On appeal from The CIVIL DISTRICT COURT, ORLEANS PARISH ">

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Date: 05-03-2022

Case Style:

ROBERT SCHIFF Vs. LAWRENCE G. PUGH, III, FREDERICK T. HAAS, III, ALEXANDER L. BURNS, AND PUGH, ACCARDO, HAAS, RADECKER & CAREY, L.L.C

Case Number: 2021-CA-0267

Judge: Regina Bartholomew-Woods

Court:

COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

On appeal from The CIVIL DISTRICT COURT, ORLEANS PARISH

Plaintiff's Attorney:





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Defendant's Attorney: James H. Gibson
Stacy N. Kennedy

Description:

New Orleans, LA - Legal Malpractice lawyer represented Plaintiff-Appellant with appealing the trial court’s judgment granting the motion for summary judgment.



This legal malpractice suit arises from Appellees’ representation of Mr.
Schiff in a contract suit filed by Lidia Pollard (“Ms. Pollard”). In 2007, Mr. Schiff
and Ms. Pollard entered a partnership to purchase, renovate, and resell houses in
New Orleans following Hurricane Katrina. The parties agreed that Mr. Schiff
would fund the purchase and renovation of the properties while Ms. Pollard would
locate suitable properties and oversee and assist in their renovations. Mr. Schiff
and Ms. Pollard agreed to split equally all profits from reselling the houses.
2
Eventually, the business relationship soured, and Ms. Pollard filed a lawsuit
against Mr. Schiff (“the Pollard suit”). Ms. Pollard claimed, among other things,
that Mr. Schiff failed to reimburse her for expenses she incurred in renovating the
properties and failed to remit profits owed to Ms. Pollard from sales of the
renovated properties. Mr. Schiff contended throughout the Pollard suit that the
parties’ business did not realize any profits, due to expenses he incurred in the
renovation and resale of the houses. He also filed a reconventional demand
seeking recovery of money Ms. Pollard allegedly owed him.
The Pollard suit proceeded to a bench trial; and the trial court rendered
judgment in Ms. Pollard’s favor, awarding her $685,176.52. On appeal, this Court
amended the underlying judgment to $684,824.73 and affirmed as amended.
Pollard v. Schiff, 13-1682 (La. App. 4 Cir. 2/4/15), 161 So.3d 48.
In 2014, Mr. Schiff filed this malpractice suit against Appellees, claiming
that their negligent representation at trial in the Pollard suit was the direct cause of
the judgment against him. As the malpractice suit proceeded, Mr. Schiff, through
his retained expert witness, Attorney Dane Ciolino, identified specific acts of
alleged negligence committed by Appellees at trial which, Mr. Schiff argued,
caused the unfavorable outcome against him.
Among these alleged negligent acts was Appellees’ failure to investigate
whether Ms. Pollard was a licensed contractor and to raise the issue of her
licensure at trial. Mr. Schiff claimed that Ms. Pollard was not a licensed
contractor, even though she was acting as a contractor in her partnership with him,
3
and that, pursuant to La. R.S. 37:2160,1
she was prohibited from recovering under
the contract. Mr. Schiff alleged that Appellees were aware of this potential defense
but failed to investigate the issue or raise it at trial.
Ultimately, Appellees moved for summary judgment, arguing that Mr.
Schiff could not establish that any of the alleged breaches identified by Attorney
Ciolino’s report caused the adverse judgment against him in the Pollard suit.
Appellees maintained that Mr. Schiff required expert testimony to prove causation,
but his expert witness, Attorney Ciolino, declined to offer any opinions on
causation.2 Rather, Appellees countered, the outcome in the Pollard suit would
have been the same even if they had not committed the alleged breaches. In
support, the defendants relied on the report and deposition of their own expert
witness, Attorney Wayne Lee, who opined that the trial court in the Pollard suit
would have entered the unfavorable judgment against Mr. Schiff regardless of the
alleged malpractice.
In opposition, Mr. Schiff argued that he did not need expert testimony to
establish causation. Mr. Schiff contended that he needed only to establish a causal
connection between the alleged negligence and the unfavorable outcome of the
litigation, which could be proven by lay testimony. Mr. Schiff further addressed

