119 So. 3d 901
La. Ct. App.2013Background
- Malpractice action against several lawyers dismissed on peremption after more than three years since the alleged act.
- Underlying medical-malpractice claim involved nonpayment of PCF filing fees; a $700 PCF fee payment was deemed untimely and the claim invalid.
- A subsequent medical-malpractice complaint was filed in 2007 on behalf of Walton's heirs; fees for this claim were timely paid.
- The underlying medical-malpractice suit was dismissed for prescription in 2009, affirmed on appeal, with writ denied by the Louisiana Supreme Court in 2010.
- Rev. Smart filed a legal malpractice action on August 16, 2010 against the attorneys; the defendants pleaded peremption and later no-cause-of-action, with the trial court sustaining peremption.
- The trial court and appellate proceedings ultimately held that the three-year peremption period under La. R.S. 9:5605 had started in December 2006 and that Jenkins v. Starns' continuous-representation rule did not toll it.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether La. R.S. 9:5605 peremption applies to legal malpractice here | Smart argues discovery-based tolling under Jenkins. | Defendants contend three-year peremption began December 2006 and is untimed by discovery. | Peremption applies; discovery tolling not applicable. |
| Whether the fraud exception La. R.S. 9:5605(E) applies | Smart claims post-malpractice concealment constitutes fraud. | Court should reject post-malpractice concealment as fraud; no evidence of inducement fraud. | Fraud exception does not apply. |
Key Cases Cited
- Jenkins v. Starns, 85 So.3d 612 (La. 2012) (three-year peremption; discovery not tolled for three-year period; continuous representation not applicable here)
- Brumfield v. McElwee, 976 So.2d 234 (La. App. 4 Cir. 2008) (continuous representation not tolled for three-year peremption; date of act controls)
- Reeder v. North, 701 So.2d 1291 (La. 1997) (three-year limit with discovery distinctions; legislature intended absolute three-year cap)
- Broadscape.com, Inc. v. Matthews, 980 So.2d 140 (La. App. 4 Cir. 2008) (fraud concealment post-malpractice not within 9:5605(E))
- Atkinson v. LeBlanc, 860 So.2d 60 (La. App. 5 Cir. 2003) (fraud exception not supported by concealment in this context)
- Ratcliff v. Boydell, 674 So.2d 272 (La. App. 4 Cir. 1996) (fraud-based exceptions limited in professional malpractice context)