Michael J. Martin VS Joan M. Malbrough & Associates, et al
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2013 CA 1146 MICHAEL J. MARTIN VERSUS JOAN MALBROUGH & ASSOCIATES, ET AL DATE OFJUDGMENT. ¢ FE 1 8 cQ14 ON APPEAL FROM THE THIRTY-SECOND JUDICIAL DISTRICT COURT NiJMBER 167,429, PARISH OF TERREBONNE STATE OF LOUISIANA HONORABLE MICI IAEL E: KIRBY, 7UDGE AD HOC l Michael7. Martin Plaintiff-Appellant Houma, Louisiana Pro Se Donna H. Wright Counsel for Defendant-Appellee Joan M. Malbrough Malbrough & Wright, APLC Gray, Louisiana previously d/ b/ a Joan Malbrough Associates, APLC BEFORE: KiJIIN, HIGGINBOTIIAM, AND THERIOT, JJ. Disposition: AFFIRMED; MOTION TO CORRECT PAGE NUMBERS DENIED. KLJHN, J., Plaintiff, Michael J. Martin, appeals the dismissal of his legal malpractice suit against the law firm that previously represented him in a medical malpractice claim to pursuant a exception peremptory raising the objection of prescription/ peremption. We affinm. FACTUAL AND PROCEDLIRAI, BACKGROLJND In January of 2002, Mr. Martin was the piaintiff in a medical malpractice suit pending in the 32nd JDC, in which he was represented by the law firm of Joan Malbrough & Associates, A Professional Law Corporation.l On January 8, 2002, Judge David Arceneaux an signed allowing order Malbrough & Associates to withdraw as counsel of record for Mr. Martin pursuant to its ex parte motion and order to withdraw. Over ten years later, on August 6, 2012, Mr. Martin, in proper person, filed a suit for legal malpractice against Malbrough & firm' s withdrawal as his counsel Associates, alleging that the law of recard was detrimental to his medical malpractice claim and caused him to suffer medical, legal, and financial losses.2 He alleges that the motion to withdraw filed Malbrough & by Associates was deficient in that it failed to contain information on the status of his case as district court rules required and allowed March 11, 2013, his to " drop second pro counsel Mr. Martin filed a the ball se on [ his] petition. case..." On Although the allegations of this petition lack clarity, they seem to suggest that Malbrough & Associates, by filing the ex parte motion and order to withdraw, and Judge Arceneaux, by signing the order allowing counsel' s withdrawal, participated together in some sort of fraud and/ or fraudulent concealment regarding his medical The law firm is currentl Y doin g business under the name of Malbrou g h & Wri g ht > A Professional Law Corporation. 2 Mr. Martin also named Judge Arceneaus as a defendant in the suit. The dismissal of Mr. Marrin' s suit against Judge Arceneaux is the subject of a separate appeal currently before this Court, docket number 2013- CA- 0864, also decided this date. 2 malpractice suit. Additionally, Mr. Martin alleged that Marbrough & Associates also violated numerous rules of professional conduct by not informing him of the motion to withdraw in advance of its filing, in withdrawing as his counsel without good cause and to his detriment, and in failing to adequately protect his interest upon withdrawal. In response, the defense filed a peremptory exception raising the objection of prescription/peremption. Following a hearing on Apri129, 2013, the trial court rendered oral judgment sustaining the exception of prescription/peremption and dismissing Mr. Martin' s claims against Malbrough & Associates. The trial court subsequently signed written judgment in accordance with that ruling. Mr. Martin appealed the judgment, arguing that his legal malpractice suit is not prescribed because: ( 1) he did not discover until years later that he was harmed by Malbrough Associates' withdrawal as his counsel; and ( 2) the prescriptive period provided in La. R.S. 9: 5605 does not apply in cases of fraud. DISCUSSION The time limitation for filing a legal malpractice action is set forth in La. R.S. 9: 5605, which provides, in pertinent part: 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 any professional corporation, company, enterprise, or other commercial business organization, association, or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, out of an engagement to or breach provide of contract, or otherwise, legal services shall be brought arising unless filed in a court of competent jurisdiction and proper venue within one year fram the date of the alleged act, omission, o 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. 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 The one- year and three- year periods of limitation provided in Subsection A of this Section are peremptive periods neglect occurred.... 3 within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended. E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953. [ Emphasis added.] Thus, the applicable time limitations for legal malpractice actions is 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, or, at the latest, within three years from the date of the alleged act, omission, or neglect. 