Karen Powers Arterburn v. Bradford Felder , 610 F. App'x 345 ( 2015 )

Case: 13-30868 Document: 00513006867 Page: 1 Date Filed: 04/15/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 13-30868
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
April 15, 2015
KAREN ANN POWERS ARTERBURN,
Lyle W. Cayce
Clerk
Plaintiff-Appellant
v.
BRADFORD HYDE FELDER; LAW FIRM OF HUVAL VEAZEY FELDER &
RENEGAR; THOMAS H. HUVAL; ANDY VEAZEY; DONA RENEGAR;
STEFINI SALLES,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:12-CV-1959
Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM: *
Pro se litigant Karen Ann Powers Arterburn moves for leave to proceed
in forma pauperis (IFP) on appeal. She wishes to challenge the summary
judgment dismissal of a diversity legal malpractice suit.
A movant for IFP on appeal must show that she is a pauper and that she
will present a nonfrivolous issue on appeal. See Carson v. Polley, 689 F.2d 562,
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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No. 13-30868
586 (5th Cir. 1982). Arterburn has shown that presently she is financially
eligible to proceed IFP.
Arterburn asserts that she was denied a full and fair hearing in the legal
malpractice suit. She contends that the district court did not have sufficient
evidence before it to render judgment, she was not allowed to review the record
before the hearing to verify that all of her evidence had been filed in the record,
and she was not allowed to give her prepared oral argument. She complains
specifically that she was not allowed to present the transcript of a state court
September 15, 2011 hearing that was not attended by her legal counsel,
Bradford Felder, and a letter from the Louisiana Attorney Disciplinary Board
regarding Felder’s failure to appeal timely a state court order that denied
Arterburn final spousal support. Further, she contends that at the summary
judgment hearing, the district court questioned her extensively about prior
testimony that she had no opportunity to review, and she was not permitted to
rebut the evidence. Last, Arterburn argues that no accommodations were
made for her disability and her thought processes were diminished due to the
length of the hearing and the fact she had no lunch.
We review a grant of summary judgment de novo and apply the same
standard as the district court. Nickell v. Beau View of Biloxi, LLC, 636 F.3d
752, 754 (5th Cir. 2011). The movant must show that there is no genuine
dispute as to any material fact and that she is “entitled to judgment as a matter
of law.” FED. R. CIV. P. 56(a). In order to defeat the motion, the opposing party
must set out specific facts showing a genuine factual dispute for trial. Stauffer
v. Gearhart, 741 F.3d 574, 581 (5th Cir. 2014).
The record contradicts Arterburn’s arguments that she was denied due
process during the summary judgment proceedings. A copy of the alleged
missing letter and transcript were included in the record. The record shows
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that the district court reviewed pleadings, discussed the allegations of legal
malpractice, permitted Arterburn to present arguments, and afforded
numerous opportunities for Arterburn to show any damage sustained. There
is no indication that Arterburn was not competent to proceed. This claim does
not present a nonfrivolous issue for appeal. See Carson, 689 F.2d at 586. In
addition, Arterburn’s contention regarding the district court’s statement that
the defendants intended to refund her legal payments is refuted by the record
and is frivolous.
Next, according to Arterburn, Felder committed legal malpractice when
he failed to appear timely for the state court hearing on September 15, 2011,
to address her former husband’s motion to refinance a matured loan on the
family home. The defense presented evidence that the failure to refinance by
the deadline might result in the loss of the loan commitment and possibly
foreclosure. The state court allowed the immediate refinancing of the
mortgage without Arterburn’s consent because it found such action was in the
best interest of the community and that Arterburn would not be prejudiced.
Arterburn did not provide any information showing that she was prejudiced by
the immediate refinancing under the same terms as the original mortgage.
Thus, Arterburn failed to raise a genuine dispute of material fact regarding
whether Felder committed legal malpractice under Louisiana law. See MB
Industries, LLC. v. CNA Ins. Co., 74 So. 3d 1173, 1184 (La. 2011). The grant
of summary judgment on this issue does not raise a nonfrivolous issue for
appeal. See Carson, 689 F.2d at 586.
Last, Arterburn asserts that the record does not show that she would not
have been successful in an appeal from the order denying her final spousal
support. While admitting that Felder was negligent in failing to file a timely
appeal, the defense argued that Arterburn could not show that the appellate
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court would have reversed the trial court’s finding that she was not free from
fault in the breakup of the marriage and, thus, she could not show that she
suffered damage from counsel’s failure to file a timely appeal.
Under Louisiana law, if a client has shown that her counsel’s negligence
caused the loss of the opportunity to assert a claim, an inference of causation
of damages resulting from the lost opportunity for recovery arises. Jenkins v.
St. Paul Fire & Marine Ins. Co., 422 So. 2d 1109, 1110 (La. 1982). The appellate
court must then determine whether the negligent counsel has met his burden
of producing sufficient proof to overcome the plaintiff’s prima facie case. Id.
The state trial court relied on testimony from a psychologist to find that
Arterburn was not without fault for the failure of the marriage; the court also
found that Arterburn’s testimony was not credible. The defendants presented
the evidence introduced at the state court hearing on fault to rebut Arterburn’s
prima facie showing of negligence, and Arterburn did not provide any
information showing that she would have been successful in reversing the state
trial court’s credibility findings on the issue of fault if her appeal had been
timely filed in the state court. See Gisleson v. Deputy, 122 So. 3d 1089, 1095
(La. Ct. App. 2013). The district court concluded that there was no evidence
that the state trial court’s finding of fault would have been reversed on appeal.
Arterburn failed to raise a genuine dispute of material fact regarding the
validity of this claim and, thus, the district court’s grant of summary judgment
on this claim does not raise a nonfrivolous issue for appeal. See Carson, 689
F.2d at 586.
Because Arterburn has failed to raise a nonfrivolous issue on appeal, the
motion for leave to proceed IFP is DENIED. The appeal is DISMISSED as
frivolous. See 5th Cir. R. 42.2. All outstanding motions are DENIED.
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