Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L.L.P.
120 So. 3d 281
La. Ct. App.2012Background
- Carriere hired Szwak to represent him in a claim against Experian; suit filed in Lafayette Parish (2006) for legal malpractice.
- Szwak filed improper-venue exception; case discussed consent judgment transferring venue to Caddo Parish (2010).
- Petition later refiled in Caddo Parish (2011); peremption issue raised by Szwak prior to trial.
- Trial court denied peremption; appellate court granted writ, reversing, and dismissing with prejudice due to venue-based peremption.
- La. R.S. 9:5605 establishes peremptive filing periods (one and three years) that may not be interrupted or renounced.
- Court held that the action was perempted because it was not timely filed in a proper venue, despite consent judgment transferring venue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether peremption bars Carriere’s action. | Carriere contends consent interrupted peremption. | Szwak argues peremption governs; consent cannot interrupt. | Peremption controls; consent cannot interrupt peremption. |
| Whether the consent judgment affected venue and thereby the peremption analysis. | Consent judgment transferred to Caddo; venue improper in Lafayette. | Consent judgment precluded reexamination of venue; peremption applies. | Consent judgment does not defeat peremption; action perempted. |
| Whether fraud allegations exclude peremption under RS 9:5605(E). | Fraud allegations toll or exclude peremption. | Fraud exception does not apply to post-malpractice acts. | Fraud exception not applicable to this malpractice action. |
| Whether Land v. Vidrine requires remand for an independent venue ruling. | Land requires independent venue ruling by transferee court. | Consent judgment forecloses remand; venue issue resolved by consent. | Land not controlling; no remand required. |
Key Cases Cited
- Jenkins v. Starns, 85 So.3d 612 (La. 2012) (peremptive periods are exclusive and cannot be renounced)
- Naghi v. Brener, 17 So.3d 919 (La. 2009) (peremption periods are peremptive; cannot be interrupted)
- Reeder v. North, 701 So.2d 1291 (La. 1997) (peremptive periods govern legal malpractice actions)
- Land v. Vidrine, 62 So.3d 36 (La. 2011) (trial court must consider venue grounds when ruling on peremption)
- Burns v. Goudeau, 888 So.2d 1031 (La. App. 3d Cir. 2004) (proper-venue transfer can trigger peremption ruling)
- Chumley v. White, 80 So.3d 39 (La. App. 2d Cir. 2012) (venue location in malpractice claims discussed)
- Orea v. Bryant, 979 So.2d 687 (La. App. 2d Cir. 2008) (fraud exception timing in peremption context)
- Dauterive Contractors, Inc. v. Landry & Watkins, 811 So.2d 1242 (La. App. 3d Cir. 2002) (fraud and peremption considerations in malpractice actions)