Trans Pacific Interactive, Inc. VS U. S. Telemetry Corporation, U. S. Telemetry Network, Inc., U.S. Telemetry - Bakersfield, L.L.C., Datex Spectrum, L.L.C., Thomas L. Siebert, K. Steven Roberts, Robert S. Miller, Don M. Clarke, James K. Gable, Charles M. Bruce, John J. Broussard, Henry (Ha
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0507 TRANS PACIFIC INTERACTIVE INC VERSUS S U TELEMETRY CORPORATION U TELEMETRY NETWORK INC U S S TELEMETRY BAKERSFIELD LLC DATEX SPECTRUM LLC THOMAS L SIEBERT K STEVEN ROBERTS ROBERTS MILLER DON M CLARKE JAMES K GABLE CHARLES M BRUCE JOHN J BROUSSARD HENRY HANK MILLS CLAY M ALLEN AND STEPHEN D GAVIN Judgment rendered DEC 2 9 010 Appealed from the 19th Judicial District Court 4 in and for the Parish of East Baton Rouge Louisiana Trial Court No C507714 Honorable William A Morvant Judge FREDERICK R TULLEY ATTORNEYS FOR KATIA DESROULEAUX PLAINTIFF APPELLANT BATON ROUGE LA TRANS PACIFIC INTERACTIVE INC STEPHEN J HERMAN ATTORNEYS FOR BRIAN D KATZ DEFENDANTSAPPELLEES NEW ORLEANS LA STEPHEN D GAVIN AND PATTON BOGGS LLP BEFORE KUHN PETTIGREW and HUGHES 33 Kph PETTIGREW J In this action alleging fraud legal malpractice and other causes of action plaintiff Trans Pacific Interactive Inc TPI a Nevada corporation challenges a trial court judgment sustaining peremptory exceptions filed on behalf of several defendants raising objections of no cause of action and prescription For the reasons that follow we reverse and remand FACTS In July 1994 TPI allegedly paid the Federal Communications Commission FCC s 00 000 450 for an Interactive Video and Data Services IVDS license to utilize the wireless radio bandwidth between 218 and 219 Megahertz MHz in and around s Bakersfield California the Bakersfield license At the time of the FCC auction the technology available to use the license was inadequate In 1998 and 1999 defendant U Telemetry Corporation S USTC began working with Axonn Corporation a New Orleans Louisiana company to convert remote telemetry monitoring technology previously developed by Axonn for other radio spectra for use by USTC Anticipating its use of the 218219 MHz spectrum at relatively little cost USTC signed an agreement with Axonn for the exclusive use of the Axonn technology Due to s USTC exclusive relationship with Axonn licensees such as TPI were barred from contracting with Axonn except through USTC In 1999 USTC through its whollyowned subsidiary defendant U Telemetry S Network Inc USTN entered into contracts with IVDS license holders known as System Development Agreements C The SDAs anticipated that license holders SDAs would contribute their licenses to a market specific entity or MSE the market being the geographic market covered by the license Although the license holder and USTN would share ownership of the MSE the MSE would be a new subsidiary of USTN that would be controlled by USTN which had the authority to appoint a majority of the MSE board s It was further anticipated that in return for receiving control of the license holder license s USTN would provide access to the Axonn technology that would allegedly provide commercial applications for radio bandwidths covered by the licenses 2 The SDAs anticipated a merging event at some point in the future in which all of the MSEs would eventually be merged into a single company with the ownership thereof determined by the formulas set forth in the SDAs TPI executed an original SDA on July 12 1999 with Adtel Inc a predecessor of USTC and subsequently signed a revised SDA with USTN effective May 23 2000 In February 2001 the Texaco defendants a potential investor in USTC became interested in using USTC technology to monitor data from its wellheads and other s equipment situated in remote locations Texaco was especially interested in the possibility of using USTC technology to monitor its Kern River Oil Fields situated near s Bakersfield California a geographic area covered by the Bakersfield license On March 15 2001 USTC applied for and later obtained from the FCC an Experimental Special Temporary Authorization STA The STA granted by the FCC on June 20 2001 authorized USTC to test equipment at Texaco sBakersfield facility TPI claimed that it did not learn of the STA application until July 2001 TPI later entered into an Act of Exchange Agreement with defendant Datex Spectrum L Datex on December 1 2001 The Exchange Agreement between TPI C and Datex provided for the transfer of TPI rights under the SDA to Datex in exchange s for 14 shares of USTC stock from USTC 14 shares of USTC stock from Datex 360 360 together with 28 in cash representing a reimbursement for an earlier installment 00 000 payment TPI made to the FCC for the Bakersfield license Ultimately TPI no longer owned its valuable FCC license or its 50 percent joint venture interest in the MSE formed to develop the Bakersfield market Additionally TPI no longer had any right to the revenues that might have been generated from the arrangement with Texaco TPI was left with worthless stock in USTC ACTION OF THE TRIAL COURT On May 15 2003 TPI filed suit in the 19th Judicial