UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

____________

No. 99-30314

____________

JAMES H. BROWN,

Commissioner of Insurance

for the State of Louisiana as

Liquidator of Physician’s

National Risk Retention

Group, Inc.,

Plaintiff - Counter Defendant -

Appellee - Appellant,

versus

NORMAN F. SLENKER;

SLENKER, BRANDT,

JENNINGS, & JOHNSTON,

Defendants - Counter Claimants -

Appellants - Appellees.

Appeals from the United States District Court

For the Middle District of Louisiana

August 3, 2000

Before REAVLEY, SMITH, and EMILIO M. GARZA, Circuit Judges.

EMILIO M. GARZA, Circuit Judge:

Norman Slenker and Slenker, Brandt, Jennings, and Johnst o n (“SBJJ”) (collectively, “the

Defendants”) appeal from a Rule 50(a) judgment entered in favor of James Brown (“the

Commissioner”). We affirm in part, vacate in part, and remand for further proceedings.1 The parties contest the scope of the $1,000,000 protection provided Davoudlarian.

The Commissioner claims that PNRRG agreed to double Davoudlarian’s po licy limits only for

purpose of ensuring further judicial proceedings designed to reduce PNRRG’s liabilit y to $10,000 or

to result in a defense verdict. Therefore, the $1,000,000 protection applied only to damages imposed

on appeal or in subsequent trials. Slenker claims that, in order to convince Davoudlarian not to settle

and to prevent bad faith problems, PNRRG agreed to protect Davoudlarian from all personal liabilit y

regarding the Krombein lawsuit, regardless of its form or t iming. The Meehan letter can be read to

support either interpretation. It specifically discusses PNRRG’s willingness to assume the risk of a

greater damage award in the hope of victory in the courts, and it states that PNRRG “will be required

to pay the damage award” up to $1,000,000 if its plan fails. At the same time, the letter states that

PNRRG is “acting in every way possible to protect Dr. Davoudlarian in this matter” and, referring

-2- I

Physicians National Risk Retention Group (“PNRRG”) was a risk retention group organized

pursuant to Louisiana law. While not a traditional insurance company, PNRRG insured medical

doctors in numerous states.

PNRRG insured Dr. David Davoudlarian. Davoudlarian was sued for medical malpractice

in a Virginia state court by Karlissa Krombein. Under Davoudlarian’s policy, PNRRG had a

contractual obligation to defend him. A representative of PNRRG in Georgia contacted Slenker in

Virginia. Slenker and his firm, SBJJ, were retained to represent Davoudlarian in the Krombein suit.

In 1990, the first trial in the Krombein suit resulted in a $10,000 verdict against Davoudlarian.

The trial court set the verdict aside as to damages, but not as to liabilit y. Thereafter, Krombein made

a settlement offer for Davoudlarian’s $500,000 policy limit. The Virginia statutory liability cap on

medical malpractice damages was $1 ,000,000. PNRRG realized that a retrial risked creating

personal liability for Davoudlarian. However, it felt that the court’s decision was a “miscarriage of

justice” and was confident that an appeal would either restore the $10,000 verdict or lead to a retrial

on all issues. Therefore, in a letter sent by Director of Claims Bart Meehan, PNRRG agreed to pay

any damages Davoudlarian might ultimately encounter, up to the $1,000,000 limit. 1to a prior conversation between Meehan and Slenker, that “there is now no personal exposure in this

m atter.”

2 The parties contest the purpose of the $1.175 million check. The Commissio ner

claims tha t PNRRG posted the money solely as an appeal bond. Thus, once any appeal was

completed, PNRRG expected the money to be returned. Slenker claims that the money posted was

to be used to protect Davoudlarian from any form of exposure in t he Krombein matter, wi thout

regard to any appeal, pursuant to his policy and to the commitment reflected in the Meehan letter.

There is conflicting evidence on this f act issue. Notably, Terry Pierce, a PNRRG claims

representative involved in the decision to send Slenker the money, testified at trial that the money was

not limited to use as an appeal bond and was not to be returned once the appeal was resolved, but

instead was committed to protect Davoudlarian from any form of liabilit y regarding the Krombein

m atter.

-3- The damages-only retrial in the Krombein suit resulted in a verdict of $1.5 millio n, which the

trial court reduced to the $1 millio n cap. Slenker began the appeals process. He advised PNRRG

of the necessary amount of the appeal bond and of the procedure to follow in perfecting the appeal.

PNRRG sent Slenker a cashier’s check in the amount of $1.175 millio n, made out to the clerk of the

Virginia court, to be posted with the court. PNRRG stated that it intended to substitute an appeal

bond for the check, but this was never done. 2 An appeal was perfected with the Virginia Supreme

Court.

During the pendency of the appeal , PNRRG was declared insolvent by the Louisiana

Nineteenth District Court in East Baton Rouge Parish. Pursuant to Louisiana law, the Commissioner

was appointed the liquidator of PNR RG. The Commissioner hired Louisiana attorneys, including

outside lawyers Ossie Brown and Rolfe McCollister, to help coordinate the liquidation. Ossie Brown

sent Slenker and SBJJ a letter requesting help in having the Louisiana liquidation and stay orders

domesticated in Virginia, but there was no response. SBJJ partner John Brandt did file a motion to

stay proceedings in another Virginia malpractice case invo lving a PNRRG insured, but there was no

such motion in the Krombein suit.-4-

Ossie Brown also sent Slenker a letter (the “Letter”) requesting certain information. The

Letter was a form sent to all attorney s nationwide representing PNRRG insureds. SBJJ was to retype

the Letter on its own stationary, sign it, and return it to Ossie Brown, along with certain requested

information, in order to receive payment for fees and expenses incurred in representi ng PNRRG

insureds. The first sentence of the Letter stated: “By means of this letter, we wish to advise you that

we will represent you in those matters pending in this jurisdiction in which Physicians National Risk

Retention Group in liquidation has been made a party defendant.” Unlike Louisiana, but like nearly

all other states, Virginia is not a direct action state: the insurer is not a party to lawsuits filed against

its insureds. Therefore, neither the Commissioner nor PNRRG was ever a party to a Virginia lawsuit

defended by SBJJ. When Slenker saw the Letter, in April 1992, he wrote on the cover page that he

did not understand wha t t he Let t er referred to, that he did not represent the Commissioner, and

therefore that he saw no reason to respond. Slenker did not communicate these sentiments to the

Commissioner or his attorneys.

