     Case: 12-30853       Document: 00512243178         Page: 1     Date Filed: 05/15/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           May 15, 2013

                                       No. 12-30853                        Lyle W. Cayce
                                                                                Clerk

COLONIAL FREIGHT SYSTEMS, INCORPORATED,

                                                  Plaintiff-Appellant
v.

ADAMS & REESE, L.L.P.,

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                  2:11-cv-1755


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Plaintiff Colonial Freight Systems, Inc. (“Colonial”), appeals from a grant
of summary judgment for defendant Adams & Reese, L.L.P. (“A&R”), on
Colonial’s legal malpractice claim and A&R’s billing counterclaim. Our review
is de novo. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 313 (5th Cir. 2007).
“Summary judgment is proper if the evidence shows that there is no genuine
issue as to any material fact and that the moving party is entitled to judgment
as a matter of law.” Id.

       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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       Under Louisiana law, the three elements of a legal malpractice claim are
(1) the existence of an attorney-client relationship; (2) negligent representation
by the attorney; and (3) loss caused by that negligence. See MB Indus., LLC v.
CNA Ins. Co., 74 So. 3d 1173, 1184 (La. 2011). Although A&R argues that
Colonial’s settlement legally precludes its malpractice suit, we need not resolve
this question because Colonial cannot establish loss causation.
       To prove factual loss causation, a malpractice plaintiff must show that it
suffered a loss that would not have occurred but for its attorney’s negligent acts
or omissions. See Leonard v. Reeves, 82 So. 3d 1250, 1262 (La. Ct. App. 2012). In
Jenkins v. St. Paul Fire & Marine Insurance Co., however, the Louisiana
Supreme Court clarified that “[a] client [who] has proved that his former
attorney . . . failed to assert [a] claim timely” is entitled to a presumption of
“some loss,” thereby shifting the burden to the attorney to disprove the loss. 422
So. 2d 1109, 1110 (La. 1982). The Louisiana First Circuit held in Leonard that
the Jenkins rationale applies “only to . . . the final or complete loss of an
opportunity to assert a legal claim (or . . . present a defense) caused by an
attorney’s negligent failure to comply with the applicable procedural standards.”
82 So. 3d 1250, 1259 (La. Ct. App. 2012).1
       Colonial urges that A&R’s negligent failure to advise the company of its
right to a jury constitutes a failure to assert a defense as described in Jenkins
and Leonard. But in Teague v. St. Paul Fire & Marine Insurance Co., the
Louisiana First Circuit clarified that the loss of a right to a jury is not
comparable to the loss of a substantive claim or defense. 10 So. 3d 806 (La. Ct.
App. 2009). The Teague court reasoned that “[a] procedural right to trial by jury



       1
         The Louisiana Supreme Court’s decision in MB Industries, LLC v. CNA Insurance Co.,
74 So. 3d 1173 (La. 2011), validates Leonard, stating that causation is “an essential element
of any tort claim,” and that a plaintiff continues to bear the initial burden of “establish[ing]
some causal connection” between the negligence and the alleged loss. Id. at 1187.

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                                     No. 12-30853

has no intrinsic economic value,” and that it would be contrary to public policy
to speculate as to whether a jury or judge would, on a given set of facts, act more
(or less) favorably toward a particular litigant. Id. at 840-42 & n.32. We
therefore find that Colonial is not entitled to a Jenkins presumption
       Thus, Colonial was required to establish a causal connection between the
attorney’s negligence and the alleged loss to survive summary judgment. MB
Indus., 74 So. 3d at 1187. However, if a malpractice plaintiff offers only a
speculative theory of loss causation, the defendant is entitled to judgment as a
matter of law. See, e.g., Spellman v. Bizal, 755 So. 2d 1013, 1018 (La. Ct. App.
2000). Colonial’s theory of loss causation hinges on two allegations: that A&R
was negligent (1) by failing to inform Colonial of its right to demand a jury trial
and (2) by engaging in unauthorized communication with opposing counsel and
the trial judge regarding settlement value. Neither is persuasive.
       First, Colonial claims that if A&R had apprised it of its right to a jury
trial, it could have convinced Williams, the plaintiff in the underlying suit, to
stipulate to less than $50,000 in damages, Louisiana’s amount-in-controversy
requirement for jury trials. We find this reasoning unpersuasive, as it not only
flies in the face of the advice given to Colonial about the advisability of a jury
trial,2 but also runs headlong into Teague, which clarified that a plaintiff cannot
create a triable issue on loss causation merely by speculating that a jury would
have been a more favorable trier of fact than a judge. See 10 So. 3d at 841.
       Second, Colonial argues that A&R’s unauthorized suggestion to the trial
judge that the case should settle for $250,000 may have shaded his
recommended $263,000 settlement. Even overlooking Colonial’s failure to
present this argument clearly below, the company adduced no direct evidence
that A&R actually conveyed the $250,000 figure to the trial judge. And even

       2
       As A&R observes, Colonial’s initial counsel in the underlying litigation advised the
company that a bench trial was preferable to a trial before a New Orleans jury.

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accepting that the law firm did so, Colonial’s causal theory requires us to
speculate that the trial judge allowed his recommendation to be influenced by
Colonial’s willingness to pay, rather than his objective assessment of the
probabilities at trial. Such speculation would also contravene Teague, which
“decline[d] to entertain” theories of loss causation that rely on impugning “the
impartiality and objectivity of the trial judge.” Teague, 10 So. 3d at 841 n.32.
Thus, the district court did not err in granting A&R’s motion for summary
judgment as to Colonial’s malpractice claim.3
       Colonial also challenges the district court’s order granting summary
judgment for A&R on the parties’ billing dispute. The district court granted
A&R’s motion because the summary judgment evidence showed that, even
crediting Colonial with the legal fees it disputed, A&R was entitled to the
$8,832.54 in undisputed and unpaid legal fees. The only question on appeal
regarding the billing dispute is whether the district court erred in refusing to
reopen discovery so Colonial could produce additional billing summaries to
expand the disputed amount.
       “[A] trial court’s decision to exclude evidence as a means of enforcing a
pretrial order must not be disturbed absent a clear abuse of discretion.”
Geiserman v. MacDonald, 893 F.2d 787, 790 (5th Cir. 1990). Colonial did not
expressly ask the judge to reopen discovery or show good cause as to why
discovery should have been reopened. Thus, we find that the district court
reasonably declined to extend its discovery deadline, and affirm the district
court’s grant of summary judgment to A&R with respect to the billing issue.
       Accordingly, we AFFIRM the district court’s judgment.



       3
         Colonial also suggests that A&R’s alleged overbilling constitutes evidence of loss
sufficient to support its malpractice claims. But as the district court observed, A&R’s motion
for summary judgment addressed only claims based on the settlement and did not address
allegations about A&R’s billing practices.

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