Henry v. Ahern

335 So.3d 871

Troy HENRY

v.Janet M. AHERN & Janet M. Ahern, PLC

NO. 2021-CA-0438

Court of Appeal of Louisiana, Fourth Circuit.

FEBRUARY 9, 2022

Jacques F. Bezou, Jacques F. Bezou, Jr., THE BEZOU LAW FIRM, 534 E. Boston Street, Covington, LA 70433, COUNSEL FOR PLAINTIFF/APPELLANT

Christopher H. Irwin, Gustave A. Fritchie, III, IRWIN FRITCHIE URQUHART & MOORE LLC, 400 Poydras Street, Suite 2700, New Orleans, LA 70130, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Paula A. Brown )

Judge Paula A. Brown

This case arises out of a claim for legal malpractice. Appellant, Troy Henry ("Mr. Henry"), appeals the district court's judgment, which granted summary judgment in favor of the Appellees, Janet M. Ahern ("Ms. Ahern") and Janet M. Ahern, PLC (collectively referred to as "Defendants"), and dismissed his claims against Defendants, with prejudice. For the reasons that follow, we affirm the district court's judgment.

FACTUAL AND PROCEDURAL HISTORY

This case has been before this Court on multiple occasions. In February of 2011, Mr. Henry retained Ms. Ahern to represent him in a divorce proceeding from his former wife, Marcia Henry ("Ms. Henry"). The underlying dispute herein arises from Ms. Ahern's representation of Mr. Henry in a community property partition proceeding between the former spouses (collectively "the Henrys"). As set forth in Henry v. Henry , 17-0282 (La. App. 4 Cir. 10/18/17), 316 So.3d 876 (" Henry I "), during the community property regime, the Henrys acquired a corporation, Henry Consulting, LLC ("Henry Consulting"). The issue in the partition proceeding was whether the community-owned corporation of Henry Consulting was responsible for the debts of its subsidiary, Sterling Fresh Foods, LLC ("Sterling"), a company exclusively owned by Mr. Henry, without an express assumption or guaranty. If so, the debts would be community obligations. The Henrys agreed to use Chaffe & Associates, Inc. ("Chaffe"), to determine the valuation of Henry Consulting. Chaffe performed the valuation in 2013 and valued Henry Consulting at $205,744. This valuation was based on the assumption that Henry Consulting was the corporate guarantor of Sterling's debts in the amount of $737,340 because Mr. Henry had personally guaranteed those debts.

The district court appointed a special master to conduct a trial on the valuation of the Henrys’ interest in Henry Consulting.¹ During trial, Chaffe's expert, Vanessa Claiborne ("Ms. Claiborne"), testified that the Henry Consulting valuation, which included Sterling's debts, was a conditional evaluation, applicable only if the district court determined that Henry Consulting was a corporate guarantor of Sterling's debts under the law. Ms. Claiborne calculated the valuation numbers both with and without Sterling's debts. The special master issued a report that recommended Sterling's debts be excluded from the valuation of Henry Consulting; thus, as the debts were not community obligations, the special master found the value of Henry Consulting was $943,084. The district court adopted the recommendation in its entirety, and an appeal by Mr. Henry followed.

On appeal, this Court affirmed in part, reversed in part, and remanded, reversing the portion of the district court's judgment that adopted the special master's valuation of Henry Consulting, instead of the court appointed expert's valuation. See Id. , 17-0282, pp. 7-8, 316 So.3d at 881. Thus, this Court deemed it necessary for the district court, before rejecting the court appointed expert's opinion, to evaluate the credibility of the expert or determine that the expert's opinion was unreasonable or unfounded.

On remand, the district court issued an amended judgment, decreeing:

IT IS ORDERED, ADJUDGED, AND DECREED that the Special Master's Opinion, which excluded the debts of Sterling [Fresh] Foods from the valuation of Henry Consulting, LLC is adopted in its entirety, pursuant to La. R.S. 13:4165(C)(3). In support of this determination, the Court finds that the valuation of Chaffe & Associates, insofar as it included the debts of Sterling [Fresh] Foods in its valuation, is unreasonable and not well-founded in accordance with the law.

Henry v. Henry , 18-0522, p. 3 (La. App. 4 Cir. 12/19/18), 318 So.3d 794, 796. (" Henry II ").

In Henry II , Mr. Henry appealed the district court's amended judgment and argued that Sterling's debts were community obligations. The Henry II Court, in affirming the district court's judgment, concluded:

[T]he trial court did not err in adopting the special master's recommendation ... the special master did not entirely reject the court-appointed expert's opinion; rather, he adjusted it. The special master did so to resolve a legal issue the court-appointed expert acknowledged that she was not qualified to decide.... The court-appointed expert's opinion was conditioned upon the existence of a corporate guarantee (sic). The lack of any evidence that Henry Consulting agreed to guarantee the debts of its 50% owned subsidiary, Sterling, precludes attributing the Sterling debts to Henry Consulting.