In a May 1992 letter to the Commissioner, Slenker noted that SBJJ “has for consideration

a request . . . that we sign a contract with you concerning representation” of physicians insured by

PNRRG. Slenker complained that SBJJ had not been paid for its existing work on behalf of those

physicians, despite repe at ed assurances to the contrary from Ossie Brown and others. Slenker

expressed displeasure at the fact that SBJJ was now required to “sign the contract” in order to receive

any payment. Slenker concluded that it would “enhance the prospects of a contractual relationship”

if the Commissioner promptly paid all submitted invoices. As it stood, Slenker could not recommend

that SBJJ sign the Letter.

On June 5, 1992, the Supreme Court of Virginia reversed and vacat ed the tri al court’s-5-

judgment in Krombein v. Davoudlarian

. The case was remanded for a new trial on all issues.

Krombein’s counsel, Brian Shevlin, soon sent Slenker a letter expressing a belief that it was in both

Krombein’s and Davoudlarian’s interes t s t o keep the bond in place. Slenker did not inform the

Commissioner or his attorney s of that correspondence. At the same time, the Commissioner and his

at t o rneys knew that the $1.175 million was in the Virginia court by November 1991, but t o o k no

steps to assert or protect any interest the Commissioner believed he had in the money.

On July 21, 1992, SBJJ returned the retyped Letter t o the Commissioner. The Letter was

signed by John Brandt for SBJJ. In the Letter, SBJJ agreed that all invoices and receipts had to be

submitted monthly for approval by the Commissioner’s office and by the Louisiana court in charge

of the liquidation. The terms of the Letter were retroactive to the date of the liquidation. Brandt’s

cover letter noted that the “letter of intent” was “regarding our representation of certain Physician’s

National insureds.” It added that SBJJ looked fo rward to immediate payment of its outstanding

expenses and fees.

On October 15, 1992, Slenker talked to McCollister, who was in charge of coordinating

the liquidation in states east of the Mississippi River. Slenker and McCollister discussed the $1.175

millio n bond. McCollister stated that the Commissioner wanted the money returned to Louisiana.

Slenker told McCollister that Davoudlarian would object to that, and that Davoudlarian wanted the

case resolved. Slenker informed McCollister that a new trial was set for May 1993 and that

Krombein’s settlement demand was $800,000 . Beyond t hat, the content of the conversation is

disputed. Slenker claims that he informed McCollister that he represented only Davoudlarian and that

he could never participate in a ny effo rt to remove the money because it would be contrary to his

client’s interest. McCollister claims that Slenker said that he could not involve himself in a struggle-6-

between the interests of Davoudlarian and the Commissioner, and had the impression that Slenker

would look into getting the bond released and get back to him. Neither the Commissioner nor any

of his attorneys took any action to seek a turnover of the funds.

By November 5, 1992, Slenker and Shevlin had agreed to settle the Krombein lawsuit for

$700,000. Slenker did not inform the Commissioner of this agreement or seek the Commissioner’s

approval, even though Davoudlarian’s original insurance policy granted PNRRG the right to approve

any litigation settlement. On November 5, a hearing was held in the Virginia t rial court on

Krombein’s motion to release the $700,000 from the money held by the court to fund the settlement.

Slenker did not join the motion but, stating that he was required to follow Davoudlarian’s wishes, did

not oppose it. Slenker never informed the Commissioner of the hearing, although he did inform the

court that PNRRG was in liquidation. The court entered an order releasing the $700,000.

Two years later, the Commission er filed t he instant lawsuit against Slenker and SBJJ in

Louisiana state court. While the complaint is not entirely clear, the Commissioner appeared to allege

that Slenker’s conduct constituted: 1) attorney malpract ice; 2) a breach of the fiduciary duty of

loyalty the Defendants owed the Commissioner as a client; 3) a breach of the fiduciary duty Slenker

assumed by receiving the $1.175 millio n, in that Slenker converted or alienated the $700,000 to effect

the unauthorized settlement; 4) a breach of contract, as the Letter created a contractual relationship

in which the Defendants agreed to represent the Commissioner in the Krombein matter. He claimed

$700,000 in damages. Later, over the Defendants’ objections, the Commissio ner was allowed to

amend his co mplaint to include a fraud claim, alleged solely for the purpose of defeating the

Defendants’ prescription claim under Louisiana law. The Defendants subsequently added

counterclaims for fraud and co nst ructive fraud. The Defendants removed the case to the Middle-7-

District of Louisiana, then filed a motion to dismiss for lack of personal jurisdiction or, alternately,

to transfer the case to the Eastern District of Virginia. The motion was denied. The Defendants also

moved for summary judgment at the close of the discovery period, claiming that the Commissioner

had not provided evidence sufficient to establish the elements of any of his claims. This motion was

also denied. The district court ruled that Virginia substantive law governed the case. The

Defendants’ motion for summary judgment on the ground that the Commissioner’s cl a ims were

untimely under Louisiana law was also denied.

The case preceded to trial by jur y. At the close of the Commissioner’s case-in-chief, the

Defendants moved for judgment as a matter of law under Rule 50(a), claiming that the Commissioner

had not introduced evidence sufficient to establish: 1) personal jurisdiction over the Defendants; 2)

the existence of a duty owed by the Defendants to the Commissioner pertaining to the allegations in

the complaint; 3) proximate causation of damages; 4) that the Defendants should not prevail on their

affirmative defense of contributory negligence. The district court denied the motion.

Defendants renewed their Rule 50 motion at the close of all evidence, and it was again denied.

The Commissioner moved for judgment as a matter of law on the Defendants’ counterclaims. At that

point, the district court questioned the attorney s as to whether it could sua sponte grant judgment

as a matter of law to the Commissioner on his case-in-chief. The Commissioner immediately moved

for judgment under Rule 50. The motion was granted. The Commissioner’s motion for judgment

as a matter o f law o n t he counterclaims was also granted. Judgment was entered granting the

Commissioner the claimed $700,000 in damages.

The Defendants challenge several rulings of the district court: 1) the denial of the motion to

dismiss or, alternately, to transfer for lack of personal jurisdiction; 2) the denial of the motion to-8-

dismiss t he Commissioner’s claims as time-barred; 3) the denial of the Defendants’ motion fo r

summary judgment based on the Commissioner’s alleged failure to establish his claims; 4) the denial

of the Defendants’ Rule 50 motion and 5) t he grant of Rule 50 judgment as to all issues to the

Commissioner. We consider the Defendants’ challenges in turn.