District Court naming four corporate entities all domiciled in Louisiana and ten individuals as defendants therein Four of the individual defendants were Louisiana residents and all ten individual defendants served as officers directors or outside counsel of the Louisiana corporate 3 defendants TPI alleged in its petition that defendant USTC its wholly owned subsidiary defendant USTN and defendant Datex breached their contracts with TPI with respect to s TPI wireless communications license committed violations of Louisiana sBlue Sky laws La R 51 et seq in connection with an exchange agreement whereby TPI was S 701 induced to transfer its FCC telecommunications license for Bakersfield California to Datex in exchange for USTC stock made negligent and intentional misrepresentations to TPI and wrongfully converted TPI FCC license s TPI alleged that the individual defendants were participants and coconspirators in the same scheme TPI also alleged that defendant Stephen D Gavin a Washington D attorney with the law firm of Patton C Boggs L Patton Boggs breached his fiduciary obligations by acting as counsel for P TPI while also acting as counsel for defendants herein USTC and USTN TPI further alleged that Gavin conspired with the other defendants in making misrepresentations committing breaches of contract and wrongfully converting TPI license in violation of s his fiduciary obligations as TPI attorney s Prior to filing suit in Louisiana in 2003 TPI filed an earlier suit in federal court against most of the same defendants including attorney Gavin TPI filed suit previously on September 16 2002 in U District Court in Nevada alleging fraud breach of S contract violations of federal securities laws negligence misrepresentation breach of covenant of good faith and fair dealing conversion deceptive trade practice racketeering tort outrage and conspiracy In addition to general and special damages including attorney fees costs and expenses TPI prayed for a trial by jury and an award of exemplary and punitive damages from each defendant In response to TPI federal court lawsuit defendants USTC K Steven Roberts s Thomas L Seibert Donald M Clarke and Gavin filed motions to dismiss for lack of personal jurisdiction Said defendants argued that while TPI was a Nevada corporation the alleged wrongful conduct did not take place in Nevada and that defendants most of whom were Louisiana residents or did business principally in Louisiana did not have the requisite minimum contacts with Nevada Defendants including Gavin argued that Louisiana where the corporate defendants and most of the individual defendants were 4 domiciled and where the faceto face discussions took place Delaware where some of the corporate defendants were incorporated or California where s TPI telecommunications license applied would be more appropriate venues in which to file this action TPI followed defendants suggestion and instituted the present litigation in Louisiana while the Nevada suit was still pending The Nevada suit was later dismissed by the court due to TPI failure to serve its amended complaint s TPI amended its Louisiana petition three times partly in response to exceptions that raised objections of vagueness due to TPI failure to plead its fraud allegations with s particularity On August 2 2004 TPI amended its original petition to name two additional individual defendants and two additional corporate defendants affiliated with Texaco On November 19 2007 TPI filed its second amended petition to allege with greater particularity its claims against the new defendants On January 16 2009 TPI filed its third amended petition to name attorney Gavin law firm Patton Boggs as an additional s defendant and in response to the court order of December 8 2008 to allege with s more particularity the fraud and conspiracy claims against attorney Gavin On July 14 2009 Gavin and Patton Boggs filed peremptory exceptions raising objections of no cause of action and prescription Following a hearing in the trial court on October 26 2009 the exceptions were granted and pursuant to a judgment entered on November 30 2009 TPI claims against Gavin and Patton Boggs were dismissed s Said judgment was made final and immediately appealable pursuant to La Civ Code art 8 1915 From this judgment TPI now appeals ISSUES PRESENTED FOR REVIEW In connection with its appeal in this matter TPI presents the following issues for review and consideration by this court 1 Did TPI state a cause of action against Gavin and Patton Boggs for legal malpractice 1 Defendants Texaco Group LLC and Texaco Development Corporation hereinafter referred to collectively as Texaco were dismissed from this litigation through a trial court judgment sustaining an exception raising an objection of no cause of action that was subsequently affirmed by this court See Trans Pacific Interactive Inc v U Telemetry Corporation 2008 2174 La App 1 Cir 5 unpublished writ S 09 8 denied 2009 1287 La 9 18 So 75 09 25 3d 5 2 Did TPI state a cause of action against Gavin and Patton Boggs for fraud and conspiracy 3 Are TPI claims