source: Caselaw Access Project

author: EDWARDS, JUDGE PRO TEMPORE, J.

license: Public Domain

text:
    Peter HOFFMAN as Successor to Pool Boy the Movie, LLC v. John W. THERIOT, CPA and Malcolm M. Dienes, LLC
    Peter Hoffman, as Successor to Autopsy, LLC v. John W. Theriot, CPA and Malcolm M. Dienes, LLC
    NO. 2017-CA-686 NO. 2017-CA-686 C/W 2017-CA-687
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, PETER HOFFMAN AS SUCCESSOR TO POOL BOY THE MOVIE, LLC, Peter M. Hoffman
    COUNSEL FOR DEFENDANT/APPELLEE, JOHN W. THERIOT, CPA AND MALCOLM M. DIENES, LLC, Michael A. Patterson, S. Brooke Barnett-Bernal
    Panel composed of Judges Marc E. Johnson, Robert A. Chaisson, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

The judgment on appeal is the grant of a defense motion for summary judgment in two consolidated cases. For the reasons that follow, we affirm.

Plaintiff/appellant, Peter Hoffman, as successor in interest to Pool Boy the Movie, L.L.C. (Pool Boy) and Autopsy, L.L.C. (Autopsy), filed two separate lawsuits against John Theriot, CPA (Theriot) and Malcolm M. Dienes, L.L.C. (MMD) for negligence and professional malpractice. Because the two actions derive from the same set of facts and assert the same claims against the same defendants, the matters were consolidated in the trial court by mutual consent of the parties. Upon completion of discovery, defendants filed a motion for summary judgment that was granted by the trial court. It is that judgment that is before this Court on appeal.

FACTS AND PROCEDURAL HISTORY

Both Pool Boy and Autopsy are limited liability companies set up as private, entrepreneurial motion picture production companies for the purpose of filming movies and taking advantage of the state sponsored tax credit program set forth in La. R.S. 47:6007 et seq. Mr. Hoffman is the legal successor to both Pool Boy and Autopsy.

On May 25, 2007, by two separate documents, Hoffman engaged MMD, a Louisiana certified public accounting limited liability company, to perform audit reports of the production expenditures of both Pool Boy and Autopsy as required by Louisiana law. John Theriot is a certified public accountant and the managing partner of MMD.

The audits are expressions of a professional opinion about whether the cost report of production expenditures is fairly presented, and is in conformity with the practices prescribed by the Louisiana Department of Economic Development. The audits are conducted in accordance with generally accepted auditing standards and are used by the State to determine qualification for the film tax credits.

In accordance with those agreements, MMD issued an independent auditor's report on each of the two movies. The Autopsy audit was issued on January 25, 2008 and the Pool Boy audit was issued on April 18, 2008. These audits were subsequently submitted to the State.

On February 3, 2012, MMD notified Pool Boy and Autopsy by correspondence to Mr. Hoffman that it discovered that certain transactions with related parties were not disclosed in the cost report used as a basis for the audit. The correspondence informed both companies that the audit could no longer be relied upon and that professional standards required notification of this fact to users of the audit, including the State. MMD requested that Mr. Hoffman notify the Louisiana Department of Economic Development and/or the Office of Entertainment Industry Development that the cost report and accompanying audit report could no longer be relied upon.

Mr. Hoffman responded by sending a correspondence demanding that MMD disclose the specifics of the transaction with related parties to which it was referring. MMD sent written notice to Mr. Hoffman listing the entities it perceived as related parties not disclosed in the information provided by Pool Boy and Autopsy. MMD also responded to what it considered an implied threat of litigation in the correspondence from Pool Boy and Autopsy by stating that it could no longer be independent and would be unable to perform any further audit procedures, including the re-issuance of audits. MMD also reasserted its request that Pool Boy and Autopsy notify known users that the cost reports and audit reports could no longer be used or relied upon.

When Mr. Hoffman failed to notify the appropriate Louisiana departments that the audits could no longer be relied upon, MMD recalled the audits. On February 28, 2012, MMD issued audit recall letters to the Louisiana Department of Economic Development and the Office of Entertainment Industry Development. Upon receipt of the recall letters, the State sent written demand to Pool Boy and Autopsy for replacement audits performed by a certified public accountant within fourteen days. The letter warned that unsupported movie tax credits would be disallowed. Ultimately, the tax credits were significantly reduced.

On September 28, 2012, Mr. Hoffman filed a complaint against MMD and John Theriot with the Society of Louisiana Certified Public Accountants (the Society) pursuant to La. R.S. 37:102. In that complaint Mr. Hoffman alleges MMD and John Theriot acted negligently in preparing the audits and in issuing letters of withdrawal of the audits to the State of Louisiana.

MMD and Mr. Theriot filed an exception of peremption seeking dismissal of the claims related to the audits pursuant to the three-year peremptive period in La. R.S. 9:5604. The trial court denied that exception. MMD and Theriot filed an application for supervisory writs in this Court seeking review of that ruling. Upon review, this Court held that any claims asserted that related to the preparation of the audits were perempted by the three-year peremption period established by La. R.S. 9:5604. Thus, only the claims asserted relating to the withdrawal of the audits remained viable.

A Public Accountant Review Panel (Panel), consisting of three independent Louisiana certified public accountants and an attorney chairman, was formed on May 20, 2015 in accordance with La. R.S. 37:105. After a hearing on September 21, 2015, the Panel unanimously concluded the evidence did not support the conclusion that Theriot and MMD were liable as charged in the complaints.

Pool Boy and Autopsy filed this action for negligence and professional malpractice in district court on October 13, 2015. Discovery was conducted, and on February 16, 2016, defendants filed a motion for summary judgment. The trial court granted that motion and dismissed the actions with prejudice. Mr. Hoffman appealed that ruling.

DISCUSSION

On appeal to this Court, appellant assigns one error in which he argues the trial court erred as a matter of law in ruling that he can only establish an actionable violation of defendants' professional obligations to Pool Boy and Autopsy by the testimony of an expert witness.

Our review of a grant of a summary judgment is de novo using the same criteria governing the trial court's consideration of whether summary judgment is appropriate. 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."

The party moving for summary judgment bears the burden of proof. However, if the movant will not bear the burden of proof at trial, the movant's burden on a motion for summary judgment does not require him to negate all essential elements of the adverse party's claim, but rather to point out to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense.

Negligence claims under La. C.C. art. 2315 are examined using a duty/risk analysis. There are five separate elements in the duty/risk analysis that take into account the conduct of each party and the peculiar circumstances of each case. Those elements are: (1) the defendant had a duty to conform his or her conduct to a specific standard of care (the duty element); (2) the defendant failed to conform his or her conduct to the appropriate standard (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 liability or scope of protection element); and, (5) actual damages (the damages element). In the duty/risk analysis it is necessary to initially determine what, if any, duty was owed by the defendant.

There is an almost universal duty on the part of a defendant to use reasonable care to avoid injury to another. Whether a legal duty exists, and the extent of that duty, depends on the facts and circumstances of the case, and the relationship of the parties. Generally, duty is the obligation to conform to the standard of conduct of a reasonable man under like circumstances. However, in cases involving the malpractice of professionals, the standard is generally that of exercising the degree of professional care and skill ordinarily employed by others of the same profession in the same general area.

Accountants, like physicians and lawyers, owe a duty to perform their services with that degree of skill and competence reasonably expected of persons in their profession in the community. By definition an auditor owes a duty to conduct an audit in accordance with generally accepted auditing standards (GAAS). In an action for professional malpractice, the burden is on the plaintiff to prove the degree of care and skill required by the profession as well as the failure of the professional to exercise the degree of care required. Where no evidence of the professional standard of care is produced, the court cannot determine that the professional is negligent. Generally, expert testimony is required to establish the applicable standard of care and whether or not the standard was breached, unless the negligence is so obvious that a lay person can infer negligence without the guidance of expert testimony.

In support of the motion for summary judgment, defendants offered documentation regarding the audits and filings with the State. Defendants also attached the Panel opinion relating to Mr. Hoffman's complaint and affidavits of two experts in the field regarding the relevant standard of care. Mr. Hoffman opposed the motion for summary judgment with voluminous supporting documents including the audits, the correspondence between the parties, correspondence between Mr. Hoffman and the State, emails, the complaint to the Panel, materials relating to the Louisiana film tax credit law, and excerpts of proceedings in federal court. However, there was no expert testimony or affidavit offered to establish the standard of care.

Mr. Hoffman did not rely on expert testimony to establish either the standard of care or to support his assertion that that standard was breached. In brief to this Court, Mr. Hoffman argues that expert testimony is not required to defeat the defense motion for summary judgment in this case because the negligence of defendants is obvious to a layman. The trial court found otherwise and we agree.

Mr. Hoffman argues the "common knowledge" or "common sense" exception to the requirement of expert testimony in professional liability cases applies here. He asserts that defendants "sold out their client to curry favor with LED and the US Attorney's Office by issuing Recall Letters based on obviously false and conflicting reasons." In brief to this Court, Mr. Hoffman acknowledges that there is a separate federal criminal prosecution against him involving infrastructure tax credits relating to a movie production facility. Mr. Hoffman concludes that proof of his cause of action against defendants herein has nothing to do with the GAAS or general accounting principles because defendants' motivation was to disengage from that federal criminal matter. We are not persuaded by Mr. Hoffman's argument.

