Evan A. Cooper v. Stephen C. Poss, Amanda Stout, and McGlinchey Stafford, PLLC

OF AP

FIRST CIRCUIT

2019 CA 0366

EVAN E. COOPER

STEPHEN C. POSS, AMANDA STOUT, AND McGLINCHEYSTAFFORD, LLC

Judgment w- i. N' V019,

On Appeal from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana No. 671286, Div. 22

The Honorable Timothy E. Kelley, Judge Presiding

J. Arthur Smith, III Attorney for Plaintiff/Appellant Baton Rouge, Louisiana Evan E. Cooper

Stephen Poss Baton Rouge, i

De Blunt Attorneys for Detendants/ Appellees Kevin W. Welsh Amanda i a McGlinchey Baton Rouge, Louisiana Stafford, PLLC

Jeff Landry Attorneys for Defendant/Appellee Attorney General Louisi.' a Department of Margaret A. Collier Assistant Attorney General Baton Rouge, Louisiana

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lmmfurg!, gINTS" M= RMO3JjJhJM1Judice. The trial court' s i• alsoi' denied the defendants' ileremptory exception raising the objections of no cause of action and peremption under La. R.S. 9: 5605( A)' s one- year peremptive period. For the reasons that 811

Inrlyffrd " ITM an annulment of a testament spurred this litigation. The email discussion was as

Amanda Stout ( 9/ 26/ 11): ... In response to your question about

contesting your father' s will, Civil Code article 3497 states that an action to annual a testament is subject to 5 -year prescription. Case law states that the prescriptive period begins to run from the date a testament is probated. I am checking with management to determine if the firm accepts litigation over succession matters. Evan Cooper ( 9/ 27/ 11): Probated meaning date [ o] rder of judgment of possession is filed/ signed by judge or date the petition to probate—? - succession is flied? EEC Amanda Stout ( 9/ 28/ 11): A will is probated when it is filed with the court and the court signs an order recognizing it at [ sic] a valid will.

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argued that Ms. Stout provided him an incorrect lc-wal opinion as to when the iilrescriptive period began to run for a suit to annul a testament. Therefore, the

1 We note that the plaintiffs claim against co- defendant Stephen C. Poss is not at issue in the instant matter.

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6. On orabout June 30, 2014, [ Mr. Poss ] filed, on the Plaintiffs behalf, a Petition for Intervention in the succession of William Ewell Cooper, Jr., the Plaintiffs late father. The succession proceeding was] docketed as " In the Matter of the Succession of William well

Cooper, Jr., Probate No. 89- 936, Section 25, 19th Judicial District Court, Parish of East Baton Rouge, State of Louisiana." ( Intervention suit.) This [ intervention suit] sought to annul the testament of William Ewell Cooper, Jr.

7. On November 9, 2016, the attorneys forte Defendants in [ the intervention suit] ...filed Peremptory Exceptions of No Right of Action and Prescription in the succession proceeding in response to the [ plaintiffs] Petition for Intervention.

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This exception was thereafter heard and denied by the 19th Judicial District Court[.]

9. However, the Defendants in [ the intervention suit] subsequently applied tote First Circuit Court of Appeal for a supervisory writ from this ruling. Ili ill Jill 111 11111111 1 1

the intervention suit, and dismissed the plaintiffs petition for intervention on t1l 11, 2017), writ denied, 2017- 1700 ( La. 12/ 15/ 17), 231 So. 3d 603. This court

WRIT GRANTED. Pursuant to Louisiana Civil Code article 3497, actions for annulment of a testament and reduction of an excessive donation are subject to a five- year liberative prescription. Further, the date upon which prescription begins to run is the date when the testament is filed for probate. See In re Andrus, 221 La. 996, 1006, 60 So. 2d 899, 902 ( La. 1952); West. v. Gajdzik, 425 So. 2d 263 ( La.

App. 3 Cir. 1982), writ denied, 428 So. 2d 475 ( La. 1983). Herein, the

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decedent' s . and Testament. " i for probate June , i i . intervention,. Cooper,' i his petition on June 30, 2014. Therefore, because more y ", years y ", elapsed yi " i

since the decedent' s +,, filed for probate, i'ii" claims

againstdefendants- in- intervention, . . h Cooper and Burton Cooper, prescribed.

