OSCAR DANTZLER Vs. CLARENCE ROBY, JR. AND CLINTON W. SMITH, JR. AND ROBY & SMITH, A PROFESSIONAL LAW CORPORATION

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NOT DESIGNATED FOR PUBLICATION OSCAR DANTZLER * NO. 2005-CA-0221 VERSUS * COURT OF APPEAL CLARENCE ROBY, JR. AND CLINTON W. SMITH, JR. AND ROBY & SMITH, A PROFESSIONAL LAW CORPORATION * FOURTH CIRCUIT * STATE OF LOUISIANA * ******* APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2004-12442, DIVISION “J” Honorable Nadine M. Ramsey, Judge ****** Judge Max N. Tobias, Jr. ****** (Court composed of Chief Judge Joan Bernard Armstrong, Judge Max N. Tobias, Jr., and Judge David S. Gorbaty) Oscar C. Dantzler, Jr. 1203 Apple Street P. O. Box 1786 Hammond, LA 70401 IN PROPER PERSON, PLAINITFF/APPELLANT Clarence Roby, Jr. LAW OFFICE OF CLARENCE ROBY, JR., APLC 3701 Canal Street Suite U New Orleans, LA 70119 COUNSEL FOR DEFENDANT/APPELLEE AFFIRMED. NOVEMBER 17, 2005 In this legal malpractice action, the plaintiff, Oscar C. Dantzler, Jr., appeals from a judgment dismissing his suit against defendants, Clarence Roby, Jr., Clinton W. Smith, Jr., and Roby & Smith, PLC (hereinafter collectively referred to as “Roby”), on the basis of prescription. After reviewing the record and applicable law, we affirm the judgment of the trial court. On 12 June 1997, the plaintiff hired Roby to represent him in a racial discrimination case that was eventually filed in the United States District Court for the Eastern District of Louisiana. On or about 16 February 2001, the plaintiff discharged Roby and on 21 March 2001, Roby’s motion to withdraw as counsel was granted by the federal district court. On 27 August 2004, the plaintiff filed the instant lawsuit against Roby alleging legal malpractice. In response, Roby filed an exception of prescription based on La. R. S. 9:5605, which states 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, 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. 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. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. 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.] On 9 November 2004, the trial court granted the judgment granting the exception of prescription. In its reasons for judgment, the trial court held that prescription began to run on 21 March 2001, the date that Roby’s representation of the plaintiff ended. A trial court's finding as to when the one-year peremptive period of La. R.S. 9:5605(A) begins to run is factual in nature and will not be disturbed on appeal absent manifest error. See Williams v. Webre, 04-0032 (La. App. 4 Cir. 5/26/04), 876 So. 2d 858; Turnbull v. Thensted, 99-0025 (La. App. 4 Cir. 3/1/00), 757 So. 2d 145. Pursuant to La. R.S. 9:5605(A), the peremptive period for all legal malpractice claims is one year from the date of the alleged negligence is or should have been discovered, coupled with a mandatory three-year peremptive period from the date of the alleged negligence, regardless of when it was discovered. Turnbull, supra, 99-0025 at p. 6, 757 So.2d at 149. We must apply the statute as written and while a three-year peremptive period may not be particularly generous, "[i]t is not our role to consider the policy or the wisdom of the [Legislature] in adopting [t]he statute. It is our province to determine only the applicability, legality and constitutionality of the [statute]." Chamberlain v. State, Through Dept. of Transp. & Development, 624 So. 2d 874, 879 (La. 1993), citing City of New Orleans v. Scramuzza, 507 So.2d 215, 219 (La.1987) (collecting cases) and Board of Commissioners of Orleans Levee District v. Dept. of Natural Resources, 496 So.2d 281, 298, n. 5 (La.1986). Therefore, the plaintiff’s cause of action for legal malpractice has prescribed and been perempted. We do note, however, that the only statutory exception to the threeyear peremptive period for legal malpractice is a fraud claim. Coffey v. Block, 99-1221 (La. App. 1 Cir. 6/23/00), 762 So.2d 1181, writ denied, 2000-2226 (La. 10/27/00), 772 So.2d 651. The law requires that fraud be pleaded with specificity, see La. C.C. P. art. 856, which was not done in the plaintiff’s petition. Further, all the allegations set forth in the petition sound in negligence and not fraud. The presence of fraud notwithstanding, however, the one-year peremptive period is always applicable, and the malpractice action must still be brought within one year of the alleged act or within one year from the date that the alleged act is discovered or should have been discovered. Thus, even if the court uses 20 February 2002, the date the plaintiff filed his complaint with the Louisiana Attorney Disciplinary Board, all allegations of fraud would have prescribed by 20 February 2003. Based on the foregoing, the judgment of the trial court is affirmed. AFFIRMED.

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