Opinion
2023 CA 0281
11-03-2023
KATINA C. BIAS v. RONALD S. HALEY, JR., ATTORNEY AT LAW, HALEY & ASSOCIATES, ATTORNEYS AT LAW, LLC, AND ABC INSURANCE COMPANY
Jacques F. Bezou, Jacques F. Bezou, Jr., Payton S. Lachney, Covington, Louisiana, Counsel for Plaintiff/Appellee Katina C. Bias NaTashia Carter Benoit, Ashley Greenhouse, Baton Rouge, Louisiana, Counsel for Defendants/Appellants Ronald S. Haley, Jr., Attorney at Law, Haley & Associates, Attorneys at Law, LLC, and ABC Insurance Company
On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Docket No. 688116 Honorable Kelly Balfour, Judge Presiding
Jacques F. Bezou, Jacques F. Bezou, Jr., Payton S. Lachney, Covington, Louisiana, Counsel for Plaintiff/Appellee Katina C. Bias
NaTashia Carter Benoit, Ashley Greenhouse, Baton Rouge, Louisiana, Counsel for Defendants/Appellants Ronald S. Haley, Jr., Attorney at Law, Haley & Associates, Attorneys at Law, LLC, and ABC Insurance Company
BEFORE: McCLENDON, HESTER, AND MILLER, JJ.
McClendon, J.
The trial court granted plaintiff's motion seeking partial summary judgment finding defendants liable to plaintiff for damages caused by legal malpractice. Defendants filed a motion for new trial, which the trial court denied. Defendants appealed. For the reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Katina Bias, plaintiff-appellee, filed a verified petition on September 18, 2019 seeking damages for alleged legal malpractice on the part of defendants-appellants, Ronald S. Haley, Jr., Attorney at Law, and Haley &Associates, Attorneys at Law, LLC (collectively, Appellants), for failing to timely file suit asserting her claims of employment discrimination and retaliation. In her petition, Ms. Bias alleged that her former employer, CF Industries, terminated her employment on January 31, 2017. Thereafter, Ms. Bias retained Appellants to prosecute claims against CF Industries on her behalf for discriminating against her on the basis of race and gender, in violation of the Louisiana Employment Discrimination Law, LSA-R.S. 23:301, et seq. (LEDL), and for retaliating against her for reporting the misconduct, in violation of Louisiana's Whistleblower statute, LSA-R.S. 23:967, et seq. Ms. Bias further asserted that although the maximum applicable prescriptive period under the LEDL resulted in a prescriptive date of July 31, 2018, Appellants did not file her discrimination and retaliation suit in the United States District Court for the Middle District of Louisiana (Middle District) until August 14, 2018. As a result, the Middle District dismissed Ms. Bias's discrimination and retaliation claims on the basis of prescription. Moreover, because pleadings filed on Ms. Bias's behalf by Appellants acknowledged that she received notice of termination on January 31, 2017, the Middle District concluded that amendment of her suit would be futile. Thus, the dismissal of Ms. Bias's claims was with prejudice.
ABC Insurance Company was also named as a defendant. However, the record does not reflect that ABC Insurance Company was served or made an appearance in the record.
Appellants' answer, filed November 5, 2019, generally denied the allegations of Ms. Bias's petition. However, Appellants admitted the allegations of Paragraph 6, which provided:
Initially, the answer was filed on behalf of Haley & Associates, Attorneys at Law, LLC. Therein, Mr. Haley raised the peremptory exception of no right of action in his individual capacity. However, on December 10, 2019, Mr. Haley filed a motion to withdraw the exception of no right of action in both his individual capacity and on behalf of the LLC. The trial court granted the motion to withdraw the exception of no right of action on December 11, 2019.
On August 14, 2018, Ronald S. Haley, Jr. filed suit on behalf of Ms. Bias against CF Industries, alleging that Ms. Bias had been discriminated against on the basis of race and gender, and alleging that she had been retaliated against by [CF] Industries, for reporting her employer's misconduct.
On October 5, 2021, Ms. Bias filed a motion seeking partial summary judgment on the issue of liability. Ms. Bias argued there were no genuine issues of material fact precluding judgment finding Appellants liable to her for the damages sustained as a result of Appellants' legal malpractice. In support of her motion for summary judgment, Ms. Bias filed Appellants' answer to her petition for damages and her affidavit, which was accompanied by numerous exhibits. Appellants did not file an opposition to Ms. Bias's motion for summary judgment.
Ms. Bias's motion for partial summary judgment came for hearing on March 14, 2022. Appellants made an oral motion to continue the hearing, which the trial court denied. Appellants acknowledged their failure to file an opposition to the motion and requested "an opportunity to speak on the matter," which the trial court agreed to. After hearing arguments of counsel, the trial court granted Ms. Bias's motion for partial summary judgment. The trial court executed a written judgment in conformity with these oral rulings on September 19, 2022.
