206 So. 3d 970
La. Ct. App.2016Background
- Nathaniel and Kecia Joseph sued attorney Gerald D. Wasserman alleging he orchestrated transactions that stripped them (and intervenors Lucinda and Frank Mitchell and Mitchell Fruit Stand, Inc.) of property and proceeds, using documents he or his firm prepared (sales, mortgages, HUD statements, pledges, promissory notes).
- Mitchells intervened, adopting the Josephs’ allegations and asserting additional fraud, misrepresentation, conversion, overcharges, and manipulated HUD statements; documentary exhibits were attached to both petitions.
- Wasserman filed exceptions of vagueness to the Josephs’ petition and to the Mitchells’ petition; the trial court maintained the exception as to the Josephs’ petition and gave them 15 days to amend or be dismissed.
- The Josephs attempted to amend, retained and then lost counsel, and moved for leave to file a second amended petition; hurricane Katrina and procedural delays followed.
- The trial court ultimately denied leave to amend and dismissed all claims; plaintiffs appealed the dismissal and the interlocutory maintenance of the vagueness exception.
- The appellate court reversed the trial court’s maintenance of the exception of vagueness, finding the petitions and attached documents sufficiently informed Wasserman to prepare a defense, and remanded for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the petition met La. C.C.P. art. 891’s requirement of a short, clear, concise statement of causes of action and material facts | Josephs alleged specific transactions, attached documents prepared by Wasserman, and identified fraud and loss of property; attachments supply needed particulars | Wasserman argued the petitions were vague and lacked material facts necessary to prepare a defense, warranting dismissal unless amended | Court held petitions (with attachments) fairly informed defendant and reversed the maintenance of the exception of vagueness; remanded |
| Whether interlocutory maintenance of exception was reviewable on appeal alongside final dismissal | Plaintiffs appealed the final dismissal and sought review of prior interlocutory rulings | Wasserman relied on interlocutory nature of exception ruling | Court reviewed interlocutory ruling because a final, appealable judgment (dismissal) was rendered; addressed correctness of prior interlocutory judgment |
| Whether plaintiffs timely amended after the court’s order and whether dismissal was proper on that basis | Plaintiffs contend they sought leave to amend and had filed motions; procedural disruptions (counsel withdrawal, Katrina) impeded amendment | Wasserman argued plaintiffs failed to timely amend as ordered, justifying dismissal | Court did not reach merits of dismissal for failure to amend because it reversed the underlying exception of vagueness that led to the dismissal |
| Sufficiency of documentary exhibits to cure vagueness and enable defense preparation | Plaintiffs attached numerous documents (acts of sale, mortgages, HUDs, notes) prepared by Wasserman showing the transactions and alleged discrepancies | Wasserman maintained that more exactitude/detail was required beyond the attachments | Court found attachments provided sufficient particulars for a defense; exception of vagueness improperly maintained |
Key Cases Cited
- People of the Living God v. Chantilly Corp., 207 So.2d 752 (La. 1968) (interlocutory judgments that do not cause irreparable harm are not appealable; prior interlocutory rulings can be reviewed after a final appealable judgment)
- Smart v. Gold, Weems, Bruser, Sues and Rundell, 955 So.2d 263 (La. App. 3 Cir. 2007) (examines scope of dilatory exception of vagueness and when petition provides sufficient particulars to prepare a defense)
- Joseph v. Wasserman, 194 So.3d 720 (La. App. 4 Cir. 2016) (procedural history noting appellate disposition concerning abandonment and vacatur of a judgment on appeal)