1
La. R.S. 37:2160 provides, in pertinent part:
A. (1) It shall be unlawful for any person to engage or to continue in this state in
the business of contracting, or to act as a contractor as defined in this Chapter,
unless he holds an active license as a contractor under the provisions of this
Chapter.
2
In his deposition testimony, attached to Mr. Schiff’s opposition memorandum, Attorney
Ciolino explained that he would not offer expert opinions on causation, because his opinions
would be speculative, and questions on causation and damages should be left to the jury.
4
each instance of negligence identified by Attorney Ciolino’s report and offered his
theories as to how each alleged breach caused the adverse judgment against him in
the Pollard suit.
At the hearing, the trial court granted Appellees’ summary judgment motion.
While the trial court disagreed with Appellees’ argument that Mr. Schiff needed
expert testimony to establish causation; it found Mr. Schiff’s opposition
memorandum insufficient to defeat the summary judgment motion. It reasoned that
while Mr. Schiff had offered theories to support his burden on causation and had
cited to deposition testimony which purported to support his theories, he failed to
attach the portions of the deposition transcripts cited within his memorandum.
After the trial court granted Appellees’ motion, Mr. Schiff filed a motion for
summary judgment, which the trial court denied. Mr. Schiff’s appeal followed.
TIMELINESS OF APPEAL
While Mr. Schiff appeals the trial court’s granting of summary judgment, we
must first address a procedural issue in this matter, notably whether Mr. Schiff’s
motion for new trial, and consequently, his motion for appeal, were filed timely.
Absent a timely motion for appeal, this court lacks jurisdiction over the appeal.
Sens v. Plaisance, 20-0382, p. 2 (La. App. 4 Cir. 8/12/20), 2020 WL 4692882
(unpub.), writ denied, 20-01014 (La. 8/19/20), 300 So.3d 877.
The delay for applying for a new trial is seven (7) days, exclusive of legal
holidays, commencing on the day after the clerk mails the notice of judgment
required by La. C.C.P. art. 1913. La. C.C.P. art. 1974. A devolutive appeal may
5
only be taken within sixty (60) days of either (1) the expiration of the delay for
applying for a new trial if no application has been filed timely; or (2) the date of
the mailing of notice of the court’s refusal to grant a timely application for a new
trial. La. C.C.P. art. 2087(A). An untimely motion for new trial does not interrupt
the delays for timely taking an appeal. See First Nat. Bank of Com. v. Boydell, 03-
0613, p. 3 (La. App. 4 Cir. 9/24/03), 857 So.2d 1115, 1117.
The trial court’s judgment granting Appellees’ summary judgment motion
was signed on November 25, 2020. Mr. Schiff did not file his motion for new trial
until December 11, 2020—more than seven (7) days after the November 25, 2020
judgment was signed—and did not file his motion for appeal until March 9, 2021.
If the November 25, 2020 notice of signing of judgment was mailed on that same
date, Mr. Schiff’s motion for new trial, and consequently his motion for appeal,
would be untimely.
Accordingly, on May 11, 2021, we ordered Mr. Schiff show cause why his
appeal should not be dismissed as untimely. Mr. Schiff submitted a brief on the
timeliness of his appeal in which he argues that the record contains no certificate,
signed by the clerk of court, showing the date the notice of signing of judgment
was mailed, as required by La. C.C.P. art. 1913(D). Rather, Mr. Schiff contends
the November 25, 2020 notice of signing of judgment was signed by the trial
court’s law clerk and is silent as to when the notice itself was mailed. Mr. Schiff
also contends that the notice of signing of judgment was not received by counsel
6
for either Mr. Schiff or Appellees until December 9, 2020,3
and Mr. Schiff filed his
motion for new trial two (2) days later. In the absence of a certificate of mailing of
the notice of judgment, signed by the clerk of court, Mr. Schiff argues that the
issue of timeliness must be resolved in favor of his right to appeal.
La. C.C.P. art. 1913 provides in pertinent part:
A. Except as otherwise provided by law, notice of the
signing of a final judgment, including a partial final
judgment under Article 1915, is required in all contested
cases, and shall be mailed by the clerk of court to the
counsel of record for each party, and to each party not
represented by counsel.
* * *
D. The clerk shall file a certificate in the record showing the
date on which, and the counsel and parties to whom,
notice of signing of judgment was mailed.
The jurisprudence interpreting the certification requirement of La. C.C.P.
art. 1913, was discussed by this Court in Argence L.L.C. v. Box Opportunities, Inc.,
07-0765, p. 5-6 (La. App. 4 Cir. 3/13/08), 980 So.2d 786, 789-90. This Court
noted that there are two lines of interpretation, one favoring the right of appeal in
cases where it is not clear that the mandatory requirements of La. C.C.P. art. 1913
have been met, and the other finding appeals untimely based on the presence in the
record of a notice of judgment and a copy of the judgment mailed to the parties but
without a certification of the date of mailing. Compare Roy Fink, Inc. v. State,
D.O.T.D., 464 So.2d 1064 (La. App. 1st Cir. 1985) (finding that the presence in the
record of a dated letter is insufficient to serve as the certificate showing the date of

