2d at 725.

Thus, after carefully considering the record herein, and applying the balancing test enunciated in the jurisprudence noted above, we are unable to find any reason why the courts' rationale in such prior jurisprudence, extending the liability of architects and engineers, should not likewise apply to a project management professional, under the facts of this case. While the balancing test adopted by the Fifth Circuit in Colbert and the Middle District in Harris Builders is not binding, it is persuasive herein, and under this test, we agree with Lathan that a duty would be owed by Jacobs to plaintiff.

While Section 3.3.4 of Jacobs's contract provides that Jacobs is not responsible for any design acts or omissions of the design consultant on the project, and Section 3.6 provides that Jacobs shall not be responsible for any construction defects, the direct acts of negligence by Jacobs as alleged in Lathan's lengthy detailed petition are distinguishable from any alleged claims arising out of design acts or omissions of the design consultant or alleged construction defects. Lathan specifically alleges that, despite its obligation and duty to do so, Jacobs failed to oversee and administer the project according to industry standards of similarly situated project management professionals. Lathan's petition alleges, in detail, specific instances where Jacobs failed to perform, or negligently performed, its construction management responsibilities. Furthermore, the petition outlines how Jacobs's alleged professional negligence impeded Lathan's performance on the project, added extra costs, and substantially delayed the project's completion, causing economic harm to Lathan. Cf. Kappa Development & General Contracting, Inc. v. City of Biloxi et al., Cause No. A2404-14-cv-00176 (Harrison County Circuit Court, Second Judicial District, State of Mississippi) (unpublished).

Thus, we conclude that the trial court erred as a matter of law in granting summary judgment and dismissing Lathan's claims against Jacobs based on its erroneous finding that there was (or could be) no duty owed by the project manager to the general contractor. Accordingly, finding merit to Lathan's arguments herein, we conclude that the matter should be remanded to the trial court for further proceedings.

CONCLUSION

For the foregoing reasons, we reverse the trial court's September 24, 2015, summary judgment in favor of Jacobs/CSRS Consortium and its dismissal with prejudice of Lathan's claims against this defendant. The case is remanded to the trial court for further proceedings consistent with the views expressed herein. Costs of this appeal are assessed to defendant, Jacobs Project Management Co./CSRS Consortium.

REVERSED AND REMANDED.

Chutz, J. Dissents for Reasons assigned by McClendon, J.

Guidry, J. Concurs.

McClendon, J. dissents for reasons assigned.

McCLENDON, J., dissenting.

The majority errs in concluding that Jacobs owed a duty to Lathan, with whom it had no contractual privity. The majority cites Calandro , Colbert , and Harris Builders as authority for extending Louisiana law beyond its previous limits. However, all of these cases involved either engineers or architects that drafted or prepared plans and/or specifications, but with whom the third party had no contractual privity. Further, the principal concern in these cases was foreseeability and reliance, i.e., it was reasonably foreseeable that a third party would rely on the professional's plans and/or specifications in completing a construction project.

The majority recognizes that Lathan did not rely upon plans and specifications prepared by Jacobs. Rather, the contract between Jacobs and the RSD specifically provided that the objective was for Jacobs to "assist the RSD in managing implementation of a multi-site capital plan." (Emphasis added.) Jacobs' duties, as reflected in the portions of the contract set forth in the majority opinion, involved services such as inspecting, validating cost estimates, providing document quality assurance/quality control review, processing and documenting contractor's submittals, verifying accuracy of paid quantities, reviewing punch list items, and monitoring and documenting all time and material change orders. Further, the contract provided as follows:

3.3.4 Notwithstanding anything in this section, the PM/CM [Jacobs] shall not be responsible for any design work or the acts or omissions of the professional design consultant or for the failure of the professional design consultant to carry out any of its work in accordance with the terms of its contract with the RSD.
* * *
3.6 Notwithstanding anything above, the PM/CM shall not have control over or charge of or be responsible for a contractor's means, methods, techniques, sequences, procedures, or safety programs, construction defects or the failure to detect any construction defects. The PM/CM shall not be responsible for any construction work or have control over the acts or omissions of a contractor or its subcontractors or suppliers, or for the failure of any of them to carry out any work in accordance with the terms of the contractor's agreement with the RSD.

Clearly, the RSD hired Jacobs to oversee the project and Jacobs' duty was to RSD, with whom it had contractual privity.

In extending the duty beyond the owner, the majority concludes that "[s]hould Jacobs delay the inspections or 'negligently' refuse to recommend substantial completion,... then it is foreseeable that its actions could cause economic harm to Lathan." However, merely because Jacobs could potentially cause economic harm to Lathan is insufficient to create a duty giving rise to tort liability. The majority cites no Louisiana state case where such a duty has been extended to a project manager, who is retained to protect the interests of the owner and whose obligations to the general contractor on the project are limited. See Stelko Electric, Inc. v. Taylor Community Schools Building Corp ., 826 N.E.2d 152, 160 (Ind.Ct.App. 2005) (In affirming the grant of a motion for summary judgment in favor of a construction manager against a subcontractor, the appellate court stated: "While [subcontractor] alleged that it had to follow [construction manager's] schedules, from the terms of the [owner/construction manager] Contract, [subcontractor] should have known that [construction manager's] services were not to benefit [subcontractor], but instead to keep the Project organized for [owner].")

The majority also references a trial court decision in Kappa Development & General Contracting Company v. City of Biloxi , Cause No. A2404-14-cv.00176 (Harris Country Circuit Court, Second Judicial District, State of Mississippi 7/21/16). However, in that case the court also refused to extend liability to a program manager. Therein, Kappa, the general contractor, entered into a contract with the City of Biloxi to repair damage to the City's infrastructure caused by Hurricane Katrina. HNTB Corporation entered into an agreement for professional services with the City to serve as program manager on the City's behalf. As program manager, HNTB's role was to "assist the City in bringing to completion ... projects to repair the City's infrastructure caused by Hurricane Katrina and to support the design, construction, and evaluation thereof." After Kappa encountered unexpected sub-surface conditions, it sued, among others, HNTB, alleging:

HNTB had a duty ... to exercise the appropriate knowledge and skill of a professional engineering corporation in the management and administration of the contract during the project with Kappa. HNTB breached its duty and was negligent by failing to properly administer the contract thereby causing Kappa to experience unreasonable delay and incur extra cost and expense to construct the project.