against Gavin and Patton Boggs barred by oneyear s prescription or peremption under Louisiana law 4 Do the choice of law provisions of the Louisiana Civil Code and the parties stipulation compel the application of District of Columbia substantive law to TPI claims against Gavin and Patton Boggs s 5 Is the application of the District of Columbia threeyear statute of limitations to TPI malpractice and fraud claims against Gavin warranted s under the Louisiana choice of law provisions assuming arguendo that s TPI claims are prescribed under Louisiana law 6 Was the prescription of TPI claim against Patton Boggs interrupted s under the fraud exception to La R 9 andor the choice of law S 5605 provisions of La Civ Code art 3549 2 6 STANDARD OF REVIEW The initial issues raised by TPI in connection with its appeal in this matter challenge the trial court finding that TPI failed to state a cause of action against Gavin s and Patton Boggs The function of an exception that raises the objection of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the petition Ramey v DeCaire 2003 1299 p 7 La 3 04 19 869 So 114 118 2d No evidence may be introduced to support or controvert the exception raising the objection of no cause of action La Code Civ P art 931 In addition all facts pled in the petition must be accepted as true Rebardi v Crewboats Inc 20040641 p 3 La App 1 Cir 2906 So 455 457 Thus the only issue 05 11 2d at the trial of the exception is whether on the face of the petition the plaintiff is legally entitled to the relief sought Ramey 2003 1299 at 7 869 So at 118 Rebardi 2004 2d 0641 at 3 906 So at 457 In reviewing the petition to determine whether a cause of 2d action has been stated the court must if possible interpret it to maintain the cause of action Any reasonable doubt concerning the sufficiency of the petition must be resolved in favor of finding that a cause of action has been stated Livingston Parish Sewer Dist No 2 v Millers Mut Fire Ins Co of Texas 991728 p 5 La App 1 Cir 00 22 9 767 So 949 952 writ denied 20002887 La 12 776 So 1175 2d 00 8 2d If the grounds of the objection of no cause of action can be removed by amendment the plaintiff should be given an opportunity to amend the petition However r if the grounds of the objection cannot be so removed the action should be dismissed See La C art 934 United Teachers of New Orleans v State Board of P Elementary and Secondary Education 20070031 p 9 La App 1 Cir 3 08 26 985 So 184 193 2d The decision whether to allow amendment is within the sound discretion of the trial court Stroscher v Stroscher 2001 2769 p 4 La App 1 Cir 03 14 2 845 So 518 523 2d Appellate courts review a judgment sustaining a peremptory exception raising the objection of no cause of action de novo This is because the exception raises a question of law and the trial court decision is based only on the sufficiency of the petition s Ramey 2003 1299 at pp 78 869 So at 119 see also Fink v Bryant 2001 0987 2d p 4 La 11 801 So 346 349 01 28 2d Accepting all of the allegations set forth in the petitions filed by TPI as true and applying the principles set forth above we find contrary to the conclusions of the trial court that TPI has alleged facts sufficient to state a timely cause of action against Gavin and Patton Boggs for legal malpractice ANALYSIS AND DISCUSSION The first two issues raised by TPI are 1 whether TPI stated a cause of action against Gavin and Patton Boggs for legal malpractice and 2 whether TPI stated a cause of action against Gavin and Patton Boggs for fraud and conspiracy In discussing the claims set forth against Gavin and Patton Boggs the trial court in its oral reasons for judgment stated in pertinent part The only real allegation as to fraud is in paragraph 48a that says that Mr Gavin as attorney for Patton Boggs LLP illegally and fraudulently signed an application for STA without knowledge or consent of TPI And I noted on the petition then and I made the same note today when the argument was made is that fraud has to be pled with particularity specific acts and specific facts set forth in support and here again it appears that TPI is alleging a conclusion of law without any factual support And the question that kept coming to my mind as I read through the new amending paragraphs that were in bold is whether or not counsel reread the old petition because 48a is a clear contradiction to the allegations of paragraphs 14 and 15 of the original first and second and third amending petition that alleges that Mr Gavin didn file this application it was filed by t K Stephen Roberts and Mr Gavin only signed as attorney Now it turning s around and saying well despite the fact that we alleged that Gavin was ve acting as attorney we going to throw in that he illegally and fraudulently re 7 signed the application therefore fraud is pled That not sufficient When s I look at that allegation in connection with all of the allegations of the petition I don think there been a cause of action for fraud adequately t s pled in this petition because when it was amended and restated it didn t change any