Id ., 18-0522, p. 9, 318 So.3d at 799.

On December 19, 2018, the Clerk of Court mailed the notice of the Fourth Circuit Court of Appeal's opinion. On January 22, 2019, Ms. Ahern filed an application for supervisory writs with the Louisiana Supreme Court. The Supreme Court refused to consider the writ application, writing, "Not Considered, not timely filed. See La. S.Ct. Rule X, § 5(a)." Henry v. Henry , 19-0134 (La. 3/18/19), 267 So. 3d 88. On March 21, 2019, Ms. Ahern filed a motion for reconsideration with the Louisiana Supreme Court, which was likewise denied. Henry v. Henry, reconsideration denied , 19-0134 (La. 5/20/19), 271 So. 3d 198.

On January 23, 2020, Mr. Henry filed a petition for damages against Defendants, alleging that while representing him in a divorce proceeding, Ms. Ahern committed legal malpractice by failing to file a writ application with the Louisiana Supreme Court within 30 (thirty) days of the mailing of the notice of the original opinion of this Court. Mr. Henry contends that he suffered and continues to suffer damages, as a result of Defendants’ negligence. Defendants filed an answer to the petition and denied the allegations.

Motion for Summary Judgment I

Mr. Henry filed a motion for summary judgment on November 24, 2020, and argued that there were no genuine issues of material fact as to Defendants’ liability for legal malpractice for failing to timely file his writ with the Supreme Court and his resulting damages. Mr. Henry contended that because of Defendants’ negligence, he lost an opportunity for the Supreme Court to review his case, grant his writ application, reverse the lower courts, and find that the Sterling debts should be deducted from the total value of Henry Consulting. Mr. Henry claimed that he was left with this Court's decision in Henry II – that the debts of Sterling were excluded from the valuation of Henry Consulting – resulting in the overvaluation of Henry Consulting by $737,340, and a "windfall" in the amount of $368,670, to his former spouse. Mr. Henry maintained that Defendants’ legal malpractice caused him to not receive the full value of his one-half interest in community assets.

Defendants opposed the motion for summary judgment and argued that not only did the lower courts rule correctly in the underlying case, but Mr. Henry could not prove that the untimely filed writ application caused any recoverable loss. In support, Defendants offered as evidence the affidavit of Martin A. Stern ("Mr. Stern"), an expert in the area of Louisiana Appellate Practice.² Mr. Stern attested to the Louisiana Supreme Court's role and approach to granting certiorari. Mr. Stern stated that while there is no right of appeal to the Supreme Court, the Supreme Court does exercise appellate jurisdiction over a very limited number of matters, such as judgments that order the death penalty, judgments that render a statute unconstitutional, and judgments that involve disciplinary enforcement against lawyers and judges. Otherwise, according to Mr. Stern, the Supreme Court "exercises complete discretion in deciding whether to grant a writ review." Mr. Stern further opined that the Supreme Court "does not see its role as one correcting errors in the courts below. The Supreme Court leaves it to the intermediate appellate courts to correct errors." Rather, Mr. Stern attested, the Supreme Court "sees its role as resolving unsettled questions of law as determined by the Court to be in the interest of the legal system."

Quoting from the Supreme Court's decision in Boudreaux v. State, Dept. of Transp. and Development , 2001-1329 (La. 2/26/02), 815 So.2d 7, Mr. Stern noted:

[ ] As the Louisiana Supreme Court has itself explained, "The question involved in considering a petition for review is not whether a case is meritorious, or even whether it arguably might have been decided the other way, but whether it is more important for decision than other cases competing for the attention of the court." Boudreaux v. State, Dept. of Transp. and Development, 815 So.2d 7, n. 6 (2002), quoting ABA STANDARDS RELATING TO APPELLATE COURTS § 3.10, 16-18 (1976).

[ ] The Louisiana Supreme Court further explained, "The theory of this arrangement is that every litigant is entitled to one appellate review of a trial court's judgment on the merits, and that review is to be provided by the intermediate court. But, so the theory goes, a litigant is not entitled as a matter of right to two appeals; any further review after the first appeal should be provided only in the interest of the law and the legal system." Boudreaux, supra at n. 5, quoting DANIEL JOHN MEADOR, AMERICAN COURTS 15-16 (1991).

Mr. Stern explained that the Louisiana Supreme Court, in an effort to implement this approach, adopted Rule X to set forth considerations for granting review, noting that "[t]he considerations set...