Coffey v. BlockCoffey v. Block
Jeannette Champagne COFFEY
v.
Jеrald P. BLOCK, Keith J. Labat and Coregis Insurance Company.
Court of Appeal of Louisiana, First Circuit.
*1182 Bezou & Matthews by Robert H. Matthews, New Orleans, Counsel for Plaintiff-Appellant, Jeannette Champagne Coffey.
Hulse & Wanek by Gwendolyn S. Hebert, New Orleans, Counsel for Defendants-Appellees, Jerald P. Block, Keith Labat and Coregis Insurance Co.
Before NORRIS, CARAWAY and DREW, JJ. (Pro Tempore).
DREW, J. (Pro Tempore).
In her appeal of the judgment sustaining the defendants' exception of prescription and peremption and dismissing her legal malpractice action with prejudice, Jeanette Champagne Coffey urged that the well-pleaded allegations of her petition were sufficient to support her timely-filed action for legal malpractice based on her allegations of fraud. Coffey also objected to the trial court's refusal to find La. R.S. *1183 9:5605 unconstitutional. For the following reasons, the judgment is vacated and the matter is remanded to the trial court for further proceedings. The issue of the constitutionality of
At the hearing on the exception in this case, Block testified that the undated employment contract signed by him and the Coffeys was effective December 30, 1992, and referred to the accident as having оccurred on March 3, 1992. Labat testified that Coffey first asked him to represent her in December 1992 concerning her injury at the nursing home that is the basis for this suit. Labat identified his correspondence seeking the incident report from the South Louisiana Vo-Tech at which Coffey was a student when the accident occurred, including a letter signed by Coffey on February 18, 1993, which referred to the accident as having taken placе on March 3, 1992. Labat stated he explained the ramifications of the defendants' prescription exception to Coffey who insisted the accident took place March 3, 1993. Labat also identified his June 22, 1993 letter to Coffey which stated, "The trial judge has rescheduled our hearing to determine the exact date of your injury for June 25, 1993, at 9:00 a.m." According to Labat, someone from his office notified *1184 Coffey the hearing had been postponed. When he spoke with Coffey about a month thereafter, Labat denied he told Coffey that he had met with the judge and that everything had worked out about the accident date so the case could continue. While Labat maintained that he relied upon Coffey's statements that the accident occurred on March 3, 1992, he acknowledged stating at his deposition that he undertoоk an investigation to confirm the exact date of the accident. Labat said that on the day before the November 22, 1996 prescription hearing, Coffey admitted she must have gotten the accident date wrong.
Coffey testified that she was notified by a secretary about the postponement of the prescription hearing in June 1993. When she did not hear from Labat, she contacted him a month later. Labat told her that he had met with the judge who told him they had the right date for the accident and the suit could continue. She was satisfied with Labat and had him represent her on another personal injury claim during that period. At a November 20, 1996 meeting with Labat about an insurance matter concerning her husband, Labat asked if she was ready to go to court because there was still a discrepancy about the date of her injury. Although she became angry because she had believed for a long time that issue was resolved, she stated Labat calmed her by explaining they would win because of the way the dates fell over a weekend.
Coffey testified the first time she saw the Vo-Tech incident report with the February 28, 1992 accident date was at the November 20, 1996 meeting. Coffey's explanation was that she and a friend met with Labat in June 1992. Coffey told him about her accident and stated she was unsure of the time, which may have been the end of February or early March. She acknowledged telling her doctor the accident occurred the Friday before Mardi Gras. When she and her husband met with Labat in December 1992, she asked Labat about the date of the accident and he informed her it was March 3, 1992. She denied that Labat showed her doctor reports stating the accident wаs February 28, 1992. Coffey admitted she wrote a letter to Labat prior to the day he filed her personal injury suit in which she referred to the accident date as March 3, 1992. She acknowledged filling a complaint with the Office of Disciplinary Counsel against Labat alleging he deceived her. She also admitted that, on advice of counsel, she withdrew that complaint in a letter which stated that she had reconsidered and сoncluded it was a negligence problem.
At the hearing on the exception, the defendants' attorney stated that Coffey's personal injury petition stated that the accident occurred on March 3, 1992. Coffey's attorney offered the underlying court record and noted the personal injury record was available to the trial court, since it was in the same court. However, that record was not availаble for appellate review.
LAW
La. R.S. 9:5605 states:
A. No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the *1185 latest within three years from the date of the alleged act, omission, or neglect.
B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, оr neglect occurred. However, with respect to any alleged act, omission, or neglect occurring prior to September 7, 1990, actions must, in all events, be filed in a court of competent jurisdiction and proper venue on or before September 7, 1993, without regard to the date of discovery of the alleged act, omission, or neglect. The one-year and three-year periods of limitatiоn provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law cоrporation, company, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, the prescriptive and peremptive period shall be governed exclusively by this Section.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of аny kind and including minors and interdicts.
E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.
La. C.C. art. 1953 provides:
Fraud is a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inaction.
REASONS FOR JUDGMENT
The trial сourt observed that it was undisputed that the initial personal injury action filed by Labat for Coffey was untimely, since the accident occurred on February 28, 1992, and suit was not filed until March 2, 1993 (technically, the suit could have been timely filed March 1, 1993, since February 28, 1993 fell on a weekend). The issues were whether Labat committed a fraud on Coffey and when Coffey knew or should have known her case was in danger of prescribing.