of the original allegations They still in there Conspiracy re Paragraph 48 alleges that defendant Gavin and Patton Boggs conspired with other defendants in misrepresentation breach of contract conversion all in violation of a fiduciary duty as counsel Again in addition to this being a mere conclusion of law this is the same allegation this Court found to be insufficient to state a cause of action against Mr Gavin back on December 8 of 2008 The only difference between then and now is the words Patton Boggs LLP was inserted in addition to Mr Gavin All of the facts of conspiracy as you read through these 269 paragraphs address actions of USTC and the other defendants Gavin and Patton Boggs are not party to any contract or agreement alleged to have been breached you know misrepresented At all times throughout they alleged in this petition to re be acting as attorneys Absolutely no factual allegations that either of these defendants Mr Gavin or the firm Patton Boggs conspired to defraud plaintiff or to breach any fiduciary obligation other than as I indicated the mere conclusions of law that are contained in paragraph 48 We now turn to the attorney malpractice action and this is based solely on plaintiff s allegations that Gavin and Patton Boggs were counsel for TPI at the time the application for the SDA was filed and when this November and December 2001 act of exchange agreement with Datex was entered First of all it a fact that disputed by defendant but I can consider that s s t dispute But I also have to look at again all of the allegations contained in the petition and in this premise that Gavin andor Patton Boggs were counsel for TPI at this time is contradicted by some of the prior assertions by plaintiff in its petition I look at paragraph 15k On June 4 of 2001 they hired Datex attorney Mr Van Mayhall to represent them s Paragraph 17r prior to September 12 of 2001 they allege they hired a second attorney Mr Morrison Throughout this third amended petition as I read through it it looks like plaintiff interchangeably calls Gavin and Patton Boggs USTC attorney sort of when it convenient and then TPI attorney s s s when it necessary The dates and times set forth in plaintiff petition I s s t don think support the claim that plaintiffs were represented by Gavin or Patton Boggs during this time that the defendants committed any form of malpractice that they violated the Rules of Professional Conduct with the possible exception of a conflict of interest and that they owed any duty fiduciary or otherwise to plaintiff absent that attorney client relationship s Plaintiff Exhibit 15 which is probably one of the single most important pieces of paper that I looked at as of November 8 200 Ms Monahan 1 counsel for TPI by the language in this letter is fully aware of the fact that defendants Gavin and Patton Boggs were representing USTC and not TPI And as I indicated the petition has already alleged that prior to this date TPI had hired two other attorneys in connection with the proposed act of exchange agreement with Datex Mr Mayhall in June and subsequent to Mr Mayhall withdrawing Mr Morrison In addition to paragraph 15k plaintiff Exhibits 11 13 and 15 all reflect Mr Mayhall s s involvement And in fact this Plaintiff 11 sic from Mr Roberts to Ms s Monahan with a cc to Mr Gavin specifically says that they have sent information to your attorney Van Mayhall who is now in possession of this form of operating agreement Not only does the petition allege that Mr Mayhall was TPI attorney the exhibits attached to the petition which s since they incorporated and annexed to it I can consider for a no cause of re action likewise reflect that USTC and others considered and more importantly Patton Boggs considered Van Mayhall to be their attorney Plaintiff also knew prior to the November and 2000 sic dates of the act of exchange with Datex that Patton Boggs was representing USTC and not TPI Paragraph 15 15a 17y aa cc and ee And during this time and mine was attached to Exhibit 15 It been introduced as a separate exhibit s but the correspondence to Ms Monahan from Mr Gavin and I looking m and I think it dated November 7 s to get my hands on the exact language bear Laura Tneeds to be a clarification of some important errors in here and it s First Patton Boggs LLPE l C3 not now and has never represented TPI regarding the does your most recent memoranda underlined acquisition of TPI Bakersfield license E s Clearly indicates at that time re they taking the position and this is November that they don represent t the plaintiff And her response which was read to the Court being extremely upset but ointing p out to Mr Gavin You got a ve potential conflict of interest you got ve this constitutes gross negligence m and possible collusion with USTC But Inow asked to consider that it was not until June of 2002 that they first became aware of this alleged conflict of interest or that a possible cause of action arose when plaintiff s own correspondence shows that November of 01 they clearly aware re And she telling them You s ve got a conflict of