HNTB subsequently filed a motion for summary judgment, urging that it owed no duty to Kappa. In granting the motion, the court noted that while Kappa may have a claim against the City for breach of contract, no separate claim existed against HNTB. The court reasoned that HNTB "was neither an architect nor the engineer on the subject project" and "did not perform professional services on which third-third parties reasonably rely." As such, the court "decline [d] to create such a duty in tort without clear precedent for doing so."

Similarly, in Ratcliff Architects v. Vanir Constr. Management , 88 Cal.App. 4th 595, 106 Cal.Rptr.2d 1 (2001), the court, in sustaining a construction manager's demurrer, refused to extend a duty from a construction manager to an architect where the architect alleged that the construction manager's negligent performance impacted the architect's services, costs, fees, and profits. The architect urged that it was "reasonably foreseeable" that the construction manager's actions would adversely impact the architect, and the architect was not compensated for the extra work the architect had to expend based on the construction manager's negligence. The architect urged that public policy supports finding a duty of care because it will discourage "negligent and careless behavior by construction managers." Id. at 606, 106 Cal.Rptr.2d 1. The court noted, however, that the owner retained the construction manager with the principal purpose of ensuring that an expert manager supervised the construction project. The court found that the construction manager's duty was to the owner and if a duty were owed to the architect it "would represent a conflict of loyalty" for the construction manager. Id. Moreover, the court noted that the owner held the decision about whether to pay the architect for any extra costs or overtime, and absent privity, the connection between the construction manager and architect was tenuous. Id. at 607, 106 Cal.Rptr.2d 1. Additionally, the court noted that policy considerations arising from a prior settlement entered between the owner and construction manager were also a factor. Id. Accordingly, despite the prior settlement, the court explicitly "refuse[d] to expand tort liability to include a duty of care from the construction manager to project architect. The policy considerations overwhelmingly weigh against creating such a duty. " Id. (Emphasis added.) See also Insurance Company of the West v. O'Brien-Kreitzberg, Inc., 2002 WL 1609049 (Cal.App. 1 Dist. 2002) (unpublished).

Considering the foregoing, I cannot conclude that the contract between Jacobs and the RSD created any duty in favor of Lathan nor did Jacobs render any professional services that would give rise to tort liability in this case.

Even so, Lathan submits that Jacobs had the "power of economic life and death over the contractor," which should give rise to liability in its favor. In Colbert , the court noted that one of the rationales for imposing liability on architects in favor of contractors with whom they are not in privity is the degree of control exercised by the supervising architect over the contractor, specifically, "[t]he power of the architect to stop the work alone [that] is tantamount to a power of economic life or death over the contractor." Colbert v. B.F. Carvin Construction Co. , 600 So.2d 719, 724 (La.App. 5th Cir.), writs denied, 604 So.2d 1309, 1311 (La. 1992) (quoting United States v. Rogers & Rogers , 161 F.Supp. 132, 136 (S.D.Cal. 1958) ). See also In re Hughes-Bechtol , 124 B.R. 1007 (Bankr.S.D.Ohio 1991).

Even if this court were to adopt the test enunciated in Colbert and extend it to a project manager, Lathan failed to show that it would be able to meet its burden of proof at trial that Jacobs had such expansive authority. Specifically, Nicholas Amort, a project manager for Jacobs who was involved in the management of the project at the William Frantz School, attested that Jacobs did not sign any change order or any of the twenty-two CCD's issued on the project. Mr. Amort also attested that Jacobs was not expected to respond to any RFI's (Requests for Information), as they were created by Lathan and responded to by Billes, the project's architect. Moreover, Mr. Amort attested that any work change proposal requests were issued by Billes to Lathan, that Jacobs did not sign these forms, nor was Jacobs obligated or expected to respond.

Additionally, in support of its motion for new trial, Lathan relied upon the deposition testimony of Ms. Lona Hankins, executive director of the major capital projects of the RSD, who confirmed that the RSD maintained control of the project. Specifically, although Jacobs was responsible for more than eighty tasks on the project and while the RSD relied heavily upon Jacobs' recommendations, Ms. Hankins indicated that in a FEMA-funded project such as the Frantz School, the RSD could not abdicate its responsibilities and must be the ultimate decision maker with respect to the contracts with the contractor. Ms. Hankins, who indicated that she has experience in the construction industry, testified that she visited the Frantz School during construction to "[c]heck up on what Jacobs/CSRS [was] telling me." Moreover, she testified that she had weekly meetings with Jacobs' representatives where she was either "questioning progress" or confirming what she had seen on her site inspections. She confirmed that "[s]o much of this process between RSD and Jacobs/CSRS is a very collaborative process. And it's a back and forth on what is best for the children of New Orleans."

Ms. Hankins indicated that Jacobs could not sign any change orders and that she would not have signed a change order without Jacobs' recommendation, but in most instances there would have been a collaborative process leading to that recommendation. Ms. Hankins confirmed that the RSD did not sign "just because Billes or Jacobs approves or recommends something" and that the RSD exercised its own discretion in deciding whether to sign a change order. Moreover, Ms. Hankins indicated that Jacobs did not have authority to stop work on the project. Accordingly, given the RSD retained ultimate control, I cannot conclude that Jacobs had the power of economic life or death over the contractor.

In light of the foregoing, I find no error in the trial court's grant of summary judgment in favor of Jacobs, nor any error in the trial court's denial of Lathan's motion for new trial. Further, despite Lathan's purported need to undertake additional discovery, Lathan did not seek to avail itself of the benefit of LSA-C.C.P. arts. 966(B) and 967(C) by formally requesting additional time or moving for continuance of the summary judgment hearing in order to undertake discovery. See Bardwell v. Faust , 06-1472 (La.App. 1 Cir. 5/4/07), 962 So.2d 13, 20-21.

Considering the foregoing, I respectfully dissent and would affirm the ruling of the trial court.

      Notably, the trial court also commented that, although not necessary to address, it would not have granted Jacobs's motion for summary judgment, as requested, on the issue of prescription.

      We pretermit further discussion of the prescription argument that was raised as an alternative argument in the subject motion for summary judgment, as neither party has briefed this argument for purposes of the instant appeal. See LSA-C.C.P. art. 2133(B) ; Uniform Rules-Courts of Appeal, Rule 1-3.

      Louisiana Code of Civil Procedure article 966 was amended and reenacted by Acts 2015, No. 422, § 1, with an effective date of January 1, 2016. The amended version of Article 966 does not apply to any motion for summary judgment pending adjudication or appeal on the effective date of the Act; therefore, we refer to the former version of the article in this case. See Acts 2015, No. 422, §§ 2 and 3.