II

A

The Defendants first claim that the district court erred in declining to dismiss or transfer for

lack of personal jurisdiction over them in Louisiana. We review d e novo the district court’s exercise

of jurisdiction over the Defendants. S ee World Tanker Carriers Corp. v. M/V Ya Maw laya

, 99 F.3d

717, 720 (5 th Cir. 1996). As the Louisiana lo ng-arm statute reaches the limits of the Due Process

Clause, the relevant inquiry is whether the exercise of jurisdiction over the D efendants was

const it ut io nal. The Due Process Clause permits the exercise of personal jurisdiction over a nonresident defendant if: 1) that defendant has “m inimum contacts” with the forum state; and 2) the

exercise of jurisdiction does not offend “traditional notions of fair play and substantial justice.” S ee

Ruston Gas Turbines , Inc. v. Donaldson Co. , 9 F.3d 415, 418 (5 t h Cir. 1993) (internal citations

omitted).

The Defendants filed their motion to dismiss for lack of jurisdiction well in advance of trial.

To defeat dismissal, the Commissioner was required only to present facts sufficient to constitute a

prima facie case of personal jurisdiction. S ee Bullion v. Gillespie

, 893 F.2d 213, 217 (5 th Cir. 1990).

Factual conflicts had to be resolved in the Commissioner’s favor in considering the motion to dismiss.

See id. I n light of this standard, we agree with the district court’s decision to deny the Defendants’

p retrial motion to dismiss, as the Commissioner established a prima facie case that perso nal3 As noted above, SBJJ was required to sign the agreement in order to receive payment

for fees and expenses from the Commissioner.

4 First, t he Co mmissioner claimed that the Letter, which was perfected in and

contemplated performance in Louisiana, created an attorney-client relationship which the Defendants

later breached through malpractice. Second, the Commissioner claimed that Slenker breached the

fiduciary duty he assumed by accepting the $1.175 millio n when his conduct “converted” the bond.

As the district court noted, the Commissioner alleged that Slenker had received specific instructions

from the Commissioner’s Louisiana attorney s to have the bond released and returned to Louisiana.

Finally, the Commissioner alleged a breach of the Letter agreement itself. Clearly, the district court

co rrectly found that the Commissioner made a p rima facie showing that “this action a rises in

substantial part from defendants’ contacts with [Louisiana]”.

-9- jurisdiction over the Defendants in Louisiana comported with due process.

As the district court found, SBJJ signed and sent to the Commissioner in Louisiana the Letter,

by which it agreed to represent the Commissioner in certain cases. In the Letter, SBJJ agreed that

its monthly fee requests would be submitted not only to the Commissioner, a state o fficial, but also

to the Louisiana state court handling the liquidation of PNRRG, for which the Commiss ioner was

acting as receiver. 3 The Letter agreement was finalized in Baton Rouge when the Commissioner and

the Louisiana court approved it. Finally, the Defendants actually submitted expense statements to

the state court over a period of time. They received payment as to expenses in the Krombein case,

and as to expenses and fees in other cases.

In light of this evidence, we agree with the district court’s decision that the Commissioner had

made a prima facie showing that the Defendants had “minimum contacts” with Louisiana. First, the

Commissioner adequately showed that his causes of action related to the Defendants’ contacts with

Louisiana, such that the Commissioner h ad only to make a p rima facie showing of specific, as

opposed to general, jurisdiction. 4 Moreover, the Letter and the Commissioner’s related evidence

made a prima facie showing that the Defendants availed themselves of the benefits of the liquidation5 While the Defendants disputed whether the Letter agreement applied to the

Davoudlarian/Krombein litigation, or indeed to any litigation the Defendants were actually involved

in, we agree with the district court that this presented a disputed fact to be resolved at trial. Such a

disputed fact could not defeat personal jurisdiction on a motion to dismiss.

-10- proceeding on a r easo nably continuous basis. See Ruston Gas, 9 F.3d at 419 (“The ‘minimum

contacts’ prong, for specific jurisdiction purposes is satisfied by actions, or even just a single act, by

which the non-resident defendant ‘purposely avails itself of the privilege of conducting ac t ivit ies

within the forum state, thus invoking the benefits and protecti ons of its laws.’”) (citing Burger King

Cor p. v. Rudzew icz , 471 U.S. 462, 475, 105 S. Ct. 2174, 85 L. Ed. 2d 528 (1985). Considering

another formulation of the minimum contacts test, resolving all factual inferenc es in the

Commissioner’s favor, we agree that the Defendants’ contacts with Louisiana were sufficient, and

sufficiently legal in nature, that they “should [have] reas o nably anticipated being haled into court”

there. S ee id. (citing World Wide Volkswagen Corp. v. Woodson

, 444 U.S. 286, 297, 100 S. Ct. 559,

62 L. Ed. 2d 490 (1980)). 5

Resolving all factual issues in the Commissioner’s favor also leads us to agree that dismissal

was not proper on the grounds that jurisdiction offended traditio nal no t io ns of “fair play and

substantial justice.” First , the Commissioner is a state official. Second, the Defendants allegedly

solicited the benefits of

t he st ate court liquidation proceedings in addition to forming fiduciary

relationships with the Commissioner. Third, the Commissioner alleged inequitable misconduct on the

part of the De fendant s. Considered together, and given the p rima facie showing of minimum

contacts, we agree with the district court’s pretrial decision not to dismiss for lac k of personal

jurisdiction.

Therefore, the district court correctly concluded that “the jurisdictional issues are intertwined-11-

with the merits in this case and the issue will ultimately have to be resolved at trial.” See Travelers

Indemnity Co. v. Calvert Fire Ins. Co.

, 798 F.2d 826, 831 (5 th Cir. 1986). At trial, the Commissioner

was required to prove the contested jurisdictional facts by a preponderance of the evidence. S ee id.

(citing Data Disc, Inc. v. Syst ems Technology Associates, Inc. , 557 F.2d 1280, 1285 n.2 (9 t h Cir.

197 7)); Spector v. L Q Motor Inns , 517 F.2d 278, 284 (5 t h Cir. 1975) (“The jurisdictional and

substantive issues are factually meshed. Therefore, a decision on the jurisdictional issues is dependent

on decision of the merits and should have been reserved until a hearing on the merits.”).

