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ROLAND P. JONES                                                            *   NO. 2005-CA-0289
VERSUS                                                                     *   COURT OF APPEAL
THE LAW OFFICES OF                                                         *   FOURTH CIRCUIT
ANTHONY G. BUZBEE, P.C.,
ANTHONY G. BUZBEE,                                                         *   STATE OF LOUISIANA
STERN, MILLER & HIGDON,
AND JEFFREY M. STERN,                                                      *
RAMSEY JONES AND
CLARENCE JONES                                                             *
*
APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2004-4986, DIVISION “A-5”
Honorable Carolyn Gill-Jefferson, Judge
Charles R. Jones
Judge
(Court composed of Judge Charles R. Jones, Judge Dennis R. Bagneris Sr.,
and Judge Edwin A. Lombard)
Timothy J. Falcon
Jeremiah A. Sprague
Heather S. Bruser
FALCON LAW FIRM
5044 Lapalco Boulevard
Marrero, LA   70072
COUNSEL FOR ROLAND P. JONES
Mark A. Myers
Mary B. Lord
PAJARES & SCHEXNAYDRE, L.L.C.




103 Northpark Boulevard, Suite 110
Covington, LA   704336103
COUNSEL FOR JEFFREY M. STERN
AND STERN, MILLER & HIGDON
James A. Brown
Carey L. Menasco
LISKOW & LEWIS, PLC
701 Poydras Street
Suite 5000, One Shell Square
New Orleans, LA   701395099
COUNSEL FOR ANTHONY G. BUZBEE
AND THE BUZBEE LAW FIRM, P.C.
REVERSED
The present matter arises out of a suit for legal malpractice.  Mr.
Roland P. Jones, the Appellant, appeals the judgment of the district court in
favor of the named Appellees: Anthony Buzbee; the Law Offices of
Anthony Buzbee, P.C.; Jeffery Stern; and Stern, Miller, and Higdon, which
sustained their Declinatory Exceptions of Improper Venue.    We Reverse.
FACTS AND PROCEDURAL HISTORY:
Roland P. Jones and a co-worker, James Billy Lafleur, were both
severely injured while working on an offshore vessel owned by Tidewater
Marine, L.L.C.  The accident occurred off the coast of Louisiana in the Gulf




of Mexico on or about March 19, 2002.    Roland P. Jones, in particular, was
totally and permanently disabled.  As a result of the accident, both he and
Mr. Lafleur filed claims for benefits under the Longshore and Harbor
Workers’ Compensation Act, 33 U.S.C. § 901, et seq., with the United States
Department of Labor Office of Workers’ Compensation Programs located in
New Orleans, Louisiana.
At the behest of the named Appellees, Ramsey Jones and Clarence
Jones (hereinafter “the Jones Brothers”),  Roland P. Jones and Mr. Lafleur
retained the
law firm of Stern, Miller, and Higdon (hereinafter referred to as “Stern
Law”), which is located in the state of Texas, to file suits for maritime
claims for the personal injuries they sustained as a result of the accident.
Roland P. Jones and Mr. Lafleur signed Engagement Agreements at Stern
Law to retain Stern Law as legal counsel.  In turn, Stern Law retained the
Law Offices of Anthony Buzbee (hereinafter referred to as   “Buzbee Law”),
also a Texas law firm, as additional counsel.
In April 2002, Buzbee Law filed separate actions on behalf of Roland
P. Jones and Mr. Lafleur.  The actions were filed against Tidewater Marine,
L.L.C., as owner and operator of the vessel, in the U.S. District Court for the
Southern District of Texas, Galveston Division.