      CCDs are signed by the owner and architect only, and the contractor must proceed with the changes despite not signing off on the same. Whereas, change orders are signed by the architect, contractor, and owner.

      In Kappa, HNTB was hired as a "program manager" by the city to oversee a construction project. Under the facts therein, the court found that HNTB did not owe a legal duty to the general contractor, Kappa Development, noting in the opinion that:
      Kappa explained in its summary judgment filings, and at oral argument, that its claim against HNTB is for HNTB's alleged failure to timely recommend that the City accept and pay a certain change order. Kappa does not allege that HNTB negligently supervised the manner in which Kappa performed its work or that HNTB negligently performed any other alleged construction management responsibilities.

      The trial court's dismissal of plaintiff's LUTPA claims was based on its finding that Jacobs did not owe a duty to Lathan. Insofar as we have reversed this finding of the trial court, we further remand this matter to the trial court for a determination by the trier of fact as to whether plaintiff's LUTPA claims should be dismissed pursuant to Jacobs's alternative argument that Lathan's allegations do not rise to the level of an unfair trade practice that is actionable under LUTPA.

      Calandro Dev., Inc. v. R.M. Butler Contractors, Inc. , 249 So.2d 254, 265 (La.App. 1 Cir. 1971).

      Colbert v. B.F. Carvin Construction Co. , 600 So.2d 719, 723 (La.App. 5th Cir.), writs denied, 604 So.2d 1309, 1311 (La. 1992).

      Harris Builders, L.L.C. v. URS Corp. , 861 F.Supp.2d 746 (E.D. La. 2012).

      In Stelko, 826 N.E.2d at 160, the contract between the construction manager and owner had language similar to the contractual language used in this case. It provided:
      The Construction Manager, except to the extent [it can schedule and coordinate], and Architect will not have control over or charge of and will not be responsible for construction means, methods, techniques, sequences or procedure, or for safety precautions and programs in connection with the Work, since these are solely the Contractor's responsibility ... and neither [the Construction Manager or Architect] will be responsible for the Contractor's failure to carry out the Work in accordance with the Contract Documents. Neither the Construction Manager nor the Architect will have control over or charge of or be responsible for acts or omissions of the Contractor, Subcontractors, or their agents or employees, or of any other person performing portions of the Work.

      In In re Hughes-Bechtol, 124 B.R. at 1020, the court concluded that a debtor/contractor alleged a sufficient nexus between it and the project manager to state a cause of action against a project manager, even though the two were not in privity, where the project manager was the debtor's sole contact with the State/owner and the project manager possessed the power and authority to "stop the work" and exercise a "power of economic life and death over the contractor."

      I note that Ms. Hankins' deposition was submitted in connection with the motion for new trial and is in the record.

      Additionally, even if a LUTPA claim is viable absent a duty, Lathan has not shown that Jacobs' conduct is immoral, unethical, oppressive, unscrupulous, or substantially injurious such that Lathan can prevail on a LUTPA claim at trial.


source: Caselaw Access Project

author: Judge, Rosemary Ledet

license: Public Domain

text:
    Nathaniel JOSEPH, et al. v. Gerald WASSERMAN
    NO. 2017-CA-0603
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 10, 2018
    Nathaniel Joseph, Pro Se, 311 Portsmouth Drive, Slidell, LA 70460, PLAINTIFF/APPELLANT/IN PROPER PERSON
    William E. Wright, Jr., Beverly A. DeLaune, Melissa M. Lessell, DEUTSCH KERRIGAN, L.L.P., 755 Magazine Street, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE
    (Court composed of Judge Edwin A. Lombard, Judge Rosemary Ledet, Judge Paula A. Brown )
   Judge, Rosemary Ledet

This is a legal malpractice case. Nathaniel Joseph and Kecia Esteen (formerly known as Kecia Joseph) (collectively the "Josephs") commenced this case against Gerald Wasserman, an attorney who handled numerous business and property dealings on their behalf (the "Malpractice Case"). The Josephs appeal from the trial court's May 3, 2017 judgment granting, but staying, the exception of no right of action filed by Mr. Wasserman (the "May 2017 Judgment"). Mr. Wasserman answered the appeal. Because the May 2017 Judgment is conditional, interlocutory, and non-appealable, we dismiss the Josephs' appeal and Mr. Wasserman's answer to the appeal and remand.

Factual and procedural background

In December 2004, the Josephs commenced the Malpractice Case. In May 2006, the trial court rendered a judgment dismissing the Malpractice Case with prejudice; the reason for the dismissal is not relevant here. Although the Josephs timely appealed the May 2006 judgment by filing a motion for appeal (the "Motion for Appeal"), the Motion for Appeal was not signed until a decade later, in 2016. Meanwhile, in July 2013, the Josephs filed a Chapter 7, Voluntary Bankruptcy Petition, in the United States Bankruptcy Court for the Eastern District of Louisiana (the "Bankruptcy Case"). In the Bankruptcy Case, the Josephs failed to disclose the Malpractice Case as a potential asset of the bankruptcy estate.

In 2015, the Josephs filed in the Malpractice Case a motion seeking to have the Motion for Appeal signed by the trial court; instead, the trial court, sua sponte , declared their appeal from the May 2006 judgment of dismissal abandoned. This court vacated the trial court's judgment and remanded for further proceedings.

Joseph v. Wasserman , 15-1193 (La. App. 4 Cir. 5/4/16), 194 So.3d 720 (" Joseph I "). In so doing, this court instructed the trial court "to sign the timely-filed order of appeal so that the appellate processes may commence." Joseph I , 15-1193, at p. 2, 194 So.3d at 722. When this matter came before this court a second time, this court reversed the trial court's May 2006 judgment of dismissal and remanded for further proceedings. Joseph v. Wasserman , 16-0528 (La. App. 4 Cir. 12/7/16), 206 So.3d 970 (" Joseph II ").

In January 2017, Mr. Wasserman filed a partial exception of no right of action and a motion for partial summary judgment. The gist of his argument was that the Josephs lost their right to pursue the Malpractice Case as a result of their failure to disclose the Malpractice Case in their bankruptcy proceeding. According to Mr. Wasserman, the trustee of the Bankruptcy Case (the "Trustee") became the only proper party to pursue the Malpractice Case.

Following a hearing, the trial court rendered the May 2017 Judgment, conditionally granting Mr. Wasserman's exception of no right of action, ordering that notice be issued to the Trustee in the form attached to the judgment, and staying the Josephs' claims pending the Trustee's intervention. The trial court expressly deferred ruling on Mr. Wasserman's motion for partial summary judgment as moot. From the May 2017 Judgment, the Josephs appeal.

