IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-30868

Summary Calendar

KAREN ANN POWERS ARTERBURN,

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.

United States Court of Appeals

Fifth Circuit

FILED

April 15, 2015

Lyle W. Cayce

Clerk

 

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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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