We note that, contrary to the provisions of LSA-C.C.P. art. 966(A)(1), Ms. Bias's motion was filed and decided before Mr. Haley filed an answer in his individual capacity. However, an appellate court may not raise the objection of prematurity sua sponte. See Moreno v. Entergy Corp., 2010-2281 (La. 2/18/11), 62 So.3d 704, 705. Mr. Haley did not raise the objection of prematurity with the trial court, nor has he raised same with this court. Accordingly, the issue is not properly before us on appeal. We also note that the record in this case reflects that Mr. Haley filed numerous pleadings with the trial court following Ms. Bias's motion for partial summary judgment, including a motion for extension of time to oppose the summary judgment, a motion for new trial of the summary judgment, and a motion for appeal.
Appellants filed a motion for new trial and to stay the proceedings on September 21, 2022. Ms. Bias opposed the motion for new trial and to stay. At the October 27, 2022 hearing of the motion, Appellants moved for a continuance on the basis of their counsel's poor health. The trial court acknowledged Appellants' counsel was in poor health, but found no reason to continue the hearing because the motion did not raise issues warranting a new trial. Thus, the trial court denied both the motion for new trial and the motion to continue. The trial court granted the motion to stay proceedings until post-trial relief had been adjudicated. On November 4, 2022, the trial court executed a written judgment in conformity with these oral rulings.
Appellants filed a motion to appeal referencing both the trial court's September 19, 2022 judgment granting Ms. Bias's motion for partial summary judgment, and the trial court's November 4, 2022 judgment denying Appellants' motion for new trial. On appeal, Appellants raise the following assignments of error:
Preliminarily, we observe that a judgment denying a motion for new trial is an interlocutory order and is normally not appealable. See LSA-C.C.P. art. 2083(C). However, the Louisiana Supreme Court has directed us to consider an appeal of the denial of a motion for new trial as an appeal of the judgment on the merits as well, when it is clear from the appellant's brief that he intended to appeal the merits of the case. Carpenter v. Hannan, 2001-0467 (La.App. 1 Cir. 3/28/02), 818 So.2d 226, 228-29, writ denied, 20021707 (La. 10/25/02), 827 So.2d 1153. In this matter, Appellants explicitly assign as error the trial court's judgment on the merits, as well as the trial court's judgment denying Appellants' motion for new trial. We address both herein.
1. The trial court erred in granting Bias's motion seeking summary judgment on the issue of Appellants' liability.
2. The trial court erred in denying the motion for new trial of Bias's motion for summary judgment on the issue of liability.
3. The trial court erred in denying the oral motion for continuance as to the motion for summary judgment, by counsel who was newly enrolled.
4. The trial court erred in denying Appellants' motion for continuance as to the motion for new trial due to the physical illness of Appellants' counsel, which caused an inability to make a presentation.
APPELLATE JURISDICTION
Appellate courts have a duty to examine subject matter jurisdiction sua sponte, even when the parties do not raise the issue. 4 C's Land Corporation v. Columbia Gulf Transmission Company, 2021-0121 (La.App. 1 Cir. 10/21/21), 332 So.3d 123, 126, writ denied, 2021-01735 (La. 1/19/22), 331 So.3d 322. This court's appellate jurisdiction extends only to final judgments, which determine the merits in whole or in part, and to interlocutory judgments made expressly appealable by law. See LSA-C.C.P. arts. 1841 and 2083; 4 C's Land Corporation, 332 So.3d at 126.
A partial summary judgment dispositive of a particular issue or theory of recovery will constitute a partial final judgment that may be immediately appealed during ongoing litigation only if it has been properly designated as final by the trial court pursuant to LSA-C.C.P. art. 1915(B). See LSA-C.C.P. arts. 966(E), 1915(A)(3) and (B); 4 C's Land Corporation, 332 So.3d at 126. Further, LSA-C.C.P. art. 1918 mandates that a final judgment be identified as such by appropriate language naming the party in favor of whom the ruling is ordered, the party against whom the ruling is ordered, and the relief that is granted or denied, which should be determinable from the judgment without reference to other documents in the record. Chandler v. Cajun Ready Mix Concrete, 2019-1650 (La.App. 1 Cir. 7/7/21), 328 So.3d 1189,1192. In the absence of such decretal language, the ruling is not a valid final judgment, and in the absence of a valid final judgment, this court lacks jurisdiction. Id.