At trial, however, the district court erred in failing to allow t he jury to decide whether the

Commissioner had proven the facts necessary to establish jurisdiction. The Defendants reasserted

their motion to dismiss for lack of personal jurisdiction at the close of the Commissioner’s case. The

dis t rict court denied the motion, without stating that the Commissioner had proven the contested

jurisdi ct io nal fact s the court’s prior order had identified. After the close of all the evidence, the

district court took the case from the jury and entered judgment as a matter of law for the

Commissioner under Rule 50. The disputed fact questions material to the merits—including the

applicability of the Letter to the Krombein matter, the existence of an applicable fiduciary relationship

between the Commissioner and the Defendant s, and the breach thereof by Slenker in effecting the

Davoudlarian settlement—were taken from the jury on the ground that there was “no reasonabl e

basis” for the jury to resolve the m in t he Defendants’ favor. The district court did not make an

express ruling as to jurisd ict io n, although its ruling implicitly found that jurisdiction had been

established.

We find that the district court erred in resolving the disputed factual issues—the case should

have gone to the jury. The disputed factual issues erroneo usly resolved by the district court were6 We reject the Defendants ’ argument that we should dismiss the case for lack of

personal jurisdiction. We therefore go on to discuss the Defendants’ other arguments, which likewise

are presented as ba ses for dismissal. While we decline to dismiss the case, we find that the

Defendants’ arguments do point to certain errors by the district court which would themselves require

further proceedings. We discuss these errors so that they will be addressed on remand. We affirm

the dismissal of the Defendants’ counterclaims for fraud and constructive fraud.

7 Prescription and peremption are different periods of limitations under Louisiana law.

See Broussard v. F.A. Richard & Assoc. , 732 So. 2d 578, 582 (La. Ct. App. 1999). They differ in

that peremption destroys a right of action, as opposed to merely preventing its enforcement, and

therefore cannot be interrupted or suspended. See id.

-12- dispositive as to jurisdiction as well as on the merits. As the jury never decided whether Brown had

met its burden of proving the jurisdictional facts by a preponderance of the evidence, we lack the

necessary findings on which to decide the personal jurisdiction issue. Jurisdiction remains intertwined

with the merits, and on remand bo t h must be decided at a new trial, based on valid jury findings.

Therefore, to the extent to which the district court found at trial that personal jurisdiction over the

Defendants had been established, we vacate in part the final judgment for the Commissioner and

remand for a new trial. 6

B

Defendants next argue that the district court erred in finding that the Commissioner’s claims

were not time-barred under Louisian a prescriptive and peremptive law. 7 We review d e novo the

district court’s ruling on prescription. S ee Radford v. General Dynamics Corp.

, 151 F.3d 396, 398

(5 th Cir. 1998).

The district court determined that this case was governed by the substantive law of Virginia,

and that decision is not contested on appeal. Louisiana Civil Code Art. 3549, the relevant conflict

of law rule, states that, when an action governed by the substantive law of another state (Virginia)

would be barred under the Louisiana prescription and peremption law, the action is barred unless: 1)-13-

the suit i s no t barred under Virginia law; and 2) maintenance of the action is warranted by

“compelling considerations of remedial justice.” See La. Civ. Code Art. 3549 (1999). The parties

agree that the Commissioner’s action would not have been barred under Virginia law. Therefore, the

Commissioner’s action is barred unless: 1) it is otherwise allowed under Louisiana prescription and

per empt io n law; or 2) maintenance of the action is warranted by “compelling considerations of

remedial justice.”

The district court expressly pretermitted the question of whether the Commissioner’s action

would be barred under Louisiana prescriptive/peremptive law. It found that the Commissioner could

maintain the action under article 3549 because maintenance of the action was w arranted by

“compelling considerations of remedial justice.” We disagree.

“There is no question that the authors of the ‘compelling considerations of remedial justice’

exception intended it to be used in only the most extraordinary of circumstances.” Landry v. Ford

Motor Company

, 1996 WL 661052, at *3 (E.D. La. Nov. 12, 1996). The 1991 Revision Comments

to Article 3549 explain that the “compelling circumstances” provision is taken from the Restatement

(Second) of Conflict of Laws and that:

The examples given by the Restatement are pertinent to the application of this

provision and illustrate its exceptional character. These examples refer to cases where

“through no fault of the plaint iff an alternative forum is not available as, for example,

where jurisdiction could not be obtained over the defendant in any state other than the

fo rum or where for some reason a judgment obtained in the other stat e having

jurisdiction would be un enforceable in other states, [and] . . . also situations where

suit in this alternative forum, alt ho ugh not impossible would be extremely

inconvenient for t he parties.” Restatement (Second) of Conflict of Laws, 1986

Revisions, § 142 comment f (Supp. March 31, 1987). As might be surmised from the

init ial phrase of the quotati on, none of these examples should be seen as requiring the

forum to entertain an action solely because it is time-barred in all or most other states.

La Civ. Code art. 3549, comment (f).-14-

Only one case has found “compelling considerations of remedial justice.” S ee Smith v. Odeco

(UK) Inc.

, 615 So. 2d 407 (La. App. 1993). S mith involved one of the situations mentioned in

comment (f): Louisiana was the only forum in which suit could be maintained, because it was the

only forum in which jurisdiction could be obtained over all the defendants. S ee id. at 409 (expressly

relying on the absence of an alternative forum in finding “comp elling considerations of remedial

justice”). In cases where plaintiffs have litigated their claims in Louisiana by choice, not by necessity,

claims of “compelling con siderations” warranting maintenance of the suit in Louisiana have been

consistently rejected. See Seagrave v. Delta Airlines, Inc.

, 848 F. Supp. 82, 83-84 (E.D. La.1994)

(costs and inconvenience of having to file suit in Virginia after plaint iff moved to Louisiana do not

constitute compelling considerations of remedial justice under article 3549); Skyrme v. Diamond

Offshore (U.S.A.), Inc.

, 1994 WL 320928 at *2-*3, (E.D. La. June 30, 1994) (finding no compelling

considerations as to Brazilian resident who "desires to litigate this claim in Louisiana as a matter of

choice, not necessity"); Landry

, 1996 WL 661052, at *2 (same); Amaro v. Marriott Residence Inn

,

1995 WL 91132 (E.D. La. March 1, 1995) (also finding no compelling considerations of remedial

justice).

