Schiff v. Pugh

344 So.3d 749

Robert SCHIFF

v.Lawrence G. PUGH, III, Frederick T. Haas, III, Alexander L. Burns, and Pugh, Accardo, Haas, Radecker & Carey, L.L.C.

NO. 2021-CA-0267

Court of Appeal of Louisiana, Fourth Circuit.

JULY 20, 2022

R. Joshua Koch, Jr., KOCH AND SCHMIDT, LLC, 650 Poydras Street, Suite 2660, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLANT

James H. Gibson, Stacy N. Kennedy, GIBSON LAW PARTNERS, L.L.C., 2448 Johnson Street, P.O. Box 70505, Lafayette, LA 70505, COUNSEL FOR DEFENDANT/APPELLEE

(Court composed of Judge Rosemary Ledet, Judge Sandra Cabrina Jenkins, Pro Tempore Judge Madeline Jasmine )

Judge Rosemary Ledet

This legal malpractice case is before us on remand from the Louisiana Supreme Court. Schiff v. Pugh , 22-00210 (La. 4/12/22), 335 So.3d 830. In this court's previous opinion, the majority dismissed the appeal as untimely. Schiff v. Pugh , 21-0267 (La. App. 4 Cir. 12/8/21), ––– So.3d ––––, 2021 WL 5829954 (" Schiff I"). The Supreme Court vacated this court's decision, reinstated the appeal, and remanded to this court for consideration of the appeal on the merits.

The plaintiff, Robert Schiff, appeals the trial court's judgment granting the motion for summary judgment filed by defendants—Frederick T. Haas, III, and the law firm of Pugh, Accardo, Haas, Radecker & Carey, LLC (collectively, "Defendants")—and dismissing Mr. Schiff's claims against them. For the reasons that follow, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

This legal malpractice suit arises from Defendants’ representation of Mr. Schiff—the defendant in a contract suit filed by Lidia Pollard ("the Pollard suit"). Ms. Pollard and Mr. Schiff entered into a contract to purchase, renovate, and sell New Orleans area properties damaged by Hurricane Katrina. Pursuant to their contract, Mr. Schiff was to provide the capital for the project and to handle the purchase and sale of the properties, while Ms. Pollard oversaw the renovation of the properties. After their business relationship soured, Ms. Pollard sued Mr. Schiff, seeking recovery of expenses incurred and profits owed. Following a bench trial, the trial court in the Pollard suit issued a written judgment and incorporated reasons for judgment, finding that Mr. Schiff breached the contract with Ms. Pollard in bad faith and awarding her $685,176.52. The award to Ms. Pollard included expenses she incurred during renovations and $373,312.80 in profits owed from the sales of renovated properties. The trial court also ordered Mr. Schiff to pay judicial interest on the entire award commencing on September 1, 2009.¹ On appeal, this court amended the underlying judgment to $684,824.73 but otherwise affirmed the trial court's judgment. Pollard v. Schiff , 13-1682 (La. App. 4 Cir. 2/4/15), 161 So.3d 48.

In 2014, Mr. Schiff filed this malpractice suit against Defendants, claiming that their negligent representation at trial in the Pollard suit caused the unfavorable judgment against him. As the malpractice suit proceeded, Mr. Schiff, through his retained expert witness, Dane Ciolino, alleged particular acts or omissions by Defendants that constituted breaches of the standard of care committed by Defendants. According to Mr. Ciolino's report and deposition testimony, Defendants breached the standard of care by: (1) failing to provide competent representation on accounting issues;² (2) failing to introduce evidence of a $15,000.00 promissory note issued by Ms. Pollard in favor of Mr. Schiff; (3) failing to raise the issue that Ms. Pollard was not a licensed contractor; (4) failing to object to admission of evidence of offers of compromise; (5) failing to object to a proposed judgment submitted to the trial court by Ms. Pollard's attorneys; (6) failing to submit a verifying affidavit with Mr. Schiff's motion for new trial; and (7) failing to confirm in writing an agreement with Ms. Pollard to pay Ms. Pollard $10,000.00 in exchange for a continuance of the trial.

