Mildred NEWSOM, Appellee,
v.
Johnny R. BOOTHE and John Doe Insurance Company, Appellant.
Court of Appeal of Louisiana, Second Circuit.
Sedric Banks, Monroe, for appellant.
Hudson, Potts & Bernstein by Robert M. Baldwin, Monroe, for appellee.
Before MARVIN, FRED W. JONES, Jr. and NORRIS, JJ.
*924 NORRIS, Judge.
This is a suit for legal malpractice in which the defendant attorney and his insurer appeal a partial summary judgment as to liability only, as well as a prior ruling that dismissed their exception of prescription. The appellants have argued:
(1) Prescription of one year should begin to run from the time the plaintiff learned the will was invalid rather than when the forced heirs actually challenged the will.
(2) Attorney fees may be assessed for relitigating issues that the defendant attorney allegedly mishandled, but not for litigating new issues.
By reply brief, the plaintiff has also argued:
(3) Prescription of ten years should apply to this case.
For the reasons expressed, we reverse.
FACTS
On March 10, 1983, Mrs. Newsom's husband executed a purported statutory will prepared by attorney Johnny Boothe. In the absence of a will, all of Mr. Newsom's property would have been inherited by his forced heirs, seven children of a prior marriage. The will, however, made substantial bequests to Mrs. Newsom. Mr. Newsom died on July 17, 1985. In late July or early August, Mr. Boothe discovered that he had directed Mr. Newsom to sign only the second page of the two-page will. This makes the will invalid. LSA-R.S. 9:2442(B)(1). Mr. Boothe told Mrs. Newsom about the defect and resultant invalidity at that time and told her he had malpractice insurance to cover her loss. He then offered to try to effect a settlement with the forced heirs, without charge.
On September 30, 1985, Mr. Boothe terminated his representation of Mrs. Newsom. She then consulted another attorney, Mr. Kramer, who advised her the will was invalid but nevertheless offered it for probate. On November 8, 1985, Mr. Newsom's forced heirs filed an opposition to the will. Judge Strong declared the will invalid by judgment signed on November 15, 1985.
Mrs. Newsom filed this suit against Mr. Boothe and his insurer on November 3, 1986, demanding the value of the legacy she lost. The defendants responded with an exception of prescription, urging that Mrs. Newsom knew of the will's defect in August 1985 and that prescription should have run from then, or that it should run at least from the time that Mr. Boothe ceased representing Mrs. Newsom, on September 30. The trial court dismissed the exception, reasoning that prescription could not commence until there was both a wrongful act and damage, and this occurred only on November 8, 1985, when the heirs filed their formal opposition. The lawsuit of November 3, 1986 was therefore timely.
Mrs. Newsom then moved to proceed in forma pauperis; the motion was granted on March 30, 1987. She then moved for summary judgment. The trial court granted partial summary judgment as to liability only. By judgment rendered in open court on April 27 (but not signed and filed until July 23) the court decreed that the defendants were liable for "any and all loss(es), damage(s) and/or injury(ies) including reasonable attorney's fees incurred in the prosecution of this lawsuit[.]"
Mrs. Newsom subsequently amended her petition to demand losses for mental depression, anxiety, emotional anguish, embarrassment and humiliation. She included a prayer for legal fees [1] necessary to "represent her interest in prosecuting this lawsuit." The trial court permitted this amendment on June 4, 1987.
DISCUSSION
The trial court concluded that prescription did not begin to run until November 8, 1985, when Mr. Newsom's forced heirs filed their formal opposition to the will. The court based its decision on Rayne State Bk. & Tr. Co. v. Nat `I Union Fire Ins.,
In Louisiana prescription does not begin to run until damage is sustained. LSA-C. C. art. 3492. Unquestionably, as of March 1983, Mr. Boothe had a duty to provide competent legal services, and this duty encompassed the risk that the will might be defective. He breached that duty and damages ensued. The question is when did the plaintiff have enough notice to excite her attention and put her on guard to call for inquiry that would lead to information or knowledge. This activates the prescriptive period for the malpractice action. Cartwright v. Chrysler Corp.,
In Rayne State Bank, supra, the plaintiff had extended loans totalling $3,000,000 to two construction companies. To secure the loans, the bank had mortgages affecting chattels prepared by the defendant attorney. The mortgage documents failed to state the location of the chattels, "a defect which might have under some circumstances rendered the mortgages invalid as to the chattels."