In this matter, the September 19, 2022 judgment (original judgment) on appeal read, in pertinent part, "Plaintiff's Motion for Summary Judgment is GRANTED as prayed for." This court issued an April 18, 2023 ex proprio motu Rule to Show Cause Order identifying two apparent defects in the original judgment: first, that the original judgment lacked decretal language providing the specific relief granted as required by LSA-C.C.P. art. 1918 (decretal language defect); and second, that the original judgment lacked a designation of finality for the purposes of an immediate appeal as required by LSA-C.C.P. art. 1915(B) (designation of finality defect). Thus, we remanded the matter for the limited purpose of inviting the trial court to correct the defects in the original judgment.
On March 30, 2023, Ms. Bias filed a motion seeking dismissal of the appeal, arguing that a partial grant of summary judgment is not a final judgment for purposes of appeal and must be reviewed by this court on an application for supervisory writs. For the reasons discussed herein, this motion is denied.
On May 18, 2023, the appellate record was supplemented with an amended judgment dated January 18, 2023 (first amended judgment). Following review of the first amended judgment, this court issued a July 11, 2023 Interim Order commenting on both of the previously noted defects.
With respect to the decretal language defect, the Interim Order noted that the first amended judgment granted Ms. Bias's motion for summary judgment "as prayed for." Noting that the relief granted could not be determined without reference to other pleadings in the record, we remanded the matter a second time for the correction of the decretal language defect. The appellate record was supplemented with an amended judgment dated August 14,2023 (second amended judgment) on August 21,2023, which contained language finding Appellants "liable for legal malpractice against [Ms. Bias]." As the relief granted can be determined without reference to other pleadings, this language constitutes sufficient decretal language to comply with LSA-C.C.P. art. 1918.
Regarding the designation of finality defect, the July 11,2023 Interim Order noted that, while the first amended judgment contained an LSA-C.C.P. art. 1915(B) designation of finality, "the propriety of the [LSA-C.C.P.] art. 1915(B) certification is reserved." While the first and second amended judgments each contained an LSA-C.C.P. art. 1915(B) designation of finality, the trial court's designation is not determinative of this court's jurisdiction. Thus, before considering the merits of this appeal, we must also address the propriety of the LSA-C.C.P. art. 1915(B) designation. See Radcliffe 10, L.L.C, v. Burger, 2017-0967 (La.App. 1 Cir. 5/29/18), 251 So.3d 435, 440. Additionally, because the trial court gave no explicit reasons for the designation, our review of this issue is de novo. Hernandez v. Excel Contractors, Inc., 2018-1091 (La.App. 1 Cir. 3/13/19), 275 So.3d 278, 285.
Historically, our courts have had a policy against multiple appeals and piecemeal litigation. Louisiana Code of Civil Procedure article 1915 attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties. RJ. Messinger, Inc. v. Rosenblum, 2004-1664 (La. 3/2/05), 894 So.2d 1113, 1122. As set forth in Messinger, the following non-exclusive factors should be considered in determining whether the trial court's certification of a partial judgment was appropriate: (1) the relationship between the adjudicated and non-adjudicated claims; (2) the possibility that the need for review could be mooted pending future developments in the trial court; (3) the possibility that the reviewing court might be obliged to consider the same issue a second time; and (4) miscellaneous factors such as delay, economic and solvency considerations, shortening the time of trial, frivolity of competing claims, expense, and the like. The overriding inquiry for the trial court is whether there is no just reason for delay. Messinger, 894 So.2d at 1122-23.
Applying these precepts, we find the trial court properly designated the second amended judgment as a final judgment pursuant to LSA-C.C.P. art. 1915(B). With the issue of liability decided, only the issue of damages remains, and future developments in the trial court regarding damages would not moot this court's decision on this appeal, nor would this court be obliged to consider the same issue a second time. A decision on the issue of liability would prevent delays, shorten the time of trial, and lower expenses in the trial court. Accordingly, we maintain the appeal.
FIRST ASSIGNMENT OF ERROR
Appellants' first assignment of error is that the trial court erred in granting Ms. Bias's motion seeking partial summary judgment on the issue of Appellants' liability to Ms. Bias for damages she sustained as a result of Appellants' legal malpractice. Appellants concede the existence of the attorney-client relationship, but deny that Ms. Bias offered sufficient evidence to establish that their representation was negligent and that Ms. Bias suffered a loss caused by that negligence. Having conducted a thorough de novo review of the record before us, we find that this assignment of error lacks merit.
Summary Judgment
The purpose of summary judgment is to pierce the pleadings and to assess the proof in order to determine whether there is a genuine need for trial. Louisiana Workers' Compensation Corporation v. B, B &C Associates, LLC, 2017-1342 (La.App. 1 Cir. 4/9/18), 249 So.3d 18, 22. After an opportunity for adequate discovery, 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. LSA-C.C.P. art. 966(A)(3). Appellate courts review evidence de novo using the same criteria that govern the trial court's determination of whether summary judgment is appropriate. Thus, appellate courts ask the same questions: whether there is any genuine issue of material fact and whether the mover is entitled to judgment as a matter of law. Dynamic Environmental Services, LLC v. Marioneaux, 2020-1172 (La.App. 1 Cir. 4/16/21), 324 So.3d 130, 136, writ denied, 2021-00672 (La. 9/27/21), 324 So.3d 94.