However, on May 7, 2003, the Texas court sua sponte made the
determination that the matter was in an improper venue and transferred
Roland P. Jones’ case to the U.S. District Court for the Eastern District of
Louisiana, while Mr. Lafleur’s case remained in the Texas court.  After the
order to transfer Roland P. Jones’ case was signed by the U.S. District Court,
his attorneys negotiated a settlement of his lawsuit.  In June 2003, Roland P.
Jones and Mr. LaFleur both signed settlement documents in Texas for their
personal injury lawsuits.  The settlement funds were also disbursed in Texas.
However, during the course of the underlying suit, Roland P. Jones
received
medical benefits pursuant to the Longshore and Harbor Workers’
Compensation Act.  He avers that pursuant to the Act, he was entitled to
receive indemnity and medical benefits, but he alleges that he only received
indemnity benefits and did not continue to receive any medical benefits.
Roland P. Jones alleges that in May 2003, during the time his
attorneys settled his case with Tidewater Marine, L.L.C., and other liable
parties, he was advised that he would continue to receive medical benefits
pursuant to the Longshore and Harbor Workers’ Compensation Act.
However, he discovered that his medical benefits were terminated.    He later
learned that his medical benefits were terminated because his attorneys had




settled the lawsuit without the authority or permission of his employer, nor
with the express permission of his employer’s Workers’ Compensation
benefits carrier.    Roland P. Jones alleges that the attorneys were
professionally negligent in settling the suit without notification to the proper
agencies.  He further alleges that the attorneys were solely responsible for
his loss of benefits and that the settlement amount reached in the lawsuit was
grossly inadequate.
On April 2, 2004, Roland P. Jones filed a lawsuit in the Civil District
Court for the Parish of Orleans based on the fact that the alleged legal
malpractice occurred in New Orleans.    The Defendant attorneys and their
law practices filed, inter alia,  Declinatory Exceptions of Improper Venue.
At the hearing on the exceptions, the district court sustained Buzbee
Law’s and Stern Law’s exceptions finding that venue was not proper in
Orleans Parish, and transferred the case to the Sixteenth Judicial District
Court.  The district court concluded that the Texas attorneys’ alleged
misconduct occurred in Texas, even with respect to the failure to file
required forms with the Department of Labor in New Orleans.  This timely
appeal followed.
DISCUSSION
Proper venue is a question of law; therefore, a district court’s ruling




on a declinatory exception of venue is subject to a de novo review on appeal.
Medical Review Panel Proceedings for Claim of Tinoco v. Meadowcrest
Hosp., 03-0272, 03-0273, 03-0274, p.5 (La. App. 4 Cir. 9/17/03), 858 So.2d
99, 103.
As provided in La R.S. 13:3202, venue is proper for a suit on a cause
of
action described in La. R.S. 13:3201 in the parish where the plaintiff is
domiciled, or in any parish of proper venue.  An action for the recovery of
damages for an offense or quasi offense may be brought in the parish where
the wrongful conduct occurred, or in the parish where the damages were
sustained. La. C.C.P. Art. 74.  An action to enjoin the commission of an
offense or quasi offense may be brought in the parish where the wrongful
conduct occurred or may occur. Id.  When an action is brought in a court of
improper venue, the court may dismiss the action, or in the interest of justice
transfer it to a court of proper venue.  La. C.C.P. Art. 121.
The Louisiana Supreme Court discussed the applicable law related to
venue in an action for legal malpractice in Chambers v. LeBlanc, 598 So.2d
337
(La. 1992).  In Chambers, plaintiffs brought a legal malpractice action
against an attorney who was domiciled in Iberville Parish. After the district




court overruled the defendant attorney’s exception of improper venue, the
defendant applied for supervisory writs to the court of appeal, which
affirmed the district court ruling. However, the Louisiana Supreme Court
reversed the district court judgment, maintained the exception, and held:
[w]hen damage is caused to the plaintiff in the
parish where the wrongful conduct occurred, then
that parish is the parish of proper venue under
Article 74, even if the plaintiff is in the parish of
his domicile at the time of the wrongful conduct or
if the damage progresses in the  parish of the
plaintiff's domicile. Belser v. St. Paul Fire &
Marine Insurance Co., 509 So.2d 12 (La.App. 1st
Cir.1987). Here, the wrongful conduct occurred
either in Ascension Parish or East Baton Rouge
Parish, but clearly not in Livingston Parish, which
is therefore not a parish of proper venue under
Article 74.
Chambers v. LeBlanc, 598 So.2d at 337-338.
This Court has also addressed the applicable law related to venue in
an action for legal malpractice.    Specifically, in Brown v. Torres, 617 So.2d
77 (La.App. 4 Cir. 1993), a plaintiff filed a legal malpractice suit against
former attorneys who represented her in an action against an air conditioning
and heating system contractor and manufacturer. The defendant attorneys
filed several exceptions which included, inter alia, improper venue.  The
district court sustained the exception for improper venue, and the plaintiff
appealed. This Court reversed the district court and held that the plaintiff's




