This is an appeal from the granting of an exception of prematurity in a legal malpractice action. The issue is whether a pending appeal in a medical malpractice action renders premature a legal malpractice action against the attorneys who represent the plaintiff in that medical malpractice action. We hold that it does and we affirm the judgment of the trial court.
The defendant attorneys, Richard H. Barker, IV and Harry J. Boyer, Jr. represented the plaintiff, Valerie Jure, in a medical malpractice action. Jure's petition alleges that the medical malpractice action has been, at least in part, unsuccessful and that this lack of success is due to the alleged negligence of Barker and Boyer. Jure's petition further alleges that Barker and Boyer continue to represent her in the appeal filed in the medical malpractice action. Barker and Boyer filed an exception of prematurity in the present action. They based their exception on the pendency of the appeal in the medical malpractice action. The trial court granted that exception dismissing Jure's malpractice action.
The appeal of Jure's medical malpractice action may render moot the alleged negligence of Barker and Boyer or even show that they were not negligent. This would seem to be particularly likely if they should be successful in the appeal of Jure's medical malpractice case so as ultimately to prevail in that case. Most importantly, unless and until the appeal in the medical malpractice action is concluded in a manner adverse to Jure, Jure has not suffered any damages from the alleged legal malpractice of Barker and Boyer in connection with the medical malpractice action. In the context of an action for legal malpractice the Louisiana Supreme Court has held that a cause of action does not exist until the client actually has suffered some damage.
Braud v. New England Ins. Co., 576 So.2d 466, 468 (La.1991). See also Rayne State Bank & Trust Co. v. National Union Fire Ins. Co., 483 So.2d 987, 995 (La.1986).
Our holding is in accord with other jurisdictions that have considered the same issue and have concluded that a legal malpractice action is premature "until the underlying action, which is on appeal, has been finally resolved." 2 R.E. Mallen and J.M. Smith, Legal Malpractice § 17.5 14 n. 6, 15 n. 10 (3rd ed. 1989). Our holding also is guided by our decision in Marchand v. Miazza, 151 So.2d 372 (La.App. 4th Cir. 1963). In Marchand, the client had dismissed, then sued, her attorneys for their alleged negligence in handling certain breach of contract claims that she had against other persons. However, at the time of her legal malpractice suit against her former attorneys, she still had pending four suits asserting the same breach of contract claims as allegedly had been mishandled by her former attorneys. We held that, as the claims for breach of contract which had allegedly been mishandled had not themselves been resolved, and as the legal malpractice suit for the alleged mishandling of those breach of contract claims necessarily was based on speculation as to the ultimate outcome of the breach of contract claims, that legal malpractice action was premature. 151 So.2d at 376. Similarly, in the present case, Jure's legal malpractice action is based upon speculation as to the ultimate outcome of her appeal in the medical malpractice case.
For the foregoing reasons, the judgment of the trial court, dismissing this action as premature, is affirmed.