Hoffman v. Theriot

249 So. 3d 297
CourtLouisiana Court of Appeal
DecidedMay 30, 2018
DocketNO. 2017–CA–686; NO. 2017–CA–686 C/W 2017–CA–687
StatusPublished
Cited by2 cases

This text of 249 So. 3d 297 (Hoffman v. Theriot) 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
Hoffman v. Theriot, 249 So. 3d 297 (La. Ct. App. 2018).

Opinion

EDWARDS, JUDGE PRO TEMPORE, J.

*299The 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 *300Office 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.1

DISCUSSION

On appeal to this Court, appellant assigns one error in which he argues the *301trial 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.2 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."3

The party moving for summary judgment bears the burden of proof.4 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.5

Negligence claims under La. C.C. art. 2315 are examined using a duty/risk analysis.

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Cite This Page — Counsel Stack

Bluebook (online)
249 So. 3d 297, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hoffman-v-theriot-lactapp-2018.