Atherton v. Rosteet Law Firm

137 So. 3d 1246, 13 La.App. 3 Cir. 864, 2014 WL 1487291, 2014 La. App. LEXIS 1024
CourtLouisiana Court of Appeal
DecidedApril 16, 2014
DocketNo. 13-864
StatusPublished
Cited by1 cases

This text of 137 So. 3d 1246 (Atherton v. Rosteet Law Firm) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Atherton v. Rosteet Law Firm, 137 So. 3d 1246, 13 La.App. 3 Cir. 864, 2014 WL 1487291, 2014 La. App. LEXIS 1024 (La. Ct. App. 2014).

Opinions

COOKS, Judge.

12This is an appeal filed by Appellants, Chris Atherton d/b/a Atherton Intercontinental Concerts, Charles Atherton and International Concerts, LLC, (hereafter Ath-erton) from two rulings by the trial court granting an Exception of No Cause of Action and an Exception of Res Judicata filed by Appellees, Rosteet Law Firm and Sidney Rosteet (hereafter Rosteet). For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

This legal malpractice action arose from Rosteet’s legal representation of Atherton in two separate proceedings. On November 15, 2002, Atherton through his attorneys (then Seth Hopkins and James Hopkins) filed a lawsuit against Deep South Productions (hereafter “Deep South suit”) for damages to rental property, failure to pay for rental property, conversion, theft and slander. On July 6, 2005, Sidney Ros-teet was substituted as counsel of record in the Deep South suit. In May of 2007, Rosteet informed Atherton that the suit had been abandoned under La.Code Civ.P. art. 561 for failure to take any steps in the prosecution in the trial court for a period of three years.

On September 15, 2006, Rosteet, on behalf of Atherton, filed a lawsuit against Kelsey Richard seeking injunctive relief and a temporary restraining order. On July 15, 2009, Rosteet filed a Motion to Withdraw from the suit against Kelsey Richard so Atherton could retain new counsel..

In September of 2007, Atherton, through counsel Brian J. Houghtaling, filed a suit against Rosteet asserting Ros-teet committed legal malpractice in the handling of the Deep South suit. On February 6, 2008, Atherton, again through his counsel Houghtaling, filed a motion to dismiss the suit with prejudice.

On January 30, 2008, while the above September 2007 legal malpractice suit was still pending, Atherton filed another legal malpractice suit against Rosteet |salleging nearly identical claims as alleged in the September 2007 action. The 2008 lawsuit initially alleged only allegations pertaining to the Deep South suit, but was amended on September 19, 2008 to include claims arising from Rosteet’s representation of Atherton in the Kelsey Richard suit. It was alleged Rosteet was instructed to file suit for damages arising in tort and for breach of contract, but failed to take timely action and thereby allowed the claims to prescribe. At the time of the amendment, Atherton’s suit against Kelsey Richard was still pending.

On February 12, 2009, Rosteet filed an Exception of Res Judicata contending that Atherton’s dismissal of the 2007 action with prejudice barred any further assertion of claims related to the Deep South matter. On June 1, 2009, the trial court issued a judgment in Rosteet’s favor, granting the Exception of Res Judicata. Atherton then moved the trial court to certify its judgment on the Exception of Res Judicata as final and appealable. After a hearing, the trial court granted the motion to certify the judgment as final for purposes of appeal.

On June 26, 2009, Atherton filed another legal malpractice claim against Brian Houghtaling, alleging Houghtaling committed legal malpractice when he dismissed the September 2007 legal malpractice lawsuit against Rosteet with prejudice.

[1249]*1249In response to the additional claims asserted by Atherton, Rosteet filed an Exception of No Cause of Action on the basis that the underlying suit against Kelsey Richard was still pending. Thus, it was argued because Atherton was still able to pursue the underlying cause of action, there was no claim for legal malpractice because Atherton would be unable to prove an essential element of the claim, i.e., injury suffered as a result of the attorney’s alleged negligence. The trial court agreed and granted Rosteet’s Exception of No Cause of Action by order dated May 6, 2013.

1 ¿Atherton has timely lodged this appeal, asserting the trial court erred in granting the Exceptions of Res Judicata and No Cause of Action. For the following reasons, we affirm.

ANALYSIS

I. Exception of Res Judicata.

The doctrine of Res Judicata is governed by La.R.S. 13:4231 et seq. Louisiana Revised Statute 13:4231 provides:

Except as otherwise provided by law, a valid and final judgment is conclusive between the same parties, except on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and merged in the judgment.
(2) If the judgment is in favor of the defendant, all causes of action existing at the time of final judgment arising out of the transaction or occurrence that is the subject matter of the litigation are extinguished and the judgment bars a subsequent action on those causes of action.
(3)A judgment in favor of either the plaintiff or the defendant is conclusive, in any subsequent action between them, with respect to any issue actually litigated and determined if its determination was essential to that judgment.

The doctrine of res judicata bars the re-litigation of any claims that have been processed to a final judgment in a prior action between the same parties. Atherton argues the Exception of Res Ju-dicata should have been denied by the trial court on the grounds that the judgment in the 2007 action is an absolute nullity. Specifically, Atherton argues the trial court lacked personal jurisdiction over Rosteet to render a valid judgment in the 2007 action because Rosteet was never served. In support of this argument, Atherton points to La.Code Civ.P. art. 1672(C), which requires that in a situation where a party has been named as a defendant, but service has not been requested, the dismissal shall be without prejudice.

|fiRosteet counters that Atherton’s reliance on La.Code Civ.P. art. 1672(C) is misplaced. He notes Article 1672 applies to involuntary dismissals and provides: “A judgment dismissing an action without prejudice shall be rendered to a person named as a defendant for whom service has not been requested within the time” prescribed by law. La.Code Civ.P. art 1672(C) (emphasis added). Rosteet notes Atherton was the plaintiff when he moved to dismiss the 2007 suit with prejudice. Therefore, he was not prevented from doing so by Article 1672, which merely limits the remedy for a defendant, who was not timely served, to seek a dismissal without prejudice. Atherton was the plaintiff in the 2007 suit, thus the limitation of Article 1672 did not apply. We agree with Ros-teet’s argument, and find the trial court was not limited to granting a dismissal without prejudice.

[1250]*1250It is clear pursuant to the res judi-cata doctrine and Louisiana case law, a dismissal with prejudice has the effect of a final judgment of absolute dismissal and constitutes a bar for the reassertion of the same claims in a subsequent action. La. Code. Civ.P. art. 1673; Dean v. The City of New Orleans, 05-1347 (La.App. 4 Cir. 7/12/06), 936 So.2d 851. As Rosteet notes, Atherton cannot dispute the fact that the 2007 legal malpractice suit against Rosteet was dismissed with prejudice.

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Bluebook (online)
137 So. 3d 1246, 13 La.App. 3 Cir. 864, 2014 WL 1487291, 2014 La. App. LEXIS 1024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atherton-v-rosteet-law-firm-lactapp-2014.