DISCUSSION

Jurisdictional issue

"The foundation of an appeal is subject matter jurisdiction." Wells One Invs., LLC v. City of New Orleans , 17-0415, 17-0416, p. 3 (La. App. 4 Cir. 11/2/17), 231 So.3d 54, 56, 2017 WL 4988660, *2. Before reaching the merits of any appeal, an appellate court has an independent duty to determine, even if the parties do not raise the issue, whether subject matter jurisdiction exists. See Moulton v. Stewart Enters., Inc. , 17-0243, 17-0244, p. 3 (La. App. 4 Cir. 8/3/17), 226 So.3d 569, 571 (citing Moon v. City of New Orleans , 15-1092, 15-1093, p. 5 (La. App. 4 Cir. 3/16/16), 190 So.3d 422, 425 ).

The threshold question that must be answered before reaching the merits of an appeal is whether the ruling from which a party seeks review is an appealable judgment. "A party may appeal (1) from a final judgment in actions in which appeals are given by law; (2) an interlocutory judgment only when expressly provided by law; and (3) from a judgment reformed in accordance with an additur or remittitur." Frank Maraist, 1 LA. CIV. L. TREATISE, CIVIL PROCEDURE § 14:3 (2d ed. 2017) (citing La. C.C.P. art. 2083 ) ("Maraist "). A judgment that determines the merits in whole, or in part, is a final, or partial final, judgment; whereas, a judgment that does not determine the merits but only preliminary matters in the course of the action is an interlocutory judgment. La. C.C.P. art. 1841. "[A]ll judgments other than final judgments and partial final judgments are interlocutory." Maraist , supra.

Although Louisiana courts require no particular form for a valid final judgment, they require that it be "precise, definite and certain." 1960 Revision Comment (a) to La. C.C.P. 1918. Indeed, this Court has noted that " '[a] valid judgment must be precise, definite and certain' " and that " '[t]he quality of definiteness is essential to a proper judgment." Board of Sup'rs of Louisiana State Univ. & Agric. & Mech. Coll. v. Mid City Holdings, L.L.C. , 14-0506, p. 2 (La. App. 4 Cir. 10/15/14), 151 So.3d 908, 910 (quoting Input/Output Marine Sys., Inc. v. Wilson Greatbatch, Techs., Inc. , 10-477, pp. 12-13 (La. App. 5 Cir. 10/29/10), 52 So.3d 909, 915-16 ) (citations omitted). Generally, "a conditional judgment, order, or decree, the finality of which depends on certain contingencies which may or may not occur, is not final for the purpose of appeal." 44 C.J.S. Appeal and Error § 144.

Recognizing the principle that a conditional judgment is generally not a final judgment for purposes of appeal and summarizing the jurisprudence supporting this principle, the court in Barfield v. Tammany Holding Co. , 16-1420, pp. 2-3 (La. App. 1 Cir. 6/2/17), 2017 WL 2399020, *1 (unpub. ), noted:

A judgment that is contingent on the occurrence of a future event is indeterminate and not a valid, final, appealable judgment. Drury v. Drury , 01-0877 (La. App. 1 Cir. 8/21/02), 835 So.2d 533, 538 ; Sibley v. Sibley , 14-0045 (La. App. 1 Cir. 9/19/14), 2014 WL 4667577 *1 (unpublished) (finding the phrase "in the event" in the language of a judgment was not precise, definite, nor certain); State v. Fumar , 05-2459 (La. App. 1 Cir. 11/3/06), 2006 WL 3108327 (unpublished) (finding a judgment ordering a father to pay child support effective "at the time the [mother] moves out of home owned by [father]" was not a valid, final judgment because it was based on a contingency).
Further, a judgment that grants an exception of no cause of action and allows a period of time for amendment of the petition is not an appealable judgment, because it is not a final judgment nor an interlocutory judgment expressly appealable by law. LSA-C.C.P. art. 2083. See Schroeder v. Bd. of Supervisors of LSU , 540 So.2d 380, 382 (La. App. 1 Cir. 1989) ; also see B.G. Mart, Inc. v. Jacobsen Specialty Svces., Inc. , 16-675 (La. App. 5 Cir. 2/8/17), 213 So.3d 1238, and Hughes v. Energy & Marine Underwriters, Inc. , 07-490 (La. App. 5 Cir. 3/11/08), 978 So.2d 566, 567-68, writ denied , 08-0957 (La. 8/29/08), 989 So.2d 100.

Id. ; see also Keller v. Aymond , 97-2203, (La. 11/19/97), 702 So.2d 1387 (dismissing a direct appeal of a judgment holding a statute "conditionally" unconstitutional); Falgoust v. Luck , 477 So.2d 822, 823 (La. App. 5th Cir. 1985) (observing that "[t]he conditional judgment in the case before us, [which ordered the plaintiff to submit to a physical examination under the penalty of dismissal] without a subsequent judgment setting out final dismissal, does not fit the criteria for an appealable judgment")

Applying this principle, we find that we lack appellate jurisdiction. The May 2017 Judgment, albeit labeled a "Final Judgment," is not final for purposes of appeal; the May 2017 judgment states as follows:

IT IS ORDERED, ADJUDGED AND DECREED that Gerald D. Wasserman's Exception of No Right of Action be granted; and, ACCORDINGLY , the claims of Nathaniel Joseph and Kecia Joseph against Gerald D. Wasserman be STAYED ;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that a decision on Gerald D. Wasserman's Motion for Partial Summary Judgment be deferred as moot;
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Clerk of this Court send a Notice in the form attached hereto to the Clerk of Court of the U.S. Bankruptcy Court for the Eastern District of Louisiana.

The May 2017 Judgment is analogous to the judgment in the Falgoust case; the typewritten-part of the judgment in the Falgoust case read as follows:

IT IS ORDERED, ADJUDGED AND DECREED that plaintiff's cause of action against David J. Luck, John Luck and Royal Indemnity Company is hereby dismissed with prejudice due to the plaintiff's failure to fully submit to a physical examination on October 12, 1984 ["the Date"].

