Couture v. Guillory

713 So. 2d 528, 1998 WL 237422
CourtLouisiana Court of Appeal
DecidedApril 15, 1998
Docket97-CA-2796
StatusPublished
Cited by12 cases

This text of 713 So. 2d 528 (Couture v. Guillory) 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
Couture v. Guillory, 713 So. 2d 528, 1998 WL 237422 (La. Ct. App. 1998).

Opinion

713 So.2d 528 (1998)

Patty Gene COUTURE
v.
Vivian GUILLORY, esq., et al.

No. 97-CA-2796.

Court of Appeal of Louisiana, Fourth Circuit.

April 15, 1998.

*529 Darleen M. Jacobs, Al Sarrat, New Orleans, for Plaintiff-Appellant Patty Gene Couture.

John C. Combe, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, for Defendants-Appellee Vivian Guillory.

Jamie M. Bankston, Chopin, Wagar, Cole, Richard, Reboul & Kutcher, Metairie, for Defendant-Appellee Clark Roy.

Before KLEES, LOBRANO and CIACCIO, JJ.

KLEES, Judge.

In this action for legal malpractice, the trial court granted defendants' motions for partial summary judgment. Plaintiff appeals. We affirm.

Facts

Plaintiff, Patty Gene Couture, was employed for approximately 17 years as a bus driver by the St. Bernard Parish School Board (School Board). Plaintiff was dismissed from his employment in 1987 for fraudulent submission of requests for compensation. Following his dismissal, plaintiff retained attorneys Vivian Guillory and Clark Roy to represent him in seeking judicial review of his dismissal by the School Board. A petition for judicial review was subsequently filed on plaintiff's behalf in the district court in St. Bernard Parish. On the date the matter was originally set for trial, December 12, 1990, the parties reached a partial compromise and settlement, whereby plaintiff agreed to dismiss several of his claims against the School Board in exchange for compensation in the amount of $27,500.00. In this agreement, plaintiff reserved his right to seek reinstatement to his former position and to obtain judicial reversal of the finding of grounds for discharge at a hearing scheduled for February 7 and 8, 1991.

Following a hearing in this matter, the trial court rendered judgment reversing the action of the School Board and reinstating plaintiff to his former position. The School Board appealed from this judgment. In an unpublished opinion, this Court reversed the judgment of the trial court and reinstated the disciplinary action taken by the School Board dismissing plaintiff from his employment. Patty Couture v. St. Bernard Parish School Board, 91-CA-1236, March 17, 1992. No writ from this decision was taken to the Supreme Court, and that decision is now final.

Plaintiff subsequently retained new counsel and on July 29, 1992, filed the instant suit for damages against Vivian Guillory and Clark Roy for defendants' alleged negligence in failing to seek writs from the decision of this Court rendered on March 17, 1992. Plaintiff itemized his damages in the petition as follows: past, present, and future loss of *530 wages; past, present and future loss of benefits; and emotional stress and strain. In plaintiff's pre-trial order filed in these proceedings on June 17, 1996, plaintiff further claimed he sustained a loss of income, loss of job, loss of society, mental anguish, emotional stress and strain, and anxiety, as well as loss of reputation in the community.

In response to this petition, defendants, Vivian Guillory and Clark Roy, each filed a motion for partial summary judgment, arguing that as a matter of law, plaintiff was not entitled to recover from them damages for claims which he discharged by compromise agreement executed in the underlying suit. Defendants argued that because of the compromise agreement in which plaintiff dismissed his claim for loss of wages, loss of benefits, mental anguish and other general damages allegedly sustained as a result of his discharge, those damages would not have been available to him even if plaintiff was successful in a writ to the Supreme Court.

In opposition to the summary judgment, plaintiff attacked the validity of the compromise agreement, and argued that the document was not executed prior to the trial on his reinstatement and that he did not intend to relinquish his rights which may have accrued after the date of the trial.

By judgment dated November 5, 1997, the trial court granted defendants' motions for partial summary judgment, holding that plaintiff is limited in his possible recovery in this malpractice suit to only those claims which were not released in the settlement agreement with the School Board, specifically, the right to seek reinstatement of his position as a bus driver. It is from this judgment that plaintiff now appeals.

Discussion

A partial summary judgment is authorized by La.Code of Civ. Proc. art. 966(E), which provides as follows:

A summary judgment may be rendered dispositive of a particular issue, theory of recovery, cause of action, or defense, in favor of one or more parties, even though the granting of the summary judgment does not dispose of the entire case.

Summary judgments are now favored, and the rules regarding such judgments should be liberally applied. Oakley v. Thebault, 96-0937, (La.App. 4 Cir. 11/13/96), 684 So.2d 488, 490. Appellate courts review summary judgments de novo. A motion for summary judgment which shows that there is no genuine issue of material fact and that the mover is entitled to judgment as a matter of law shall be granted. La.Code Civ. Proc. art. 966 C(1). Smith v. Our Lady of the Lake Hospital, 93-2512 (La.7/5/94), 639 So.2d 730, 751. A fact is "material" when its existence or nonexistence may be essential to plaintiff's cause of action under the applicable theory of recovery. Hayes v. Autin, 96-287 (La.App. 3 Cir. 12/26/96), 685 So.2d 691, writ denied, 97-0281 (La.3/14/97), 690 So.2d 41.

To prove a claim for legal malpractice, a plaintiff must prove,: (1) there was an attorney-client relationship; (2) the attorney was negligent; and (3) that negligence caused plaintiff some loss. Scott v. Thomas, 543 So.2d 494 (La.App. 4th Cir.1989).

Pretermitting a discussion of the first two elements, we find that defendants have established under La.Code Civ. Proc. art. 966 C that partial summary judgment is proper on the third element of a legal malpractice claim: proof of loss. Although the defendants did not move for summary judgment on all of plaintiff's claims for damages, we agree with the trial court's finding that the only claims for damages which may be asserted by plaintiff against his former attorneys are those claims which were not discharged by plaintiff prior to trial against the School Board.

In support of the motions for summary judgment, defendants submitted the "Restricted Release and Reservation of Rights" which was executed by plaintiff and the School Board in the underlying suit for judicial review of plaintiff's dismissal. This document stated that on December 12, 1990, the matter of Patty Couture v. St. Bernard Parish School Board was set for trial, and on that day the parties reached an agreement of partial compromise and settlement of plaintiff's claims, and a hearing on the matters remaining in issue and reserved by the parties *531 was continued to February 7 and 8, 1991. The terms of the compromise were read into the record of the proceedings on December 12, 1990, and the agreement was subsequently reduced to writing and signed by plaintiff on January 12, 1991 and by a representative of the School Board on February 6, 1991. The pertinent terms of the agreement are as follows:

... Patty Couture, Plaintiff, also releases, remits and forever discharges the St. Bernard Parish School Board, ...

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Bluebook (online)
713 So. 2d 528, 1998 WL 237422, Counsel Stack Legal Research, https://law.counselstack.com/opinion/couture-v-guillory-lactapp-1998.