Louisiana Legal Malpractice Case Examines Res Judicata and Peremption Exceptions

gavel-1238036If  you believe you have been misrepresented by an attorney, or that your legal counsel in any way acted wrongfully or neglected your legal needs, you may have a cause of action for legal malpractice. However, the time limit for when you may bring such an action to court is relatively short, and very strictly enforced, so it is important to retain new counsel as soon as the legal malpractice occurs or as soon as you first learn about it, so that you do not miss your window of opportunity to bring a malpractice claim. The following case demonstrates the problems that can arise when you wait too long to bring a legal malpractice claim before the court.

At the foundation of this lawsuit, out of the Louisiana Fourth Circuit Court of Appeals, George and Bryan Burch (“the Burches”) owed Mr. Barrasso and Mr. Roberts, their attorneys in a family law dispute, unpaid fees and costs arising from the representation of the Burches in the family law case. In response to the attorneys’ petitions to reclaim those unpaid costs, the Burches filed a reconventional demand, which alleged that Barrasso and Roberts had failed to adequately represent their interests, and had engaged in fraudulent activity like excessive billing and overstating the effort they spent on the case. In response to that petition for reconventional demand, Barrasso filed for an exception of res judicata and peremption, claiming the Burches’ causes of action were time-barred by the one-year limit for bringing a legal malpractice action in Louisiana. The Burches then filed a separate action against Roberts, claiming instead that they had a right of action under the Louisiana Unfair Trade Practices and Consumer Protection Act (“LUTPA”). They relied on many of the same facts, including the claims about fraudulent overbilling and overstating effort spent on the case. Roberts then filed for exceptions of peremption and res judicator, because of the same one-year limit for malpractice claims, and because the claims at issue against Roberts had already been litigated in the Burches’ reconventional demand response against Barrasso. Res judicata applies to cases where the legal issues brought have already been litigated to finality—here, Roberts argued res judicata applied to the Burches’ claims against him because those claims had already been litigated when they were brought against Barrasso earlier. The trial court agreed, and granted both the exceptions for peremption and res judicata. The Burches then appealed.

Appellate Court Holding

On appeal, the Burches argue that the trial court erred when it did not consider their allegations of fraud when granting the exception of peremption, and that res judicata was improperly applied to their case. The appellate court first stated that because the reconventional judgment had already occurred with regards to the claims against Barrassa, and the Burches failed to appeal that judgment in a timely way, the judgment had become final and that was when res judicata began to apply. The appellate court held that the trial court had properly applied res judicata to bar the claims against Roberts, because those claims had already been decided upon once. The appellate court next acknowledged that, while fraud can negate the time limits of a peremption exception, here there was no connection because the trial court had already properly determined that the fraud and overbilling claims brought by the Burches properly belonged under the heading of the Louisiana legal malpractice statute, which clearly outlined the time limits for bringing those claims. The time limits laid out in the statute were very clear, and the trial court properly applied those time limits when it found that the Burches’ claims against Roberts were time-barred. Therefore, the appellate court upheld the trial court’s determination on both the exceptions of res judicata and peremption.

In conclusion, it’s important to remember that if you believe you have a claim for legal malpractice, you should retain counsel immediately so that you don’t miss any important deadlines, and can bring your cause of action in front of a court as soon as possible.

Additional Sources: BARRASSO USDIN KUPPERMAN FREEMAN & DARVER, L.L.C. VERSUS GEORGE BURCH AND BRYAN BURCH CONSOLIDATED WITH: GEORGE BURCH AND BRYAN BURCH VERSUS CAN INSURANCE COMPANIES AND CONTINENTAL CASUALTY COMPANY AND THOMAS A. ROBERTS

Written by Berniard Law Firm Blog Writer: Anne Badasci

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