The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLOW BEND VENTURES, LLC CIVIL ACTION
VERSUS NO. 18-3141
CLOYD VAN HOOK, et al. SECTION M (4)
ORDER & REASONS
Before the Court is a motion by defendants Cloyd F. Van Hook and Guarisco, Cordes &
Lala, LLC (“GCL”) (collectively, “Defendants”) seeking partial summary judgment on plaintiff’s
claims against them.1 Plaintiff Willow Bend Ventures, LLC (“WBV”) responds in opposition,2
and Defendants reply in further support of their motion.3 Also before the Court is WBV’s motion
in limine to exclude Defendants’ tax law expert, Jaye Calhoun,4 to which Defendants respond in
opposition.5 Having considered the parties’ memoranda, the record, and the applicable law, the
Court issues this Order & Reasons denying both motions.
I. BACKGROUND
This case involves alleged legal malpractice.6 WBV is a limited liability company that was
formed to own and operate a borrow pit on the west bank of the Mississippi River in St. John the
Baptist Parish, Louisiana.7 WBV purchased the borrow pit in 2007.8 WBV sold dirt, clay, or fill
1 R. Doc. 39.
2 R. Doc. 51.
3 R. Doc. 54.
4 R. Doc. 40.
5 R. Doc. 47.
6 R. Doc. 1-1. This case arose as an adversary proceeding in WBV’s bankruptcy, but the reference to the
bankruptcy court was withdrawn. R. Doc. 14.
7 R. Doc. 1-1 at 4.
8 Id.
from the borrow pit that has been processed by drying it to a prescribed moisture content.9 In 2008
and 2009, respectively, the United States Army Corps of Engineers (“USACE”) certified 64 acres,
and then another 419 acres, of WBV’s borrow pit as containing soil suitable for use in the
construction of hurricane protection levees.10 WBV alleges that it then began processing and
selling fill material for use in USACE levee projects, and that “[n]early all of the fill material
excavated from [its] pit was used for [USACE] projects.”11
On May 23, 2014, WBV received an assessment from the St. John the Baptist Parish sales
and use tax office (the “collector”) stating that WBV owed local sales and use tax in the amount
of $1,605,244.42, including penalties and interest, for the period of January 1, 2010, through June
30, 2013.12 WVB hired attorney Van Hook of the GCL firm to represent it with regard to the
assessment and any allegedly unpaid taxes.13 Defendants, on WBV’s behalf, filed a petition for
redetermination of assessment against the collector asserting WBV’s position “that most, if not all,
of its sales of fill material during the assessed time period was for future use in [USACE] projects,”
and thus no local sales and use taxes were due thereon pursuant to La. R.S. 47:301(10)(g), which
removes such sales from local sales and use taxation.14
On May 31-June 1, 2016, local tax judge Cade R. Cole of the Louisiana Board of Tax
Appeals (“BTA”) conducted a hearing of WBV’s petition against the collector.15 WBV was
represented by Defendants.16 WBV lost. In his April 11, 2017 judgment with written reasons,
Judge Cole recognized that “[t]he term ‘retail sale’ does not include a sale of corporeal movable
9 Id.
10 Id. at 4-5.
11 Id. at 5.
12 Id.
13 Id.
14 Id. at 5-6.
15 Id. at 6.
16 Id.
property which is intended for future sale to the United States government or its agencies,” and
that sales to a subcontractor of a federal contractor qualify for the exclusion “when supported by
the facts and evidence in [the] record.”17 However, Judge Cole held that WBV did not present any
direct evidence of how each contractor or subcontractor used the fill material, and as a result, WBV
failed to meet its burden of proof that each sale of fill material was intended for future sale to the
USACE and that title to the fill was transferred to the USACE prior to its using the dirt.18 Thus,
Judge Cole held that the local sales and use tax would be imposed on “those sales to subcontractors
where the subcontractor’s direct relationship with a [USACE] contract was not proven by record
evidence.”19 Pursuant to Judge Cole’s findings, the BTA rendered judgment in favor of the
collector and against WBV in the amount of $1,479,914.17.20
In this action, WBV alleges that Defendants committed legal malpractice by failing to
present Judge Cole with direct evidence that the dirt was used in USACE levee projects.21 WBV
alleges that, prior to the hearing, it “was in possession of contracts, sales tickets, and other evidence
which would have proven that the sales occurring from January 1, 2010 through June 20, 2013
were specifically for fill material to be used in [USACE] levee projects,” and that Defendants
failed to produce said evidence in discovery resulting in its being excluded from trial.22 WBV
alleges that Defendants violated Rules 1.1, 1.3, and 1.4 of the Louisiana Rules of Professional
Conduct and were negligent by failing to adequately advise and represent WBV in the tax