The initial burden of proof is on the party filing the motion for summary judgment. LSA-C.C.P. art. 966(D)(1). The mover may meet this burden by filing supporting documentary evidence consisting of pleadings, memoranda, affidavits, depositions, answers to interrogatories, certified medical records, written stipulations, and admissions with the motion for summary judgment. LSA-C.C.P. art. 966(A)(4). The mover's supporting documentary evidence must prove the essential facts necessary to carry its burden. Thus, in deciding a motion for summary judgment, we must first determine whether the supporting documents presented by the mover are sufficient to resolve all material fact issues. Seal v. Louisiana Farm Bureau Mutual Insurance Co., 20210988 (La.App. 1 Cir. 3/16/22), 341 So.3d 659, 662.
Once the motion for summary judgment has been properly supported by the moving party, and the mover has shown that the motion for summary judgment should be granted, the burden then shifts to the non-moving party to produce factual support, through the use of proper documentary evidence attached to his or her opposition, sufficient to establish that he or she will be able to satisfy his or her evidentiary burden of proof at trial, that is, the existence of a genuine issue of material fact or that the mover is not entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(D)(1); Trichell v. McClure, 2021-1240 (La.App. 1 Cir. 4/8/22), 341 So.3d 856, 860. If the non-moving party fails to produce factual support in opposition sufficient to establish that he or she will be able to satisfy his or her evidentiary burden of proof at trial, LSA-C.C.P. art. 966(D)(1) mandates the motion for summary judgment be granted. Id.
Legal Malpractice
Generally speaking, Louisiana law recognizes a legal malpractice cause of action in favor of a client injured as a result of his attorney's negligent representation. Patin v. Breazeale, Sachse & Wilson, L.L.P., 2021-0561 (La.App. 1 Cir. 5/9/22), 345 So.3d 1055, 1059, writ denied, 2022-01116 (La. 11/1/22), 348 So.3d 1282. A legal malpractice plaintiff must prove three different elements to successfully bring a legal malpractice action: (1) the existence of an attorney-client relationship; (2) negligent representation by the attorney or professional impropriety in the attorney's relationship with the client; and (3) loss caused by that negligence or misconduct. Failure to prove any one of these elements is fatal to the plaintiff's claim. Dynamic Environmental Services, LLC, 324 So.3d at 137.
The standard of care that an attorney must exercise in the representation of a client is that degree of care, skill, and diligence that is exercised by prudent practicing attorneys in his locality. Teague v. St. Paul Fire &Marine Ins. Co., 2006-1266 (La.App. 1 Cir. 4/7/09), 10 So.3d 806, 821, writ denied, 2009-1030 (La. 6/17/09), 10 So.3d 722. Regarding the proof necessary to establish the requisite standard of care, expert testimony is admissible, and in certain cases may be essential. See Frisard, 979 So.2d at 497, citing Watkins v. Sheppard, 278 So.2d 890, 892 (La.App. 1 Cir. 1973). In many cases, however, the trial court, which is of necessity familiar with the standards of practice in its community, is competent to make such a determination without the assistance of expert witnesses. There may also be cases in which the failure of the practitioner to use due care under any reasonable standard of conduct may be so obvious as to make expert testimony unnecessary. Frisard v. State Farm Fire &Casualty Co., 2006-2353 (La.App. 1 Cir. 11/2/07), 979 So.2d 494, 497, citing Watkins, 278 So.2d at 892.
Pertinent to this matter, this court in Watkins, 278 So.2d 890, found expert testimony was unnecessary to establish negligence where the attorney failed to investigate to determine the date of the accident, resulting in dismissal of the plaintiff's suit on the basis of prescription. See Watkins, 278 So.2d at 892. Consistent with Watkins, the Louisiana Supreme Court in Jenkins v. St. Paul Fire &Marine Ins. Co., 422 So.2d 1109 (La. 1982) wrote:
[O]nce the client has proved that his former attorney accepted employment and failed to assert the claim timely, then the client has established a prima facie case that the attorney's negligence caused him some loss, since it is unlikely the attorney would have agreed to handle a claim completely devoid of merit. In such a situation, a rule which requires the client to prove the amount of damages by trying the "case within a case" simply imposes too great a standard of certainty of proof. Rather, the more logical approach is to impose on the negligent attorney, at this point in the trial, the burden of going forward with evidence to overcome the client's prima facie case by proving that the client could not have succeeded on the original claim, and the causation and damage questions are then up to the jury to decide. Otherwise, there is an undue burden on an aggrieved client, who can prove negligence and causation of some damages, when he has been relegated to seeking relief by the only remedy available after his attorney's negligence precluded relief by means of the original claim.