Here, it is clear that the Commissioner could have sued in Virginia rather than Louisiana, and

he does not argue to the contrary. The circumstances alleged by the Commissioner—notably that

Louisiana was the domicile of PNRRG and the location of the receivership, and that the

Commissione r was a state official—are not even analogous to those enumerated in comment (f).

Given the provision’s “exceptional character,” we reject the district court’s decision to expand the

“compelling considerations of remedial justice” provision to encompass the Commissioner’s action.

On remand, the district court should first determine whether the Commissioner’s suit is barred under8 The issue of whether Louisiana law bars the Commissioner’s suit was pretermitted by

the district court. Therefore, no relevant findings were made. Moreover, the issue was not

adequately briefed to us. Accordingly, on remand the district court should determine in the first

instance which Louisiana prescriptive or peremptive law applies to the Commissioner’s claims and

whether, under the applicable law, those claims are time-barred. A new trial is necessary only if the

district court determines that one or more of the Commissioner’s claims are not time-barred under

the applicable Louisiana law.

We note that the Commissioner has alleged that, while his action would not have been barred

if originall

y filed in Virginia, it would be barred if filed there now. In S eagrave

, the same

circumstances were fo und not to constitute “compelling considerations of remedial justice.” S ee

Seagrave v. Delta Airlines

, 848 F. Supp. at 84. The court recognized that, because “compelling

considerations” were not present, “article 3549 contemplates the dism issal of the action.” I

d.

However, the court chose to transfer the action under 28 U.S.C. § 1404(a) to the Eastern District of

Virginia. See id.

9 Defendants also challenge the district court’s denial of their motion for summary

judgment on the merits. Because a trial followed the denial of summary judgment , we lack

jurisdiction to consider the denial of summary judgment. S ee Downey v. Denton County, Texas

, 199

F.3d 381, 385 (5 th Cir. 1997); Black v. J.L. Case Co. , 22 F.3d 568, 570 (5 th Cir. 1994) (“Once trial

began, the summary judgment motion effectively became moot.”) (citing Wells v. Hico Indep. Sch.

Dist.

, 736 F.2d 243, 251 n. 9 (5 th Cir. 1984)). We can adequately review the legal and factual issues

raised by the summary judgment motion in the context of the Defendants’ Rule 50 motio n. See

Downey , 119 F.3d at 385.

-15- the applicable Louisiana prescriptive and peremptive law. 8

C

Finally, the Defendants challenge the denial of their Rule 50 motion and the grant of judgment

under Rule 50 to the Commissioner. 9 We affirm the grant of judgment as a mat ter of law to the

Commissioner on the Defendants’ counter claims. Otherwise, we agree with the denial of the

Defendants’ Rule 50 motion but find erroneous the judgment as a matter of law to the Commissioner,

because each of the Commissioner’s claims should have gone to the jury.

We review de novo the trial court’s ruling on a motion for judgment as a matter of law under

Rule 50(a). S ee Bocalbos v. National Western Life Ins. Co.

, 162 F.3d 379, 382 (5 th Cir. 1998). Such-16-

a judgment should be granted only “when there is not a sufficient conflict in substantial evidence to

create a jury question.” I

d. ; see also Reeves v. Sanderson Plumbing Products, Inc.

, — U.S.

—, —

S. Ct. —, — L. Ed. 2d —, 2000 WL 743663 at *10-*11 (U.S., June 12, 2000) (stating that a court

should grant judgment as a matter of law under Rule 50(a) only when, reviewing the entire record,

it finds “there is no legally sufficient evidentiary basis for a reasonable jury to find for that party” and

adding that “the court must draw all reasonable inferences in favor of the nonmoving party, and it

may not make credibility determinations or weigh the evidence”) (internal citations omitted). Virginia

substantive law governs this case; we review de novo the district court’s determination of state law.

See Mills v. Davis Oil Co. , 11 F.3d 1298, 1303 (5 th Cir. 1994).

The Commissioner first claims that the Defendants com m i tted legal malpractice. The elements

of a legal malpractice claim in Virginia are: 1) an attorney -cl ient relat ionship; 2) breach of the

standard of care; and 3) damages proximately caused by the negligence. S ee Carstensen v. Chrisland

Corp.

, 442 S.E. 2d 660, 668 (Va. 1994). Generally, expert testimony is required to establish each

element. S ee Seawa rd International, Inc. v. Price Waterhouse , 391 S.E. 2d 283, 287 (Va. 1990)

(expert testimony required to establish all three elements of liabilit y for malpractice except where they

fall within the common knowledge of the trier of fact) (cited in Gregory v. Hawkins

, 468 S.E. 2d 891,

893 (Va. 1996)); Ripper v. Bain

, 482 S.E. 2d 832, 835 (Va. 1997) (same). Unless reasonable minds

could not differ, each element is decided by the finder of fact. S ee Gregory

, 468 S.E. 2d at 475;

Ripper , 482 S.E. 2d at 835-36; Heyward & Lee Constr. Co. v. Sands, Anderson, Marks & Miller

,

453 S.E. 2d 270, 272 (1995).

There is a substantial conflict in evidence as to whether an attorney-client relationship was

formed bet ween t he Commissioner and the Defendants that covered the Davoudlarian/Krombein10 The district court apparently attempted to prevent expert testimony as to whether an

attorney-client relationship existed between the Defendants and the Comm i ssi oner, believing that such

testimony would “impinge upon the jury’s determination of that fact.” This was plain error. S ee, e.g.,

Gregory

, 468 S.E. 2d at 893; Ripper

, 482 S.E. 2d at 835. However, the expert testi m ony was

allowed as to whether the applicable standard of care was breached, and it clearly showed a conflict

as to the existence of an attorney-client relationship as well.

11 Slenker argues that no attorney-client relationship could have existed because, under

the ethical rules of Virginia, Slenker was prec luded from owing a duty to a party whose interests

conflicted with those of Davoudlarian, his client. We disagree, insofar as this is claimed as a defense

to a malpractice claim against Slenker. Slenker has not shown that Virginia law prohibits a lawyer

from representing an insured and an insurance company simultaneously. But we need not rely on this

point. An attorney-client relationship is formed when the advice and assistance of an attorney is

sought and received. S ee Carstensen

, 442 S.E. 2d at 668; Va. Sup. Ct. Rules, Part 6, § 1(B)

(“Generally, the relation of attorney and client exists

. . . whenever he furnishes to another advice or

service under circumstances which imply his pos session and use of legal knowledge or skill.”).