interest Your representation of USTC constitutes gross negligence and it possible s collusion I don know how much clearer it got to be to discover facts t s They may not have discovered that USTC was tanking financially but as far as a potential malpractice claim against Patton Boggs andor Mr Gavin Ms Monahan spells it out November 8 of 2001 you know I got a cause of ve action against you I can sue you Based on all of the allegations and plaintiffs own allegation that they knew as of that date prior to the execution of this agreement with Datex that the defendants did not represent them the fact that they alleged repeatedly that they were ve represented by other counsel other than Gavin or Patton Boggs during the period of time in question and looking at all of the allegations contained in the third amended and restated petition the Court is of the opinion that the plaintiff has failed to state a cause of action against either Gavin or Patton Boggs for malpractice he T elements of a malpractice action the first thing is you got to establish the existence of a relationship of an ve attorney client privilege Prior to the Datex agreement the date that they were signed they clearly with that November 7 and November 8 re exchange of correspondence put on notice there is no relationship The billing had stopped in July They were not doing any work for TPI at that time and they flat out say We don represent you we never t ve represented you Assuming solely for the sake of argument that this petition would state a claim for legal malpractice I think that based on the allegation of the petition the exhibits attached thereto and the testimony that the Court heard today that this claim for malpractice is clearly and I think plaintiff acknowledged that in brief is clearly prescribed under R S A 5605 9 one year from the date of alleged act or omission or one year from discovery As can be seen in the foregoing transcribed excerpt of the trial court oral reasons s for judgment the trial court held that no attorney client relationship existed between Gavin andor Patton Boggs and TPI The court determined that dates and times set forth in TPI petition did not support its claim 1 that TPI was represented by Gavin or Patton s I Boggs during the relevant time 2 that Gavin andor Patton Boggs had committed malpractice 3 that Gavin andor Patton Boggs violated the Rules of Professional Conduct with the possible exception of a conflict of interest and 4 that Gavin andor Patton Boggs owed a fiduciary duty to TPI absent an attorney client privilege Relying upon Gavin November 7 2001 letter to TPI wherein Gavin stated he was not TPI s s attorney and TPI allegations in its amended petition to the effect that TPI had retained s other counsel the trial court opined that TPI has failed to state a cause of action against either Gavin or Patton Boggs for malpractice The trial court further concluded that assuming arguendo that TPI petition stated a claim for legal malpractice said s claim was clearly prescribed pursuant to La R 9 as this action was brought S 5605 A more than one year from the date of the alleged act omission or neglect and more than one year from the date of the alleged act omission or neglect was discovered The standard of care that an attorney must exercise in the representation of a client is that degree of care skill and diligence that is exercised by prudent practicing attorneys in his locality Teague v St Paul Fire and Marine Insurance Company 20061266 p 19 La App 1 Cir 4 10 So 806 821 writ denied 2009 1030 09 7 3d La 6 10 So 722 09 17 3d A claim for legal malpractice is stated when the plaintiff alleges that 1 there was an attorneyclient relationship 2 the attorney was guilty of negligence or professional impropriety in his relationship with the client and 3 the s attorney misconduct caused the client some loss 3d So at 821 citin Teague 20061266 at p 19 10 Prestage v Clark 970524 p 9 La App 1 Cir 12 723 98 28 2d So 1086 1091 writ denied 990234 La 3 739 So 800 99 26 2d The proper method of determining whether an attorney malpractice is a causein fact of damage to s his client is whether the performance of that act would have prevented the damage Id Thus simply establishing that an attorney was negligent whether based upon the failure 2 Louisiana Revised Statute 9 sets forth a oneyear prescriptive period for the filing of an action for 5605 legal malpractice running 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 II to conform to an ethical rule or some other standard would not be sufficient to state a cause of action for legal malpractice Teague 20061266 at p 19 10 So at 821 citin 3d Executive Recruitment Inc v Guste Barnett Shushan 533 So 129 131 2d La App 4 Cir 1988 writ denied 535 So 742 La 1989 2d In the present case TPI has alleged in Paragraphs 1k 1p 17m and 17y of its Third Amended and Restated Petition for Damages that Gavin and Patton Boggs provided legal representation to TPI and stated specifically in Paragraph 17r that Gavin and Patton Boggs represented TPI on all matters relating to its Bakersfield license and