FITURMTH.- TAMIr i sntiff sought reviewof i decision by r wrM

Additionally, the plaintiff argued in his petition for damages that La. R. S. i1: 5605 denied him due processof lawand was as violated Fourteenth Amendment ti the United States Constitutionand La. Const.

plaintiff argued + ofSeptember • 4 date when three years

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of action for " firmalpractice against ca defendants. plaintiff

argued r did not acquire i', court li" • i i ii' iIIR i "` i I argued r if r 9: 5605 r ii ' i to the facts of r against the i' i. i i i', • y i', ' i . i . i ..

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In response, the defendantsfiled r peremptory excei i raising the

objections of peremption + • no cause of action. defendants . • that .'

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2 The Fourteenth Amendment of the United States Constitution provides that "[ nlo State shall ... deprive any person of life, liberty, or property, without due process of law[.]" 3 Louisiana Constitution article I, § 2 provides that ``[] o person shall be deprived of life, liberty, or property, except by due process of law."

M *5 attached several exhibits, which included the email correspondence between the

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i r - hearing was held in the trial court on the

defendants' peremptory exception raising the objections of i` i( and no cause of action'. After hearing arguments from the parties, the trial court made an oral ruling, which found that the plaintiffs claim was perempted under La. R.S. 9: 5605. On. December 18, 2018, the trial court signed a judgment in accordance with its oral ruling, which sustained the defendants' peremptory exception raising the objection of peremption under La. R. S. 9: 5605( A)' s three- year peremptive

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raising the objection of no cause of action and peremption under La. R. S.

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1) Affirm the judgment of the District Court regarding the accrual of La. Rev. Stat. § 9: 5605( A)' s three- year peremptive period, 2) Grant [ the defendants] peremptory exception of ere tion under

La. Rev. Stat. § 9: 5605( A)' s one- year peremptive period; 3) Grant [ the defendants] peremptory exception of no cause of action; and

4) Assess all costs associated with the above -captioned appeal to [ the plaintiff.]'

introduced to support or controvert the exception. See La. C. C. P. art. 931. If

4 At the hearing the defendants' counsel introduced all the exhibits that were attached to it's defendants' peremptory exception raising the objections of peremption and no cause of acti and no objection was made by opposing counsel. I 5 Due to our holding in the instant matter, we rete it discussion of the issues raised in the defendants' answer to appeal as they are now moot. See Kendrick v. Northshore Regional Medical Center, Inc., 2012- 0229 ( La. App. I Cir. 1/ 24/ 13), 2013 WL 269033, at * 1 unpublished), writ denied, 2013- 0442 ( La. 4/ 5/ 13), 110 So. 3d 594.

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L= Ungs of fact are reviewed under the manifest error -clearly wrong standard of review. Rando v. Anco Insulations, Inc., 2008- 1163 ( La. 5/ 22/ 09), 16 So. 3d 1065, 1082. In the absence of evidence, an exception of peremption must be decided based upon the facts alleged in the petition with all of the allegations App. I Cir. 6/ 3/ 16), 196 So. 3d 693, 696. If no evidence is introduced to support C8 controvert the exception, the manifest error standard of review does not apply, and

correct. Harris v. Breaud, 2017- 0421 ( La. App. I Cir. 2/ 27/ 18), 243 So. 3d 572, 11111 1 FRIPPERIES ii, IilliIII 1= 0774,, i

peremptory exception raising the objection of peremption. See Carter v. Fiaygood, 2004- 0646 ( La. 1/ 19/ 05), 892 i! i'' 1261, 1267. However, iT ther party to show that the claim is not perempted. Rando, 16 So. 3d at 1082 -

The plaintiff argues in his sole assignment of error that the trial court erred in sustaining the defendants' peremptory exception rag the objection of the plaintiff argues that the trial court erred in granting the defendants' exceptiom because on September 26, 2014, the date when three years had run since he received Ms. Stout' s email, the plaintiff had not received notice of his cause of

The time limits to file a legal malpractice action are set forth in La. R.S_

A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or

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any professional corporation, company, organization, association, enterprise, or other commercial business or professional

combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions

filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

Emphasis added.)

B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred.... The one- year and three-year periods of limitation provided in Subsection A of this Section are

peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended. ( Emphasis added.)