Accepting the Commissioner’s allegations, an attorney-client relationship may have existed between

the Commissioner and the Defendants as to the Krombein matter. Slenker may have placed himself

in an untenable ethical position in which he was unable to reconcile his conflicting obligations to

Davoudlarian and the Commissioner. But, reading t he evidence in the light most favorable to the

Commissioner, Slenker may have created this ethical dilemma, essentially by failing to t imely take the

ethically required steps to deal with the nascent conflict and by not adequately communicating with

the Commissioner. The dilemma therefore cannot insulate Slenker from a suit for malpractice. The

cases cited by Slenker, which establish only that Slenker owed Davoudlarian all the fiduciary duties

a lawyer owes a client, are not to the contrary. We reject the Defendants’ claim that Virginia public

policy provides a defense to the first element of the Commissioner’s legal malpractice claim.

12 Notably, the Commissioner claims that Slenker breached his duty when he failed to

at least inform the Commissioner of the imminent release of the $700,000. Slenker responds that he

had clearly informed the Commissioner that he di d not represent him, but rather represented only

Davoudlarian. Slenker adds that, even if he would otherwise have notified the Commissioner as a

-17- matter. Conflicting expert testimony (and substantial other conflicting testimony) was presented on

this point. 10 Moreover, resolution of the issue involves contested facts, such as the scope of the

Letter agreement and the content of the conversations between Slenker and McCollister. Clearly, the

question of whether an attorney-client relationship was formed should have gone to the jury. 11 For

essentially the same reasons, the question of whether, assuming an attorney-client relationship, the

Defendants breached the applicable standard of care was also a jury question. 12courtesy, his obligation was to Davoudlarian, his client, and any action other than that he took would

have itself violated that primary duty. Both claims have sufficient legal and factual support that the

breach issue should have gone to the jury.

13 Defendants emphasize that the Commissioner provided no expert evidence as to

proximate cause. As the Defendants also note, the district court erro neo usly failed to require the

Commissioner to prove proximate cause by expert testimony. In fact, the district court f orbade the

Commissioner from presenting expert testimony as to proximate cause, claiming that such an expert

“would be on an issue of law, and you are looking at the [o nly] legal expert.” Given the district

court’s error, the lack of expert testimony as to proximate cause cannot be used to dismiss the

Commissioner’s claim.

Virginia requir es a “t rial within a trial” to show proximate cause as to a legal malpractice

claim. S ee White v. Moreno

, 452 S.E. 2d 856, 858 (Va. 1995). Therefore, the Commissioner can

recover only if he can show that, but for the Defendants’ malpractice, less than $700,000 would have

been spent (including attorney’s fees) in resolving Davoudlarian’s claim. S ee id. ; Stewart v. Hall

, 770

F.2d 1267, 1269 (4 th Cir. 1985). Rolfe McCollister testified that, had Slenker not committed

malpractice, the Commissioner could have obtained release of the $1.175 millio n from Virginia.

While there is opposing evidence in the record, the Commissioner’s claim that the money was solely

an appeal bond, and that Davoudlarian’s policy stated that PNRRG had to approve any settlement,

supports M cCo llist er’s testimony. If he can show the money would have been released, the

Commissioner need not show success in a third appeal of the Krombein suit, so long as he showed

t hat in liquidat ion the claims of insureds were paid at fractional value. Even assuming the money

would have remained in Virginia, Gene Broussard testified that the Commissioner intended to pursue

the Krombein suit to a third trial and had indications, both from the Defendants and from internal case

analysts, that that trial would have led to a defense victory or verdict far less than $700,000. While

this is also contested, the fact that the $1 millio n verdict was reversed and that the original verdict

was for $10,000 render Broussard’s claim not insubstantial. In sum, there is sufficient evidence that,

assuming that Slenker breached a duty to the Commissioner, that breach proximately damaged the

Commissioner to create a jury question.

To the extent to which the Commissioner argued , and the district court found, that the

Commissioner was not required to show proximate causation of damages as part of his malpractice

claim, we disagree. The Commissioner argues that this is a liquidated damages case because

Slenker’s actions prevented the Commissioner from pursuing the third trial in the Krombein suit and

thereby vindicating his position. The Commissioner presents no case law to support his claim that

this circumstance relieves him of the need for a trial within a trial. The available case law is to the

-18- Defendants argue that there is not sufficient evidence as t o proximate cause for the

malpractice claim to go to the jury. Although it is a close question, we decline to find that the claim

should be dismissed for inadequate evidence of proximate cause. 13 Therefore, that issue also shouldcontrary. In Allied Productions, Inc. v. Duesterdick

, 232 S.E. 2d 774 (Va. 1977), plaint iff claimed

that its attorney entirely failed to defend a suit, leading to a default judgment. See id. at 775. The

V irginia Supreme Court nevertheless stated that plaint iff needed to prove proximate ca use by

showing that its underlying position had merit. S ee id. (“If an attorney

, in disregard of his duty,

neglects to appear in a suit against his client, with the result that a default judgment is taken, it does

not follow that the client has suffered damage, because the judgment may be entirely just, and one

that would have been rendered notwithstanding the efforts of the attorney to prevent it.”) (internal

citation omitted); Stewart

, 770 F.2d at 1269 (in a malpractice action involving a default judgment,

“[t]he alleged negligence is actionable only upon a determination that the underlying claim would

have been resolved differently but for the attorney’s negligence”) (citing Allied Productions ). To the

extent to which the Commissioner argues that, because the Defendants’ actions allegedly involve a

conflict of

int erest and therefore a breach of the fiduciary duty of loyalty, the proximate cause

requ irement is inapplicable, the Commissioner fails to support this argument with any precedent.

Moreover, the limited available case law is again to the contrary. S ee Sampang v. Detrick , 826 F.

Supp. 174, 176 (W.D. Va. 1993) (holding that a malpractice claim based on counsel’s alleged conflict

of interest requires a showing of proximate cause and dismissing because plaint iff’s guilty plea was

the proximate cause of his conviction). Therefore, insofar as the Commissioner’s claims are based

on the Defendants’ legal malpractice, he must show proximate causation as to damages.