The "common knowledge" or "common sense" exception to the rule requiring expert testimony involves factual circumstances in which negligence is obvious. This exception has been recognized by Louisiana jurisprudence in legal malpractice actions where the alleged legal malpractice is obvious or where the defendant committed gross error. The exception has also been applied in medical malpractice where there is an obvious careless act such as amputation of the wrong limb or leaving a sponge in a patient's body during surgery.

The basis of Mr. Hoffman's remaining claim relates to the withdrawal of defendants' audits on the cost report of the production expenditures for two films (Pool Boy and Autopsy). The audits were required in order for the two films to comply with the State sponsored tax credit incentive program set forth in La. R.S. 47:6007 et seq. The standard of care in the preparation of such an audit is not within a layman's knowledge or experience. To establish the standard of care would require the testimony of experts. Further, the issue of whether the withdrawal of that audit was negligent cannot be determined without expert testimony. What expenditures qualify for the tax credit and what restrictions the law places on those expenditures are not within the common experience or knowledge of a lay person. This is not the sort of commission or omission from which a layman could readily infer professional negligence without the testimony of an expert witness.

Therefore, we find the trial court correctly concluded Mr. Hoffman failed to establish that he could meet his burden of proof on the standard of care or a breach of that standard, both essential elements of his actions against defendants. Accordingly, we affirm the judgment on appeal granting summary judgment.

AFFIRMED

      MMD and Mr. Theriot filed a motion to dismiss the appeal which was denied by this Court on March 14, 2018.

      Hogg v. Chevron USA, Inc. , 09-2632 (La. 7/6/10), 45 So.3d 991, 996.

      La. C.C.P. art. 966(A)(3).

      La. C.C.P. art. 966(D)(1).

      Id.

      Joseph v. Dickerson , 1999-1046 (La. 1/19/00), 754 So.2d 912, 916.

      Richard v. Hawthrone , 15-559 (La. App. 5 Cir. 5/12/16), 192 So.3d 273, 277.

      Joseph v. Dickerson, 754 So.2d at 916.

      Boykin v. Louisiana Transit Co., 96-1932 (La. 3/4/98), 707 So.2d 1225, 1231.

      Abbasi v. State Farm Ins. Co. , 04-44 (La. App. 5 Cir. 5/26/04), 875 So.2d 988, 992, writ denied , 2004-2076 (La. 9/24/04), 882 So.2d 1135.

      Alexander v. Par. of St. John the Baptist , 12-173 (La. App. 5 Cir. 10/16/12), 102 So.3d 904, 910, writ denied, 2012-2448 (La. 1/11/13), 107 So.3d 617.

      Boudreaux v. Panger , 481 So.2d 1382, 1385 (La. App. 5 Cir. 1986), writ granted, 484 So.2d 130 (La. 1986), and aff'd , 490 So.2d 1083 (La. 1986).

      Fed. Deposit Ins. Corp. v. Schoenberger , 781 F.Supp. 1155, 1157 (E.D. La. 1992).

      Id.

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

      Boudreaux v. Panger , supra , 481 So.2d at 1387.

      Banister v. Day , 08-835 (La. App. 5 Cir. 5/26/09), 13 So.3d 229, 233, writ denied , 2009-1529 (La. 10/9/09), 18 So.3d 1286.

      Defendants argue that many of these documents are not admissible under Louisiana law because they are not sworn or certified copies. Mr. Hoffman counters that his "declaration" that the documents are authentic is sufficient. Since the documents are irrelevant to our consideration of the assignment of error, we make no ruling on the issue of admissibility of these documents.

      See MB Indus., LLC v. CNA Ins. Co. , 2011-0303 (La. 10/25/11), 74 So.3d 1173, 1184-85 and cases cited therein.


text:
    Cea TILLIS v. Jamal MCNEIL & General Insurance Company of America
    NO. 2017-CA-673
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, CEA TILLIS, Eugene P. Redmann, James A. Harry
    COUNSEL FOR DEFENDANT/APPELLEE, JAMAL McNEIL & GENERAL INSURANCE COMPANY OF AMERICA, Pamela S. Chehardy Croft
    Panel composed of Judges Jude G. Gravois, Marc E. Johnson, Stephen J. Windhorst, Hans J. Liljeberg, and Marion F. Edwards, Judge Pro Tempore
   EDWARDS, JUDGE PRO TEMPORE, J.

Plaintiff/appellant, Cea Tillis, appeals two judgments. One judgment is from the Second Parish Court for the Parish of Jefferson dated May 23, 2013, and the other is from the First Parish Court for the Parish of Jefferson dated August 22, 2017. Both judgments, although rendered in different courts, arise from the same litigation and grant a defense exception of lack of jurisdiction.

For reasons that follow, we find the judgment of May 23, 2013 is not before us on appeal, and will not be considered. We reverse the judgment of August 22, 2017 and remand the matter for further proceedings consistent with this opinion.

Setting forth the procedural history of this matter presents a unique challenge for this Court. Cea Tillis filed this action in the Second Parish Court for the Parish of Jefferson on October 12, 2012 seeking damages sustained in an automobile accident that occurred on October 13, 2011 on Frenchmen Street in New Orleans. The petition is entitled, "Petition for Damages and Request for Admission of Fact." Named defendants in that action are Jamal McNeil, a resident of Orleans Parish, and his insurance company, Safe Co Insurance Company . The petition asserts that venue is proper in Jefferson Parish pursuant to La. C.C.P. art. 74 . The admission of fact at the end of the petition states, "(p)lease admit each and every allegation in this Petition for Damages."

On November 14, 2012, both Mr. McNeil and his insurance company filed a declinatory exception of lack of jurisdiction, asserting that both the site of the accident and the domicile of the defendant are outside of the territorial boundary of the court. The Second Parish Court heard the matter on April 26, 2013. At the hearing, plaintiff's counsel "handed" the judge a motion to transfer the matter to First Parish Court, but admitted that was incorrect and the motion should have requested a transfer to First City Court in Orleans Parish. Plaintiff acknowledged the petition was filed in an incorrect venue and asked the court to transfer the matter. Defense counsel objected to the transfer, arguing that the court lacked jurisdiction to take any action including a transfer to a court of proper venue. Ultimately, the court took the matter under advisement.

The motion to transfer was not filed in the record, nor ruled on by the trial court. On May 23, 2013, the Second Parish Court rendered judgment granting an exception of lack of personal jurisdiction, based on a finding that the accident occurred in Orleans Parish and the defendant is domiciled in Orleans Parish. That judgment dismissed the action without prejudice.

On June 5, 2013, plaintiff filed a motion for new trial. On August 27, 2013, the court granted the new trial and overruled defendants' exception of lack of personal jurisdiction. The trial judge indicated that he was reversing his decision because he confused venue with jurisdiction.

On September 9, 2013, defendants filed a motion to re-set the hearing on the exception to jurisdiction based on the grant of the motion for new trial. On September 12, 2013, defendants filed a motion for new trial from the grant of plaintiff's new trial motion, and the resulting judgment overruling the grant of the exception of lack of jurisdiction. On October 9, 2013, plaintiff filed a motion to dismiss defendants' motion to re-set the exception of lack of jurisdiction as moot based on the trial court's ruling of August 27, 2013 granting the new trial and overruling the grant of the exception of lack of personal jurisdiction. On the same day, plaintiff also filed a motion to dismiss defendants' motion for new trial as untimely.

On November 15, 2013, the court rendered judgment granting defendants' motion for new trial. On April 16, 2014, the Second Parish Court rendered a judgment in which it denied plaintiff's motion to dismiss defendants' motion to reset the exception of lack of jurisdiction, and plaintiff's motion to dismiss defendants' motion for new trial as untimely. In that same judgment, the Second Parish Court transferred the matter to the First Parish Court in Jefferson Parish. Subsequently, plaintiff filed a motion to transfer the lawsuit to First Parish Court for the Parish of Jefferson pursuant to that judgment. That motion was granted on April 8, 2015.

On May 30, 2017, defendants filed exceptions of lack of jurisdiction, improper venue and prescription in First Parish Court. On August 22, 2017, the First Parish Court rendered judgment maintaining defendants' exception of subject matter and personal jurisdiction and dismissing plaintiff's action. The court did not rule on the exceptions of improper venue or prescription. Plaintiff filed a motion for appeal from that judgment on September 6, 2017.

DISCUSSION

Initially we note that the judgment of the Second Parish Court rendered on May 23, 2013 granting an exception of lack of personal jurisdiction was reversed after a grant of a motion for new trial. At that point, there was a valid judgment denying the exception of lack of personal jurisdiction. Rather than seeking review of that judgment in this Court, defendants filed a motion for new trial on the grant of the motion for new trial, a procedural device with which this Court is unfamiliar. Accordingly, we find that the judgment of May 23, 2013 granting the exception of lack of jurisdiction was never appealed and is not before us.

Therefore, the only judgment properly before this Court on appeal is the judgment of First Parish Court dated August 22, 2017 in which the trial court granted defense exceptions of lack of personal and subject matter jurisdiction and dismissed the action for damages.

The procedure and legal reasoning supporting the transfer of this matter from Second Parish Court for Jefferson Parish to First Parish Court for Jefferson Parish is not certain from the record. Nevertheless, the judgment on appeal before us is a ruling on exceptions filed by defendants in First Parish Court on May 30, 2017. The pleading on which the judgment is based raised exceptions of lack of jurisdiction, improper venue and prescription.

