Palumbo v. Shapiro
81 So. 3d 923
La. Ct. App.2011Background
- Palumbo sued several attorneys and insurers for legal malpractice alleging failure to prevent abandonment of a prior personal injury case (2000 dismissal for abandonment).
- A jury returned a special verdict with inconsistent answers; the trial judge did not instruct further deliberations and entered judgment reflecting inconsistent jury results.
- Both Palumbo and the attorney-defendants moved for a new trial; the trial judge granted a new trial and dismissed Palumbo’s suit with prejudice.
- On de novo review, the appellate court held the new-trial grant proper but the dismissal with prejudice was erroneous, and remanded for a new trial.
- The jury's special verdict allocated fault to various parties, including Palumbo, without consistent attorney-client relationship findings for some defendants.
- The court concluded the record requires viewing witnesses and remanding for a new trial rather than rendering judgment on the conflicting record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by not returning the jury for further deliberation on inconsistent answers. | Palumbo argues the court should have sent the jury back for clarification. | Defendants contend the court correctly granted a new trial due to inconsistency. | Trial court error; remanded for a new trial. |
| Whether the court could disregard the jury’s fault apportionment to render judgment for defendants. | Palumbo contends Article 1813 E requires remand or new trial when inconsistencies exist. | Defendants rely on Article 1813 D to disregard fault apportionment as a general verdict. | Disregard of fault apportionment was improper; remand for new trial required. |
| Whether de novo review is appropriate when the record contains conflicting testimony. | Palumbo seeks independent review to determine a preponderance of the evidence. | Defendants argue for judicial resolution consistent with prior directives. | De novo review necessary; remand for new trial due to essential witness credibility views. |
Key Cases Cited
- Ferrell v. Fireman’s Fund Ins. Co., 650 So.2d 742 (La. 1995) (inconsistent special verdicts require Article 1813 E guidance)
- Stevens v. Scottsdale Insurance Company, 672 So.2d 1031 (La.App. 4 Cir. 1996) (disallowed entry of judgment on inconsistent findings; remanded)
- Diez v. Schwegmann Giant Supermarkets, Inc., 657 So.2d 1066 (La.App. 1 Cir. 1995) (apportionment treated as general verdict; supports deference to Ferrell)
- Input/Output Marine Systems, Inc. v. Wilson Greatbatch Technologies, Inc., 52 So.3d 909 (La.App. 5 Cir. 2010) (final judgment must be decretal and properly styled)