477 So.2d at 823. Immediately after the Date on the typewritten judgment was the following handwritten statement: "if the plaintiff does not submit to a physical within 60 days from release of hospital." Id. Classifying the judgment as conditional, interlocutory, and non-appealable, the court in Falgoust reasoned as follows:

The conditional judgment in the case before us, without a subsequent judgment setting out final dismissal, does not fit the criteria for an appealable judgment .... This is not a judgment of dismissal but only presents the possibility of dismissal conditioned on future non-compliance. The judgment herein is analogous to a judgment maintaining an exception and ordering the plaintiff to amend within a certain time on pain of dismissal. Spencer v. Burglass , 288 So.2d 68 (La. App. 4th Cir. 1974) ; Taylor v. Consol. Rail Corp. , 391 So.2d 1351 (La. App. 4th Cir. 1980) ; Coulon v. Gaylord Broadcasting , 408 So.2d 16 (La. App. 4th Cir. 1981). In the above cases, the appeals were dismissed for lack of a final judgment or interlocutory judgment which may cause irreparable harm. The judgment before us neither disposes of the merits nor causes irreparable harm and, as in the cited cases, is no more than a preliminary order.

477 So.2d at 823-24. Likewise, the May 2017 Judgment is conditional, interlocutory, and non-appealable.

Although Mr. Wasserman supplemented the record on appeal with a copy of the Trustee's intervention that has been filed in the trial court, the Trustee's intervention does not change the conditional nature of the trial court's ruling on the exception of no right of action. See 44 C.J.S. Appeal and Error § 144 (noting that "the happening of the event does not operate to render the order final"). Until the trial court unconditionally dismisses the Josephs' claims against Mr. Wasserman, there is no final judgment. Thus, we lack appellate jurisdiction.

Converting appeal to an application for supervisory writ

When, as here, a non-appealable judgment is appealed, this court has the discretion to convert the appeal to an application for supervisory writ and to rule on the merits of the writ. Stelluto v. Stelluto , 05-0074, p. 7 (La. 6/29/05), 914 So.2d 34, 39. When confronted with an appeal of a non-appealable judgment, this Court has exercised its discretion to convert the appeal to a writ only when the following two conditions are met:

(i) The motion for appeal has been filed within the thirty-day time period allowed for the filing of an application for supervisory writs under Rule 4-3 of the Uniform Rules, Courts of Appeal.
(ii) When the circumstances indicate that an immediate decision of the issue sought to be appealed is necessary to ensure fundamental fairness and judicial efficiency, such as where reversal of the trial court's decision would terminate the litigation.

Mandina, Inc. v. O'Brien , 13-0085, pp. 7-8 (La. App. 4 Cir. 7/31/13), 156 So.3d 99, 103-04. Although the first condition is met here, the second condition is not.

Neither fundamental fairness nor judicial efficiency would be served by converting the appeal to an application for supervisory writ. An immediate decision will not terminate the litigation. Moreover, the procedural posture of this case has changed since the judgment was rendered-the Trustee has intervened.

As a general rule, appellate courts decline to exercise their supervisory jurisdiction when an adequate remedy exists by appeal. See Cardon v. Chalmette Christian Acad. , 06-0489 (La. 4/24/06), 926 So.2d 530 (observing that "[w]here there is an adequate remedy by appeal, there normally is no need for the courts to exercise supervisory jurisdiction" and citing Douglass v. Alton Ochsner Med. Found. , 96-2825 (La. 6/13/97), 695 So.2d 953 ); see also Urquhart v. Spencer , 15-1354, 15-1355, p. 4 (La. App. 4 Cir. 12/1/16), 204 So.3d 1074, 1078 (citing Douglass, supra , and Kimsey v. Nat'l Auto. Ins. Co. , 13-856, p. 8 (La. App. 3 Cir. 2/12/14), 153 So.3d 1035, 1040, and noting that "an adequate remedy by appeal will exist upon the entry of a precise, definite, and certain judgment containing the decretal language necessary for our appellate review"). Such is the case here. An adequate remedy by appeal will exist upon the entry of an unconditional judgment.

Given the conditional nature of the May 2017 Judgment, the change in the procedural posture of this case, and the existence of an adequate remedy on appeal, we decline to exercise our discretion to convert the Josephs' appeal to a writ.

Answer to the appeal

Mr. Wasserman filed an answer to the Josephs' appeal seeking affirmative relief. The answer, however, is based on the same conditional, interlocutory, non-appealable May 2017 Judgment. Thus, we lack jurisdiction over Mr. Wasserman's answer to the appeal. See Nicaud v. Nicaud , 16-1531, p. 3 (La. App. 1 Cir. 9/15/17), 227 So.3d 329, 330 (reasoning that "[b]ecause the answer to the appeal is based on the same interlocutory non-appealable ruling of the trial court, we lack jurisdiction over said answer" and dismissing appellee's answer to appeal). Moreover, Mr. Wasserman filed his answer to the appeal on July 27, 2017, well beyond the thirty-day period for filing an application for supervisory writ from the judgment, which was rendered on May 3, 2017. Under these circumstances, we decline to exercise our discretion to convert his answer to a writ. See Sellers v. El Paso Indus. Energy, L.P. , 08-403, p. 17 (La. App. 5 Cir. 2/10/09), 8 So.3d 723, 732. Accordingly, we dismiss Mr. Wasserman's answer to the appeal.

DECREE

For the foregoing reasons, the appeal and the answer to the appeal are dismissed; and this matter is remanded for further proceedings.

APPEAL AND ANSWER TO APPEAL DISMISSED; AND REMANDED

      For ease of discussion, we refer to the Josephs as the only appellants. The trial court's judgment named the Josephs as the only plaintiffs. The notice of appeal, however, was signed by not only the Josephs, but also three other individuals-Frank Mitchell, Lucinda Mitchell, and Nathan Joseph. These three individuals all filed a notice to intervene as a plaintiff in the Malpractice Case. Nathan Joseph's motion to intervene was denied. Given that we dismiss the instant appeal on jurisdictional grounds, we decline to address the issue of whether these three individuals have standing to appeal.

      In 2016, while the appeal in Joseph I was pending before this court, Mr. Wasserman filed an exception of no right of action in this court, asserting the same grounds as set forth in the exception of no right of action that he filed in the trial court. This court denied the exception because proof of the grounds for the exception did not appear of record. See La. C.C.P. art. 2163.

      In his motion for partial summary judgment, Mr. Wasserman contended that the Josephs were precluded from pursing this matter pursuant to the doctrine of judicial estoppel due to their failure to disclose the Malpractice Case to the Bankruptcy Court and the Trustee.