The judgment grants the exceptions of lack of personal and subject matter jurisdiction and is silent on the exceptions of improper venue and prescription. The transcript shows that the trial court granted the exceptions of lack of personal and subject matter jurisdiction based on the facts that the accident occurred in Orleans Parish and the domicile of the defendant is in Orleans Parish. Although the decision was based on principles of venue, the court granted an exception of lack of jurisdiction. Upon finding no subject matter or personal jurisdiction, the court found it could not rule on the issues of venue and prescription.

On appeal, plaintiff argues the trial court erred in finding it had no subject matter jurisdiction over an automobile accident, and in finding it had no personal jurisdiction over a resident of Louisiana. Appellees counter that the First Parish Court has no jurisdiction over this matter because the site of the accident and defendant's domicile are outside of the court's territorial boundary.

Our determination of the merits of this case requires an examination of the concepts of jurisdiction and venue. Jurisdiction is a separate and distinct legal concept from venue. "Venue means the parish where an action or proceeding may be properly brought and tried under the rules regulating the subject." Jurisdiction is the legal power and authority of a court to hear and decide an action and grant relief. Thus, venue refers to the place where the action is to be brought and adjudicated, while jurisdiction relates to the legal power or authority of a court to adjudicate and decide the matter and to render judgment against a party to that action.

There are many types of jurisdiction. Among them are territorial jurisdiction, jurisdiction over the subject matter, jurisdiction over the person, and jurisdiction over the thing (in rem). Varied courts also have original, supervisory and appellate jurisdiction.

The legislative establishment of parish courts is authorized by La. Const. Art. 5 § 15 (A). In accordance with that grant of authority, the Louisiana legislature created a system of parish courts with limited jurisdiction embodied in R.S. 13:1441, et seq . The purpose of this legislative enactment "is to provide for uniform subject matter jurisdiction and procedure for parish courts," and "is intended to implement the constitutional requirement that such courts shall have parishwide territorial jurisdiction and subject matter jurisdiction which shall be uniform throughout the state..."

First Parish Court for the Parish of Jefferson was created by La. R.S. 13:2561.1. That statute also sets forth the territorial boundaries of the court. Unlike jurisdiction over the person, property or status, territorial jurisdiction relates to geography. Geographic boundaries present a venue issue, not a subject matter jurisdiction issue. As previously stated, venue means the parish where an action or proceeding may properly be brought and tried under the rules regulating the subject. The rules of venue apply to actions brought in parish courts. While the geographic limits of venue in parish courts are smaller units than those of the district court, the basic concepts of venue apply. Venue designates a physical place wherein an action must be filed, and is therefore closely related to territorial jurisdiction. For venue to be proper, the court in which the action is brought and tried must have territorial jurisdiction.

In contrast, subject matter jurisdiction is unrelated to the place where an action must be filed. Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings based upon the object of the demand, the amount in dispute, or the value of the right asserted. In short, subject matter jurisdiction relates to substantive matters pertaining to rights, duties and obligations, while venue is a procedural matter unrelated to substantive causes of action.

Parish courts have jurisdiction that is concurrent with the district court. However, the subject matter jurisdiction of the parish courts is limited by both the amount in dispute and the nature of the controversy. La. R.S. 13:1442 limits the civil jurisdiction of a parish court by the amount and the nature of the proceeding. La. C.C.P. art. 4847 limits parish court jurisdiction by excluding certain types of cases or proceedings. An action for damages as a result of an automobile accident is not on that list of exclusions. Thus, First Parish Court has subject matter jurisdiction because it has the legal authority to adjudicate and decide an action for damages resulting from an automobile accident subject to the limitation on the amount in dispute.

Further, the court has personal jurisdiction to render judgment against a Louisiana resident made a party to such action. Jurisdiction over the person is the legal power and authority of a court to render a personal judgment against a party.

Defendants' arguments relating to the site of the accident and the domicile of the alleged tortfeasor raise issues of venue, not jurisdiction. Jurisdiction refers to the power to decide the merits of an action, while venue refers to locality. Territorial jurisdiction refers to the place where or the territory within which an action can be filed and is unrelated to subject matter jurisdiction.

For these reasons, we find that First Parish Court for Jefferson Parish has subject matter jurisdiction and personal jurisdiction in this action for damages resulting from an automobile accident allegedly caused by a Louisiana resident. The exceptions to subject matter and personal jurisdiction are without merit and were erroneously granted. Accordingly, we reverse the judgment on appeal rendered by the First Parish Court on August 22, 2017 that granted the exceptions of lack of personal and subject matter jurisdiction.

Because the trial court erroneously found that it lacked subject matter jurisdiction, it did not consider the exceptions of improper venue and prescription. While it appears from the record that the exceptions may have merit, we are not inclined to decide these issues on appeal since neither exception was ruled on by the trial court. Accordingly, we remand this matter to the trial court for consideration of the exceptions of improper venue and prescription consistent with this opinion.

CONCLUSION

The judgment on appeal granting the exceptions of lack of personal and subject matter jurisdiction is hereby reversed. The matter is remanded to the trial court for consideration of the exceptions of improper venue and prescription.

REVERSED AND REMANDED

J. WINDHORST, DISSENTS WITH REASONS

I respectfully disagree with the majority. As the majority opinion correctly states, jurisdiction is the power and authority of the court to hear, issue rulings, and decide a case. In defining the civil jurisdiction of First Parish Court, La. R.S. 13:2561.2 limits the court's civil jurisdiction to cases "within its territorial boundaries," among other limitations on jurisdiction. This limitation on jurisdiction appears in both subsections A and B of La. R.S. 13:2561.2. Thus, unless the cause of action occurs within the territorial boundaries of First Parish Court, the case is not within the court's civil subject matter jurisdiction as defined by law, and the court has no power or authority to hear the case. Location "within its territorial boundaries" is, by specific statutory definition, indispensible to the First Parish Court's jurisdiction.

Although geographic boundaries usually determine proper venue among courts of the same or overlapping jurisdiction, La. R.S. 13:2561.2 defines jurisdiction of First Parish Court to include those geographic boundaries as a necessary element of jurisdiction. In doing so, La. R.S. 13:2561.2 effectively makes jurisdiction of First Parish Court and venue synonymous. So whereas the various Louisiana district courts share the same jurisdiction and may transfer cases to other district court venues in other parishes, First Parish Court's subject matter jurisdiction is limited to its own territorial boundaries. Thus, while the majority relies in part on the concurrent jurisdiction provided in La. C.C.P. art. 4842, First Parish Court's jurisdiction is concurrent with the that of the 24th JDC only up to the jurisdictional amount and within its territorial limits.

For these reasons, I believe that the trial judge was correct in granting the exception of lack of jurisdiction, and would affirm the judgment.

      The correct name of the insurance company is General Insurance Company of America. Defendant insurance company has acknowledged this fact, although there is no pleading in the record making this correction.

      La. C.C.P. art 74 provides that an action for damages may be brought in the parish where the wrongful conduct occurred, or in the parish where the damages were sustained.

      There is a judgment from Second Parish Court dated April 16, 2014 transferring the matter to First Parish Court. However, the motion to transfer the matter was not filed until March 31, 2015, almost one year later. The record does not contain a transcript of the hearing that preceded the April 16, 2014 judgment transferring the matter.

      With respect to personal jurisdiction, appellant makes alternative assertions that defendant made a general appearance or that he was never served.

      Sims v. Sims , 388 So.2d 428 (La. App. 2 Cir.1980), writ denied, 394 So.2d 612 (La. 1980).

      La. C.C.P. art. 41.

      La. C.C.P. art. 1.

      State v. Dubois , 556 So.2d 1295, 1296 (La. App. 5 Cir. 1990).

      La. R.S. 13:1441.

      La. C.C.P. art. 41.

      La. C.C.P. art. 4851.

      See the official revision comment to former La. C.C.P. art. 4839, now La. C.C.P. art. 4851.

      Wooley v. AmCare Health Plans of Louisiana, Inc. , 2005-2025 (La. App. 1 Cir. 10/25/06), 944 So.2d 668, 675.

      Wooley, 944 So.2d at 676.

      La. C.C.P. art. 2 ; Opelousas Tr. Auth. v. Cleco Corp. , 2012-0622 (La. 12/4/12), 105 So.3d 26, 35.

      Wooley , 944 So.2d at 676.

      La. C.C.P. art. 4842.

      La. C.C.P. art. 4841.

      La. C.C.P. art. 6.

      Mousa v. Kasem , 98-2320 (La. App. 4 Cir. 3/31/99), 731 So.2d 981, 983.

      See Tanner v. Beverly Country Club , 217 La. 1043, 47 So.2d 905 (La. 1950).


author: CHAISSON, J.

text:
    Shannon JONES and Jennifer Jones, Individually and on Behalf of Their Daughter, Haley Jones v. ABC INSURANCE COMPANY and Cobe Cardiovascular, Inc., et al.
    NO. 17-CA-368
    Court of Appeal of Louisiana, Fifth Circuit.
    May 30, 2018
    COUNSEL FOR PLAINTIFF/APPELLANT, SHANNON JONES AND JENNIFER JONES, INDIVIDUALLY AND ON BEHALF OF THEIR DAUGHTER, HALEY JONES, Jennifer Brunell, In Proper Person
    COUNSEL FOR DEFENDANT/APPELLEE, GARY B. ROTH AND BOXER & GERSON LLP, Gus A. Fritchie, III, McDonald G. Provosty
    Panel composed of Judges Fredericka Homberg Wicker, Robert A. Chaisson, and Hans J. Liljeberg
   CHAISSON, J.