-19- have gone to the jury. Finally, the Defendants raised a contributory negligence defense to the

Commissioner’s malpractice claim. In Virginia, contributory negligence is a complete defense to a

legal malpractice action. S ee Lyle, Siegel, Croshaw, & Beale, P.C. v. Tidew ater Capital Corp.

, 457

S.E. 2d 28, 32 (Va. 1995). The Defendants presented sufficient evidence that the Commissioner was

negligent and this negligence proximately caused the release of the $700,000 for their contributory

negligence defense to have also gone to the jury. Therefore, on remand a new trial should be held

on the Commissioner’s malpractice claim.

The Commissioner also claims that Slenker breached the fiduciary duties he assumed as the

Commissioner’s agent or trustee by accepting the $1.175 million and placing it with the Virginia

court. Under Virginia law, a fiduciary relationship exists “when special confidence has been reposed

in one who in equity and good conscience is bound to act in good faith and with due regard for the

interest of the one reposing the confidence.” Allen Realty Corp. v. Holbert , 318 S.E. 2d 592, 59514 It does not appear that Virginia law bars a client from suing his attorney for a breach

of fiduciary duty without regard t o malpract ice, so long as there is a basis for the fiduciary duty

outside of the attorney-client relationship. S ee Weidman v. Babcock

, 400 S.E. 2d 164, 165-66 (Va.

1991) (discussing action for breach of fiduciary duty against former attorney ); FDIC v. Cocke

, 7 F.3d

396, 398, 403 (4 th Cir. 1993) (discussing separate claims under Virgini a law against attorney for

savings and loan for malpractice as counsel and for breach of fiduciary duty as director of savings and

loan); cf. In re Palumbo F amily Limited Partnership , 182 B.R. 447, 470 (Bankr. E.D. Va. 1995)

(noting that, under Vir ginia law, improper handling of client funds “may give rise to a breach-offiduciary duty claim

”). At any rate, a jury has not established that Slenker had an attorney-client

relationship with the Commissioner with regard to the Krombein matter.

-20- (Va. 1984) (internal citation omitted). One can become a fiduciary “because of money or property

intrusted to him.” I

d. (internal citation omitted) . Moreover, “it is well-settled that an agent is a

fiduciary with respect to the matters within the scope of his agency.” See Byars v. Stone and Gilmer,

Administrators

, 42 S.E. 2d 847 (Va. 1947). 14 The exist ence o f a fiduciary duty, and the breach

thereof, are both questions of fact. See Allen Realty , 318 S.E. 2d at 595.

It is clear t hat Slenker received the check for $1.175 million from the Commissioner and

deposited it with the Virginia court as part of perfecting Davoudlarian’s appeal. The extent to which

Slenker had control over the money is disputed, as are the purposes for which the money was to be

used. However, while there is contravening evidence, the Commissioner has presented evidence that

Slenker received the money knowing it was solely for use as an appeal bond, and after the Virginia

Supreme Court’s decision was instructed that the Commissioner wanted the money returned, y et

participated in the unauthorized release of the money for a different purpose which was contrary to

the Commissioner’s interests. A fiduciary cannot act contrary to his principal’s interest and,

moreover, “must tell the principal about anything which might affect the principal’s decision whether

or how to act.” A llen Realty

, 318 S.E. 2d at 595 (int ernal citation omitted). Therefore, the

Commissioner’s claim that Slenker breached a fiduciary duty that he assumed as agent or trustee with15 The fiduciary duty claim is separate and distinct from any legal malpractice claim

because it arises from duties Slenker assumed with regard to the $1.175 millio n in particular, not from

his general fiduciary duties as an attorney

. We can find no authority suggesting that the

Commissioner must prove proximate cause, in the sense of showing that he would otherwise have

spen t less t han $700,000 on Davoudlarian’s claim, as an element of its prima facie case for this

alleged breach of fiduciary duty. However, noting that the Commissioner benefitted from the

settlement of the Krombein suit, we leave it to the district court to, in the first instance, determine

what damages are recoverable if the Commissioner’s claim proves successful. C f. Boston Children’s

Heart Foundation v . Nadal-Ginard , 73 F.3d 429, 434 (1 s t Cir. 1996) (discussing offset based on

quantum meruit

of damages for breach of fiduciary duty).

-21- regard to the $1.175 million should have gone to the jury. 15

Finally, the Commissioner claims that the Defendants are liable for breach of contract, arguing

that the Letter constituted an agreem ent t o represent the Commissioner in the Krombein matter.

Submitting a written contract to the jury for interpretation is proper when the language is ambiguous.

See Foreign Mission Board of the Southern Baptist Convention v. Wade

, 409 S.E. 2d 144, 146 (Va.

1991). “An ambiguity exists when language admits of being understood in more than one way or

refers to two or more things at the same time.” D oswell Limited Partnership v. Virginia Electric and

Power Co. , 468 S.E. 2d 84, 88 (Va. 1996).

The Letter’s first, and most important, sentence reads: “By means of this letter, we wish to

advise you that this firm is representing you in certain matters pending in this jurisdiction [Virginia]

in whic h [PNRRG] has been made a party defendant.” This sentence itself is ambiguous. The

statement that PNRRG has been made a party defendant in certain m at t ers pending in Virginia is

clear, but erroneous. At the same time, the sentence affirmatively states that SBJJ is representing the

Commissioner in matters pending in Virginia. The meaning of the sentence is unclear in light of the

error. Given that the Letter is ambiguous, extrinsic evidence was properly admitted as to whether

it represented a contract by the Defendants to represent the Commissioner that covered the16 Alternately, the district court found that extrinsic evidence should be admitted because

both parties were “laboring under some form of mistake.” We agree. Mutual mistake is an exception

to the parol evidence rule in Virginia. S ee Fox-Sadler Co. v. Norris Roofing Co. , 327 S.E. 2d 95,

109- 110 (Va. 1985). Here, the Letter contained a facial mistake which rendered it illogical and

unclear. The Letter was drafted by the Commissioner, but the Defendants evidenced their agreement

by retyping it on their own stationary, signing it, and sending it to the Commissioner. Slenker himself

apparently realized the error in the Letter, but never informed the Commissioner of the mistake, and

the Defendants agreed to the Letter as it was; objectively, the Defendants were as mistaken as the

Commissioner. The mistake warranted the admission of parol evidence.

-22- Davoudlarian matter. S ee Nehi Bottling Co. v. All-American Bottling Co.