17 Id.
18 Id. at 7.
19 Id.
20 Id.
21 Id.
22 Id. at 6-7.
proceeding.23 WBV seeks “damages, for all costs of these proceedings and for all just and
equitable relief.”24
II. LAW & ANALYSIS
A. Defendants’ Motion for Summary Judgment
Defendants seek summary judgment on WBV’s claim for damages, including attorney’s
fees and costs, attributable to the filing of its bankruptcy proceeding.25 First, Defendants argue
that WBV, without expert testimony, cannot carry its burden of proof that they caused WBV to
file for bankruptcy, and it failed to timely designate such an expert pursuant to Rule 26 of the
Federal Rules of Civil Procedure and this Court’s scheduling order.26 Defendants argue that the
facts pertaining to WBV’s financial situation are too complex for lay testimony, and thus, WBV
needs an expert to opine as to the cause of WBV’s filing for bankruptcy in order to recover the
damages it claims.27 Defendants contend that WBV’s bankruptcy attorney, Phillip K. Wallace,
who is identified on WBV’s witness list, cannot offer any testimony as to the cause of WBV’s
bankruptcy filing because WBV did not designate him as an expert and make the appropriate
disclosures pursuant to Rule 26.28 Defendants also argue that WBV should not be able to recover
expenses and attorney’s fees related to its bankruptcy proceeding because WBV failed to plead
that Defendants’ alleged negligence caused it to file for bankruptcy.29
23 Id. at 8.
24 Id. at 9.
25 R. Doc. 39-2 at 7-12. Defendants also seek summary judgment on WBV’s claim for $401,852.76 for which
WBV would have been liable regardless of Defendants’ alleged malpractice. Id. at 4-7. This amount represents a
portion of the tax judgment ($121,009.75 in taxes collected but not remitted and $40,000.00 in stipulated use taxes),
and the related interest, penalties, and attorney’s fees ($226,043.01), plus the audit costs incurred before Defendants
were retained ($14,800.00). WBV concedes that Defendants are not liable for these specified amounts. R. Doc. 51 at
5-6. Therefore, Defendants’ motion for summary judgment is GRANTED IN PART as to the $401,852.76 for which
the parties agree Defendants could not have been liable.
26 R. Doc. 39-2 at 7-10.
27 Id. at 7.
28 Id. at 8-10.
29 Id. at 10-12.
In opposition to Defendants’ motion, WBV argues that expert testimony is not required by
law for it to prove that Defendants’ alleged malpractice caused it to file for bankruptcy, and that
Wallace’s lay testimony as a fact witness familiar with the situation will suffice.30 WBV observes
that Defendants failed to cite any case where expert testimony was required to prove such an
element of damages31 and argues, then, that the jury will determine the weight to give to Wallace’s
testimony, and whether WBV met its burden of proof on this element of damages.32 Further, WBV
contends that it did not need to plead that Defendants’ alleged malpractice caused it to file for
bankruptcy because it is not a separate claim, but rather an element of damages.33 WBV
acknowledges that it will have to prove causation of the damages at trial, but there is no danger of
trial by ambush as to this element of damages because Defendants have been aware of it since at
least April 2, 2019, when WBV served its initial disclosures on Defendants.34
Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing Fed. R. Civ. P. 56(c)). “Rule 56(c) mandates
the entry of summary judgment, after adequate time for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which the party will bear the burden of proof at trial.” Id. A party moving
for summary judgment bears the initial burden of demonstrating the basis for summary judgment
and identifying those portions of the record, discovery, and any affidavits supporting the
30 R. Doc. 51 at 6-7.
31 Id.
32 Id. at 7.
33 Id. at 8-11.
34 Id. at 10-11. The initial disclosures list WBV’s damages as including “attorneys’ fees and costs paid by
[it] for the bankruptcy proceedings related to the [BTA] judgment.” R. Doc. 51-6 at 3.
conclusion that there is no genuine issue of material fact. Id. at 323. If the moving party meets
that burden, then the nonmoving party must use evidence cognizable under Rule 56 to demonstrate
the existence of a genuine issue of material fact. Id. at 324.