This appeal concerns a third-party legal malpractice claim filed by Jennifer Brunelle, in her capacity as court-appointed tutrix of her child, Haley Jones, against third-party defendants, Gary Roth and his law firm, Boxer & Gerson, LLP ("the Roth defendants"). Ms. Brunelle appeals an August 19, 2016 judgment granting a motion for summary judgment filed by the Roth defendants and dismissing with prejudice the legal malpractice claims against them. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

The issue currently before this Court arises from litigation that has a long and complicated procedural history, which we briefly review for the sake of clarity.

The underlying suit in this case is a medical malpractice action brought in 1999 by Shannon Jones and Jennifer Brunelle, individually and on behalf of their daughter, Haley, for severe injuries Haley sustained as an infant during a February 20, 1998 heart surgery. The petition for damages included a medical malpractice claim against the healthcare providers involved, a products liability claim against the manufacturers of the medical device used during the surgery, and loss of consortium claims for Haley's parents. At the time the petition was filed, Mr. Jones and Ms. Brunelle, then married, retained Gary Roth, an attorney then with the law firm of Gainsburgh, Benjamin, David, Meunier & Warshauer, LLC to represent them and their daughter for all claims arising out of the incident. Mr. Roth left the Gainsburgh firm in 2005 but continued his representation of Mr. Jones, Ms. Brunelle, and Haley.

In 2006, while still being represented by Mr. Roth, plaintiffs settled their medical malpractice claims against one of the defendants, Ochsner Clinic Foundation. In order to effect the compromise agreement, Mr. Jones and Ms. Brunelle filed (in a separate proceeding in the 24th Judicial District Court) a petition to have Ms. Brunelle confirmed as natural tutrix and Mr. Jones confirmed as natural undertutor for the minor child. Upon receiving letters of tutorship, Ms. Brunelle, in her capacity as tutrix, filed a motion for authority to compromise Haley's medical malpractice claim, and Mr. Jones, in his capacity as undertutor, filed a concurrence. This motion was granted by the trial court in a judgment on March 27, 2006. Subsequently, plaintiffs filed a petition in the underlying medical malpractice proceeding for court approval of the settlement of a medical claim, which was granted in April 2006.

Shortly thereafter, on June 26, 2006, Ms. Brunelle (who at that time was divorced from Mr. Jones) sent a letter to Mr. Roth in which she discharged him as attorney for herself and Haley. Then, in April 2007, Ms. Brunelle entered into a written contingency fee contract with attorneys from the Gainsburgh firm, Tracy Rannals Bryan and Robert J. David, to represent her individually and on behalf of Haley. Mr. Roth, now with the firm Boxer & Gerson, LLP, continued to represent Mr. Jones and Haley.

On October 29, 2008, plaintiffs reached an aggregate settlement with the medical device manufacturers in which plaintiffs agreed to release their products liability claim against those defendants for a lump sum of $8.25 million. At the time of this settlement, which was signed by both Mr. Jones and Ms. Brunelle in their individual capacities and on behalf of their minor child, no determination had been made as to how the lump sum would be allocated among plaintiffs for the satisfaction of their individual claims.

Disputes arose between Mr. Jones and Ms. Brunelle over the establishment of a supplemental care trust for Haley and the proper allocation of settlement funds for the satisfaction of Ms. Brunelle's and Haley's claims. Thereafter, in June 2009, Ms. Brunelle discharged the Gainsburgh firm. Litigation was also commenced in the 22nd Judicial District Court in St. Tammany Parish to determine the proper tutor for Haley. The 2008 settlement agreement was not perfected until November 2009, at which point the $8.25 million in settlement funds were finally deposited into court registries and began earning interest.

In October 2009, in response to a petition of intervention filed by the Gainsburgh firm to protect its interest in the attorneys' fees due from the settlement, Ms. Brunelle, individually and on behalf of Haley, filed a reconventional demand against her former attorneys, Tracy Rannals Bryan and Robert J. David, the Gainsburgh firm, and their professional liability insurer ("the Gainsburgh defendants"), as well as a third-party demand against the Roth defendants, alleging that these attorneys committed malpractice during the course of negotiating the 2008 settlement with the device manufacturers.

In January 2010, in response to this third-party demand, the Roth defendants filed a peremptory exception of no right of action. Following a hearing on the matter, the trial court issued a judgment granting the exception of no right of action with respect to Ms. Brunelle's individual claims for legal malpractice after finding that no attorney-client relationship existed between Mr. Roth and Ms. Brunelle at the time of the alleged malpractice. With respect to the malpractice claims filed on behalf of Haley, the trial court denied the exception of no right of action.

Subsequently, both the Gainsburgh defendants and the Roth defendants filed motions for summary judgment seeking to have the legal malpractice claims against them dismissed. As to the motion for summary judgment filed by the Gainsburgh defendants, the trial court partially granted and partially denied the motion, finding that there were genuine issues of material fact as to the representations made by the Gainsburgh attorneys to Ms. Brunelle during the settlement negotiations which precluded granting the motion for summary judgment in its entirety. As to the motion for summary judgment filed by the Roth defendants, the trial court granted the motion and dismissed the legal malpractice claim filed against them by Ms. Brunelle on Haley's behalf. Ms. Brunelle, both individually and on Haley's behalf, appealed these judgments as well as a judgment on the allocation of the settlement funds.

Upon review of those judgments, this Court found genuine issues of material fact existed which precluded granting summary judgment in favor of either the Gainsburgh defendants or the Roth defendants, and we reversed the trial court and remanded the matter. Jones v. ABC Ins. Co. , 11-632 (La. App. 5 Cir. 12/12/13), 130 So.3d 35. Following the remand, the parties litigated the legal malpractice claims in the trial court for another two and one-half years. ,

On May 2, 2016, the Roth defendants filed a second motion for summary judgment. On August 19, 2016, the trial court issued a judgment in favor of the Roth defendants and dismissed the legal malpractice claim against them. Ms. Brunelle took a devolutive appeal of this judgment and filed a motion to designate the record on appeal. The motion to designate was denied for failure to specify which records were to be designated. The trial court subsequently granted an amended order allowing for the designation of the record on appeal in which Ms. Brunelle specified those documents to be included in the record.

On appeal, Ms. Brunelle, appearing pro se and in her capacity as Haley's tutrix, raises multiple assignments of error, alleging that the trial court failed to apply the law of the case doctrine, denied Haley due process and equal protection under the law, and committed various additional factual and legal errors that warrant a reversal of the trial court's judgment.

ASSIGNMENTS OF ERROR

Ms. Brunelle specifically raises the following six assignments of error in this appeal:

1. In granting summary judgment in favor of the Roth Defendants the Trial Court deprived Haley Gabrielle Jones of her fundamental rights to due process and equal protection under the law by failing to acknowledge that her individual right to pursue legal malpractice claims against Gary Roth and Boxer & Gerson, LLP belong to her and her alone;
2. The Trial Court was clearly wrong for failing to recognize that Haley Jones and the fictitious entities "Jennifer Brunelle on behalf of Haley Jones ," "Jennifer Jones on behalf of Haley Jones " and "Shannon Jones on behalf of Haley Jones " are not one in the same and that the claims from which the Roth Defendants were seeking relief did not exist as a matter of law;
3. The Trial Court was clearly wrong for dismissing the legal malpractice claims of Haley Gabrielle Jones based on the lack of attorney-client relationship between Gary Roth and Jennifer Brunelle;
4. The Trial Court's holding that the fictitious entity "Shannon Jones on behalf of Haley Jones " was the only person who could bring a legal malpractice action against Gary Roth on behalf of Haley Gabrielle Jones is contradictory to the law;
5. The Trial Court erred in failing to determine whether or not an attorney client relationship existed between Gary Roth and Haley Gabrielle Jones at the time of the $8.25 million aggregate settlement; and
6. The Trial Court was clearly wrong for failing to apply the law of the case doctrine.

DISCUSSION

Appellate courts review summary judgments de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. O'Krepki v. O'Krepki , 16-50 (La. App. 5 Cir. 5/26/16), 193 So.3d 574, 577. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action. La. C.C.P. art. 966(A)(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. 966(A)(3).

The burden of proof rests with the mover. La. C.C.P. art. 966(D)(1). Nevertheless, if the mover will not bear the burden of proof at trial on the issue that is before the court on the motion for summary judgment, the mover's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Id. The burden is on the adverse party to produce factual support sufficient to establish the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. Id.

The decision as to the propriety of a grant of a motion for summary judgment must be made with reference to the substantive law applicable to the case. Ricalde v. Evonik Stockhausen, LLC , 16-178 (La. App. 5 Cir. 9/22/16), 202 So.3d 548, 551-52, writ denied , 16-1923 (La. 12/16/16), 212 So.3d 1170. For a valid legal malpractice claim, 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." Saussy v. Bonin , 12-1755 (La. App. 4 Cir. 9/4/13), 125 So.3d 1, 5.

Attorney-Client Relationship

We address Ms. Brunelle's assignments of error numbers one, two, four, and five together because they all relate to the issue of an attorney-client relationship between the Roth defendants and Haley, and the implications of the existence thereof, or the lack thereof, to this litigation. This issue has been the source of much disagreement between the parties since the inception of this litigation.

In summary, Ms. Brunelle contends that Haley's lack of capacity to contract on her own behalf is irrelevant to the issue of whether an attorney-client relationship existed between Haley and the Roth defendants. She maintains that because Mr. Jones entered into the contractual relationship, not only for himself, but also on behalf of Haley, that Haley, as an individual, had rights under that contract separate and distinct from Mr. Jones. She argues, consequently, that the Roth defendants owed a duty to Haley, independent of the duty they owed to Mr. Jones.