the FCC TPI also alleged in Paragraphs 1k and 1p that Gavin was an attorney and Patton Boggs was a law firm which at all times pertinent to this litigation represented both TPI and USTC despite the fact that the interests of these parties were clearly adverse TPI alleged in Paragraphs 21 and 22 of said petition that based upon false representations made to it by representatives of USTC USTN andor Datex TPI was induced to exchange its IVDS license for shares of stock in USTC In Paragraph 23 TPI set forth the facts regarding USTC dire financial condition at the time of its exchange s with TPI TPI further alleged in Paragraph 24 of its Third Amended and Restated Petition for Damages that it did not discover the falsity of the representations set forth in Paragraph 21 and the actual facts until after the June 12 2002 USTC stockholders meeting held in Baton Rouge Louisiana The trial court in its oral reasons determined that TPI had been placed on notice through an exchange of correspondence in November 2001 of Gavin and Patton Boggs position that We don represent TPI we never represented TPI t ve Said claim is patently false It is obvious from the numerous invoices for legal services performed by Gavin and Patton Boggs on behalf of TPI copies of which were attached as Exhibits 3 and 4 to TPI Third Amended and Restated Petition that was introduced herein as Exhibit J s 1 that Gavin and Patton Boggs had a longstanding attorneyclient relationship with TPI through at least May 30 2001 There is no document evidencing a withdrawal of legal representation by Gavin and Patton Boggs and although the trial court found TPI had retained additional legal counsel there is no indication said counsel was hired to 11 represent TPI on matters relating to its Bakersfield license and the FCC As our supreme court has stated the existence of an attorneyclient relationship turns largely on the client subjective belief that it exists s In re LeBlanc 2004 0681 p 8 La 04 14 10 884 So 552 557 citing Louisiana State Bar Association v Bosworth 2d 481 So 567 571 La 1986 2d It is evident from the record before this court that there existed an attorney client relationship between TPI Gavin and Patton Boggs and that Gavin and Patton Boggs simultaneously provided legal representation to both TPI and USTC despite the fact that the interests of these parties were clearly adverse When TPI agreed to transfer to Datex its rights under the SDA together with its Bakersfield license in exchange for 14 360 shares of USTC stock on December 1 2001 TPI had knowledge that there existed an improper conflict of interest and perhaps an impermissible ethical violation as a result of Gavin and Patton Boggs dual representation of both TPI and USTC It must be assumed that TPI would not have entered into the exchange agreement with Datex had TPI been aware of USTC strue financial condition As a result TPI had no knowledge it had been damaged until after the June 12 2002 USTC stockholders meeting when it learned the truth of USTC precarious financial position Thereafter s TPI filed the instant litigation setting forth various claims including legal malpractice in the 19th Judicial District Court on May 15 2003 TPI filed this action for malpractice within one year of the date it discovered it had been damaged and within three years from the date of the alleged dual representation of both TPI and USTC by Gavin and Patton Boggs The filing date was therefore timely pursuant to La R 9 S 5605 Accepting as true the wellpleaded allegations of fact contained in TPI petitions s we are satisfied that it has sufficiently stated a timely cause of action for recovery against 12 Gavin and Patton Boggs due to legal malpractice Accordingly it was error for the trial court to sustain the peremptory exceptions raising the objections of no cause of action and prescription We further pretermit discussion of all other issues CONCLUSION For the above and foregoing reasons the judgment of the trial court sustaining the peremptory exceptions filed by Gavin and Patton Boggs that raised the objections of no cause of action and prescription are reversed We hereby remand this matter to the trial court for further proceedings in accordance with law All costs associated with this appeal shall be assessed against defendants Gavin and Patton Boggs REVERSED AND REMANDED 3 If there are two or more items or theories of recovery which arise out of the operative facts of a single transaction or occurrence a partial judgment on an exception of no cause of action should not be rendered to dismiss one item of damages or theory of recovery In such a case there is truly only one cause of action and a judgment partially maintaining the exception is generally inappropriate Everything on Wheels Subaru Inc v Subaru South Inc 616 So 1234 1239 La 1993 Thus because we have 2d concluded the petition alleges a cause of action insofar as legal malpractice it is unnecessary to discuss whether the same operative facts of this occurrence avers a cause of action in fraud 13
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