In the instant case the trial court applied essentially the same reasoning, holding that when Mr. Boothe advised Mrs. Newsom of the will's defect in late July or early August 1985, this was "mere notice" of a wrongful act and insufficient to activate prescription. The trial court analogized the heirs' opposition in the succession case to the debtors in possession's adversary proceedings in the bankruptcy case, concluding that in both cases damage was not certain and ascertainable until these formal acts were taken.
While we recognize the equities weighing heavily in Mrs. Newsom's favor, we are constrained to notice and apply the fundamental and almost glaring distinctions between this case and Rayne State Bank, and come to the conclusion that prescription began to run against Mrs. Newsom's action before November 8, 1985.
Perhaps the greatest distinction comes when we analyze the supreme court's qualification of the defect in Rayne State Bank. Failure to state the location of the chattels (LSA-R.S. 9:5352, prior to the 1981 amendments) was a defect which "might have under some circumstances rendered the mortgages invalid[.]" The same qualification cannot be conceivably applied to the defect in the instant will. This defect is fatal.
In Land v. Succ. of Newsom,
Furthermore, the holder of a mortgage does not need a prior judicial declaration of the mortgage's validity in order to enforce it. By contrast, a will must be probated under strict procedures. LSA-C.C.P. art. 2887, 2890. The judge, applying the jurisprudence, would have been obligated to declare this will a nullity. It was simply a matter of time before the invalidity of the will was recognized. The plaintiff argues implicitly that prescription must be suspended until the heirs took some action to affect the will. However, the plaintiff herself was bound to offer the will for probate and the judge was bound to invalidate it, even without formal opposition from Mr. Newsom's forced heirs. LSA-C.C.P. art. 2853. Mrs. Newsom was therefore not at the mercy of the heirs to learn that the will was defective; the ruling was inevitable, regardless of the heirs' acts.
A final distinction lies in the characterization of a mortgage as an accessory contract. LSA-C.C. arts. 1913, 3284. When a mortgage contains formal defects, the creditor is not automatically placed on notice that he will sustain losses. He still holds a hand note or other evidence of the primary, underlying obligation, and is entitled to receive payment thereon. Until the mortgagor stops paying, or goes into bankruptcy and the validity of the security agreement is attacked, the creditor cannot be certain that he will sustain a loss. Such is simply not the case with a will, which stands alone, is not accessory to anything, and does not secure any underlying obligation. The will was the only legal means of transmitting Mr. Newsom's property to Mrs. Newsom. If it was invalid, the legatee had no other ground on which to demand the property. Her loss was certain and definite from the outset; the measure of damage was the value of the property bequeathed to her in the will. There is no way to conclude that a legatee can expect to receive under a will when the will is null.
For these reasons, we are constrained to disagree with the trial court and hold that Rayne State Bank, supra, is inapplicable to the instant case. The jurisprudence is too firm to allow speculation as to whether a defective will might be enforced. The will was null and void. Consequently Mr. Newsom's forced heirs received ownership of the property at the moment of his death, regardless of Mrs. Newsom's possession. Baten v. Taylor,
The jurisprudence also recognizes, however, that prescription is suspended in a malpractice action as long as the attorney-client relationship is maintained. See Blanchard v. Reeves,
The final issue is therefore which prescriptive period to apply. Appellants argue the trial court properly applied one-year prescription under LSA-C.C. art. 3492. Plaintiff suggests that her suit was really a personal action and should survive for ten years. LSA-C.C. art. 3499.
An action for legal malpractice normally sounds in tort and prescribes in *927 one year. See Gifford v. New England Reins. Corp.,
Plaintiff further argues that a second exception is recognized when the injured party is not the attorney's client but is the beneficiary of the attorney's work under a stipulation pour autrui, as provided under LSA-C.C. art. 1890. Woodfork v. Sanders,
For the reasons expressed, we conclude the trial court was in error to deny the defendants' exception of prescription. Under applicable jurisprudence, prescription began to run on September 30, 1985, and the instant lawsuit of November 3, 1986, was not timely. The judgment is reversed and the case dismissed. Because of this disposition, we do not need to discuss the issue of attorney fees. Costs of this appeal are assessed to appellee, Mrs. Newsom.
REVERSED.
ON APPLICATION FOR REHEARING
Before MARVIN, JASPER E. JONES, FRED W. JONES, SEXTON and NORRIS, JJ.
Rehearing denied.
NOTES
Notes
[1] She prayed for legal fees at the stated rate of $125./hour or one-third of her total award, whichever is greater.