      The form attached to the May 2017 Judgment read as follow:
      PLEASE TAKE NOTICE THAT this Court has rendered the attached Judgment, staying claims asserted against Gerald Wasserman by Nathaniel Joseph and Kecia Esteen (formerly, Kecia Joseph), due to their filing of a bankruptcy proceeding in the U.S. Bankruptcy Court, for the Eastern District of Louisiana, in the matter entitled: In Re: Kecia Esteen and Nathaniel Joseph , Case No. 13-12107. The Court ruled that the cause of action asserted by Nathaniel Joseph and Kecia Joseph, Debtors in said bankruptcy proceeding, was property of the bankruptcy estate, and therefore those Debtors have no right to pursue a claim against Mr. Wasserman.
      The Court gave the Trustee of the Estate until July 10, 2017, to determine whether she wishes to pursue the claim pending before this Court. In the event the Trustee takes no action, Nathaniel Joseph and Kecia Esteen will have until August 9, 2017, to petition the Court for leave to pursue the case.
      The trial court apparently crafted the conditional judgment it issued (the May 2017 Judgment) based on a federal bankruptcy decision, Gillain v. A-C Product Liability Trust , 2015 WL 5818432, at *7 (E.D. Pa. Oct. 5, 2015) (unpub. ), which the Josephs cited in their opposition. At the hearing, the trial court explained to the Josephs, who appeared pro se , why their reliance on the Gillain case was misplaced.

      Summarizing the current scope of appealable judgments, La. C.C.P. art. 2083 provides as follows:
      A. A final judgment is appealable in all causes in which appeals are given by law, whether rendered after hearing, by default, or by reformation under Article 1814.
      B. In reviewing a judgment reformed in accordance with a remittitur or additur, the court shall consider the reasonableness of the underlying jury verdict.
      C. An interlocutory judgment is appealable only when expressly provided by law.

      The label placed on a judgment is not dispositive of this court's appellate jurisdiction. See LHO New Orleans LM, L.P. v. MHI Leasco New Orleans, Inc. , 03-1283, 03-1284, p. 5 (La. App. 4 Cir. 3/3/04), 869 So.2d 304, 307 (holding that "[t]his Court is not bound by the trial judge's certification of the partial adjudication as final for the purpose of an immediate appeal; we determine finality de novo "); see also Pellerin v. Pellerin , 01-1877, p. 6 (La. App. 4 Cir. 10/23/02), 832 So.2d 988, 991 (noting that "it is the substance rather than the caption of a pleading that determines its effect" and citing Brown v. Harrel , 98-2931, p. 4 (La. App. 4 Cir. 8/23/00), 774 So.2d 225, 228 ).

      The Josephs filed their notice of appeal within the thirty-day period for filing a writ. The trial court signed the judgment on May 3, 2017; and the Josephs filed a notice of appeal on May 30, 2017.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Bruce L. FEINGERTS v. Ronda Wortmann D'ANNA
    Bruce L. Feingerts v. Crescent Title, LLC and Robert Bergeron
    NO. 2017-CA-0321 NO. 2017-CA-0322
    Court of Appeal of Louisiana, Fourth Circuit.
    JANUARY 10, 2018
    KYLE D. SCHONEKAS, IAN L. ATKINSON, MANDIE E. LANDRY, SCHONEKAS, EVANS, McGOEY & McEACHIN, L.L.C., 909 Poydras Street, Suite 1600, New Orleans, Louisiana 70112, Counsel for Appellee, Succession of Doris Lavner Feingerts
    CHRISTOPHER K. RALSTON, JEREMY T. GRABILL, ARTHUR R. KRAATZ, PHELPS DUNBAR L.L.P., 365 Canal Street, Suite 2000, New Orleans, Louisiana 70130-6534, Counsel for Appellant, Crescent Title, L.L.C.
    (Court composed of Chief Judge James F. McKay III, Judge Edwin A. Lombard, Judge Roland L. Belsome )
   JAMES F. MCKAY III, CHIEF JUDGE

Third party defendant, Crescent Title, LLC ("Crescent Title"), appeals the judgment rendered on February 3, 2017, granting a motion for summary judgment in favor of third party plaintiff, the Succession of Doris Lavner Feingerts ("Succession"). For the reasons set forth below, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

This dispute stems from the 2009 sale of immovable property located at 5839 Bellaire Drive in New Orleans ("Property"). The Property was part of the community existing between Maurice and Doris Feingerts. Maurice died in 1967. In his last will and testament, dated February 18, 1966, Maurice left his entire estate in trust to his three children, Susan, Jane, and Bruce Feingerts (the "beneficiaries"), subject to the usufruct of their mother, Doris. The will stipulated that the Property would remain in trust until each child reached the age of thirty-one. At that time, the trust would terminate.

In 1974, a judgment of possession was rendered in Maurice's succession, naming Doris as trustee of the children's testamentary trusts. Doris was recognized as the owner of her half of the community along with a usufruct over the other half. The children were each recognized as one-third owners of Maurice's estate subject to Doris' usufruct. Thus, the beneficiaries would ultimately inherit a one-sixth ownership interest in the Property. The judgment of possession rendered in Maurice's succession was recorded in the public record. However, Maurice's will, establishing the trust and providing the conditions for the termination of the trust, was not recorded.

The Property sustained damage from Hurricane Katrina in 2005. In 2009, Doris listed the Property for sale with real estate agents Anne Comarda "Comarda") and Joyce Delery ("Delery"). Doris entered into an agreement to sell the Property to Ronda Wortmann D'Anna ("D'Anna"). Crescent Title was hired to close the sale. Paul Lapeyre ("Lapeyre"), an attorney for Crescent Title, conducted the title research.

It is undisputed that by 2009, the testamentary trust had terminated due to the beneficiaries having all reached the age of 31. Doris' daughters, Susan and Jane, consented to the sale of the Property. Because Bruce did not consent to the sale, Doris requested that her real estate agents (Comarda and Delery) inquire whether the Property could be sold without Bruce. The real estate agents sought an opinion from Robert Bergeron ("Bergeron"), an attorney with Crescent Title. Bergeron concluded that based on a review of the public record, i.e., the judgment of possession rendered in Maurice's succession, Doris had the authority to sell the Property without Bruce's consent. Pursuant to Bergeron's opinion, Doris sold the Property to D'Anna on July 30, 2009, for $127,000.00.

Doris died in 2011. On July 30, 2012, Bruce filed a petition for recognition as owner of the Property in the Civil District Court, challenging D'Anna's ownership of the Property. He alleged therein that he was a one-sixth owner of the Property, which was sold by his mother without his consent or authority. In response, D'Anna filed a third party demand against the beneficiaries and the Succession. The Succession filed a third party demand against Crescent Title asserting that Crescent Title breached its obligation to properly close the sale of the Property.