, 8 F.3d 157, 162 (4 th Cir.

1993) (applying Virginia law). 16

Given that parol evidence was properly admi t t ed, “[i]f, from the evidence presented,

reasonable people could draw different conclusions as to reasonable expectations of the parties, the

question of the meaning of the contract is properly presented to a j ury

for resol uti on.” Foreign

Mission Board

, 409 S.E. 2d at 146 (internal citations omitted); see also Nehi Bottling

, 8. F.3d at 162

(same). Here, conflicting evidence was presented as to whether the parties would reasonably have

believed that the Defendants were representing the Commissioner in the Krombein matter, and

reasonable people could draw different conclusions from that evidence. Therefore, the issue of

whether the Letter const it ut ed a contract by which the Defendants agreed to represent the

Commissioner, and whether the Defendants breached that contract, should have been submitted to

the jury.

The Commissioner’s breach of contract c laim is that the Letter constituted a contract to

represent the Commissioner in the Davoudlarian matter which the Defendants breached by failing

entirely to represent the Commissioner. In light of the nature of the breach of contract claim, it is

apparent that the Commissioner must make the same showing of proximate cause with regard to this

claim as with regard to the legal malpractice claim. In Virginia, legal malpractice is seen as a type of-23-

breach of contrac t

. S ee Timms v. Rosenblum

, 713 F. Supp. 948, 954 (E.D. Va. 1989) (“Legal

malpractice claims in Virginia sound either in contract or in tort.”); Oleyar v. Kerr

, 225 S.E. 2d 398,

400 (Va. 1976) (holding that “an action for the negligence of an attorney in the performance of

professional services, while sounding in tort, is an action for breach of contract and thus governed

by the statute of limitations applicable to contracts”); Hunter v. Massie

, 1995 WL 1055734, at *2

(Va. Cir. Ct. 1995) (explaining that, under Kerr

, the attorney-client rel at io nship arises from an

express or implied contract, such that “the lawyer would not have owed the client a duty but for the

contractual relationship between them”). Whether the action is brought in contract or tort, the same

proximate cause st andard applies. S ee Hendrix v. Daugherty

, 457 S.E. 2d 71, 73-74 (Va. 1995)

(affirming demurrer to legal malpractice action alleging negligence and breach of contract for failure

to allege proximate causation; plaint iffs “failed to allege that they would have prevailed in the

underlying action but for the negligence of the defendant attorneys”); Locke v. Johns-Manville

, 275

S.E. 2d 900, 904 (Va. 1981) (“The essential elements of a cause of action, whether based on a

torti ous act or breach of contract, are

. . . (3) harm or damage to t he plaint iff as a proximate

consequence of that violation or breach”); Cullen v. Cook

, 1992 WL 55184, at *4 (W.D. Va. 1992)

(“An action for legal malpractice may plead either in tort or contract. However, under either theory,

the essential elements of a cause of action require harm or damage to the plaintiff.”) (citing Locke

,

275 S.E. 2d 90 4; o t her internal citations omitted); see also E.I. DuPont Denemours & Co. v.

Universal M

oulding Products Corp. , 191 Va. 525, 572 (Va. 1950) (holding that, to recover for

breach of contract, “[t]he breach of contract must be the direct and proximate cause of the damage”).

Therefore, the discussion of proximate cause as to the legal malpractice claim applies equally here,

and the issue of whethe r, assuming that a breach of contract occurred, that breach proximately17 But, as noted above, we affirm the judgment as a matter of law for the Commissioner

on the Defendants’ claims for fraud and constructive fraud. Virginia law requires that each element

of these claims be proven by clear and convincing evidence. S ee Evaluation Research Corp. v.

Alequin

, 439 S.E. 2d 387, 390 (Va. 1994). Given this burden, the Defendants have not adduced

sufficient evidence that the Commissioner knowingly made false statements with the requisite intent

to mislead. See id.

-24- damaged the Commissioner should have been submitted to the jury.

In sum, we agree with the district court’s denial of the Defendants’ motion for judgment as

a matter of law under Rule 50(a), but find erroneous the Rule 50(a) judgment entered by the district

court for the Commissioner. 17 On remand, a new trial should be held on each of the Commissioner’s

claims.

III

To summarize, we first vacate the district court’s judgment that, as a matter of law, personal

jurisdiction over the Defendants in Louisiana com ported with due process. We remand for this issue

to be determined on retrial, based on valid jury findings. Second, we find that the district court erred

in holding that, under article 3549, “compelling considerations of remedial justice” warranted

maintenance of this action. On remand, the district court should determine whether t he act ion is

barred under the applicable Louisiana prescriptive and peremptive law. Retrial is necessary only if

the district court finds that some or all of th e Co mmissio ner’s claims are not time-barred under

Louisiana law. Third, while we agree with the district court’s denial of the Defendants’ motion for

judgment as a matter of law, we find erroneous the district court’s judgment under Rule 50(a) for the

Co mmissioner. On remand, each of the Commissioner’s claims should be retried. We affirm the

judgment as a matter of law for the Commissioner on the Defendants’ counterclaims.

AFFIRMED IN PART; VACATED AND REMANDED IN PART.-25--26-

REAVLEY, Circuit Judge, specially concurring:

I agree that a fact i ssue exists whether Slenker, by breach of his fiduciary duty, caused the

Commissioner to lose the $70 0,000. The record establishes a lawyer-client relationship between

Slenker’s law firm and the Commissioner, but there is a material conflict between the parties about

the conversation between them on October 15, 1992. Slenker’s testimony is that he made it clear that

he would not protect the Commissioner or oppose release of the money.

There is no issue on jurisdiction. S ee Wien Air Alaska, Inc. v. Brandt

, 195 F.3d 208, 213 (5th

Cir. 1999) (“Howev er, when the claim arises from a breach of fiduciary duty based on a failure to

disclose material information, the fact that the lawyer continually communicated with the forum while

st eadfastly failing to disclose material information shows the purposeful direction of material

omissions to the forum state.”)

Finally, there is no prescription issue. The one-year prescription period of LSA-R.S. 9:5605

only applies to claims against attorney s licensed to practice in Louisiana. A breach of fiduciary duty

action is governed by a ten-year prescription period under L.S.A.-C.C. 3499. G erdes v. Estate of

Cush , 953 F.2d 201 (5th Cir. 1992).