The time periods provided in this statute are peremptive. This means that

11111%; pill 111 111111 1 to court dissolve at the end of the specified periods of time and may not be renounced, interrupted, or suspended in accordance with La. C. C. arts. 3458 an i

6- 3461 See Borel v. Young, 2007 __— h' 0419 ( La. 11/ 27/ 07), 989 So.2d 42, 59, on reA

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ne year from the date of discovery of the alleged act, omission, or neglect-,

6 Louisiana Civil Code article 3458 states that "[ p] eremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period."

Louisiana Civil Code article 3461 states that "[ p] eremption may not be renounced, interrupted, or suspended."

Paternostro v. LaRocca, 2001- 0333 com p

1• ITIMM111 date ofthealleged legal malpracticeto file suit against omission, or neglect complained of in the plaintiff' s petition for damages was the defendants' alleged failure#' adequatelyresearch law, which legal malpractice. The alleged legal malpractice occurred on September 26, 2011. The 2018, which is beyond the three- year preemptive period mandated by La. R.S_

malpractice s • • i'# by three- year • e## set # La. R.S.

i ii iiiijii1 • Aeeder v. North, 97- 0239 ( La. 10/ 21/ 97), 701 So.2d 1291, 1295- 97; Garner v.

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MEMSMMM11111I I I I 111] 1 11 1 1111111 [ II] KII I' It.XWO 111 1 1 7110OrOwl by the legislature under La. R.S. 9: 5605( A) to govern the filing of legal malpractice suits. See Straub v. Richardson, 2011- 1689 ( La. App. I Cir. 5/ 2/ 12), 92 So. 3d 548, 553, writ denied, 2012- 1212 ( La. 9/ 21/ 12), 98 So. 3d 341; Raby-Louisiana Supreme Court has made it clear that a cause of action for legal that cause of action, or the facts never ripen into a justiciable case. Reeder, 701

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the act, omission, or neglect, the cause of action is extinguished, regardless of

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may be brought within that three- year period. If no damages are incurred within three years of the act, omission, or negligence, the cause of action and right of

While the time limitations of La. R. S. 9: 5605 may seem unfair in that ? person' s claim may be extinguished before he realizes the full extent of his

7 prerogative. The Legislature was aware of the pitfalls in La. R.S. 9: 5605 btM

4,ue for legal malpractice, just as it would be within its prerogative to not allow

7 We note that the peremptive limitations of one and three years have been adopted for maim professions including licensed professional accountants ( La. R. S. 9: 5604), admitted attorne and legal practices ( La. R. S. 9: 5605), professional insurance agents ( La. R. S. 9: 5606) and health care providers, including physicians, chiropractors, dentists, psychologists, optometrist midwives, nurses, nursing homes, hospitals, blood centers or tissue banks ( La. R. S. 9- 5628 a La. R. S. 95628. 1). See Wong v. Hoffman, 2005- 1483 ( La. App. 4 Cir. 11/ 7/ 07), 973 So. 2d 20, writ denied, 2007- 2373 ( La. 2/ l/ 08), 976 So 2 d 724.

i • So. 3d • + 64denied, i , 61. ., Therefore, that applying ...: peremptive language r:.. r R.S.

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firmalpractice until after . three- year . .,. period expired, r

r r i` ` i ` ` fir.:. ` r ; r `.. r periodr: cause of actionReeder, w at claim is perempted by La. R. S. 9: 5605( A)' s three- year peremptive period. Because .,. plaintiffdidnot filehis claimlegal malpractice against .,.

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For the foregoingreasons, rtrial court' s

judgment that granted the defendants', Amanda S. Stout and McGlinchey Stafforil i peremptory` i raising the objection peremption under r R.S.

rejudice. Accordingly, the December 18, 2018 judgment is affirmed. Costs of

this rii;.` r are assessed the plaintiff, r E. Cooper.

HUI

Footnotes

[11] 11 NOWMM M Mm 1:111111 claim was not time- barred under La. R.S. 9: 5605 because the statute is the due process clause of the Fourteenth Amendment to the United States Constitution and La. Const. Art. I § 2[.]" Therefore, the plaintiff argued that La - timely notice of the defendants' legal malpractice to assert a cause of action. Thus, H*.