allegations of wrongful conduct in the parish where the petition was filed
were sufficient to establish that parish as proper venue for those claims and
other malpractice claims alleged by plaintiff.  Id. at 79. Specifically, we
stated:
Our review of the record, however, reveals
that [the] plaintiff[’s] petition contains an
allegation that defendants failed to timely file a
claim on her behalf in Orleans Parish against
Lennox Industries, an out of state company doing
business in Orleans Parish. Also, the plaintiff lists
the defendants’ acts regarding the suit filed by
them against Barcia's on her behalf as one of the
defendants' actions forming the basis of her
malpractice claim. If these two alleged negligent
acts are part of the plaintiff’s malpractice claim,
then Orleans Parish is a proper venue as the parish
where “wrongful conduct occurred or ... damages
were sustained.” LSA-C.C.P. Art. 74 and
Chambers v. LeBlanc, 598 So.2d at 337-338.
Brown v. Torres, 617 So.2d at 79.
Additionally, this Court has also discussed Chambers while
addressing
a similar venue issue concerning malpractice in Richmond v. Dow, 97-1492,
(La.App. 4 Cir. 4/1/98 ), 712 So.2d 149.    In Richmond, a mother,
individually and on behalf of her child, brought a medical malpractice action
against a physician and others after her child’s shoulder was injured during a
delivery procedure.  The mother brought the action in Orleans Parish, which




was the parish the physician was physically located during the time of the
delivery in Jefferson parish.  This Court held that even though the physician
was at one of his offices at the time he allegedly should have been closely
monitoring his patient's labor in Jefferson parish, there was no negligent act
of commission or omission in the parish in which the malpractice action was
instituted.  Id. at 154.  Ultimately, this Court reversed the district court’s
judgment and maintained the physician’s exception.  Id. at 155.
In Richmond, the venue issue was resolved by examining, or rather
determining, the actual situs of the alleged wrongful conduct with respect to
the commission or omission of the wrongful act.  We stated:
Where Article 74 permits venue ‘in the
parish where the wrongful conduct occurred,’ it
presupposes that the location has some relationship
to the cause of action. For venue purposes it is
often difficult to determine where a ‘sin of
commission’ occurs. The present case raises the
even more interesting and  perplexing question of,
“Where does a sin of omission occur for venue
purposes?” In other words, where the complained-
of negligence consists of a failure to act, rather
than an act negligently performed, we are faced
with the seemingly paradoxical task under Article
74 of determining the location of a non-event.
Three solutions suggest themselves:
1.  The location of the tortfeasor at the
time of the alleged failure to
act.
2.  The place where the omitted act
should have been performed.




3.                                                                               The place where the damage
occurs.
Richmond v. Dow, 712 So.2d  at 153.
Roland P. Jones’ Petition for Damages, the attorneys’ exceptions of
improper venue, and the record establish that: Roland P. Jones was injured
in a maritime accident in the Gulf of Mexico outside the territorial
boundaries of Louisiana and he is a resident of St. Martinville Parish,
Louisiana; the attorneys and their respective law firms are based in the state
of Texas; and the attorneys allegedly employed or contracted with the two
other named parties, the Jones Brothers, also residents of St. Martinville
Parish, to perform services as “runners.”
Although the underlying personal injury suit in this matter involves
multiple defendants with varying domiciles, it is important to keep sight of
the present matter before this Court, and the acts of negligence complained
of in the instant appeal.
In the instant matter, Roland P. Jones argues that venue is proper in
Orleans Parish because of his attorneys’ failure to file certain documents
with the United States Department of Labor Office of Workers’
Compensation Programs, which is located in New Orleans, Louisiana.
Borrowing the test applied in Richmond, the attorneys were located in Texas