Although the Roth defendants acknowledge that they owed a duty to Haley, they argue that, because it was Mr. Jones who they actually contracted with, any rights that Haley may have for a breach of the duty owed to her is dependent upon their attorney-client relationship with Mr. Jones. Consequently, they maintain that Mr. Jones is the only person who may sue them for an alleged breach of their duty to Haley.

It appears that the Roth defendants conflate the issue of whether Haley, as an individual, has a potentially viable legal malpractice claim against them independent of Mr. Jones, with the issue of who has the right, in light of Haley's lack of capacity, to assert that claim on Haley's behalf. In our view, these are two separate and distinct issues.

"One of the basic tenets of establishing a claim of malpractice is proving that an attorney-client relationship existed at the time of the alleged malpractice." Saussy , 125 So.3d at 5. It is the existence of the attorney-client relationship that establishes the duty owed by the attorney to his client. See generally, Vagelos v. Abramson , 12-1235 (La. App. 4 Cir. 10/2/13), 126 So.3d 639, 650 (where there was no duty arising from an attorney-client relationship, no cause of action lies for legal malpractice). The relationship between an attorney and his client is purely contractual in nature and results only from a clear and express agreement between the parties. Weinstein v. Weinstein , 10-1083 c/w 10-1084 (La. App. 3 Cir. 4/13/11), 62 So.3d 878, 882.

Because of Haley's minority at the time Mr. Jones entered into the legal representation contract with the Roth defendants, she did not have the legal capacity to enter into a contractual relationship with them on her own behalf. See La. C.C. art. 1918. There is no dispute, however, that her father, Shannon Jones, entered into an attorney-client relationship with the Roth defendants, both individually and on behalf of his minor daughter, Haley. Additionally, Ms. Brunelle acknowledges that she discharged the Roth defendants on June 26, 2006, two years prior to the alleged legal malpractice by the Roth defendants, and hired separate legal counsel to represent herself and Haley. Although it was Mr. Jones who negotiated and consented to the contractual attorney-client relationship with the Roth defendants, it is clear from the terms of the contract that the representation was for the benefit of both Mr. Jones and Haley.

Our law recognizes that a contracting party may stipulate a benefit for a third person called a third-party beneficiary. La. C.C. art. 1978. When a tutor (or undertutor) of an unemancipated minor enters into a contract on behalf of the minor for legal representation, with the expressed objective of the contract being representation of the minor's interests, such arrangement imposes a duty from the attorney to the minor.

This was exactly the arrangement that resulted when Mr. Jones retained the Roth defendants to represent Haley's interests in the underlying litigation. The Roth defendants therefore had a duty, not only to Mr. Jones, but also to Haley, individually, to handle the litigation on her behalf in a competent manner. Any potential negligence by the Roth defendants in fulfilling their duties to Haley would consequently result in a viable legal malpractice claim in favor of Haley. However, because of Haley's continuing minority at the time that her individual cause of action arose, the issue also arises as to the proper party to bring the action for legal malpractice on her behalf.

The Roth defendants maintain that because Mr. Jones was the only person with whom they contracted, he is the only person that can bring such an action on Haley's behalf. We respectfully disagree, and note that application of such a rule could potentially lead to absurd results, such as prohibiting a competent adult from filing a suit for malpractice on her own behalf against an attorney who was retained by her parent to represent her interests during her minority. Or a minor who would be deprived of an otherwise viable claim for legal malpractice where the parent who retained the attorney simply refuses, for whatever reason, to bring the claim for legal malpractice on the child's behalf, even where the other parent wishes to do so to protect the child's interest.

Our law provides that during tutorship, the tutor is the proper plaintiff to sue to enforce a right of the unemancipated minor. La. C.C.P. art. 683(C). Ms. Brunelle, as the co-tutrix of Haley, is a proper party to bring the legal malpractice claim on her behalf, regardless of the fact that Ms. Brunelle did not have an attorney-client relationship with the Roth defendants. Solely as it relates to the procedural capacity question , we find the lack of an attorney-client relationship between the Roth defendants and Ms. Brunelle completely irrelevant.

Although we agree with Ms. Brunelle that the Roth defendants owed a duty to Haley, that any breach of that duty results in a viable legal malpractice claim in favor of Haley, individually and independent of Mr. Jones, and that Ms. Brunelle, as Haley's co-tutrix, is authorized to bring that claim on Haley's behalf, we do not agree with Ms. Brunelle's contention that the trial court reached contrary conclusions on these issues, or that those conclusions were the basis of its ruling. Regardless, whether the trial court reached contrary conclusions or not on these issues, as we have stated, our standard of appellate review of a summary judgment is de novo . Furthermore, resolution of these issues alone does not end our analysis.

Merits of Haley's legal malpractice claim

We now address Ms. Brunelle's third assignment of error, which focuses on the implications of the lack of an attorney-client relationship between herself and the Roth defendants. We have already discussed the irrelevance of the lack of an attorney-client relationship between the Roth defendants and Ms. Brunelle as it relates to the viability of Haley's individual claim for legal malpractice and the procedural question of whether Ms. Brunelle has the right to bring that claim.

However, the Roth defendants also argue that because of the lack of an attorney-client relationship between them and Ms. Brunelle, it will be impossible for her to prevail on the merits of Haley's claim for legal malpractice. We therefore now analyze the implications that the lack of an attorney-client relationship between the Roth defendants and Ms. Brunelle has on the merits of Haley's legal malpractice claim.

As previously stated, the Roth defendants owed a duty to Haley, individually and independent of Mr. Jones; however, simply determining that some abstract duty is owed provides an incomplete and insufficient analysis. In order for us to determine whether there are any genuine issues of material fact regarding the Roth defendants' duty to Haley and any potential breach of that duty, we must examine the specific acts of negligence that Ms. Brunelle alleges against the Roth defendants.

On the record before us, we appreciate the specific acts of negligence that Ms. Brunelle alleges against the Roth defendants to be as follows:

1. Mr. Roth failed to obtain Haley's informed consent to enter into the aggregate $8.25 million dollar settlement;
2. Mr. Roth failed to disclose to Haley, prior to settlement, the share or portion of the settlement funds each plaintiff would receive, as required under Rule 1.8(g) of the Rules of Professional Conduct, which in turn resulted in a dispute between Ms. Brunelle and Mr. Jones over allocation and management of the fund, causing additional attorneys' fees and costs; and
3. Mr. Roth failed to take action to enforce the settlement and payment of settlement funds, resulting in lost interest on the funds.

We address each of these allegations in turn.

Informed Consent

Rule 1.4 of the Rules of Professional Conduct requires that an attorney give a client sufficient information to participate intelligently in decisions concerning the objectives of the representation. A legal malpractice claim for failure to obtain informed consent, therefore, is based upon allegations that the attorney failed to properly communicate sufficient information to the client in order that the client can make an intelligent decision concerning the objectives of the representation. The issue of lack of informed consent therefore raises the question of with whom Mr. Roth had a duty to communicate regarding the settlement of Haley's lawsuit.

Haley, as an unemancipated minor at the time, had no legal capacity to give her consent to the settlement. La. C.C. art. 1918. Consequently, Mr. Roth had no duty to communicate directly with Haley regarding the settlement. The Roth defendants maintain that the only person Mr. Roth had a duty to communicate with was Mr. Roth's client, Mr. Jones.

Ms. Brunelle, on the other hand, despite the fact that her individual claim against the Roth defendants was previously dismissed due to the lack of an attorney-client relationship with them at the time of the alleged malpractice, and the fact that she settled and dismissed her claims against her own attorneys for legal malpractice, continues to frame her arguments regarding lack of informed consent by discussing the duties of all of the attorneys (both Mr. Roth and the Gainsburgh attorneys) as a joint obligation owed to all of the plaintiffs, with the implication that Mr. Roth had an obligation to obtain Ms. Brunelle's consent on behalf of Haley prior to the settlement. We reject that contention.

Ms. Brunelle, according to statements in her brief, discharged Mr. Roth in 2006 because she "no longer trusted him to handle Haley's claim." Afterwards, Ms. Brunelle did not allow herself or Haley to go unrepresented; she re-hired the Gainsburgh firm to represent her and Haley's interests. Therefore, at the time of the settlement, not only was there no attorney-client relationship between the Roth defendants and Ms. Brunelle, there was an attorney-client relationship between the Gainsburgh attorneys and Mrs. Brunelle. In this scenario, not only would it have been impractical for Mr. Roth to attempt to advise and provide information to someone who no longer trusted him, it would have been unethical and a violation of the Rules of Professional Conduct for him to communicate information relating to the representation of his clients with an adverse party who was represented by other counsel. Rule 1.6(a), Rules of Professional Conduct. Not only did Mr. Roth have no duty to communicate with Ms. Brunelle regarding the settlement of Haley's claim, he was prohibited from doing so. To impose such a duty on Mr. Roth would require him to unethically communicate with Ms. Brunelle, who he knew had given her consent to the settlement on behalf of Haley, in order to determine whether Ms. Brunelle's own attorneys had given her sufficient information regarding the settlement such that her consent was "informed." We find that, in this factual scenario, our law does not impose such a duty upon Mr. Roth.

