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RICHARD RAYMUS RONDENO VERSUS

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NO. 2012-CA-1203 COURT OF APPEAL

* THE LAW OFFICE OF WILLIAM S. VINCENT, JR., WILLIAM S. VINCENT, V. JACOB GARBIN, W. JARED VINCENT AND ABC INSURANCE COMPANY FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2010-03214, DIVISION "H-12" Honorable Michael Bagneris, Judge ****** PAUL A. BONIN JUDGE ****** (Court composed of Judge Paul A. Bonin, Judge Madeleine M. Landrieu, Judge Sandra Cabrina Jenkins) LANDRIEU, J., CONCURS IN THE RESULT. Richard R. Rondeno 10451 Huffmeister Rd., Apt. 405 Houston, TX 77065 PLAINTIFF/APPELLANT (IN PROPER PERSON) John A. Stewart, Jr. BALDWIN HASPEL BURKE & MAYER, LLC 1100 Poydras Street 3600 Energy Centre New Orleans, LA 70163--2200 David S. Daly ALLEN & GOOCH, ALC 3900 North Causeway Boulevard Suite 1450 One Lakeway Center Metairie, LA 70002 COUNSEL FOR DEFENDANT/APPELLEE AFFIRMED MARCH 13, 2013

Richard Rondeno engaged William S. Vincent, Jr., an attorney, and other lawyers associated1 with Mr. Vincent to represent him in a claim for damages arising out of a maritime accident. Apparently unsatisfied with his representation by the Vincent lawyers, Mr. Rondeno engaged replacement lawyers to pursue his maritime claim and then filed a legal malpractice claim against the Vincent lawyers. The initial basis of his legal malpractice claim was that the Vincent lawyers had failed to timely join as a party defendant in his federal lawsuit in Louisiana the owner of the vessel on which Mr. Rondeno was injured; he now also argues that the Vincent lawyers filed his lawsuit in a court without jurisdiction and proper venue. While this legal malpractice suit was pending, the replacement lawyers added the vessel owner to the pending lawsuit. Mr. Rondeno, however, apparently discharged the replacement lawyers and began handling his maritime lawsuit without the assistance of counsel. Importantly for the purposes of this appeal, at
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These other lawyers, who are sued along with Mr. Vincent, are William Jared Vincent and Vatroslav Jacob Garbin. The Law Office of William S. Vincent, Jr. was also made a defendant in the suit.

no time during the pendency of the maritime lawsuit in Louisiana was there a judicial finding that the vessel owner was untimely joined as a party defendant. But Mr. Rondeno on his own motion obtained the voluntary dismissal of his pending federal lawsuit in Louisiana and filed a new lawsuit in a federal court in Texas in which he named the vessel owner among others. Shortly after that filing, the federal judge in Texas dismissed with prejudice the lawsuit as prescribed. (We are now informed that the United States Court of Appeals for the Fifth Circuit has affirmed the dismissal and the judgment is final.)2 With respect to the legal malpractice lawsuit, the Vincent lawyers filed a double-barreled exception of peremption and motion for summary judgment. Based upon these pleadings, the trial judge in a single judgment dismissed Mr. Rondenos suit with prejudice because he found that the legal malpractice suit was not filed within the peremptive periods established by La. R.S. 9:5605 A and, independently, that Mr. Rondenos voluntary dismissal of the federal lawsuit in Louisiana waived his right to proceed with his legal malpractice claim. Mr. Rondeno appeals that judgment. Mr. Rondeno, for his part and on the eve of the hearing on the exception and summary judgment motion, filed a motion to amend and supplement his petition to add additional claims.3 The trial judge denied that motion, and Mr. Rondeno appeals from that judgment as well.

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We place this remark in parenthesis to highlight that it is dehors our record. He has sought to raise still more claims in his appellate briefs. See Part IV, post. 2

As a result of our de novo review of the exception of peremption, we are unable to satisfactorily determine whether the Vincent lawyers, while they had responsibility for Mr. Rondenos maritime lawsuit, missed a recognizable deadline for the joinder of the vessel owner, and in the absence of expert testimony we cannot conclude that any knowledge of a missed deadline by the replacement lawyers constituted sufficient discovery of an alleged act to commence the running of the peremptive period against the Vincent lawyers. Thus, we cannot affirm the judgment sustaining the exception of peremption. But also on our de novo review of the summary judgment, we conclude that there is no genuine issue of material fact that a reasonably prudent party, given the facts known at the time and avoiding the temptation of viewing the case through hindsight, on these specific facts would not have voluntarily dismissed his pending maritime lawsuit in Louisiana when he did. And we thus say as a matter of law that Mr. Rondenos failure to mitigate any damages which he might have sustained precludes his maintaining this legal malpractice action against the Vincent lawyers. Accordingly, we affirm the summary judgment dismissing his suit with prejudice. Finally, we review the judgment denying Mr. Rondenos motion to amend and supplement his petition under an abuse-of-discretion standard and conclude that the trial judge did not abuse his discretion in refusing to permit amendment of the petition so as to assert the matters which Mr. Rondeno sought to assert. Thus, we affirm that judgment. We explain our reasoning in greater detail below.
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I We begin our explanation with a review of the operative facts, including important dates. Mr. Rondeno was a longshore worker. He claimed to have been injured on May 29, 2005, while working aboard the M/V ISLAND OASIS which at the time was physically situated at the Nashville Street wharf in Orleans Parish, which is, of course, in the territory of the United States District Court for the Eastern District of Louisiana. On May 28, 2008, the Vincent lawyers filed suit on Mr. Rondenos behalf in the Eastern District of Louisiana, claiming monetary damages under maritime law including a longshore workers claim under 33 U.S.C.

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