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 R N I 11y,& MI 4 1 1

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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

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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

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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[.]

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However, the Defendants in [ the intervention suit] subsequently applied tote First Circuit Court of Appeal for a supervisory writ from this ruling.

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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

I 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 • date when three years

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of action for " firmalpractice against ca defendants. plaintiff

argued r did not acquire i', court

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argued r if r 9: 5605 r ii ' i to the facts of r against the

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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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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

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 r# 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-,

Louisiana Civil Code article 3461 states that "[ p] eremption may not be renounced, interrupted, or suspended." Paternostro v. LaRocca, 2001- 0333 com p

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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.

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

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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,

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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

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

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

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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.

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