In September 2012, D'Anna filed a voluntary petition for bankruptcy in the Eastern District of Louisiana. In March 2015, D'Anna removed her state court action against the beneficiaries and the Succession to federal court. The actions were consolidated. The case was presented to the bankruptcy court on September 30, 2015, and an opinion was rendered on March 1, 2016. The bankruptcy court determined that pursuant to Maurice's will, the testamentary trust terminated in 1987 (or sooner) because the Trusts had all reached the age of 31. Thus, at the time of the sale in 2009, Bruce owned a one-sixth interest in the Property, and Doris no longer had authority to sell the Property without Bruce's consent. The court rejected Crescent Title's argument that they were entitled to rely on Doris' authority to sell because the judgment of possession did not indicate when the Trusts would terminate. The court held:

In this circumstance, Defendants [Crescent Title] were aware of several critical facts prior to the Sale. Defendants knew that Mrs. Feingerts owned one-half of the Bellaire Property and allegedly was trustee of Trusts owning the other half. While Defendants claim they are entitled to rely on Mrs. Feingerts' authority, as previously explained, Louisiana law is clearly at odds with their position. Under the Civil Code, they are not entitled to rely on any representations as to capacity or authority contained in a recorded document. Instead, the nature and extent of Mrs. Feingerts' authority were subject to verification by means other than the public record, and Fidelity and Crescent conducted a search of the succession records for just this reason.
The search of the Orleans Parish Civil Court records produced the Will. Although not contained in the mortgage or conveyance records, the Will was of public record in the Maurice Feingerts' succession. Filed in Civil District Court for Orleans Parish and probated by the same court issuing the Judgment of Possession, it was readily available and found by Crescent and Fidelity prior to the Sale. The Will dated February 18, 1966, clearly set forth the ages of the Feingerts children and provided that upon each reaching the age of thirty-one (31), their trust would terminate. Given that Maurice Feingerts died on July 19, 1967, under any calculation, more than thirty-one (31) years had lapsed. Therefore, from the face of the document, it was evident that Mrs. Feingerts' authority had lapsed due to termination of the Trusts.
Prior to the Sale, Defendants possessed written and recorded (in fact probated) documentation to refute Mrs. Feingerts' representations as to her capacity and authority. This, at a minimum, placed them "on inquiry" as to her right to transfer title. Defendants ignored this clear evidence regarding Mrs. Feingerts' lack of authority and capacity in proceeding to sale. They did so at their own risk and peril.

Finally, the bankruptcy court rejected Crescent Title's argument that La. R.S. 9:2029.1 required the execution and recordation of the termination of the trust, i.e., the will, in order to have an effect on third parties. The court noted that La. R.S. 9:2029.1 became effective on August 1, 2015, almost six years after the sale of the Property, and was not to be applied retroactively.

As a result of the bankruptcy court's findings, the sale of the Property was rescinded. Bruce was recognized as a one-sixth owner of the Property, and a judgment was rendered in favor of D'Anna and against the Succession in the amount of $276,096.10, which included the purchase price, cost of improvements, damages , and interest. The Succession's third party claims against Crescent Title were not addressed in the federal court proceedings, but were remanded back to the Civil District Court.

In August 2016, after the remand to the Civil District Court, the Succession filed a motion for summary judgment, seeking indemnity from Crescent Title for the judgment rendered in the bankruptcy court. In support of the motion for summary judgment, the Succession introduced the bankruptcy proceedings, and the depositions of Comarda and Bergeron.

In opposition to the motion for summary judgment, Crescent Title argued that they acted properly in passing the act of sale based on the examination of the public record and that genuine issues of fact precluded summary judgment. Crescent Title relied on the affidavit of attorney Lapeyre, the seller's affidavit prepared by Mrs. Feingerts, and the depositions of Bergeron and Bruce.

The matter was brought before the trial court on December 2, 2016. Judgment was initially rendered on January 3, 2017, finding that Crescent Title was liable to the Succession for all damages assessed against the Succession in the bankruptcy proceeding. By consent of the parties, and in accordance with La. C.C.P. art. 1951, the judgment was amended on February 3, 2017, to state that upon satisfaction of the judgment, "the Succession of Doris Lavner Feingerts, Susan Feingerts Hackmeier, and Jane Feingerts Rushing shall transfer all of their collective right, title and interest in the immovable property located at 5839 Bellaire Drive, New Orleans, Louisiana, to Crescent Title, LLC."

On appeal, Crescent Title asserts that the trial court erred in granting the Succession's motion for summary judgment because: 1) the Succession's detrimental reliance claim fails as a matter of law; and 2) genuine issues of material fact exist as to whether Crescent Title was negligent with respect to the closing of the sale of the Property. Additionally, Crescent Title argues for the first time on appeal that the Succession's claim against Crescent Title is perempted by La. R.S. 9:5605.

LAW AND ANALYSIS

Standard of Review

"Appellate courts review summary judgments de novo , using the same criteria that govern the district court's consideration of whether summary judgment is appropriate." Hogg v. Chevron USA, Inc. , 2009-2632, 2009-2635, p. 5 (La. 7/06/10), 45 So.3d 991, 996 (citing Schroeder v. Board of Supervisors of Louisiana State University , 591 So.2d 342, 345 (La. 1991) ). "The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends." La. C.C.P. art. 966A(2). "After an opportunity for adequate discovery, a motion for summary judgment shall be granted if the motion, memorandum, and supporting documents show that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law." La. C.C.P. art. 966A(3).

Assignment of Error No. 1. The Succession's detrimental reliance claim.

Crescent Title asserts that the trial court erred in granting summary judgment because the Succession's detrimental reliance claim fails as a matter of law. Crescent Title maintains that the Succession cannot allege detrimental reliance because the Succession does not claim that Crescent Title ever made a "promise" to Doris. Rather, Crescent Title argues that the Succession only claims that Bergeron gave an incorrect legal opinion, and that an alleged incorrect legal opinion does not form the basis for a detrimental reliance claim.

The Succession counters, asserting that this assignment of error is waived because Crescent Title did not raise the argument in the trial court. This assertion is incorrect. It is evident from the record that Crescent Title raised its objection to the detrimental reliance claim in its opposition to the motion for summary judgment. Alternatively, the Succession further argues that it does have a claim for detrimental reliance because Bergeron obviously made a "promise" when he guaranteed that Doris could sell the Property without Bruce's consent.