According to the trial court, Coffey believed and related to Labat that her accident date was on or about March 3, 1992; that Coffey sent Labat a letter advising him that on March 3, 1993, it would be one year to the date of the injury; that Labat sent correspondence dated June 22, 1993 advising of the June 25, 1993 hearing on the exception of prescription, and that Coffey stated at her deposition that she knew personal injury cаses prescribed one year from the date of the accident.
Emphasizing that Coffey supplied Labat with the March 3, 1992 accident date, the trial court ruled that on June 22, 1993, at the latest, Coffey knew or should have known that her personal injury action was in danger of prescribing. This legal malpractice action was not filed until August 20, 1997. The trial court also found that fraud was not applicable to this matter and ruled that thе allegations in the amended petition were not fraudulent under La. C.C. art. 1953. The trial court further opined that fraud was inapplicable to this matter and that
DISCUSSION
The one and three-year periods for legal malpractice actions fоund in
The legislature's enactment in 1990 of
Coffey admits that her instant lawsuit was filed more than three years from the date of the initial negligent act of Labat. However, Coffey argues that the one and three-year time limitations do not apply to her instant suit because of the fraud exception in
Arguing that there is no exception of peremption, Coffey contends that the correct procedural device for raising the issue оf peremption is the peremptory exception of no cause of action. Coffey further urges that in assessing the validity of the defendants' exception, the trial court should have followed the standards applicable to the exception of no cause of action.
The function of an exception of no cause of action is to test the legal sufficiency of the petition by determining whether the law affords a remedy on the facts alleged in the pleading. No evidence may be introduced to support or controvert the objection that the petition fails to state a cause of action. La.Code Civ. Proc. art. 931. Therefore, the court reviews the petition and accepts well pleaded allegations of fact as true, and the issue at the trial of the exception is whether, on the face of the petition, the plaintiff is legally entitled to the relief sought. (Citations omitted.). Everything on Wheels Subaru, Inc. v. Subaru South, Inc.,616 So.2d 1234 , 1235 (La. 1993).
Coffey argues that the trial court erred in conducting an evidentiary hearing on the issue of peremption. As a general rule, the peremptory exception of no cause of action is the correct procedural device for raising the issue of peremption. Dowell v. Hollingsworth, 94-0171 (La.App. 1st Cir.12/22/94),
In paragraph XIV of Coffey's "Supplemental and Amended Petition for Damages," she makes the following allegations:
Petitioner shows that defendant, Labat, despite his ability and opportunity to do so, failed to conduct a reasonable and adequate investigation to determine the exact date of her accident. Because of this, Mr. Labat filed her lawsuit untimely and same was dismissed on prescription *1187 as set forth in the рreceding paragraph. Further, petitioner shows that defendant Labat misrepresented to her the status of the prescription issue in her lawsuit arising out of The Heritage Manor of Houma accident and failed to make reasonable efforts to expedite petitioner's litigation consistent with her interests. Petitioner asserts that this misrepresentation was made with the intention by defendant to obtain an unjust advаntage over petitioner and to cause her loss of her cause of action against petitioner [sic] for his malpractice.
The trial court erred in finding that the allegations of Coffey's petition did not constitute fraud. The well-pleaded allegations of fact in her supplemental and amended petition for damages are sufficient to allege fraud pursuant to La. C.C. art. 1953. Moreover, the trial сourt erroneously concluded that fraud was inapplicable to this matter. Because the one and three-year limitations of
Further, it does not appear on this record that the parties were given the opportunity to have a full evidentiary hearing on the fraud issue and we do not read the trial court's reasons for judgment as containing an implicit credibility determination on the issue of fraud. At the hearing on the exception, the trial court expressed uncertainty about whether the court should even receive evidence on the allegation of fraud or whether that issue should be presented to a jury. Prior to the testimony of the witnesses, Coffey's counsel objected and urged that the fraud issue should go to the jury. During testimony, the trial court specifically questioned defendants' attorney about getting into the merits of the fraud claim and instructed the attorney not to get into the merits of the claim.
While the general rule is that peremption exceptions are treated as a no cause of action exception, we decline to hold that every exception raising a peremption claim must be treated as an exception of no cause of action on which no evidence may be taken. When the fraud exception of
Because a remand on the applicability of the fraud exception in 9:5605(E) is required, it is not necessary for this court to address Coffey's assertion that
Finally, a remand is mandated. The trial court erred in maintaining the defendants' exception of prescription and peremption. Moreover, in dismissing Coffey's claim as untimely, the trial court erred in not giving her an opportunity to amend her pleadings under La. C.C.P. art. 934 which states:
When the grounds of the objection pleaded by the peremptory exсeption may be removed by amendment of the *1188 petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.
DECREE
The trial court's judgment sustaining defendants' exception of prescription and peremption is vacated and the mattеr is remanded to the trial court for further proceedings. The issue of the constitutionality of
JUDGMENT VACATED. MATTER REMANDED FOR FURTHER PROCEEDINGS.
CARAWAY, J., concurs with written reasons.
CARAWAY, J., concurring.
I concur in the majority's reversal of the trial court. The plaintiff has alleged a cause of action for fraudulent misrepresentation which is distinct from a claim for legal malpractice. Such cause of action is not facially prescribed, and its merits should not be tried summarily through an exception of prescription.
NOTES
Notes
[1] See Flowers, Inc. v. Rausch,