A genuine issue of material fact exists if a reasonable jury could return a verdict for the
nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1996). The substantive
law identifies which facts are material. Id. Material facts are not genuinely disputed when a
rational trier of fact could not find for the nonmoving party upon a review of the record taken as a
whole. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Equal
Emp’t Opportunity Comm’n v. Simbaki, Ltd., 767 F.3d 475, 481 (5th Cir. 2014).
“[U]nsubstantiated assertions,” “conclusory allegations,” and merely colorable factual bases are
insufficient to defeat a motion for summary judgment. See Anderson, 477 U.S. at 249-50; Hopper
v. Frank, 16 F.3d 92, 97 (5th Cir. 1994). In ruling on a summary judgment motion, a court may
not resolve credibility issues or weigh evidence. See Delta & Pine Land Co. v. Nationwide
Agribusiness Ins. Co., 530 F.3d 395, 398-99 (5th Cir. 2008). Furthermore, a court must assess the
evidence, review the facts, and draw any appropriate inferences based on the evidence in the light
most favorable to the party opposing summary judgment. See Tolan v. Cotton, 572 U.S. 650, 656
(2014); Daniels v. City of Arlington, 246 F.3d 500, 502 (5th Cir. 2001). Yet, a court only draws
reasonable inferences in favor of the nonmovant “when there is an actual controversy, that is, when
both parties have submitted evidence of contradictory facts.” Little v. Liquid Air Corp., 37 F.3d
1069, 1075 (5th Cir. 1994) (citing Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990)).
After the movant demonstrates the absence of a genuine dispute, the nonmovant must
articulate specific facts and point to supporting, competent evidence that may be presented in a
form admissible at trial. See Lynch Props., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th
Cir. 1998); Fed. R. Civ. P. 56(c)(1)(A) & (c)(2). Such facts must create more than “some
metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586. When the nonmovant
will bear the burden of proof at trial on the dispositive issue, the moving party may simply point
to insufficient admissible evidence to establish an essential element of the nonmovant’s claim in
order to satisfy its summary judgment burden. See Celotex, 477 U.S. at 322-25; Fed. R. Civ. P.
56(c)(B). Unless there is a genuine issue for trial that could support a judgment in favor of the
nonmovant, summary judgment must be granted. See Little, 37 F.3d at 1075-76.
Here, summary judgment in Defendants’ favor as to WBV’s damages claim for attorney’s
fees and costs related to its bankruptcy filing is not warranted. Defendants cite no case that stands
for the proposition that summary judgment should be entered against a party when it fails to
designate an expert to opine as to the cause of its bankruptcy filing and related damages. Instead,
the cases upon which Defendants rely involve the need for expert testimony on causation in more
technical and complex settings involving more complicated damages scenarios. Here, WBV
intends to rely on the factual testimony of its bankruptcy attorney, Wallace, to prove this claim.
Wallace, while likely an expert on bankruptcy law, was not designated by WBV as an expert and
will not be allowed to be qualified or to testify as an expert.35 Thus, under Rule 701 of the Federal
Rules of Evidence, Wallace’s testimony will be limited to his personal knowledge of the facts and
to only those opinions that are: (a) rationally based on his perception as a fact witness, not as an
expert; (b) helpful to clearly understand his testimony or determine a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge within the scope of Rule 702. The
35 Defendants complain that they did not designate an expert to rebut WBV’s position that its bankruptcy
filing was caused by the BTA judgment, and hence, Defendants’ alleged malpractice, because WBV did not designate
an expert to address the issue, and that they have been prejudiced in this regard. R. Doc. 39-2 at 9. This is a fair point.
As a result, Defendants shall have thirty days from the date of this Order & Reasons to designate such an expert, and
if they choose to do so, to provide to WBV the required expert disclosures. This is necessary because Defendants did
not know until WBV filed its witness list on March 17, 2020, that it would develop through Wallace “[t]estimony
related to [its] bankruptcy and its fees and costs incurred litigating same.” R. Doc. 37 at 3.
jury will evaluate Wallace’s testimony, along with the other evidence, to determine whether WBV
proved that Defendants’ alleged malpractice caused it to file for bankruptcy and incur the
associated attorney’s fees and costs.
Further, the record reflects that such fees and costs are claimed as an element of damages,
not a separate cause of action. In the adversary complaint, which was filed in the bankruptcy court,
WBV alleges that Defendants are liable for WBV’s “damages, for all costs of these proceedings,”
which can be read to refer to the fees and costs related to the bankruptcy proceeding as a whole.36
Moreover, WBV informed Defendants it its initial disclosures that it sought such damages. Thus,
there is no surprise. As such, Defendants’ motion for summary judgment on this element of
damages is DENIED.
