Rawboe Properties, LLC v. Dorsey

955 So. 2d 177, 2007 WL 1176735
CourtLouisiana Court of Appeal
DecidedMarch 21, 2007
Docket2006-CA-0070
StatusPublished
Cited by2 cases

This text of 955 So. 2d 177 (Rawboe Properties, LLC v. Dorsey) 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
Rawboe Properties, LLC v. Dorsey, 955 So. 2d 177, 2007 WL 1176735 (La. Ct. App. 2007).

Opinion

955 So.2d 177 (2007)

RAWBOE PROPERTIES, L.L.C., and Roger T. Boes
v.
Marc G. DORSEY, Dorsey & Bossetta, and Patrick R. Bossetta.

No. 2006-CA-0070.

Court of Appeal of Louisiana, Fourth Circuit.

March 21, 2007.

Charles J. Ferrara, Metairie, LA, for Plaintiffs/Appellants.

Richard A. Weigand, New Orleans, LA, for Intervenor/Appellant, Richard A. Weigand, APLC.

Gustave A. Fritchie III, Darleene D. Peters, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA, for Defendant/Appellee.

(Court composed of Judge CHARLES R. JONES, Judge TERRI F. LOVE, Judge ROLAND L. BELSOME).

*178 BELSOME, Judge.

Plaintiffs-Appellants, Rawboe Properties, L.L.C. and Roger T. Boes, and Intervenor-Appellant, Richard A. Weigand, APLC, appeal the trial court's judgment finding that Defendants-Appellants, Marc G. Dorsey, Dorsey & Bossetta, and Patrick Bossetta, committed legal malpractice, but declining to award Appellants damages for the malpractice. We affirm.

FACTS

On October 19, 1997, a building owned by Rawboe Properties, L.L.C. and Roger T. Boes (hereafter collectively "Mr. Boes") at 516 Gravier Street in New Orleans sustained damages from a fire that originated in an adjacent building at 309 Magazine Street. Mr. Boes subsequently filed a claim with Westchester Fire Insurance Company (hereafter "Westchester") for the damages. Approximately ten days after the loss, Westchester arranged for an insurance adjustor, William Moulton, to visit the property, obtain photographs and prepare an estimate of damages. When Mr. Boes indicated to Mr. Moulton during his inspection that he believed a roof existed over part of the property prior to the loss, Westchester arranged for Leonard Quick, an expert in civil engineering, to inspect the property and take photographs as well. After the inspections, Mr. Quick and Mr. Moulton estimated that the damages caused by the fire amounted to $26,710.60.[1]

At Mr. Boes' request, a second estimate of damages was procured by Westchester from an independent contractor, Ron Wimprine of Elmwood General Contractors. Mr. Wimprine's estimate matched the amount of the estimate prepared by Mr. Moulton and Mr. Quick.[2] Thereafter, Mr. Boes signed a Sworn Statement in Proof of Loss that was executed before a notary public, affirming that the "whole loss and damage" amounted to $26,710.60 and that he was due $21,710.60.[3] Mr. Boes then commissioned his own appraisal from Louis Perrilliat of Construction South, Inc. Mr. Perrilliat's estimate, dated January 29, 1999, totaled $116,140.00, and included several items that were not listed on Westchester's two estimates. Mr. Boes subsequently hired an attorney, Marc Dorsey of Dorsey & Bossetta, to assist in obtaining this amount from Westchester.

During the course of his representation, Mr. Dorsey issued two letters to Westchester: one dated February 9, 1999 and the other dated September 13, 1999. The February 9 letter stated that the damages to the subject property as a result of the October 19, 1997 loss amounted to $116,140.00; a copy of the estimate was attached to the correspondence. In response, counsel for Westchester, Mr. C. Michael Johnson, stated in a March 4, 1999 letter that Westchester would be closing its file, as the only unresolved issue was the pending litigation to resolve allocation of the final payment by Westchester.[4] Mr. Dorsey's subsequent September 13, 1999 letter to Westchester referenced the February 9, 1999 correspondence in addition to the previously forwarded estimate for $116,140.00, and demanded the claim be adjusted properly or that a lawsuit would follow. Mr. Johnson responded for Westchester *179 on October 4, 1999 that the claim for damages resulting from the October 19, 1997 loss had already been paid by Westchester, and that moreover, multiple claims could not be made for the same loss.

Mr. Dorsey then filed suit against Westchester seeking payment for damages based on Mr. Perrilliat's January 1999 estimate. Appellants' policy, however, explicitly required that any supplemental claims be made within two years of knowledge of the date of the loss. Specifically, the Westchester policy provided that "no one may bring a legal action against us under this Coverage Part unless . . . 2. The action is brought within 2 years after you first have knowledge of the loss."[5] Mr. Dorsey did not file suit until after the two-year deadline had passed, on December 29, 1999.

That suit was removed by Westchester to the United States District Court for the Eastern District of Louisiana. Westchester filed a Motion for Summary Judgment, arguing not only that the cause of action had prescribed, but also that Mr. Boes had previously accepted payment and executed a release to Westchester for any and all damages caused by the fire. After Westchester filed its Motion for Summary Judgment, Mr. Boes terminated Mr. Dorsey's representation and hired Richard Weigand. Westchester's Motion for Summary Judgment was ultimately granted by the Eastern District on December 18, 2000. In its Order and Reasons, the Eastern District found that Westchester was not required to unconditionally render payment for the October 19, 1997 loss, and therefore, Westchester's conditional tender of $21,710.60 coupled with Mr. Boes' voluntarily signed Sworn Statement and Proof of Loss and acceptance of the check was a proper settlement for Mr. Boes' claim;[6] that the term "legal action" and other policy language regarding the two-year prescriptive period in which to file suit was not ambiguous;[7] and finally, that pursuant to the policy language, the correspondence Mr. Dorsey issued to Westchester did not constitute "legal action" sufficient to interrupt the two year prescriptive period, and that Mr. Boes' right to assert a supplemental claim had prescribed. The decision was thereafter affirmed by the U.S. Fifth Circuit Court of Appeals.[8]

PROCEDURAL HISTORY

Mr. Boes filed a malpractice suit against Appellees on February 2, 2001, and Mr. Weigand filed a Motion to Intervene on *180 April 23, 2002, requesting costs and attorney's fees. Mr. Boes and Mr. Weigand (hereafter collectively "Appellants") also filed a Partial Motion for Summary Judgment regarding the issue of liability.[9] The trial court granted Appellants' Motion for Summary Judgment, finding Mr. Dorsey liable for legal malpractice. The court further held that the amount of damages caused by the malpractice would be determined at trial. A trial was thereafter held on April 15, 2004 to determine the issue of damages.

The trial court ultimately held that the Appellants suffered no damages as a result of the alleged malpractice, because Appellants were unable to prove that the additional damages contained in Mr. Perrilliat's estimate were damages resulting from the October 19, 1997 fire. Thus, the trial court reasoned, Appellants would not have succeeded at trial in establishing that the supplemental damages claimed were caused by the October 19, 1997 loss. Accordingly, the trial court declined to award Appellants damages or attorney's fees. This appeal followed.

STANDARD OF REVIEW

A trial court's factual determinations are reviewed by an appellate court under the manifest error-clearly wrong standard. Stobart v. State, through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).

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Bluebook (online)
955 So. 2d 177, 2007 WL 1176735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rawboe-properties-llc-v-dorsey-lactapp-2007.