Louisiana Legal Malpractice Case Looks at Exception of Prescription

law-offices-1477311-1-1024x743When something goes wrong in a legal case, how long does a party have to make their claim? Louisiana has statutes concerning the time frame in which a party has to bring a claim against an attorney for malpractice and the courts will uphold the time limitation depending on the facts of the case.

In 2007, Ms. Coté, was living with her daughter in Shreveport. The circumstances leading to the original litigation were started when, Leon Bell, who was employed by City’s water department, was sent to a neighborhood to tell the certain residents about the water being shut off. He ended his shift and then hours later entered Ms. Coté’s residence and held her by force. Luckily Ms. Cote’s daughter escaped and alerted the police. Mr. Bell was arrested and charged with aggravated battery and second degree kidnapping; he pled guilty to certain charges and was given a sentence of many years in jail.

Ms. Cotè’s filed a lawsuit against the City of Shreveport (the City) the following year.  In that lawsuit she alleged great mental suffering due to the unlawful intrusion. Ms. Cotè alleged that city’s employee had actually been let into her home on a few instances prior because he requested the same as part of his job. On one visit she had would not let him in and notified the City at that time of the incident. The City could not locate any documents detailing Ms. Cote’s grievances. Ms. Cotè argued that the City should be held vicariously liable because the harm she incurred was a result of their employee performing his job duties. The City in return argued that the the criminal activities did not occur as part of their employees’ job duties, therefore they should not be held in concert with him for his negligent actions. Ms. Cotè’s attorneys advised her that the City’s motion on the vicarious liability issue was on solid ground, and she would have a tough time proving her case in court. Ms. Cotè was very hands on with her case, and when her attorneys provided her with an affidavit they intended to present in response to the City’s she indicated discouragement with their handling of her case.

Notwithstanding the affidavit that was filed, the trial court granted the City’s motion, and dismissed Ms. Cote’s lawsuit. Ms. Cote appealed that decision to the Louisiana Second Circuit Court of Appeal, and the City made a request to argue in person. Ms. Cote’s were not able to be present on the requested date, and they told Ms. Cotè they would be waiving their appearance. Ms. Cotè attended the arguments alone, and felt that there were inaccuracies in the City’s recitation of facts, and that she was not sufficiently represented. The appeal court affirmed the trial court’s ruling after oral arguments.

In September 2011, Ms. Cotè contacted her lawyers stating that she had only recently received a copy of the appellate ruling and was horrified after reading it. She contacted her attorneys again in early October wanting to know why she had not received the opinion with enough time to potentially file a motion to ask the appellate court to reconsider their ruling. Ms. Cote’s lawyers replied that they had indeed mailed her a copy of the outcome upon receipt, and that though the firm had put tremendous resources into her case, asking the appeals court to reconsider would have been fruitless and that there was nothing more they could help her with. Approximately a year later, she file filed a lawsuit against her lawyers alleging legal malpractice, claiming that their actions prevented her from timely filing for review of the appellate court’s decision.

Her lawyers filed a peremptory exception of peremption and/or prescription, because Ms. Cote’s claims had been prescribed or perempted since she failed to file a lawsuit within one year of learning of the facts that would have made them aware of a possible claim against them. Although her attorneys attempted to serve Ms. Cotè with notice of this filing many times, she dodged service. The court found that she willfully dodged service, and held the hearing on the exception filing without her. The hearing involved testimony of the the law firm and evidence, the trial court concluded that Ms. Cote’s claim had prescribed, and her previous lawyers exception was granted. Ms. Cote appealed the decision.

The Louisiana statute La. R. S. 9:5605 deals with limitations for filing for legal malpractice and provides that any lawsuit filed asserting the same must be filed within a year of the alleged negligent actions were found out, and the same time frame if the party should have known about those acts. Ms. Cotè argued in this case that her lawsuit was a result of continuing negligence and because there were multiple instances of malpractice, the one that should be considered “the paramount injury” was on October 21, 2011, when she missed the deadline for filing a writ of review because she had allegedly not heard back from the the law firm. She argued that because the final injury occurred October 21, 2011, her petition for legal malpractice is not prescribed because she filed it on October 18, 2012—less than a year after the injury.

The main argument that her previous attorneys raised in response is that Ms. Cote was fully cognizant of her complaints against the firm through the duration of the underlying lawsuit against the City. She was aware the City’s motion had been granted, and that her lawyers had decided not to appear aat that hearing. Instead of October 21, her previous lawyers supply October 12, 2011 as a more relevant time frame for when the year clocked started for filing her malpractice lawsuit. October 12 was the date Ms. Cote emailed the law firm indicating that she had received a copy of the appellate opinion, and took issue with lack of representation at the oral arguments. The law firm argued that at that point, if not before that point, the Ms. Cote definitely knew or should have known based on the available information that she was on notice of any potential legal malpractice claims. Thus, the one year prescription period started on October 12, and Ms. Cote had missed her deadline when she filed on October 18.

In their decision the Second Circuit court first points out that there is a distinction between the two theories to assert that the deadline to file a lawsuit has passed. One theory prescription, or the time period a party has to bring a particular complaint and recover for it, does prevent the enforcement of a right by legal action, but it doesn’t terminate the natural right. The other theory, peremption, or a time frame for the existence of a right, on the other hand, does extinguish and destroy that right altogether. While nothing may impede to interrupt or suspend the start of the latter, the former can be renounced, interrupted, or suspended, and there are certain special cases that can apply to prescription that won’t apply to peremption. Further, the party raising the exception of peremption at trial typically must show evidence at a hearing alleging it that it applies, but where prescription is raised as a bar to continuing the lawsuit, the plaintiff instead must prove his timeline to file has not passed.

Additionally, the court held that for prescription to start, the requirement of constructive knowledge will mean whatever notice is enough to put an injured party on notice or otherwise inquire as to some inconsistency.  See Williams case. In this matter, Ms. Cote’s claims of continuous tort legal malpractice are governed by the peremptive periods discussed above. The court further reasoned that these one year limits are not subject to any interruption or suspension based on any continuous tort claim, and because Ms. Cote’s was aware of the alleged negligence all the way back to 2010, her claim was definitely perempted now by the one year limit. The court found no error in the ruling of the trial court that Ms. Cote’s claims were properly dismissed. Therefore Ms. Cote lost her case, as the judgment for the law firm was upheld..

In this case, the court decided that the party with the malpractice claim was perempted from bringing their lawsuit. The time period started from the time they were first aware that they were not happy with their representation and their right to bring the case had extinguished. As some people say, timing is everything, and the courts decided that these plaintiffs were out of time.


Written by Berniard Law Firm Blog Writer: Anne Badasci

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