The Roth defendants introduced into evidence on their motion for summary judgment an affidavit from Mr. Jones stating "... at the time of this agreement to settle, he knew and was advised and informed by Roth that the settlement funds were not allocated among plaintiffs, and that an allocation would have to be made in the future, either by consent of him and Brunelle, or through litigation if they could not agree on how to split the settlement proceeds." His affidavit further stated "... that at all times pertinent hereto, Roth has worked in a diligent, competent and professional manner on behalf of him and Haley ..." and he denies "... that Roth breached the standard of care or committed legal malpractice with regard to his handling of the case ...."

Ms. Brunelle has produced no evidence to contradict Mr. Jones' affidavit; nor do we imagine that she would possibly possess any evidence regarding the private conversations between Mr. Jones and Mr. Roth that would contradict their claims that Mr. Jones gave informed consent on behalf of Haley. We therefore find that there is no genuine issue of fact that Mr. Jones gave informed consent on behalf of Haley and, under the factual scenario presented, he was the only person from whom Mr. Roth had a duty to obtain that consent. Consequently, Ms. Brunelle cannot prevail on Haley's legal malpractice claim as to any act of alleged negligence that involves failure of Mr. Roth to obtain informed consent.

Failure to Disclose Allocation

As we have previously indicated, there is no per se prohibition against entering into an aggregate settlement for joint clients without an allocation among the clients prior to settlement. See Hoffman , supra . Therefore, rather than frame her allegation as one of "failure to allocate," Ms. Brunelle must now frame this allegation as one of "failure to disclose allocation." More precisely, because there is no dispute that there was no allocation prior to settlement, Ms. Brunelle must frame her allegation as one of "failure to disclose the implications of not allocating the fund among plaintiffs prior to settlement." Regardless, the key element is disclosure , which involves communication between an attorney and his client.

As we have stated in our discussion of the "failure to obtain informed consent" allegation, Mr. Roth was prohibited by the Rules of Professional Conduct from discussing this matter with Ms. Brunelle, a non-client who was represented in the matter by other attorneys and who was adverse to the interests of Mr. Jones, who was Mr. Roth's client. Consequently, for the same reasons, Ms. Brunelle cannot prevail on Haley's legal malpractice claim as to any act of alleged negligence that involves Mr. Roth's failure to disclose to her the implications of not allocating the fund among plaintiffs prior to settlement.

Failure to Enforce Settlement

By this allegation, Ms. Brunelle complains that due to the attorneys' failure to enforce the $8.25 million dollar settlement, interest was lost on the funds between the time of the signing of the settlement agreement in October 2008 and the deposit of settlement funds into the court registries in November 2009.

In the ordinary case where parties reach a settlement, there is no need to "enforce the settlement," because the parties, who have consented to the settlement, cooperate in order to perfect the settlement. By the very nature of this allegation, there is something or someone that is preventing consummation of the settlement, which then necessitates enforcement of the settlement.

In this case, it is abundantly clear as to who was preventing consummation of this settlement. On December 5, 2008, only five weeks after the settlement, Mr. Jones filed a motion to establish a supplemental care trust on behalf of Haley. On February 11, 2009, less than four months after reaching the settlement, Ms. Brunelle sent a letter to Mr. Roth in which she indicated that "... I am officially rejecting the proposed settlement amount of $8,250,000.00 ...." On April 14, 2009, four months after Mr. Jones filed his motion to establish supplemental care trust, Ms. Brunelle filed her opposition to the motion. The trial court granted Mr. Jones' motion on April 21, 2009.

On August 11, 2009, in order to avoid "... loss of potential revenue which could be used for the benefit of the minor child," Mr. Jones was compelled to file a motion to enforce settlement against Ms. Brunelle in which he requested that she show cause why an order should not issue enforcing and approving the settlement and why she should not be required to "... execute any and all documents necessary to confect the settlement ...." On September 25, 2009, Ms. Brunelle filed an opposition to this motion, arguing the 22nd Judicial District Court was the appropriate jurisdiction to handle approval of the settlement, and that a hearing was pending in that court.

In October 2009, Ms. Brunelle, represented by new counsel in the 22nd Judicial District Court tutorship proceeding, confirmed her consent to the same $8.25 million dollar settlement that had been agreed to a year earlier. The trial court in the 24th Judicial District Court, based upon that consent, found Mr. Jones' motion to enforce the settlement moot, and approved the settlement. The settlement was then finalized and the funds deposited into the registry of the court.

The lack of an allocation of the aggregate settlement fund, a fact of which both Ms. Brunelle and Mr. Jones were clearly aware at the time of the settlement, provides absolutely no justification for a failure to confect the settlement so that the funds could be deposited and draw interest for the benefit of all three claimants. To the extent that Ms. Brunelle claims that her aforementioned actions were taken due to her having insufficient information to make informed decisions, these allegations relate to claims against the Gainsburgh attorneys, with whom she had an attorney-client relationship, and those claims have been settled.

Ms. Brunelle has presented no evidence to contradict the record evidence showing that the only reason that consummation of the settlement was delayed was due to her refusal to confect the settlement. On this allegation we find no genuine issue of material fact and find that the Roth defendants are entitled to summary judgment as a matter of law.

Law of the Case

Last, we address Ms. Brunelle's sixth assignment of error, which relates to her law of the case argument.

The "law of the case" doctrine is discretionary with the appellate courts, and will not be applied so mechanically as to accomplish manifest injustice. Ficarra v. Mr. Vernon Fire Ins. Co. , 527 So.2d 493, 494 (La. App. 5th Cir. 1988).

On the record before us in the prior appeal, which record has not been made a part of this appeal and is not before us now, this Court previously determined that there were genuine issues of material fact at that time that warranted reversal of the grant of summary judgment in favor of the Roth defendants. On the record before us at this time in this appeal, we find no such genuine issues of material fact and find that the Roth defendants are entitled to summary judgment as a matter of law. To mechanically apply the "law of the case" doctrine simply because this matter was previously before this Court on appeal of a prior summary judgment, would result in a manifest injustice to defendants, and we therefore decline to apply it.

CONCLUSION

For the foregoing reasons, we affirm the trial court's August 19, 2016 judgment granting the Roth defendants' motion for summary judgment and dismissing with prejudice the claims filed by Ms. Brunelle on behalf of Haley Jones. All costs of this appeal are to be paid by the appellant.

AFFIRMED

      In the allocation proceedings, Mr. Jones voluntarily relinquished his claims and any money he might have received from the settlement in favor of his daughter, Haley. Consequently, Ms. Brunelle and Haley were the only remaining individuals between whom the settlement funds needed to be allocated, excepting attorneys' fees and costs.

      Initially, Mr. Jones and Ms. Brunelle, by consent judgment in the 22nd JDC, were named co-tutors for Haley. However, Mr. Jones was subsequently removed as co-tutor. See In re Jones , 12-1598 (La. App. 1 Cir. 9/10/13), 2013 WL 4828572, 2013 La. App. Unpub. LEXIS 534 ; In re Jones , 12-1486 (La. App. 1 Cir. 9/10/13), 2013 WL 4828559, 2013 La. App. Unpub. LEXIS 535. The trial court in the 22nd JDC, recognizing that Ms. Brunelle's and Haley's interests in the settlement funds were materially adverse, appointed an independent third-party undertutor, retired Judge John Greene, to represent Haley. Counsel for Undertutor Greene has made appearances in the 24th JDC on Haley's behalf, though not at the hearing on the motion for summary judgment that is the subject of this appeal.

      Approximately $5 million was deposited in the court registry of the 22nd JDC for the satisfaction of plaintiffs' claims, and approximately $3.25 million went to the 24th JDC court registry for attorneys' fees and costs.

      During the pendency of the appeal, this Court, after noting that it did not appear that an attorney had been appointed or designated by the trial court to represent the sole interests of Haley in the allocation or the legal malpractice proceedings, remanded the matter to the trial court for a hearing to consider any potential or actual conflicts of interests that the attorneys in the case might have. Upon remand, the trial court determined that counsel from the law firm engaged by Ms. Brunelle to represent both herself and Haley, Davis & Duncan, LLC, had violated Rules 1.7 and 1.9 of the Code of Professional Conduct by representing parties with materially adverse interests (i.e. , both Ms. Brunelle and Haley) and therefore forbade that firm from representing either party in this case. (The firm appealed their removal; this Court converted that appeal to a writ and denied the writ. See Jones v. ABC Ins. Co. , 13-167 (La. App. 5 Cir. 9/24/13), 122 So.3d 608 ). On remand, the trial court also expressed concern as to Undertutor Greene's protection of Haley's interests. Ultimately, Mr. Prescott Barfield was enrolled as counsel of record to represent Haley's interests only. Ms. Brunelle was enrolled as counsel pro se to represent her individual interests, and was instructed to limit her arguments to her individual claims only. To the extent that she purported to make arguments on Haley's behalf, this Court indicated that it would consider them as amicus curiae only.

      The Gainsburgh defendants purportedly reached a confidential settlement agreement with the plaintiffs, though documentation evidencing such an agreement has not been included in the designated record.

      An agreement to allocate the funds from the products liability aggregate settlement has purportedly been reached between Ms. Brunelle and Undertutor Greene, representing Haley's interest; again, documents evidencing such an agreement have not been included in the designated record.

      Such recognition is all the more pertinent in situations where the third-person beneficiary of the arrangement is not legally competent and our law mandates that certain actions can only be taken on that persons behalf by a designated representative.

      Because Ms. Brunelle no longer has an individual claim for legal malpractice against the Roth defendants, and the allocation issue between Ms. Brunelle and Haley has purportedly been resolved, we do not sua sponte again raise an issue of Ms. Brunelle's potential conflict of interest in pursuing this legal malpractice claim on behalf of Haley.