Accordingly, when the plaintiff (as in this case) proves that negligence on the part of his former attorney has caused the loss of the opportunity to assert a claim and thus establishes the inference of causation of damages resulting from the lost opportunity for recovery, an appellate court (viewing the evidence on the merits of the original claim in the light most favorable to the prevailing party in the trial court) must determine whether the negligent attorney met his burden of producing sufficient proof to overcome plaintiff's prima facie case.(Internal citations omitted); Jenkins, 422 So.2d at 1110. More recently, this court applied the Louisiana Supreme Court's Jenkins analysis in Benware v. Means, 98-0203 (La.App. 1 Cir. 5/12/00), 760 So.2d 641, 649-50, writ denied, 2000-2215 (La. 10/27/00), 772 So.2d 650.
Applicable Prescriptive Periods
Discrimination claims brought under the LEDL are subject to a one-year prescriptive period. See LSA-R.S. 23:303(D). The one-year prescriptive period is "suspended during the pendency of any administrative review or investigation"; however, no such suspension may exceed six months. Thus, the "maximum" amount of time that a plaintiff is afforded to file suit under the LEDL is 18 months. See LSA-R.S. 23:303(D); Briggs v. Florida Parishes Juvenile Justice Commission, 2017-1189 (La.App. 1 Cir. 3/12/18), 244 So.3d 438, 440. In contrast, there is no prescriptive period specifically set out in the Louisiana Whistleblower Statute. See LSA-R.S. 23:967. Thus, the general one-year prescriptive period for delictual actions provided in LSA-C.C. art. 3492 applies, and prescription commences to run from the day the injury or damage is alleged to have been sustained. Clark v. Auger Services, Inc., 443 F.Supp.3d 685, 712 (M.D. La. 2020).
Regarding the date prescription begins to run, in Eastin v. Entergy Corp., 20031030 (La. 2/6/04), 865 So.2d 49, 53-54, the Louisiana Supreme Court recognized that under the two seminal United States Supreme Court cases, Chardon v. Fernandez, 454 U.S. 6, 102 S.Ct. 28, 70 L.Ed.2d 6 (1981) and Delaware State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980), and their progeny, "it is well settled that the damage is sustained in any employment discrimination case at the earlier of the date the employee is informed of his termination or his actual separation from employment." Eastin noted, "These courts have correctly reasoned that the discriminatory act and, hence, the damages occur upon the employee's first notice of the adverse employment action." Eastin, 865 So.2d at 54.
Discussion
In this matter, Ms. Bias moved for partial summary judgment on the issue of liability, contending there were no genuine issues of material fact and that she was entitled to judgment as a matter of law finding Appellants liable to her for damages she sustained as a result of Appellants' legal malpractice. As the mover, Ms. Bias bore the initial burden of proving her entitlement to summary judgment as a matter of law. See LSA-C.C.P. art. 966(D)(1). In the event Ms. Bias successfully proved negligence on the part of Appellants, resulting in the loss of her opportunity to assert her claims, her showing would establish an inference of causation of damages resulting from the lost opportunity for recovery. See Jenkins, 422 So.2d at 1110. Thus, the burden would shift to Appellants to produce factual support sufficient to establish that Ms. Bias could not have succeeded on her original claim and was not entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(D)(1); Jenkins, 422 So.2d at 1110.
In support of her motion for summary judgment, Ms. Bias offered Appellants' answer to her petition for damages and her affidavit, together with numerous exhibits corroborating the statements she made in her affidavit. Said exhibits included Appellants' January 29, 2018 representation letter on behalf of Ms. Bias to the Equal Employment Opportunity Commission (EEOC); the EEOC's February 15, 2018 Notice of Right to Sue, addressed to Ms. Bias and carbon copied to Appellants; the August 14, 2018 Civil Cover Sheet, dated and signed by "Ronald S. Haley, Jr.," filed on Ms. Bias's behalf in the Middle District, which reflected Appellants' assertion to the Middle District that the value of Ms. Bias's claims exceeded $75,000; CF Industries' motion to dismiss Ms. Bias's discrimination and retaliation suit; and the Middle District's July 15, 2019 Ruling and Order dismissing Ms. Bias's discrimination and retaliation suit.
