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

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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 Baton Rouge, Louisiana Stephen Attorney for Plaintiff/Appellant Evan E. Cooper Poss Baton Rouge, i De Blunt Attorneys for Detendants/ Appellees Kevin W. Welsh Amanda Baton Rouge, Louisiana Stafford, PLLC Jeff Landry Attorney General Attorneys for Defendant/Appellee Margaret A. Collier Assistant Attorney General Baton Rouge, Louisiana i a McGlinchey Louisi.' a Department of R N I 11y,& MI 1= 4 1 The trial court' s M= gINTS" lmmfurg!, RMO3JjJhJM1Judice. 1 Fii 11 1111 0 alsoi' denied the defendants' i• 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. Amanda Stout ( 9/ 26/ 11): ... The email discussion was as 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. VSWUM 011! 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. 2 MIMI 11111111111= Ir P10111111 I 1 11 1 It 1111 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 Cooper, Jr., Probate No. 89- 936, Section 25, well 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. 8. 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. ill Jill Ili 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), WRIT GRANTED. 231 So. 3d 603. This court 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). I Herein, the decedent' s . i for probate and Testament. " i . i intervention,. Cooper,' Therefore, because more June 30, 2014. since the decedent' s +,, i his petition on years y ", filed for probate, againstdefendants- in- intervention, . . June , i yi " elapsed y ", claims i'ii" h Cooper and Burton Cooper, prescribed. FITURMTH.TAMIr i sntiff sought reviewof decision by r wrM i 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. date when three years 4 ofSeptember • plaintiff argued + i . y . i, i i i plaintiff ca of action for " firmalpractice against defendants. argued did not acquire r i', i li" • argued r if i i. i' 9: 5605 r i r ii i', • ' court i i iIIR ii' i "` to the facts of I against the r i . i', ' y i i . i .. i In response, the defendantsfiled it s+ i" i y; i r i` r • i• •• r ! " " i ' i i,, i y i11 y • •' • t r " i r iii i i i excei raising the defendants . • no cause of action. objections of peremption + • i peremptory r y i ` " " ': r r that .' y i i ''i • • r i ir'' i ` y 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 attached several exhibits, which included the email correspondence between the MITMINWITIEVILMNmm 111111111 1 1 i defendants' r - hearing was held in the trial court on the peremptory exception raising the objections of i` cause of action'. i( and no 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. On. December 18, 2018, the trial court signed a judgment in accordance 9: 5605. 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 MIUMMIUM11 r= I I ME4100.311141 M41111= 701= 4ME raising the objection of no cause of action and peremption under La. III m yromw Immims ME= 1) MMO i1g; J 1 1 1 1 111111111111 R. S. 111 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. 5 Due to our holding in the instant matter, we rete I 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. 5 romr01 L= Ungs of fact are reviewed under the manifest error -clearly wrong standard of review. 1065, Rando v. Anco Insulations, Inc., 2008- 1163 ( La. 5/ 22/ 09), 16 So. 3d 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), 11111 FRIPPERIES ii, IilliIII 1= 1 i 0774,, peremptory exception raising the objection of peremption. Fiaygood, 2004- 0646 ( La. 1/ 19/ 05), 892 i! ther party to show that the claim is not perempted. i'' 1261, 243 So. 3d 572, 1267. See Carter v. However, iT 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 r# any professional corporation, company, organization, association, enterprise, or other business commercial 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 provide to 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 in provided 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. pill 11111%; 111 This means that 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 3461 6- 0419 ( La. See Borel v. Young, 2007 __— HI 1111111lilll 11/ 27/ 07), h' 989 So.2d 42, 59, on reA 1131111111E111PRIA Ill I ne year from the date of discovery of the alleged act, 11 i 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." 7 com Paternostro v. LaRocca, 2001- 0333 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#' malpractice. 2018, adequatelyresearch law, which legal The alleged legal malpractice occurred on September 26, 2011. The which is beyond the three- year preemptive period mandated by La. R.S_ malpractice by i'# s • • three- year • e## La. R.S. set # iiiijii1 • i ii Aeeder v. North, 97- 0239 ( La. 10/ 21/ 97), 701 So.2d 1291, 1295- 97; Garner v. 1 1 1 1. #. IF I 111111 111 11111111 11 11 r NOWMM M claim the was not due process Mm 1:111111 11 11 time- barred clause 111 under of the La. R.S. Fourteenth Constitution and La. Const. Art. I § 2[.]" 9: 5605 because Amendment to the the statute United is States Therefore, the plaintiff argued that La - timely notice of the defendants' legal malpractice to assert a cause of action. H*. Thus, MEMSMMM11111I I I I 111] by the legislature malpractice suits. under La. R.S. 1 11 1 1111111 [ 9: 5605( A) II] KII I' It.XWO to govern 111 1 the 1 7110OrOwl filing of legal 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. III111, 1 1 1 1 1 1 1 BM41111I = r: y Reeder, 701 11111 the act, omission, or neglect, the cause of action is extinguished, regardless of p111 il I 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 prerogative. 7 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 • + 61. ., Therefore, 64denied, i , that applying ...: peremptive language r:.. r R.S. lo Statesr Amendment` under ffjlffrmlllli firmalpractice until r r periodr: claim is Because .,. Ilir. rig three- year . .,. after . i` ` La. R. S. 9: 5605( A)' s For the foregoingreasons, judgment that granted the defendants', peremptory` rejudice. expired, fir.:. ` i ` ` r ; three- year r r `.. w r at peremptive period. plaintiffdidnot filehis claimlegal malpractice against .,. INDIA i period cause of actionReeder, perempted by r i IR 111111111 T I rtrial Amanda S. Stout and McGlinchey Stafforil raising the objection peremption under Accordingly, the December 18, 2018 judgment is affirmed. this rii;.` r are assessed court' s the plaintiff, r HUI E. Cooper. r R.S. Costs of

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