Defendants moved for summary judgment, arguing Mr. Schiff could not establish that any of the alleged breaches identified by his expert witness contributed to the judgment against him in the Pollard suit. Defendants maintained that Mr. Schiff required expert testimony to prove causation, but his expert witness declined to offer any opinions on causation, warranting summary judgment dismissal of Mr. Schiff's claims.³ Moreover, Defendants argued, the outcome in the Pollard suit would have been the same even if Defendants had not committed the alleged breaches. In support, Defendants relied on the report and deposition of their own expert witness, Wayne Lee, who opined that the trial court in the Pollard suit would have entered the unfavorable judgment against Mr. Schiff regardless of Defendants’ alleged malpractice.⁴

In opposition, Mr. Schiff argued that he did not need expert testimony to establish causation. Mr. Schiff contended that he needed only to establish a causal connection—which could be established by lay testimony—between the alleged negligence and the unfavorable outcome of the litigation. Mr. Schiff further addressed each instance of negligence identified by Mr. Ciolino's report and offered his theories as to how each alleged breach caused the adverse judgment against him in the Pollard suit. In support of each of these theories, Mr. Schiff cited evidence purportedly attached to his opposition memorandum.⁵

At the hearing, the trial court granted Defendants’ summary judgment motion. The trial court disagreed with Defendants’ argument that Mr. Schiff needed expert testimony to establish causation. Still, the trial court found Mr. Schiff's opposition memorandum and attachments inadequate to preclude summary judgment. In its written reasons for judgment, the trial court reviewed each breach alleged against Defendants and concluded that either Mr. Schiff's causal theories did not adequately demonstrate that the alleged breach contributed to the judgment against him or the evidence attached to Mr. Schiff's opposition memorandum did not create a genuine issue of material fact regarding causation, citing, in some instances, the omission of supporting evidence from Mr. Schiff's opposition memorandum attachments.

After the trial court granted Defendants’ motion, Mr. Schiff filed a motion for new trial, which the trial court denied. This appeal followed.

Summary Judgment Principles and Standard of Review

The summary judgment procedure is used when there is no genuine issue of material fact for all or part of the relief prayed for by a litigant. La. C.C.P. art. 966(A) ; see also Balthazar v. Hensley R. Lee Contracting, Inc. , 16-0920, p. 9 (La. App. 4 Cir. 3/15/17), 214 So.3d 1032, 1040 (observing that "summary judgment is a procedural vehicle for dismissing issues of law and/or fact that are not in dispute"). "A defendant can successfully move for summary judgment if he or she can demonstrate beyond peradventure the nonexistence of a fact essential to the plaintiff's cause of action." Frank L. Maraist, 1 LA. CIV. L. TREATISE, CIVIL PROCEDURE § 6:8 (2d ed. 2018). The summary judgment procedure is "designed to secure the just, speedy, and inexpensive determination of every action," and the summary judgment procedure is favored. La. C.C.P. art. 966(A)(2).

Appellate courts review the grant or denial of a motion for summary judgment de novo , employing the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Garces-Rodriguez v. GEICO Indem. Co. , 16-196, p. 3 (La. App. 5 Cir. 12/21/16), 209 So.3d 389, 391 ; Sislo v. New Orleans Ctr. for Creative Arts , 16-0178, p. 4 (La. App. 4 Cir. 8/17/16), 198 So.3d 1202, 1205 (citing Samaha v. Rau , 07-1726, pp. 3-4 (La. 2/26/08), 977 So.2d 880, 882-83 ). The standard for granting a motion for summary judgment is set forth in La. C.C.P. art. 966(A)(3), which provides:

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.

A shifting burden of proof is set forth in La. C.C.P. art. 966(D)(1), which provides:

The burden of proof rests with the mover. 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 to the court the absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. 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.

A genuine issue is one as to which reasonable persons could disagree; "if ... reasonable persons could reach only one conclusion, there is no need for trial on that issue, and summary judgment is appropriate." Smith v. Our Lady of the Lake Hosp., Inc. , 93-2512, p. 27 (La. 7/5/94), 639 So.2d 730, 751. "A fact is material when its existence or nonexistence may be essential to the plaintiffs [sic ] cause of action under the applicable theory of recovery; a fact is material if it potentially insures or precludes recovery, affects a litigant's ultimate success, or determines the outcome of the legal dispute." Chapital v. Harry Kelleher & Co., Inc. , 13-1606, p. 5 (La. App. 4 Cir. 6/4/14), 144 So.3d 75, 81. Whether a fact is material is a determination that must be made based on the applicable substantive law. Roadrunner Transp. Sys. v. Brown , 17-0040, p. 7 (La. App. 4 Cir. 5/10/17), 219 So.3d 1265, 1270.

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