In Ms. Bias's affidavit, she attested that she was notified her employment with CF Industries was being terminated on January 31, 2017; that she retained Appellants to represent her in her discrimination and retaliation suit against CF Industries; that Appellants did not institute suit in the Middle District on her behalf until August 14, 2018; and that her claims were dismissed with prejudice on the basis of prescription, causing her damages. All of these attestations were corroborated by the January 29, 2018 representation letter, the Civil Cover Sheet, Appellants' answer, CF Industries' motion to dismiss, and the Middle District's July 15, 2019 Ruling and Order dismissing Ms. Bias's claims.
It is undisputed that Appellants agreed to represent Ms. Bias regarding her LEDL and Whistleblower claims. These claims were based on CF Industries notifying Ms. Bias that her employment was terminated on January 31, 2017. Prescription began to run on the date Ms. Bias was notified of the termination, regardless of whether her employment ceased on that date or a later date. Accordingly, Appellants had until January 31, 2018 to institute suit as to Ms. Bias's Whistleblower claims and until July 31, 2018 to institute suit as to Ms. Bias's LEDL claims. See LSA-C.C. art. 3492; LSA-R.S. 23:967; LSA-R.S. 23:303(D); Eastin, 865 So.2d at 54; Clark, 443 F.Supp.3d at 712. Appellants admitted in their answer that suit was not instituted on Ms. Bias's behalf until August 14, 2018. Further, as evidenced by Ms. Bias's exhibits, that suit was dismissed with prejudice because it was not timely filed. Therefore, there is no question that Appellants' negligence caused Ms. Bias to lose the opportunity to assert her claims.
We note that the Middle District's July 15, 2019 Ruling and Order indicates Ms. Bias opposed CF Industries' motion to dismiss by arguing that she signed a severance agreement on February 24, 2017, and her employment was not actually terminated until after that date. However, under Eastin, "the discriminatory act and, hence, the damages occur upon the employee's first notice of the adverse employment action." Eastin, 865 So.2d at 54. Thus, allegations regarding events that purportedly occurred after Ms. Bias received notice of her termination on January 31, 2017 are irrelevant to our analysis.
Accordingly, we find that Ms. Bias offered sufficient evidence to establish a lack of genuine issues of material fact, and that she is entitled to judgment as a matter of law. Ms. Bias proved negligence on the part of Appellants, and is therefore entitled to an inference of causation of damages resulting from the lost opportunity for recovery. See Jenkins, 422 So.2d at 1110. Thereafter, the burden shifted to Appellants to produce factual support to establish the existence of a genuine issue of material fact or that Ms. Bias is not entitled to judgment as a matter of law. See LSA-C.C.P. art. 966(D)(1).
It is plain in the record, and Appellants concede, that Appellants did not offer any evidence in opposition to Ms. Bias's motion for partial summary judgment. And, while the trial court permitted Appellants to argue at the hearing of the summary judgment, argument of counsel, no matter how artful, is not evidence. See Tour Holdings, L.L.C, v. Larre, 2018-0503 (La.App. 1 Cir. 12/6/18), 267 So.3d 735, 738. Moreover, the legal arguments Appellants advance on appeal lack merit. While Appellants argue that Ms. Bias was required to present expert testimony and to establish the damages she suffered, these arguments are inconsistent with the jurisprudence. See Frisard, 979 So.2d at 497; Watkins, 278 So.2d at 892; Jenkins, 422 So.2d 1109.
Appellants also argue that Ms. Bias waived her right to seek damages for legal malpractice because she did not pursue an appeal of the Middle District's judgment dismissing her claims with prejudice. However, the Louisiana Supreme Court has held that a party does not waive its right to file a legal malpractice suit by not filing an appeal of an underlying judgment unless it is determined a reasonably prudent party would have filed an appeal, given the facts known at the time and avoiding the temptation to view the case through hindsight. MB Indus., LLC v. CNA Ins. Co., 2011-0303 (La. 10/25/11), 74 So.3d 1173, 1182-83. The Supreme Court explained that Louisiana law does not impose a per se rule requiring an appeal before a malpractice action may be filed because such rule would be untenable, because there are many types of malpractice which would effectively preclude any possibility of a successful appeal, and there is no benefit in requiring an aggrieved party to file a frivolous appeal. MB Indus., LLC, 74 So.3d at 1176, 1182. Pertinent to this matter, the Supreme Court gave the following example: "For instance, if an attorney neglects to file a petition before the expiration of a prescriptive period, the client would have no remedy on appeal." MB Indus., LLC, 74 So.3d at 1182. Here, because Appellants neglected to institute suit on Ms. Bias's behalf before the expiration of the prescriptive periods, Ms. Bias would have no remedy on appeal. Ms. Bias did not waive her right to seek damages for legal malpractice by refraining from filing a frivolous appeal.
Having conducted a thorough de novo review of the record before us, we find the trial court properly granted summary judgment in favor of Ms. Bias. This assignment of error lacks merit.
