IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 01-30563

MAX HART, Etc. Plaintiff,

VERSUS

BYLES WELDING & TRACTOR, INC., ET AL.,

Defendants,

BYLES WELDING & TRACTOR, INC.,

Defendant-Third Party Plaintiff-Appellant,

VERSUS

RONALD BRANDON,

Third Party Defendant-Appellee.

Appeal from the United States District Court For the Western District of Louisiana 99-CV-818

March 7, 2002

Before ALDISERT*, DAVIS and PARKER, Circuit Judges.

PER CURIAM:**

* Circuit Judge of the Third Circuit, sitting by designation. ** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Hart entered into an agreement with Appellant Byles Welding &

Tractor to repair Hart’s logging equipment. After Byles Welding was

unable to collect for the repairs from Hart’s insurer, it

unsuccessfully attempted to collect from Hart. Clauriste Byles

(“Byles”) hired Ronald Brandon, an attorney, to assist him in

collecting the payment. Attorney Brandon advised Byles that he

could legally advertise and sell Hart’s equipment at a private

sale. Following the advice, Byles advertised the equipment for

sale. Finding no other bidders, Byles purchased the equipment

himself for the amount of the repairs. Hart filed this suit on May

7, 1999, alleging that Byles had converted his property and

conducted a wrongful sale. Byles sought a second opinion on the

legality of the sale from retired state judge John S. Pickett, Jr.,

who wrote a letter to Byles on May 26, 1999 stating that he

believed that the sale was unlawful. Byles filed a complaint

alleging malpractice against Brandon on August 4, 2000. The

district court granted Brandon’s motion for summary judgment, and

denied Byles’ motion to add Conine, an attorney that represented

him in the suit brought by Hart.

We review a grant of summary judgment de novo, applying the

same standards as the district court, while viewing all disputed

facts and reasonable inferences in the light most favorable to the

2 nonmoving party.1 Summary judgment is appropriate only where there

is no genuine issue of material fact and the moving party is

entitled to judgment as a matter of law.2

Louisiana law requires that all legal malpractice actions must

be brought within “one year from when the alleged negligence is or

should have been discovered or three years from the date of the

alleged negligence, regardless of when it was discovered.”3 The

district court held that Appellant knew or should have known that

malpractice may have been committed at the end of May, because it

was sued by Hart on May 7th and had received a letter from a

retired judge stating his belief that the sale was illegal. Because

Appellant filed the instant action over one year later, the

district court held that Appellant’s claim was time-barred.

Appellant argues that the principle of contra non valentem

precludes the operation of the Louisiana statute. The Louisiana

Supreme Court has already determined, however, that this principle

cannot apply to peremptive periods, of which La. R.S. 9:5605 is an

example.4 The Louisiana Supreme Court has also squarely rejected

Appellant’s contention that prescription does not begin to run

1 McClendon v. City of Columbia,

(5th Cir. 2001). 2 FED. R. CIV. P. 56(C). 3 Turnbull v. Thensted,

(La. Ct. App. 2000). 4 Reeder v. North,

(La. 1997).

3 until damage is sustained, holding that the “statute may seem

unfair in that a person’s claim may be extinguished before he

realizes the full extent of his damages, [but] the enactment of

such a statute of limitations is exclusively a legislative

prerogative.”5

Appellant also argues that the district court erred by

refusing to permit him to add another party to the suit. Although

leave to amend pleadings "shall be freely given when justice so

requires,"6 the decision to grant or deny a motion to amend is

within the district court’s discretion. The district court denied

Appellant’s motion because it was untimely, and “[w]e often have

affirmed denials of motions to amend when the motions have been

untimely filed.”7 The district court did not abuse its discretion.

Appellant’s claims are without merit, and the district court’s

decision is AFFIRMED.

5

. 6 FED. R. CIV. P. 15(a). 7 Avatar Exploration, Inc. v. Chevron, U.S.A., Inc.,

(5th Cir. 1991).

4