      Unfortunately, because Ms. Brunelle chose to designate the appellate record and failed to include the third-party petition against the Roth defendants in that designation, we do not have the benefit of the actual third-party petition to assist us in determining the specific acts of negligence that she alleges. Although we are confident that we accurately discern from the record before us the specific acts of negligence alleged, to the extent we err in precisely identifying the specific acts of negligence, that error must be attributable to Ms. Brunelle. The inadequacy of an appellate record for which an appellant is responsible cannot operate to the detriment of an appellee. Alexander v. Par. of St. John the Baptist , 09-840 (La. App. 5 Cir. 3/23/10), 33 So.3d 999, 1005, rehearing denied , 09-840 (La. App. 5 Cir. 3/23/10), 33 So.3d 999. Without the actual third-party petition, we must discern the specific acts of alleged malpractice from the documents that are in the record and the arguments of the parties.

      In response to the first motion for summary judgment by the Roth defendants, Ms. Brunelle suggested that the failure to allocate the funds prior to settlement, in and of itself, violated Rule 1.8(g) of the Rules of Professional Conduct and was therefore an act of negligence by the Roth defendants. However, as this Court made clear in its prior opinion in this case, the Louisiana Supreme Court has stated that, "[a]ggregate settlements of the claims of multiple clients are not per se impermissible, but during the negotiation of the aggregate settlement, the lawyer must confer with all of his clients and fully disclose all details of the proposed settlement, including information about each client's claim and share of the proposed settlement." Jones , 130 So.3d at 41 (citing In Re Hoffman , 03-2499 (La. 9/9/04), 883 So.2d 425, 432-33 )(emphasis added). In the current appeal, Ms. Brunelle appears to have abandoned her argument regarding the failure to allocate, in and of itself, and to restrict her argument to the failure to disclose the implications of the failure to allocate prior to settlement. The latter argument is clearly one that relates only to a failure to obtain informed consent.

      We also note that, to the extent Mr. Roth would have otherwise been inclined to attempt to communicate directly with Haley regarding the settlement, her cognitive limitations would have made any such communication impossible.

      Ms. Brunelle now maintains that she never intended to file an individual claim for legal malpractice for herself against the Roth defendants.

      Clearly the interests of Mr. Jones, who was Mr. Roth's client, were adverse to Ms. Brunelle, since at the time they both still had individual claims for a portion of the aggregate settlement. Even after Mr. Jones relinquished any individual claim he had in favor of Haley, he still indicated his intent to maximize Haley's portion of the settlement, which in effect would minimize any individual claim of Ms. Brunelle.

      We note that there is no allegation that Mr. Roth entered into a settlement of Haley's claim without any participation by Ms. Brunelle. The evidence indicates that Ms. Brunelle was involved in the settlement decision and consented on behalf of both herself and Haley to the $8.25 million dollar settlement at the time of the settlement; whether or not her consent was "informed" as to both her individual claim and as to Haley's claim is between her and her attorneys at the Gainsburgh firm, with whom she had an attorney-client relationship. That claim has already been settled.

      In her opposition to the Roth defendants' first motion for summary judgment, filed March 4, 2010, Ms. Brunelle makes much of the fact that the Roth defendants, in their motion for summary judgment, called the October 29, 2008 settlement a "tentative settlement," even going so far as to state that this position was "... recently concocted as a defense to the legal malpractice claims ...." Apparently Ms. Brunelle did not recall that a year earlier, in her February 11, 2009 letter to Mr. Roth, she referred to the October 29, 2008 settlement that she was rejecting as a "proposed settlement." (emphasis added).

      Ms. Brunelle's opposition was based upon the fees that would be incurred in establishing and managing such a trust.

      Ms. Brunelle also acknowledges in her brief that "[l]ong before the mediation took place Jennifer Brunelle began expressing her concerns to Tracey Bryan about entering into a settlement without knowing how the settlement funds were going to be distributed between Haley Jones, Jennifer Brunelle and Shannon Jones and without the issues related to the Special Needs Trust ("SNT") being resolved ..." and that "... [j]ust as expected , following the settlement, major disputes arose regarding the allocation of settlement funds and disposition of the funds for Haley." (emphasis added). If Ms. Brunelle, prior to agreeing to the settlement, expected these disputes to arise, but nonetheless consented to the $8.25 million dollar settlement, the fact that these disputes did arise, as expected by Ms. Brunelle , can provide no justification for delaying consummation of the settlement with the medical device defendants, and depositing the funds into an interest bearing account while the expected disputes were resolved.

      In this Court's prior opinion in this matter, we noted that the trial court, in its judgment on the first motion for summary judgment, found that "... the fault for losing interest on the settlement funds lies with Mrs. Brunelle." Jones , 130 So.3d at 38.


author: JAMES F. MCKAY III, CHIEF JUDGE

text:
    Pero CIBILIC and Mary Ann Cibilic v. COX OPERATING, L.L.C.
    NO. 2017-CA-0813
    Court of Appeal of Louisiana, Fourth Circuit.
    June 6, 2018 Rehearing Denied June 20, 2018
    ROBERT C. CLOWORTHY, CHRISTOPHER M. HANNAN, DANIEL J. DYSART, ROY C. CHEATWOOD, BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC, 201 St. Charles Avenue, Suite 3600, New Orleans, Louisiana 70170, COUNSEL FOR DEFENDANT/APPELLANT
    STEPHEN SKELLY KRELLER, KATIE M. CUSIMANO, THE KRELLER LAW FIRM, 757 St. Charles Avenue, Suite 301, New Orleans, Louisiana 70130-and-JONATHAN W. DETTMANN, CRAIG S. COLEMAN, EVIE LEVINE, Faegre Baker Daniels LLP, 2200 Wells Fargo Center, 90 South Seventh Street, Minneapolis, Minnesota 55402, COUNSEL FOR PLAINTIFFS/APPELLEES
    (Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Regina Bartholomew Woods )
   JAMES F. MCKAY III, CHIEF JUDGE

In this appeal, involving alleged damage to oyster leases, the defendant, Cox Operating, LLC, appeals the trial court's judgment finding it liable for damages to oyster leases held by the plaintiffs, Pero and Mary Ann Cibilic, and awarding the plaintiffs' damages. For the reasons that follow, we affirm the trial court's judgment as amended.

FACTS AND PROCEDURAL HISTORY

Pero and Mary Ann Cibilic hold oyster leases located in Lake Eloi in St. Bernard Parish. Specifically, Mr. Cibilic owns oyster lease 33311-08 and Mrs. Cibilic owns oyster lease 33935-09. These leases are located in about six to ten feet of water and their bottoms consist mainly of productive oyster reef.

In 2011, Mr. and Mrs. Cibilic made a significant investment to purchase, transport, and spread hundreds of tons of cultch (limestone or concrete forming the substrate for oyster cultivation) onto their leases. Mr. and Mrs. Cibilic made this investment because of the scarcity of oysters after the BP oil spill and the increase of oyster prices by double or even triple of what they had been in the past. By early 2012, Mr. and Mrs. Cibilic had a healthy crop of oysters on their leases.

In May of 2012, Cox began a project to re-enter one of its old wells located adjacent to the Cibilic's oyster leases. This well, known as Cox well number 13, had been plugged and abandoned. The well was located in nine to ten feet of water with a bottom of fine sediment. Re-entry required Cox to tow a 205-by-50-foot barge, topped by a 142-foot-tall drilling derrick, to the well site using several tugboats. The rig remained at the well site until June 27, 2012, and there was daily vessel traffic to the rig. Cox gave no advance notice of the re-entry project to any oyster leaseholders in the vicinity of the project.

In order to access the well, vessels had to approach the well from the south and cross directly over Mrs. Cibilic's lease. The route required a sharp right-handed turn, just east of Mr. Cibilic's lease. The turn required vessels to power down and back up, with their propellers (props) directing prop wash towards Mr. Cibilic lease and causing sedimentation on the leases, damaging the oyster beds.

Mr. and Mrs. Cibilic filed suit against Cox, claiming that Cox damaged their oyster leases and oysters while Cox was working on the aforementioned re-entry project on well number 13. At trial, Mr. and Mrs. Cibilic presented the witness testimony of Mr. Cibilic, Nikola Vekic (a neighboring oyster leaseholder), and Farrell Schexnayder (a Cox tugboat contractor). They all testified that they observed Cox vessels engaging in propeller washing which displaced the sediment on the water bottoms. The plaintiffs' expert witness, oyster biologist, Dr. Ed Cake, also testified regarding damages and causation.

Cox did not present any witnesses who were present in the field during the project. Its witnesses consisted of its president and chief operating officer Rodney Dykes, its permitting agent Kasey Hebert, and Jakov Jurisic (whose wife owns the oyster lease where Cox's well is located). The defendant also called Gabe Johnson, an oyster biologist, as an expert witness.

Following a three-day bench trial, the trial court issued a judgment in favor of Mr. and Mrs. Cibilic along with reasons for judgment. The trial court held that Cox negligently damaged the plaintiffs' leases and buried their oysters. The court entered judgment in favor of Mr. and Mrs. Cibilic for $5,140,759.70 plus interest and costs. It is from this judgment that Cox now appeals.