We note Appellants' argument that the motion for summary judgment was improperly noticed and was not properly before the trial court because the date of the hearing was unclear. However, as pointed out by Ms. Bias, Appellants failed to raise this argument to the trial court. Appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Therefore, this issue is not properly before us and we need not consider it. Graham v. Offshore Specialty Fabricators, Inc., 2009-0117 (La.App. 1 Cir. 1/8/10), 37 So.3d 1002,1011. Nevertheless, we point out that the rule to show cause, dated October 5,2021, stated the summary judgment hearing was set for "the 14 day of MARCH 20217" Appellants could not have reasonably believed the trial court intended to set the summary judgment hearing for a date in the past. Moreover, in the unlikely event Appellants truly were unsure of the date they were noticed to appear, Appellants should have sought clarification from the trial court. Accordingly, we find this notice was sufficient.
SECOND ASSIGNMENT OF ERROR
Appellants maintain that the trial court erred in denying the motion for new trial of Ms. Bias's motion for summary judgment on the issue of liability. Peremptory grounds for a trial court's grant of a new trial exist when the judgment appears clearly contrary to the law and the evidence, when a party discovers new evidence that could not have been discovered before or during trial, or when impartial justice was not done because the jury was bribed or behaved improperly. See LSA-C.C.P. art. 1972. Discretionary grounds for a new trial exist "in any case if there is good ground therefor, except as otherwise provided by law." LSA-C.C.P. art. 1973. The trial court's discretion in ruling on a motion for new trial is great, and its decision will not be disturbed on appeal absent an abuse of that discretion. Smith v. Funderburk, 2021-0134 (La.App. 1 Cir. 12/22/21), 340 So.3d 59, 64, writ denied. 2022-00173 (La. 3/22/22), 334 So.3d 756.
Having already considered the merits of Ms. Bias's motion for partial summary judgment and found the trial court properly granted same, we likewise find no merit in Appellants' argument that a new trial is warranted because the judgment is contrary to the law and the evidence. Regarding Appellants' argument that a new trial is warranted because additional evidence not available at the trial became available, Appellants did not identify or offer any such additional evidence. Finally, Appellants argue that a new trial was warranted because their newly enrolled counsel was denied the opportunity to present argument or evidence. However, pursuant to LSA-C.C.P. art. 966(B)(2), any opposition to the motion for summary judgment and all documents in support of the opposition were required to be filed and served not less than fifteen days prior to the hearing of the motion. As no opposition was filed, and argument of counsel is not evidence, see Tour Holdings, L.L.C., 267 So.3d at 738, the trial court could not have properly considered any arguments or evidence Appellants' new counsel may have offered. Accordingly, having thoroughly reviewed the record before us, we find no abuse of discretion in the trial court's judgment denying Appellants' motion for new trial. This assignment of error lacks merit.
THIRD AND FOURTH ASSIGNMENTS OF ERROR
Appellants' third and fourth assignments of error are that the trial court erred in denying the motions to continue the hearings of the motion for summary judgment and the motion for new trial, respectively. Generally, the trial court may grant a continuance on peremptory or discretionary grounds. LSA-C.C.P. arts. 1601 and 1602. There are only two peremptory grounds for a continuance: (1) the party seeking the continuance, despite due diligence, has been unable to obtain material evidence; or (2) a material witness is absent without the contrivance of the party applying for the continuance. LSA-C.C.P. art. 1602. Absent peremptory grounds, a discretionary continuance may be granted "if there is good ground therefor." See LSA-C.C.P. art. 1601; Matter of Succession of Patin, 2021-1461 (La.App. 1 Cir. 11/4/22), 355 So.3d 45,48, writ denied, 2023-00011 (La. 3/28/23), 358 So.3d 513. The record before us does not reveal that there were any peremptory grounds for a continuance in this case. Consequently, a continuance rested within the sound discretion of the trial court. See Patin, 355 So.3d at 48. Specifically concerning the continuance of a hearing of a motion for summary judgment, LSA-C.C.P. art. 966(C)(2) states, "For good cause shown, the court may order a continuance of the hearing."
Regarding the motion to continue the hearing of the motion for summary judgment, Appellants argue the hearing should have been continued in order to allow for adequate representation and to ensure Appellants' day in court. Appellants contend the denial of the motion to continue the summary judgment "essentially and effectively deprived [Appellants] of its day in court and its ability to defend itself in these proceedings." Appellants contend their prior counsel was suspended from the practice of law during the pendency of the hearing, and a continuance would not have prejudiced Ms. Bias. However, as stated above, pursuant to LSA-C.C.P. art. 966(B)(2), any opposition to the motion and all documents in support of the opposition were required to be filed and served not less than fifteen days prior to the hearing of the motion. In this matter, no opposition was filed, and argument of counsel is not evidence. See Tour Holdings, L.L.C., 267 So.3d at 738. As there were no arguments or evidence Appellants' new counsel may have offered which the trial court could have properly considered, the trial court did not abuse its discretion in denying Appellants' motion to continue the motion for summary judgment.
