237 So. 3d 14
La. Ct. App.2018Background
- Nathaniel Joseph and Kecia Esteen sued their former attorney Gerald Wasserman for legal malpractice (filed Dec. 2004). A May 2006 dismissal was entered; the Josephs sought appeal but their appeal paperwork was not signed until 2016.
- The Josephs filed Chapter 7 bankruptcy in July 2013 and did not disclose the malpractice claim as a bankruptcy-estate asset.
- This court previously vacated the trial court's action declaring the appeal abandoned and ordered the trial court to sign the timely-filed appeal (Joseph I), then later reversed the May 2006 dismissal and remanded (Joseph II).
- In Jan. 2017 Wasserman filed a partial exception of no right of action (and moved for partial summary judgment), arguing the bankruptcy trustee, not the Josephs, held the right to pursue the malpractice claim.
- The trial court’s May 3, 2017 judgment conditionally granted the exception, stayed the Josephs’ claims, ordered notice to the bankruptcy trustee, and deferred ruling on the summary-judgment motion as moot.
- The Josephs appealed the May 2017 judgment; the appellate court concluded the judgment was conditional/interlocutory and non-appealable, and dismissed the appeal and Wasserman’s answer, remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the May 2017 judgment is appealable | Josephs contended they timely appealed the trial court order and sought appellate review | Wasserman maintained the judgment was conditional and, in substance, deprived the Josephs of the right to pursue the claim because the trustee is the proper party | Judgment is conditional/interlocutory and not appealable; appellate court dismissed the appeal |
| Whether the bankruptcy trustee became the sole proper party to pursue the malpractice claim | Josephs argued they retained the right to pursue the claim (and sought relief) | Wasserman argued nondisclosure in bankruptcy vested the claim in the trustee, depriving the Josephs of standing | Court treated that contention as the basis for the conditional stay and notice to trustee but did not reach a final adjudication; trustee intervention occurred after judgment |
| Whether the appeal should be converted to a supervisory writ | Josephs timely filed within the writ period and urged immediate review | Wasserman opposed conversion (or relied on merits below) | Court declined conversion: although timeframe met, immediate decision would not terminate litigation and an adequate remedy by appeal exists upon entry of an unconditional judgment |
| Whether appellee’s answer to the appeal is subject to dismissal for lack of jurisdiction | Josephs did not directly argue here | Wasserman sought affirmative relief via an answer to the appeal | Appellate court dismissed Wasserman’s answer as it rested on the same non-appealable judgment and was filed beyond the writ deadline |
Key Cases Cited
- Joseph v. Wasserman, 194 So.3d 720 (La. App. 4th Cir. 2016) (vacating trial court declaration of abandoned appeal and ordering appeal signed)
- Joseph v. Wasserman, 206 So.3d 970 (La. App. 4th Cir. 2016) (reversing May 2006 dismissal and remanding)
- Keller v. Aymond, 702 So.2d 1387 (La. 1997) (dismissal of direct appeal from a judgment held conditionally unconstitutional)
- Falgoust v. Luck, 477 So.2d 822 (La. App. 5th Cir. 1985) (conditional judgment is interlocutory and non-appealable)
- Board of Supervisors of Louisiana State Univ. & Agric. & Mech. Coll. v. Mid City Holdings, L.L.C., 151 So.3d 908 (La. App. 4th Cir. 2014) (valid judgment must be precise, definite, and certain)