*Pursuant to Local Rule 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opinion should not be published and is not precedent except under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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

For the Fifth Circuit

No. 95-31061

MAX WILLIAM KENDALL; PATRICIA KENDALL,

Plaintiffs-Appellants,

VERSUS

JEFFREY C. CALMES, ET AL.,

Defendants,

JEFFREY C. CALMES,

Defendant-Appellee.

Appeal from the United States District Court

For the Middle District of Louisiana

(CA-94-54)

August 8, 1996

Before REYNALDO G. GARZA, DeMOSS and PARKER, Circuit Judges

PER CURIAM:*

Plaintiff-appellant Max William Kendall appeals a grant of

summary judgment against him in this legal malpractice claim. We

agree with the district court that Kendall’s deposition testimony
2

proves that he did not subjectively believe that defendant-appellee

Jeffrey C. Calmes was representing him on his dental implant

products liability claims. Accordingly, no attorney-client

relationship existed and, under Louisiana law, Kendall cannot

recover on his legal malpractice claim. We therefore affirm the

district court’s grant of summary judgment.

BACKGROUND

Kendall brought this legal malpractice suit against Calmes,

claiming that Calmes negligently represented him in a dental

malpractice and product liability suit. Kendall has had great

difficulty with his right temporal mandibular joint (“TMJ”). In

late 1987 Kendall underwent oral surgery on his TMJ. The oral

surgeon, Dr. Richard Scott, inserted a temporary TMJ implant.

Several months later, Dr. Scott removed the implant. A year later,

Dr. Scott performed another surgery on Kendall’s TMJ. Between late

1989 and mid-1990, Dr. John Kent, an oral surgeon, performed three

additional operations on Kendall’s TMJ. In 1991, a third oral

surgeon, Dr. Louis Mercuri, performed a total right TMJ replacement

using an implant. In March 1992, Dr. Mercuri again operated on

Kendall and removed the prosthesis. Since August 1992, Kendall has

been treated by Dr. Larry Wolford and endured several surgeries to

correct his TMJ problems.

Dissatisfied with the results of his TMJ treatment, Kendall
1The district court granted summary judgment on four grounds.

Kendall, however, only appeals the district court’s finding of no

fact issue as to Calmes’ representation on the products liability

claim. Kendall, therefore, has waived all other issues.

3

hired Calmes as his attorney in 1991. The contract of employment

states that Calmes was hired to represent Kendall on “claims

arising out of an [sic] Medical Malpractice Oct 87, May 90. . . .”

In October 1991, Calmes told Kendall that he was terminating the

representation because he could not identify any malpractice in his

TMJ treatment. Calmes advised Kendall to get a second legal

opinion and wished him the best of luck.

In February 1992, Kendall retained attorney Frank Ferrara to

handle his dental malpractice claims. In May 1992, Kendall wrote

Calmes asking to “retain” Calmes to “get a total complete

deposition from Doctor Mercuri.” Calmes refused, saying “I can not

represent you.”

In January 1994, Kendall filed suit against Calmes, alleging

that Calmes was negligent in failing to properly investigate and

prosecute Kendall’s dental malpractice and products liability

claims. Specifically, Calmes failed to realize that the TMJ

implants Kendall received were defective.

Calmes filed a motion for summary judgment, arguing that no

attorney-client relationship existed with Kendall regarding any

products liability action. The district court granted Calmes’

motion for summary judgment. Kendall filed a timely appeal.1
4

DISCUSSION

The elements of a legal malpractice claim under Louisiana law

are (1) the existence of an attorney-client relationship; (2)

negligent representation by the attorney; and (3) loss to the

client caused by that negligence. Finkelstein v. Coller, 636 So.2d

1053, 1058 (La. App. 1994). “The existence of an attorney-client

relationship turns largely on the client’s subjective belief that

it exists.” Id.

In his deposition in this case, Kendall admitted that he never

expected Calmes to represent him with regard to possible products

liability claims. Specifically, Kendall testified:

Q So at that point I mean you were not expecting

[Calmes] to represent you concerning anything with Dr.

Mercuri, correct?

A No, not whatsoever because I -- because I had

learned of the state guideline. . . . [A]s of August

13th, 1991, I knew then that [Calmes] could not represent

me anything [sic] out of the State of Louisiana.

* * * * 

Q And you did not expect at the time that you signe

d

that

Augus

t ‘91

contr

act .

. .

for

[Calm

es],

a

Louis
5

iana

lawye

r, to

go up

t o

Michi

gan

t o

litig

ate

wheth

er or

not

Dr.

Scott

’ s

treat

ment

and

those

impla

nts

were

prope

r or

impro

per,

did

you?

A No, I didn’t expect him to go beyond his bound

s

becau

se he

could

n’t.

* * * *

Q You did not expect [Calmes] to pursue the case

either against Vi-Tech or Dow Corning concerning implants

done by Dr. Scott, did you?

A As far as Dow Corning, I did not expect Jeff to get

involved with that, no. Because that was done in

Michigan.

Based on his sworn deposition testimony, it is clear that
6

Kendall did not have a subjective belief that Calmes would

represent him in the products liability actions. Our law is clear

that a litigant cannot create a fact issue by contradicting his own

deposition testimony without explaining his prior statement.

Thurman v. Sears, Roebuck & Co., 952 F.2d 128, 136 n.23 (5th Cir.

1992), cert. denied, 113 S. Ct. 136 (1992). Under certain limited

circumstances a party may create a fact issue by explaining the

incongruity. Id. This is not such a case. Kendall has failed,

either at the district court level or on appeal, to even mention

this deposition testimony, let alone explain it. Kendall has given

us no reason to doubt his sworn statement that he did not believe

Calmes would represent him on the products liability actions.

Therefore, there is no attorney-client relationship as to the

products-liability actions and, under Louisiana law, no legal

malpractice. Accordingly, the district court’s grant of summary

judgment is AFFIRMED.