The transcript of the March 14, 2022 hearing does not reference an oral motion to continue the summary judgment hearing until after the trial court ruled on Ms. Bias's summary judgment motion. However, both Appellants and Ms. Bias reference the oral motion to continue, and the trial court's denial thereof, in briefs on appeal.
With respect to the motion to continue the hearing of the motion for new trial, Appellants maintain that current counsel suffered two separate asthma attacks that rendered her physically unable to speak and/or severely limited her ability to speak on the date of the hearing. Appellants maintain that the trial court was aware of counsel's condition, and her condition warranted a continuance. The trial court, in denying Appellants' request for a continuance, noted that there was no reason to continue the hearing on the motion for new trial, because the motion for new trial did not raise any grounds warranting a new trial. Having found no error in the trial court's finding of no good cause to grant a new trial, we likewise find the trial court did not abuse its discretion in denying Appellants' motion to continue the motion for new trial. These assignments of error lack merit.
SANCTIONS FOR FRIVOLOUS APPEAL
In her appellee brief, Ms. Bias requests that Appellants be sanctioned for frivolous appeal causing further delay of the proceedings. The proper procedure for an appellee to request frivolous appeal damages is to file either an answer to the appeal or a cross appeal. LSA-C.C.P. art. 2133; Donaldson v. Guidry, 2021-1569 (La.App. 1 Cir. 7/8/22), 345 So.3d 433,438, writ denied. 2022-01208 (La. 11/8/22), 362 So.3d 422. Since a brief constitutes neither, an appellee cannot recover damages for taking a frivolous appeal if the damages are first requested in the appellee's brief. Therefore, the request that Appellants be sanctioned for frivolous appeal is denied. Donaldson, 345 So.3d at 438-39.
CONCLUSION
For the foregoing reasons, the August 14, 2023 judgment of the trial court is affirmed. Costs of this appeal are assessed to Ronald S. Haley, Jr., Attorney at Law, and Haley &Associates, Attorneys at Law, LLC.
AFFIRMED.
MILLER, J., dissenting in part
I agree with the majority decision herein affirming the August 14, 2023 amended judgment of the trial court, which granted summary judgment in favor of Katina C. Bias ("Ms. Bias") and against Haley &Associates, Attorneys at Law ("Haley &Associates"). However, I dissent from the majority decision affirming the August 14, 2023 amended judgment of the trial court insofar as it granted summary judgment in favor of Ms. Bias and against Ronald S. Haley, Jr. ("Mr. Haley").
Louisiana Code of Civil Procedure article 966 provides, in part, that a plaintiffs motion for summary judgment may be filed at any time after the answer has been filed, and the defendant's motion for summary judgment may be filed at any time. La. C.C.P. art. 966(A)(1). Thus, a plaintiff may not properly move for summary judgment until after an answer has been filed. Deutsche Bank Nat. Trust Co. v. Thomas. 2010-1453 (La.App. 1st Cir. 2/11/11), 57 So.3d 1185, 1188; Hill v. Lopez, 2005-0182 (La.App. 1st Cir. 2/22/06), 929 So.2d 80, 83.
I note that in Magee v. National Fire Ins. Co. of Hartford, 2007-0474 (La.App. 1st Cir. 2/8/08), 2008 WL 426285, *2 n.3 (unpublished), this court stated a defendant waives his objection to the plaintiff's motion for summary judgment being filed before the answer when the defendant files an opposition to the plaintiffs motion for summary judgment. However, in this case, Mr. Haley did not file an opposition to Ms. Bias's motion for summary judgment.
On November 5, 2019, Haley &Associates filed an answer, and Mr. Haley filed an exception of no right of action. Thereafter, on December 10,2019, Mr. Haley filed a motion and order to withdraw his exception of no right of action, which was signed by the trial court on December 11, 2019. Mr. Haley did not file an answer after his motion and order to withdraw the exception was signed. Ms. Bias then filed her motion for summary judgment on October 6, 2021. Mr. Haley did not file an opposition to the motion. The record in this matter reveals that Ms. Bias's summary judgment motion was acted on prior to issue being joined in contravention of the provisions of La. C.C.P. art. 966(A), as an answer was not filed by Mr. Haley. See Ring v. State, Dept of Transp. & Development, 2002-1367 (La. 1/14/03), 835 So.2d 423, 428. Accordingly, I dissent from the majority decision affirming summary judgment in favor of Ms. Bias and against Mr. Haley.