at the time they allegedly failed to act; the wrongful act, the filing of the
form with the U.S. Department of Labor, should have occurred in New
Orleans; and the resulting damage occurred in New Orleans because the U.S.
Department of Labor, acting in its official capacity terminated Roland P.
Jones’ medical benefits because the lawyers failed to submit required forms
on Roland P. Jones’ behalf, after the settlement was entered into.
Thus, the matters which gave rise to the instant legal malpractice suit
came about as the result of an omission, or failure to act on the part of the
respective lawyers who had an attorney-client relationship with Roland P.
Jones.  For this reason, we find the Appellant’s argument persuasive.
The record reflects that as a result of the attorneys’ failure to file the
documents with the United States Department of Labor Office of Workers’
Compensation Programs, Roland P. Jones suffered an irreparable loss in the
form of having his benefits cancelled.  It is this act, or rather the failure to
act, which gave rise to the malpractice complained of by Roland P. Jones.
This Court came to a similar conclusion in Johnson v. Tschrin, 94-
0085 (La.App. 4 Cir. 2/25/94), 635 So.2d 254.  In Tschirn, a legal
malpractice suit was filed which alleged that the attorney failed to conduct
discovery and file documents needed to oppose a motion for summary
judgment in a suit pending before the New Orleans Division of the United




States District Court for the Eastern District of Louisiana. The attorney filed
an exception of improper venue and sought transfer of the case. The district
court sustained the exception and transferred the case to another venue.  This
Court granted the plaintiff’s writ application and Reversed, finding that
Orleans Parish, where the alleged wrongful conduct occurred, was the
proper venue for the legal malpractice suit. Id. at 255. We concluded:
In the present case [the] plaintiff is
domiciled in New Orleans, but the basis of venue
in the Civil District Court is that the defendant's
alleged wrongful conduct occurred in New Orleans
when plaintiff allegedly failed to file timely,
appropriate documents in the federal court where
plaintiff's action was pending. Tschirn argues that
the federal court is not located in New Orleans, but
occupies the entire Eastern District of Louisiana
including Jefferson Parish so that the allegedly
wrongful conduct occurred in Jefferson as well as
New Orleans. This argument is without merit
because the required conduct in question, the filing
of documents, had to take place at the federal
courthouse in New Orleans. Therefore, the
wrongful conduct of non-filing took place in New
Orleans just like the non-filing of a timely suit
took place in East Baton Rouge Parish in the
Chambers case.
Johnson v. Tschrin, 635 So.2d at 255.
In its brief, Stern Law cites Stovall v. Carimi, 95-0766 (La.App. 4 Cir.
11/30/95), 667 So.2d 1107, to support its contention that the district court
was correct in sustaining its exception of improper venue.    Stern Law




further contends that since the settlement agreement was confected in Texas,
then the alleged malpractice Roland P. Jones complains of occurred in Texas
as well.
In Stovall, a former client brought a legal malpractice action against
her counsel, the counsel’s firm, and the contract attorney hired by the firm,
for damages allegedly sustained as a result of a structured settlement of an
underlying personal injury suit, and the counsel’s sale of his home to her.
The district court granted both the contract attorney’s exception of no cause
of action, and the counsel and firm’s exception of improper venue.    On
appeal, this Court held, inter alia, that venue for a claim based on a
settlement was proper in the parish in which the settlement agreement was
confected.    Id. at 1112.
However, Stovall is easily distinguishable from the case sub judice
because the basis for Roland P. Jones’ malpractice suit arises out of the
alleged negligence which occurred during the course of the underlying
lawsuit.    In Stovall, the underlying suit had been successfully settled and
there was no allegation by Ms. Stovall that the alleged “tortious conduct”
occurred during the course of the underlying personal injury lawsuit.
Stovall, 667 So.2d at 1112.  Ms. Stovall’s claims arose from alleged
overcharges of expenses and from the structure of the settlement.   Id.  This




