Gibsland Bank & Trust Co. v. Kitchens, Benton, Kitchens & Black (APLC)
114 So. 3d 529
La. Ct. App.2013Background
- Gibsland Bank and Trust Company sues Kitchens, Benton, Kitchens & Black (APLC), Melanie F. McCullough, and First Mercury Insurance Company for legal malpractice.
- McCullough prepared a July 31, 2008 title opinion on Oaketree Apartments, LLC’s property for Gibsland’s primary loan, stating no mortgages or encumbrances.
- Carr’s 1999 judicial mortgage was not identified in the 2008 title search, exposing Gibsland to a superior lien if Carr’s claim succeeded.
- Carr filed suit to enforce his 1999 judgment; Gibsland notified the law firm of this juncture in July 2009 and sought remediation.
- Gibsland argued discovery of malpractice occurred by August 2009; the trial court and appellate courts later addressed whether the one-year prescriptive period began in 2009 or 2010.
- The Supreme Court remanded for reconsideration in light of Jenkins v. Starns (La. 2012), which held non-application of continuous representation to toll prescription.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| When did the one-year prescriptive period begin under 9:5605(A)? | Gibsland asserts discovery in 2009-2010. | Defendants contend discovery occurred in 2009-2010 and prescription started then. | Prescription began July 2009; suit in 2011 was untimely. |
| Does continuous representation toll the peremption period? | Continuous representation extends the period. | Jenkins overruled continuous tolling for malpractice peremptions. | Continuous representation cannot suspend the peremptive period. |
| Is Jenkins v. Starns applicable to discovery and damages timing here? | Jenkins informs discovery/damages timing in malpractice suits. | Jenkins applies; damages triggered when malpractice becomes knowable. | Jenkins governs discovery/damages framework; not favorable to tolling. |
| What constitutes the date of discovery in this case? | Discovered when bank knew its interest jeopardized by neglected search. | Discovery occurs when negligent act is identified and damage is evident. | Date of discovery is July 2009, when notice of Carr’s suit disclosed damage. |
| Is the 2010 Second Circuit ruling the trigger for discovery? | Damages identified in 2010; discovery occurred then. | Discovery and damage occurred earlier; 2010 ruling is not trigger. | Damages identified in 2009-2010, not 2010 ruling; timely issue resolved against Gibsland. |
Key Cases Cited
- Jenkins v. Starns, 85 So.3d 612 (La. 2012) (discovery and damages timing; continuous representation not tolled peremption)
- Teague v. St. Paul Fire and Marine Ins. Co., 974 So.2d 1266 (La. 2008) (discovery rule in legal malpractice)
- Commonwealth Land Title Ins. Co. v. Jones, 948 So.2d 1243 (La.App. 3 Cir. 2007) (title search duty; negligent omissions)
- Braud v. New England Ins. Co., 576 So.2d 466 (La. 1991) (client harmed; accrual of malpractice action before full damages)
- Carr v. Oaktree Apartments, 46 So.3d 793 (La.App. 2 Cir. 2010) (public records disclose priority and malpractice duty)