DISCUSSION

On appeal, Cox raises several assignments of error, which can be summarized as follows: 1) whether plaintiffs met the preponderance burden of proof as to causation; 2) whether the district court applied the correct law to plaintiffs' claims; 3) whether Cox's alleged lack of notice/lack of precautions was a breach of duty under negligence principles based on the objective evidence; 4) whether the district court abused its discretion in refusing to exclude Dr. Cake as an expert; and 5) whether the district court abused its discretion as to quantum.

"A court of appeal may not set aside a trial court's findings of fact in the absence of manifest error or unless they are clearly wrong." Allerton v. Broussard, 2010-2071, p. 3 (La. 12/10/10), 50 So.3d 145, 146-47. "[I]n order to reverse a trial court's determination of a fact, an appellate court must review the record in its entirety and (1) find that a reasonable factual basis does not exist for the finding, and (2) further determine that the record establishes that the fact finder is clearly wrong or manifestly erroneous." Id.

In the instant case, the trial court found that "Cox and the support vessels it contracted disturbed the sediments at the bottom of Lake Eloi or along the access route as described by several eyewitnesses." This finding is supported by the testimony of: Mr. Cibilic, who observed Cox vessels prop washing and stirring sediments near his lease; Mr. Vekic, who also observed Cox vessels prop washing near his own lease; Mr. Schexnayder, who testified that he regularly prop washed to navigate Cox's access route, and he also saw other tugs causing sedimentation; and Mr. and Mrs. Jurisic, who own the lease where the well is located and who also sued Cox for damage caused by wheel washing during the project. Sonar data from Cox's expert also showed that Cox's vessels scarred the bottom. The trial court noted that Cox "provided no eyewitnesses to contradict the testimony of eyewitnesses called by plaintiffs and this Court finds these witnesses to be very credible, especially in light of their varied backgrounds and personal experiences." Thus, it appears to this Court that the trial court's finding that Cox disturbed/damaged the water bottoms on the plaintiffs' leases was reasonable.

The trial court was also presented with evidence of the widespread oyster mortality on the leases of Mr. and Mrs. Cibilic following the project. Dr. Cake's sampling found high mortality after the project, and his methods and findings were not disputed by Cox's expert. In fact, Cox's expert also found "notably high" (62%) mortality in the area three months after the project. Cox's expert also conceded that his "qualitative assessment" found 1-4 inches of soft sediment on top of oyster reefs. Additionally, OLDEB -approved poling data found 49.4 acres of buried oyster reef on the leases. Evidence was also presented which negated that any of the damage could have been caused by Hurricane Issac or some other cause.

"Where the testimony of experts differs, the trier of fact has great, even vast, discretion in determining the credibility of the evidence." Duvio v. Specialty Pools Co., L.L.C., 2015-0423, p. 25 (La.App. 4 Cir. 6/16/16), 216 So.3d 999, 1016. Courts routinely reject attempts to nit-pick at the complexities of the data and inferences supporting an expert's opinions. Whether such granular issues render an expert's testimony not credible is a judgment for the trial court. See Kanda Constr., LLC v. Gebre, 2015-1307, p. 5-6 (La.App. 4 Cir. 7/20/16), 197 So.3d 791, 794-95. In the instant case, the evidence is undisputed that Cox vessels disrupted bottom sediments, and sedimentation caused significant damage to the Cibilic leases. Accordingly, we find no error in the trial court's determination regarding causation.

Cox suggests that the trial court applied strict liability. However, the trial court found Cox negligent and explained that holding in detail. Identifying the applicable law ( La. C.C. arts. 667 and 2315 ) and noting Cox's contention that maritime law applies, the court observed that the "principles of negligence" govern. Regarding its stance, the trial court made a number of findings: Cox knew or should have known that its project would cause damage that could have been prevented, and Cox did not exercise reasonable care to prevent such damage; Cox did not use reasonable prudence in order to minimize damage to the plaintiffs' oyster leases and failed to exercise reasonable care in conducting well Number 13 re-entry activities; and Cox failed to provide adequate instruction to its workers and contractors on how to avoid damages to oyster reefs and the displacement of sediment on the water bottoms. The court ultimately found that Cox did not take reasonable, adequate steps to avoid damages to the plaintiffs' leases. Based on the record before this Court and the trial court's findings, it is clear that the trial court properly applied a negligence standard in this case.

The trial court found that Cox negligently failed to give adequate notice of the project. The court held that under general negligence principles Cox had a duty to give Mr. and Mrs. Cibilic adequate notice because the project risked damaging their property. The trial court further found that Cox's failure to warn illustrated a pattern of "utter disregard for the plaintiffs' property rights."

Cox contends that the trial court "ignore[d] objective facts" to find that Cox failed to give adequate notice. The "objective fact" that Cox refers to is its assertion that Mr. Dykes notified Mr. Cibilic by telephone. Even if the trial court had believed this assertion, it would still only be five days prior to the start of the operation, which would be insufficient notice as determined by this Court. See generally Voisin v. Berry Bros., Inc, 387 So.2d 633 (La.App. 1st Cir. 1980). "Sufficient notice" must allow "sufficient time in which the oysterman would take the steps necessary to preserve his harvests." Id. at 636.

Cox also calls into question the trial court's decision to qualify Dr. Ed Cake as an expert. The trial court has "wide discretion" to admit expert testimony, and "its rulings should not be reversed in the absence of clear error." Holzenthal v.Sewerage & Water Bd. of New Orleans, 2006-0796, p. 29 (La.App. 4 Cir. 1/10/07), 950 So.2d 55, 73-74. "This discretion is even greater in a bench trial." Id., 2006-0796, p. 29, 950 So.2d at 74. This also applies to the trial court's Daubert analysis because "to do otherwise would hamstring the trial court's discretionary authority." Johnson v. Melton, 2003-1132 (La.App. 4 Cir. 2/4/04), 867 So.2d 804, 808.

Dr. Cake has been an OLDEB-certified biologist since the beginning of OLDEB and co-wrote the OLDEB methodologies for evaluating oyster damages. He has performed hundreds of oyster lease damage assessments, published dozens of scientific articles on oyster biology, taught university courses in marine biology, and been accepted as an expert witness in sixteen jurisdictions across the Gulf States, including St. Bernard Parish.

In the instant case, Dr. Cake's report and his testimony at trial explained the multiple bases and sources for his opinions on causation and damages. He also explained why he eliminated other causes.

Cox argues that Dr. Cake's preliminary assessment was not fully compliant with OLDEB-but it ignores that Dr. Cake's final survey and report were OLDEB-compliant. Dr. Cake's initial dredge samples were only to assess whether any damage existed. Finding damage, Dr. Cake then performed a full OLDEB analysis, taking numerous square meter samples and conducting a poling survey of the bottom substrate. This analysis, reflected in Dr. Cake's final expert report and trial testimony, revealed the full extent of the damages.

Based on the record before this Court, it does not appear that it was clear error for the trial court to admit the expert testimony of Dr. Cake. However, the trier of fact was to apply its discretion to Dr. Cake's testimony and credit his testimony only in so far as it agreed with reliable scientific methods or was helpful to the court (not mere speculation).

Cox's final assignment of error involves the trial court's award of quantum damages. "The correct standard for appellate review of a damage award is clear abuse of discretion." Thoulion v. Jeanfreau, 2000-1045, p. 9 (La.App. 4 Cir. 6/20/01), 794 So.2d 936, 947. "The standard of review for damage awards requires a showing that the trier of fact abused its great discretion accorded in awarding damages." Parker v. Delta Well Surveyors, Inc., 2000-1121, p. 3 (La.App. 4 Cir. 5/2/01), 791 So.2d 717, 719 (citations omitted). To constitute an abuse of discretion, an award "must be so high or so low in proportion to the injury that it shocks the conscience." Id., 2000-1121, p. 4, 791 So.2d at 720.

"In deciding whether a trial court award was excessive, courts must first consider the individual circumstances of the subject case to determine whether the trial court abused its much discretion in setting the award. Only after determining that the award in the subject case was improper may a court consider awards in similar cases." Garcia v. Louisiana Dept. of Transp. & Dev., 2000-0930, p. 9 (La.App. 4 Cir. 5/16/01), 787 So.2d 1142, 1148.

In the instant case, the trial court awarded Mr. and Mrs. Cibilic $5,140,759.00 in damages. Based on Dr. Cake's trial quantum this amount would compensate Mr. and Mrs. Cibilic for three years of damage for their oyster leases damaged by Cox. Such an award shocks the conscience. The amount awarded by the trial court exceeded the total amount of all of the plaintiffs' oyster leases had earned for a decade. The most money that Mr. and Mrs. Cibilic had ever made in one year was $147,514 in 2008. Even Dr. Cake admitted the patent excessiveness of his own numbers. The trial court attempted to justify its award of damages by pointing to the increased price of oysters following the BP oil spill. However, prices had increased only two (2) to three (3) times not ten (10) or more. Based on these circumstances, it is clear the trial court abused its discretion in making its quantum damages award, which shocks the conscience. Accordingly, we now reduce the damage award to Mr. and Mrs. Cibilic from $5,140,759.00 to $3,001,650.00. This is a more realistic figure considering the amount of damages suffered by the plaintiffs.

CONCLUSION

Based on the above and foregoing reasons, we affirm the trial court's judgment in all respects except in relation to the quantum of damages it awarded to Mr. and Mrs. Cibilic. We reverse and vacate the trial court's quantum award of $5,140,759.00 and render a damage award of $3,001,650.00 to Mr. and Mrs. Cibilic.

AFFIRMED IN PART, REVERSED IN PART AND RENDERED

      Louisiana Oyster Lease Damage Evaluation Board