Based on the record before us, it is clear that Doris relied on an assertion made by Bergeron. Whether or not that assertion is labeled a promise or a legal opinion is inconsequential in determining whether Doris relied on the assertion to her detriment. We find no merit in this assignment of error.

Assignment of Error No. 2. Genuine issues of material fact.

In this assignment of error, it is argued that genuine issues of material fact remain as to whether there was negligence on the part of Crescent Title in closing the sale of the Property.

Crescent Title maintains that Bergeron and Lapeyre acted properly in relying on the public record. Specifically, Crescent Title contends that they were entitled to rely on the recorded judgment of possession, which did not state the conditions for the termination of the trust. Crescent Title relies heavily on the fact that Maurice's will, which provided the conditions for termination of the trust, was not recorded. Lapeyre stated in his affidavit that he had no duty to research Maurice's succession, which was over twenty years old.

Crescent Title further contends that Doris should have recorded Maurice's will. However, as correctly determined by the federal court in the bankruptcy proceedings, the law at the time of the act of sale did not require recordation of the termination document. As previously explained, La. R.S. 9:2029.1, requiring such a recordation, did not become effective until August 1, 2015. Moreover, in these proceedings, it is clear from Bergeron's deposition testimony, and in his testimony before the bankruptcy court, that he was provided with a copy of the will prior to the act of sale. On the face of the will, the trust had already terminated. Thus, Crescent Title was put on notice that the testamentary trust, and Doris's right to sell the Property, had expired. This pivotal fact is not in dispute.

Based on our de novo review of the record, we conclude that there are no genuine issues of material fact as to whether Crescent Title breached its obligation to properly close the sale on the Property. Accordingly, we find no merit in this assignment of error.

Exception of Peremption

For the first time on appeal, Crescent Title raises a peremptory exception, asserting that the Succession's claim against Crescent Title is perempted pursuant to La. R.S. 9:5605. Specifically, Crescent Title maintains that because the legal advice given by Bergeron sounds in legal malpractice, the Succession's claim is perempted on its face.

In support of this argument, Crescent Title points to Comarda's deposition testimony. Comarda testified that she contacted Bergeron in order to get a legal opinion as to whether Doris had authority to sell the Property without Bruce's consent. Based on Bergeron's opinion, the sale went forward.

It is well-settled in Louisiana that an attorney-client relationship is a necessary element of a legal malpractice claim. See Teague v. St. Paul Fire and Marine Ins. Co. , 2007-1384, p. 8 (La. 2/1/08), 974 So.2d 1266, 1272. In St. Paul Fire and Marine Ins. Co. v. GAB Robins N. Am., Inc. , 2008-0331, pp. 8-9 (La. App. 4 Cir. 11/19/08), 999 So.2d 72, 77, we stated:

The existence of an attorney-client relationship turns largely on the client's subjective belief that it exists. Louisiana State Bar Association v. Bosworth , 481 So.2d 567, 571 (La. 1986) ; Francois v. Andry , 05-0388 (La. App. 4 Cir. 4/5/06), 930 So.2d 995. However, a person's subjective belief that an attorney represents him must be reasonable under the circumstances. Exhibition [Exposition] Partner, L.L.P. v. King, LeBlanc & Bland, L.L.P. , 03-580 (La. App. 4 Cir. 3/10/04), 869 So.2d 934 ; Williams v. Roberts , 06-169 (La. App. 3 Cir. 5/31/06), 931 So.2d 1217. The requirement that the belief be reasonable is an objective standard. "The claimant's subjective belief does not establish an attorney-client relationship unless the lawyer reasonably induced that belief." Ronald E. Mallen and Jeffrey M. Smith, 1 Legal Malpractice § 8:3 (2008 ed.). For this reason, an attorney client relationship cannot exist in the absence of any initial communication-verbal, written, or otherwise-between the attorney and the client. Lirette v. Roe , 93-0441 (La. App. 4 Cir. 1/13/94), [631 So.2d 503] 631 So.2d 503, 506.

In opposition to the exception of peremption, the Succession argues that there was no attorney-client relationship between Doris and Bergeron. We agree.

The record before us does not demonstrate whether Doris believed that an attorney-client relationship with Bergeron existed. Doris passed away before this action was filed. However, Bergeron and his attorney both emphatically stated on the record that Bergeron did not represent Doris. Bergeron's attorney further explained that Doris had as many as five other attorneys representing her affairs. Additionally, Comarda explained in her deposition that Bergeron did not represent the buyer or seller; he represented the bank. Because an attorney-client relationship did not exist, the Succession could not have asserted a legal malpractice claim.

Crescent Title avers that the Succession's entire claim rests on the legal opinion provided by Bergeron prior to the sale, thus the peremptive period for legal malpractice applies. We find no merit in this assertion. The Succession's third party action clearly states a claim against Crescent Title for the breach of its obligation to properly close the sale. That obligation included researching Maurice's succession to determine whether the trust had terminated and whether all the heirs were required to sign. Breach of that obligation is particularly evident in this case considering the fact that Crescent Title was provided with a copy of Maurice's will. In sum, the peremptive period for legal malpractice is not applicable here. Accordingly, Crescent Title's exception of peremption lacks merit.

CONCLUSION

For the foregoing reasons, we find no error in the trial court's granting of summary judgment in favor of the Succession on its third party claim against Crescent Title. Accordingly, the trial court's judgment is affirmed. Furthermore, we find no merit in Crescent Title's exception of peremption.

AFFIRMED

      Fidelity issued a title insurance policy to D'Anna. The Succession filed a third party demand against Fidelity; that complaint was later dismissed.

      La. R.S. 9:2029.1, Added by Acts 2015, No. 225, § 1, provides:
      If a trust owns immovable property at the time the trust terminates and the date of termination is not discernable on the face of the recorded trust agreement or extract of trust, the termination shall not cause the dispositive provisions of the trust to have their ultimate effect insofar as third persons are concerned until an act evidencing such termination has been recorded in the conveyance records of the clerk of court of the parish in which the immovable property is located.

      Damages included interest associated with the loan, insurance, finance charges, property taxes and court costs.

      Crescent Title cites La. C.C. art. 1967 and Wooley v. Lucksinger , 2006-1167 (La. App. 1 Cir. 5/4/07), 961 So.2d 1228, 1238, for the premise that the first element of proof in a detrimental reliance cause of action is that a "promise" was given by the defendant to the plaintiff.

      La. R.S. 9:5605(A) provides:
      No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.