B. WBV’s Motion in Limine
Defendants hired Jaye Calhoun, an experienced tax attorney, to offer an expert opinion on
Van Hook’s representation of WBV in the tax appeal before Judge Cade and why WBV lost.37
Calhoun reviewed the record of the tax proceedings and opined that Van Hook provided adequate
and ethical representation within the constraints WBV placed upon him.38 Calhoun noted that Van
Hook, on multiple occasions, told WBV that it needed to “connect the dots” with third-party
evidence, particularly documents, showing that the dirt was eventually transferred to and used by
the USACE, but WBV did not provide the documents and would not allow Van Hook to speak
directly to WBV’s clients to procure such evidence.39 Instead, WBV relied on testimony from
Wayne Fletcher, its unofficial chief financial officer and corporate representative.40 Calhoun
36 See R. Doc. 1-1 at 9.
37 See R. Doc. 40-2.
38 Id. at 23-32.
39 Id. at 17-21.
40 Id. at 21-23.
opined that first-party testimony, such as Fletcher’s, could have been enough to prove the ultimate
destination of the dirt, but it likely was not in this case because Fletcher was not a competent or
credible witness, as reflected in his testimony and exchanges with Judge Cade.41 Calhoun cited
several examples from Fletcher’s testimony that she believes undermined his credibility before
Judge Cade.42 Ultimately, Calhoun opines that “Van Hook exercised reasonable care, skill and
diligence in handling” WBV’s tax proceeding, adequately advising WBV of the need for third-
party documentation, but “allow[ing] the client to exercise its right to choose to testify, which
might have been sufficient if the client had proved to be more credible on the stand.”43 Calhoun
further noted that Van Hook had the difficult task of managing the client (Fletcher) that had
“unrealistic expectations and an inflated sense of the value of its own testimony.”44 Thus, Calhoun
opines that “Van Hook should not be held accountable for the bad judgment of the plaintiff under
the circumstances.”45
WBV seeks to exclude Calhoun’s testimony, arguing that she offers impermissible
opinions of Fletcher’s credibility.46 WBV contends that an expert witness cannot offer opinions
on the credibility of another witness.47 Further, WBV argues that Calhoun has no expertise in
whether someone else is credible and has no methodology for making a credibility assessment.48
Defendants respond that WBV’s arguments go to the weight and credibility to be assigned
to Calhoun’s testimony, not its admissibility.49 Defendants further argue that, given her knowledge
and experience in tax proceedings, Calhoun’s expert opinion on the reasons for WBV’s loss in the
41 Id. at 21-26.
42 Id. at 24-26.
43 Id. at 31.
44 Id.
45 Id.
46 R. Doc. 40-1 at 5-8.
47 Id.
48 Id. at 8.
49 R. Doc. 47 at 7.
BTA is especially relevant because, to prevail on a claim for legal malpractice, WBV must prove
that Defendants’ negligence was the proximate cause of the loss.50 Moreover, Defendants
distinguish this case from those cited by WBV inveighing against expert opinions on witness
credibility: in each of those cases, Defendants say, the expert’s opinion was excluded when he or
she critiqued the testimony of another witness given in the same proceeding, whereas Calhoun is
not critiquing Fletcher’s testimony in this proceeding, but rather offering an opinion as to the
reasons Judge Cade may not have found his testimony credible in the BTA proceeding.51 Thus,
Defendants argue, the jury in this case can independently evaluate the testimony of both Calhoun
and Fletcher given at the trial of this matter and make its own determinations as to their credibility
in this proceeding.52
A district court has discretion to admit or exclude expert testimony under the Federal Rules
of Evidence. General Elec. Co. v. Joiner, 522 U.S. 136, 139 (1997). In Daubert v. Merrell Dow
Pharm., 509 U.S. 579, 589 (1993), the Supreme Court held that Rule 702 requires a district court
to act as a gatekeeper to ensure that “any and all scientific testimony or evidence admitted is not
only relevant, but reliable.” Rule 702 of the Federal Rules of Evidence provides:
A witness qualified as an expert by knowledge, skill, experience, training,
or education may testify thereto in the form of an opinion or otherwise, if:
(a) the expert’s scientific, technical, or other specialized knowledge will
help the trier of fact to understand the evidence or to determine a fact in
issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of
the case.
50 Id.
51 Id. at 8-9.
52 Id. at 9-10.
Fed. R. Evid. 702.