Court pointed out that all of the actions Ms. Stovall alleged took place in
Jefferson Parish, not in Orleans Parish. Id.  For those reasons, this Court
affirmed the district court.    However, in the case sub judice, the negligent
conduct complained of arose during the course of the underlying lawsuit and
the alleged omission or failure to act occurred in New Orleans.
Additionally, Roland P. Jones’ brief indicates that he filed his legal
malpractice case in New Orleans, “based on the fact that his attorneys’
negligence occurred in New Orleans.”  We agree.
It is apparent that the act or failure to act complained of in the instant
appeal is the failure to file the documents with the United States Department
of Labor Office of Workers’ Compensation Programs.  Although Buzbee
Law and Stern Law argue that the underlying suit was confected and settled
in Texas and that venue is proper in either the U.S. District Court or the
Louisiana Sixteenth Judicial District Court, the fact remains that a legitimate
legal question exists whether the attorneys may have been remiss in their
fiduciary duty to their client through their alleged failure to follow the
correct procedure for submitting, or rather obtaining approval from the
appropriate authority as required.    In the matter before us, we are presented
with a situation whereby Roland P. Jones’ benefits were dependent upon his
attorneys’ adherence to a mandatory procedure, but the attorneys may have




failed to do so.
Section 933 (g) of the The Longshore Workers’ Compensation Act,
titled “Compensation for injuries where third persons are liable” provides:
(1) If the person entitled to compensation (or the
person's representative) enters into a settlement
with a third person referred to in subsection (a) for
an amount less than the compensation to which the
person (or the person's representative) would be
entitled under this Act, the employer shall be liable
for compensation as determined under subsection
(f) only if written approval of the settlement is
obtained from the employer and the employer's
carrier, before the settlement is executed, and by
the person entitled to compensation (or the
person's representative). The approval shall be
made on a form provided by the Secretary and
shall be filed in the office of the deputy
commissioner within thirty days after the
settlement is entered into.
(2) If no written approval of the settlement is
obtained and filed as required by paragraph
(1), or if the employee fails to notify the
employer of any settlement obtained from or
judgment rendered against a third person, all
rights to compensation and medical benefits
under this Act shall be terminated, regardless of
whether the employer or the employer's insurer has
made payments or acknowledged entitlement to
benefits under this Act.   (emphasis ours)
It is clear that as a result of the failure to file the required forms, Roland P.
Jones lost an estimated $800,000.00 in medical benefits that he may have
been entitled to, and may have received, but for the alleged failures of his




attorneys to follow the statutory procedure.  Notwithstanding, our
jurisprudence has held that “[t]o prove legal malpractice a plaintiff must
show: there was an attorney-client relationship; the attorney was negligent;
and negligence caused the plaintiff some loss.”    Tolis v. Shields, 96-0668
(La.App. 4 Cir. 11/20/96), 684 So.2d 523, 525 (citing Beis v. Bowers, 94-
0178 (La.App. 4 Cir. 1/19/95), 649 So.2d 1094, writ denied 95-0429 (La.
3/30/95), 651 So.2d 847; and Evans v. Detweiler, 466 So.2d 800 (La.App. 4
Cir.1985)).  Therefore, based upon the above discussion, we find that this
assignment of error does have merit.
In his brief, Roland P. Jones also alleges, as part of the malpractice
suit, that the settlement agreement in the underlying personal injury suit was
“grossly inadequate” and that the settlement could have been avoided had
the Appellees associated Louisiana counsel in the litigation.    Roland P.
Jones’ brief, in a footnote, reads: “Plaintiff-Appellant also alleges that
Defendants’ [sic] negligently advised the United States Eastern District of
Louisiana to dismiss the Tidewater case without obtaining a sufficient
amount in settlement to compensate Appellant
for his disability.”    However, since the issues presented in Roland P. Jones’
brief and the corresponding arguments and case law relate to the venue only,
the specific allegations with respect to the inadequate settlement agreement




are not properly before this Court, and are deemed abandoned since they
were not briefed pursuant to Uniform Rules   - Courts Of Appeal 2-12.4.
DECREE
Accordingly, for the reasons stated herein, the district court judgment,
which sustained the Buzbee Law’s and Stern Law’s Exceptions of Improper
Venue, is hereby Reversed.
REVERSED

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