3 Counsel for Mr. Schiff pointed to Appellee-counsel’s representation in a trial court pleading
that he received the notice of judgment on December 9, 2020. Appellees have not disputed this
timeline and did not address the timeliness of Mr. Schiff’s appeal in their brief.
7
mailing), and Trailwood Forest-Calcasieu, Ltd. v. Coursey, 372 So.2d 615 (La.
App. 3rd Cir. 1979) (finding that a signed, dated letter from the Clerk’s office to
the parties notifying them of the judgment fulfilled the requirements of La. C.C.P.
art. 1913).
In Argence, this Court was addressing a motion to dismiss the appeal based
on an untimely filed motion for new trial. In that case, the trial court entered a
default judgment against defendants on July 19, 2005. The record contained an
original judgment with “a handwritten notation on the reverse [side]” indicating
that the judgment was mailed on July 19, 2005; the record also contained an
envelope showing that a copy of the judgment was mailed by the Clerk of Court on
July 25, 2005. The Court then found that, “[a]bsent the mandatory 1913 D
certificate, there is reasonable doubt as to the date on which the judgment was
mailed,” and, favoring the right of the party to be heard and to appeal, the Court
resolved the doubt as to the date of mailing in favor of the appellant. Argence, 07-
0765, p. 6, 980 So.2d at 790.
In Argence, there was no certificate of notice of signing of judgment, but
there was evidence in the record that the actual date of mailing was shown on the
envelope in which the judgment was mailed. We find the facts in this case is more
analogous to Beagle v. Beagle, 95-168 (La. App. 3 Cir. 5/31/95), 657 So.2d 422.
Addressing the timeliness of that appeal, the Third Circuit noted that the record
reflected the notice of judgment was mailed on October 19, 1994, and a certificate
of mailing was filed in the record. Based upon that date of mailing of notice, the
last day for filing the appeal would have been November 28, 1994. The appeal
was filed on November 29, 1994. In arguing for the timeliness of the appeal,
appellants’ counsel submitted affidavits that the notice of judgment was not
8
received until November 21, 1994. In its consideration of the record and
affidavits, the Third Circuit stated:
It is imperative to recognize that although the affidavits
of counsel and his secretary state that the notice was not
received, there is no assertion that it was not mailed nor
that it was not mailed to the correct address. There is no
evidence to contradict the certificate of mailing. … We
are aware of no authority for extending an appeal date
based upon an affidavit that counsel failed to receive
notice of judgment where the record contains the
certificate of mailing required by Article 1913.
Beagle, 95-168, p. 4, 657 So.2d at 423. Consequently, the Third Circuit dismissed
the appeal as untimely.
In the present matter, the trial court ruled in open court on November 6,
2020, granting Appellees’ motion for summary judgment and dismissing Mr.
Schiff’s claims against them.
4
The trial court signed its judgment on November
25, 2020. The record includes a certificate of notice of signing of judgment to all
parties that indicates the mailing date as November 25, 2020, with a signature of
the law clerk rather than the minute clerk.5
Mr. Schiff’s counsel attests in an
affidavit that he did not receive the notice of signing of judgment until December
9, 2020, by which time the seven-day delay for filing a motion for new trial had
already expired. As in the case of Beagle, Mr. Schiff acknowledges that the notice
was mailed and received, and he presents no evidence that the notice was not
mailed by the Clerk of Court or to contradict the date of mailing on the certificate
filed in the record. Mr. Schiff argues only that the signature of the law clerk rather

4 Although the delay for applying for a new trial does not commence until the day after the notice
of judgment has been mailed in accordance with Article 1913, or served by the sheriff, there is
no rule prohibiting a party from filing a motion for new trial from a judgment rendered in open
court prior to receiving the signed judgment. See La. C.C.P. art. 1974.
5
Two dates appear on the certificate of notice of signing of judgment, one indicating the date on
which the judgment was signed and, below it, a second indicating the date of mailing. In this
case, the judgment was signed and mailed on the same date, November 25, 2020.
9
than the minute clerk is inadequate to certify that the notice of judgment was
mailed on the date that is indicated.
Considering the language of La. C.C.P. art. 1913, review of the record and
jurisprudence interpreting and applying the requirements of La. C.C.P. art. 1913,
and review of the record, we find the instant appeal to be untimely.

Outcome: Accordingly, the appeal is dismissed as untimely.

APPEAL DISMISSED

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