The reliability inquiry requires a court to assess whether the reasoning or methodology
underlying the expert’s testimony is valid. See Daubert, 509 U.S. at 592-93. In Daubert, the
Supreme Court listed several non-exclusive factors for a court to consider in assessing reliability:
(1) whether the theory has been tested; (2) whether the theory has been subjected to peer review
and publication; (3) the known or potential rate of error; and (4) the general acceptance of the
methodology in the scientific community. Id. at 593-95. However, a court’s evaluation of the
reliability of expert testimony is flexible because “[t]he factors identified in Daubert may or may
not be pertinent in assessing reliability, depending on the nature of the issue, the expert’s particular
expertise, and the subject of his testimony.” Kumho Tire v. Carmichael, 526 U.S. 137, 150 (1999).
In sum, the district court must ensure “that an expert, whether basing testimony upon professional
studies or personal experiences, employs in the courtroom the same level of intellectual rigor that
characterizes the practice of an expert in the relevant field.” Id. at 152. The party offering the
testimony must establish its reliability by a preponderance of the evidence. See Moore v. Ashland
Chem. Inc., 151 F.3d 269, 276 (5th Cir. 1998).
Next, the district court must determine whether the expert’s reasoning or methodology
“fits” the facts of the case and whether it will assist the trier of fact to understand the evidence,
i.e., whether it is relevant. Daubert, 508 U.S. at 591. An expert’s testimony is not relevant and
may be excluded if it is directed at an issue that is “well within the common sense understanding
of jurors or requires no expert testimony.” Vogler v. Blackmore, 352 F.3d 150, 156 (5th Cir. 2003).
Further, an expert cannot make “legal conclusions reserved for the court,” credit or discredit
witness testimony, or “otherwise make factual determinations reserved for the trier of fact.”
Highland Capital Mgmt., L.P. v. Bank of Am., N.A., 574 F. App’x 486, 491 (5th Cir. 2014).
Rule 702 also requires that an expert be properly qualified. Generally, if there is some
reasonable indication of qualifications, the district court may admit the expert’s testimony, and
then the expert’s qualifications become an issue for the trier of fact. Rushing v. Kan. City S. Ry.,
185 F.3d 496, 507 (5th Cir. 1999), superseded in part by statute on other grounds as noted in
Mathis v. Exxon Corp., 302 F.3d 448, 459 n.16 (5th Cir. 2002). A witness qualified as an expert
is not strictly confined to his area or practice, but may testify regarding related applications; a lack
of specialization goes to the weight, not the admissibility of the opinion. Cedar Lodge Plantation,
L.L.C. v. CSHV Fairway View I, L.L.C., 2018 WL 4932716, at *3 (5th Cir. Oct. 10, 2018)
(quotations and citations omitted).
WBV does not take issue with Calhoun’s qualifications to testify as a tax-law expert, and
indeed she is an attorney highly credentialed with many years of experience in the field. Calhoun’s
opinions regarding Fletcher’s testimony before the BTA are not impermissible opinions on the
credibility of his testimony in this case, but rather offer a tax lawyer’s insight as to what might
have gone wrong for WBV before the BTA for reasons apart from Van Hook’s alleged malpractice.
All of Calhoun’s opinions regarding Van Hook’s representation of WBV before the BTA,
including those regarding Fletcher’s testimony, are well within the ambit of her expertise and are
relevant and reliable as they are placed within the context of the record of that proceeding. To the
extent WBV questions the content of and support for the opinions or the reasoning set out in
Calhoun’s report, WBV will have an opportunity to explore these issues at trial through cross-
examination of Calhoun and the presentation of countervailing testimony. See Morris v. Liberty
Mut. Ins. Co., 2011 WL 317741, at *2 (E.D. La. Jan. 31, 2011) (“questions relating to the bases of
an expert’s opinion go to weight, not admissibility”). As such, WBV’s motion to exclude Calhoun
is DENIED.
III. CONCLUSION
Accordingly, for the foregoing reasons,
IT IS ORDERED that Defendants’ motion for summary judgment (R. Doc. 39) is
GRANTED IN PART as to the $401,852.76 for which the parties agree Defendants could not have
been liable, but the motion is otherwise DENIED.
IT IS FURTHER ORDERED that WBV’s motion in limine to exclude Calhoun (R. Doc.
40) is DENIED.
New Orleans, Louisiana, this 4th day of May, 2020.
________________________________
BARRY W. ASHE
UNITED STATES DISTRICT JUDGE