Kevin B. Lorio v. Teche Federal Savings Bank

• Court: Louisiana Court of Appeal
• Decided: March 7, 2012
• Docket: CA-0011-1213
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-1213

KEVIN B. LORIO

VERSUS

TECHE FEDERAL SAVINGS BANK, ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. 2000-0214-C HONORABLE EDWARD B. BROUSSARD, DISTRICT JUDGE

J. DAVID PAINTER JUDGE

********** Court composed of J. David Painter, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

AFFIRMED.

John Blackwell, Attorney at Law P. O. Box 10051 New Iberia, LA 70562-0051 COUNSEL FOR DEFENDANT/APPELLEE: Teche Federal Savings Bank

Thomas Robert Shelton, Attorney at Law 223 Bendel Road Lafayette, LA 70505 COUNSEL FOR PLAINTIFF/APPELLANT: Kevin B. Lorio PAINTER, Judge.

Plaintiff, Kevin B. Lorio, appeals the trial court’s grant of summary judgment

in favor of Defendant, Teche Federal Savings Bank (Teche), in this legal malpractice

case. For the following reasons, we affirm the trial court’s grant of summary

judgment in favor of Teche.

FACTS AND PROCEDURAL HISTORY

In 1997, Plaintiff purchased two adjoining tracts of land, referred to as Lots 1-A

and 1-B, on Steiner Road in Lafayette, Louisiana. He was approved for a loan with

Teche to finance his purchase of this property and construction of a residence thereon.

Defendant, Melvin L. Maxwell, was retained to act as the closing attorney. He issued

a title opinion on the property and prepared the act of cash sale and mortgage.

Maxwell certified that the vendors of the two lots had good and merchantable title.

The title opinion was given only to Teche and not to Plaintiff. However, Lot 1-B had

been sold at a public tax sale on July 1, 1987, and had not been redeemed. Thus, the

seller, Paul Edward Broussard did not have good, valid, and merchantable title to Lot

1-B at the time of the sale to Plaintiff as certified by Maxwell. Plaintiff did not

discover this defect in title until after he had constructed his residence and attempted

to pay real estate taxes on the lots. Payment for Lot 1-B was returned because

Plaintiff was not the owner of the property according to the public records due to the

tax sale of Lot 1-B to Michael Benoit in 1987.

On January 12, 2000, Plaintiff filed suit against Teche, Maxwell, and Insured

Title. Plaintiff eventually obtained valid and merchantable title to Lot 1-B in 2005 by

a sale from Benoit to Plaintiff. Teche and Maxwell filed motions for summary

judgment, which were heard on November 30, 2010. Both motions were denied.

Teche conducted additional discovery concerning the alleged principal and agent

relationship between it and Maxwell. Plaintiff was deposed and admitted that he did not rely upon Maxwell’s title opinion in purchasing the property. Teche reurged its

motion for summary judgment, alleging that as a matter of law, Maxwell was not its

agent, that its relationship to Maxwell was that of lease of his legal services, and that

even if Maxwell was Teche’s agent, Teche cannot be liable for his error and omission

because Teche was not obligated to determine for Plaintiff whether the vendor had

valid and merchantable title, and because Maxwell was not Teche’s employee. The

trial court agreed and granted summary judgment in favor of Teche and dismissed all

of Plaintiff’s claims against Teche. We agree with the trial court that Teche owed no

duty to notify Plaintiff of any title defects and that Maxwell was not an agent or

employee of Teche. Therefore, we uphold the trial court’s grant of summary

judgment and dismissal in favor of Teche.

DISCUSSION

We review this matter de novo. Supreme Serv. & Specialty Co., Inc. v. Sonny

Greer, 06-1827 (La.5/22/07), 958 So.2d 634. On de novo review, we find that there

are no genuine issues of material fact because Teche owed no duty to notify Plaintiff

of any title defects. We further find that there are no genuine issues of material fact

that Teche is not liable for the alleged malpractice of Maxwell because there is no

evidence that Maxwell was Teche’s employee or agent. “A principal is not liable for

the torts of a non-servant mandatory.” Joseph v. Dickerson, 99-1046, p. 8 (La.

1/19/00), 754 So.2d 912, 917.

We agree with the trial court that Maxwell’s alleged error and omission does

not provide Plaintiff with a cause of action against Teche. Unlike in Sherwin

Williams Co. v. First Louisiana Construction, Inc., 04-133 (La.App. 1 Cir. 5/6/05),

915 So.2d 841, Plaintiff did not believe that Maxwell was his attorney. Teche was

Maxwell’s client. There is no basis in law to hold a client liable for the malpractice of

his attorney. Teche owed no duty to Plaintiff to ensure or even determine that

Plaintiff was obtaining a valid and merchantable title. Furthermore, Teche did not in

2 any way guarantee to Plaintiff that he was obtaining a valid and merchantable title. It

only sought to assure itself of this before it lent money to Plaintiff. Any failure or

omission on the part of Maxwell to discover the tax sale did not breach any duty owed

to Plaintiff by Teche.

DECREE

The trial court correctly granted summary judgment in favor of Teche. We

affirm the grant of summary judgment in favor of Teche and the dismissal of

Plaintiff’s claims against Teche with prejudice. All costs of this appeal are assessed

to Plaintiff/Appellant, Kevin B. Lorio.