0333 ( La. App. peremption La. R.S. 9: 5605( A); see also Paternostro v. LaRocca, O1- lst Cir. 3/ 28/ 02), 813 So. 2d 630, 634. is typically on the party pleading it. The burden of proving However, when the action is perempted on the face of the petition, the burden shifts to the plaintiff to show the claim has not been perempted. See Dauterive Contractors, Inc. v. Landry and Watkins, O1- ll 12 ( La. App. 3d Cir. 3/ 13/ 02), 811 So.2d 1242, 1253. Mr. Martin filed his initial petition far damages on August 6, 2012. In both that petition and his subsequent petition, filed March 11, 2012, he complains of actions by Malbrough & Associates centered on its withdrawal as his counsel of record on January 8, 2002. Although he allegedly was not given advance notice of the motion and order to withdraw, Mr. Martin did receive notice of the withdrawal order within a period of days after it was signed. Thus, because Mr. Martin' s petition was not filed until over ten years after the order allowing Marlborough & Associates to withdraw from his medical malpractice suit was signed, the instant legal malpractice suit appears to be preempted on its face and the burden shifted to him to show that it is not. In opposing the exception of prescription/ peremption, Mr. Martin contends that the peremptive periods in La. R.S. 9: 5605( A) do not apply because of 4 Malbrough & Associate' s acts of deception and fraud, as well as the fact that he did not discover these acts of fraud and deceit until years after the withdrawal. La. R.S. 9: 5605( E) provides that the peremptive periods of La. R. S. 9: 5605( A) are not applicable in cases of fraud, as defined in La. C.C. art. 1953. 3 Fraud is defined by La. C. C. art. 1953 as " a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other ... and may result from silence or inaction." Although Mr. Martin' s petitions contained allegations of legal malpractice that allude broadly to fraud and deceit by his former counsel, none of the specific facts alleged in either of his petitions were sufficient to state a claim of fraud against Malbrough & Associates. would establish that No claim has been made nor facts alleged that Malbrough & Associates withdrew from the medical malpractice suit with the intention of obtaining an unjust advantage ar causing loss or inconvenience to Mr. Martin. The allegations of Mr. Martin' s petition simply do not meet the definition of fraud under La. C. C. art. 1953. Thus, what remains is a claim of legal malpractice that was filed well beyond one year after Malbrough & Associates procured an order allowing its withdrawal as Mr. Martin' s counsel. Furthe more, it is clear that within days of the January time, 8, 2002 withdrawal order, Mr. Martin received notice thereo£ At that he knew that Malbrough & Associates had withdrawn as his counsel without his consent, leaving him unrepresented in his pending malpractice suit. As such, Mr. Martin had knowledge of facts sufficient to put a reasonable man on notice that legal malpractice may have been committed and, therefore, he was subject to the commencement of peremption by virtue of such knowledge. Peremption 3 This court has previously determined that the fraud exception applies to both the one- yeaz and three-year peremptive pexiods. See Coffey v. Block, 99- 1221 ( La. App. lst Cir. 6/23/ 00), 762 So. 2d 1181, ll87, writ denied 00- 2226 ( La. 10/ 27/ 00), 772 So. 2d 651, superseded bv statute on other grounds as recoanized in, Naghi v. Brener, 08- 2527 ( La. 6/ 26/ 09), 17 So3d 919, 920 n.2. 5 commences when a claimant has knowledge of such facts even though he asserts a limited ability to comprehend and evaluate those facts. Carroll v. Wolfe, 98- 1910 La. App. lst Cir. 9/ 24/ 99), 754 So. 2d 1038, 1041. Accordingly, Mr. Martin' s legal malpractice suit was preempted since it was not filed until over ten years after he obtained notice of malpractice suit. the withdrawal The trial by court Malbrough & Associates from his medical correctly sustained the exception of prescription/ peremption. Mr. Martin' s arguments on appeal are without merit. CONCLUSION For the reasons outlined, the judgment of the trial court sustaining the exception of prescription/ peremption and dismissing Mr. Martin' s suit against Malbrough & Associates is affirmed. Additionally, Mr. Martin' s motion to correct the record page numbers referenced in his appellate brief is denied as being moot, since this Court was able to ascertain independently the correct record references during its review of this matter. All costs of this appeal are assessed against plaintiff-appellant, Mr. Martin. AFFIRMED; MOTION TO CORRECT PAGE NUMBERS DENIED. 6
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