Cote' v. Hiller
162 So. 3d 608
La. Ct. App.2015Background
- In April 2007 an employee of the City of Shreveport committed a home invasion/kidnapping; plaintiff Lisa Coté sued the City (and daughter joined) alleging vicarious liability for psychological injuries. Trial court granted summary judgment for the City; the appellate court affirmed on September 21, 2011.
- Plaintiffs were represented by Richard Hiller and Shuey Smith, LLC; Coté complained during litigation about counsel’s discovery and appellate handling, and attended oral argument where counsel waived appearance.
- Coté emailed counsel in October 2011 questioning why she did not receive the appellate opinion sooner and asking why a motion for reconsideration or writs were not pursued; counsel replied he mailed the opinion and believed further review was futile.
- On October 12, 2012 Coté and her daughter filed a pro se legal malpractice suit against Hiller and the firm, alleging various acts/omissions (discovery failures, failure to correct inaccurate facts, failure to pursue writs) that prevented review by the Louisiana Supreme Court.
- Defendants filed a peremptory exception of prescription/peremption; the trial court held a hearing (Coté avoided service), found the malpractice claim perempted/prescribed and dismissed the suit with prejudice. Coté appealed; the appellate court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether malpractice claim was timely under La. R.S. 9:5605 | Coteé: final injurious act occurred Oct 21, 2011 (30‑day writ deadline), so filing Oct 12, 2012 was within one year | Hiller: plaintiff had notice of alleged negligence earlier (2010–Aug 2011); prescription/peremption began then, making suit late | Held: claim perempted/prescribed; acts starting in 2010 put Coteé on notice, suit filed too late |
| Whether continuous‑representation or continuous‑tort tolls peremptive periods | Coteé: malpractice was continuous through appeal; last act was failure to pursue writs | Hiller: La. R.S. 9:5605 peremptive periods are absolute and not tolled by continuous‑representation | Held: continuous‑representation rule cannot suspend La. R.S. 9:5605 peremptive periods; statute controls |
| Standard for date of discovery in malpractice context | Coteé: discovery was the lapse of writ deadline after counsel advised writs were futile | Hiller: discovery is when a reasonable person knew or should have known of damage and cause — earlier events satisfied that standard | Held: discovery is when reasonable person would have known the delict and injury; facts in 2010–2011 satisfy constructive knowledge |
| Burden on exception when prescription is evident on face of petition | Coteé: (implicit) contesting dismissal | Hiller: where prescription is evident on petition, plaintiff must show claim is timely | Held: because prescription was apparent, plaintiff bore burden; trial court’s factual findings not manifestly erroneous |
Key Cases Cited
- Jenkins v. Starns, 85 So.3d 612 (La. 2012) (interpreting La. R.S. 9:5605's one‑year and three‑year peremptive periods and rejecting tolling by continuous representation)
- Rando v. Anco Insulations, Inc., 16 So.3d 1065 (La. 2009) (appellate review of factual findings uses manifest error/clearly wrong standard)
- Gibsland Bank & Trust Co. v. Kitchens, 114 So.3d 529 (La. App. 2d Cir.) (date of discovery in malpractice is when reasonable person has actual or constructive knowledge of damage, delict, and causal link)
- Taussig v. Leithead, 689 So.2d 680 (La. App. 3d Cir. 1997) (continuous representation may present a single cause with one prescriptive period in some contexts)
- Reeder v. North, 701 So.2d 1291 (La. 1997) (distinguishing prescription and peremption; contra non valentem exceptions to prescription)