STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-887
ANTHONY STEVISON
VERSUS
CHARLES ST. DIZIER, LTD. ET AL.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2006-5665 HONORABLE A.J. PLANCHARD, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, John D. Saunders and Jimmie C. Peters, Judges.
AFFIRMED.
Harry K. Burdette The Glenn Armentor Law Corp. 300 Stewart Street Lafayette, LA 70501 (337) 233-1471 COUNSEL FOR PLAINTIFF/APPELLANT: Anthony Stevison
Maurice L. Tynes Maurice L. Tynes & Associates, PLC 4839 Ihles Road Lake Charles, LA 70605 (337) 479-1173 COUNSEL FOR DEFENDANTS-APPELLEES: Charles St. Dizier, Ltd. and Charles St. Dizier COOKS, Judge.
Plaintiff, Anthony Stevison, appeals the trial court’s judgment granting
defendant, Charles St. Dizier’s, exception of prescription and dismissing Plaintiff’s
legal malpractice suit. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 12, 2003, Plaintiff alleges he was wrongfully arrested by a Lake
Charles police officer. During the arrest, Plaintiff asserts he was assaulted and
battered by the officer which resulted in severe injuries. Plaintiff engaged Charles
St. Dizier to represent him in seeking damages due to the wrongful arrest and
battering. St. Dizier agreed to represent Plaintiff and they entered into a
contingency fee agreement.
On January 12, 2004, a lawsuit was filed on Plaintiff’s behalf by St. Dizier
in the Fourteenth Judicial District Court naming the City of Lake Charles, John
Ciaramitaro, and Officer X as defendants. Suit was filed in the appropriate venue,
but St. Dizier did not request service of process on those defendants and did not do
so within the required ninety day time limit for service provided by La.R.S.
13:5107(D). Plaintiff alleged, during the course of his lawsuit, he became
frustrated with St. Dizier’s representation “due to his failure to do anything in the
case and ultimately would not return any of [his] phone calls.” Plaintiff terminated
St. Dizier and retained Harry K. Burdette to represent him in the matter. On
January 17, 2005, Burdette sent a letter to St. Dizier advising him Plaintiff had
retained his legal services to represent him in regard to the assault and battery case
against the Lake Charles City Police Department. At the same time, Burdette
requested a copy of Plaintiff’s file from St. Dizier. Three more letters were sent to St. Dizier requesting the file, before it was finally delivered. However, according
to Burdette, the file was not complete and was missing photographs taken of
Plaintiff’s injuries, which St. Dizier claimed he could not find. On August 26,
2005, Burdette requested service of process on Defendants. Defendants were
ultimately served and on October 31, 2005, filed a Declinatory Exception of
Insufficiency of Service of Process and Motion to Dismiss, alleging service was
not done timely and requesting a dismissal of Plaintiff’s petition with prejudice.
Burdette could not specifically state on which date he first read the
exception filed by the City of Lake Charles. He asserted it was sometime during
the Thanksgiving holidays. He noted that after reading it, he attempted to set up a
meeting with Plaintiff. Eventually, Burdette met with Plaintiff on December 9,
2005, to inform him of the proceedings in his case.
Burdette contacted St. Dizier by letter on April 9, 2006 and April 26, 2006,
asking St. Dizier to call him as soon as possible to discuss the exception. The
April 9, 2006 letter also requested that St. Dizier forward his legal malpractice
insurance carrier information in the event the exception was granted, which would
likely necessitate a legal malpractice suit. A letter was again mailed to St. Dizier
on August 29, 2006. It read in pertinent part:
I sent you a letter on April 9, 2006 and April 26, 2006
requesting your input on the defendant’s Exception. As of this date, I
have not received a response. After my thorough review and research,
I don’t see an argument to defeat the exception. Therefore, I am
making demand for you to provide me with your legal malpractice
carriers information by September 5, 2006. If I do not receive this
information from you by this date, I will regretfully be forced to file a malpractice claim and proceed accordingly.
Burdette was correct in his belief that the trial court would grant the
exception, and Plaintiff’s case against the City of Lake Charles was dismissed.
Plaintiff then filed a Petition for Damages for Legal Malpractice against St. Dizier
on November 30, 2006. An Exception of Prescription was filed by St. Dizier on
December 21, 2006 claiming that Plaintiff failed to file his lawsuit for legal
malpractice within one year of the date when Plaintiff knew or should have known
of the malpractice. Specifically, St. Dizier claimed Plaintiff obtained imputed
knowledge of the potential legal malpractice from his attorney when the City of
Lake Charles exception was filed and mailed on October 31, 2005. The trial judge
agreed and granted the Exception of Prescription. This appeal followed.
ANALYSIS
The time limits to file legal malpractice actions are set forth in La.R.S.
9:5605, and provide in pertinent part:
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 latest within three years from
the date of the alleged act, omission, or neglect.
A straightforward reading of the statute clearly shows it sets forth two peremptive
limits within which to bring a legal malpractice action, namely one year from the
date of the alleged act, omission, or neglect or one year from the date of discovery,
but not more than three years from the date of the alleged act, omission, or neglect.
The issue in this case is whether the suit was filed within one year from the date of
the discovery of the alleged act, omission or neglect.
St. Dizier argues the filing of the Declinatory Exception of Insufficiency of
Service on October 31, 2005 began the one year prescriptive period, as it should
have given constructive notice of the potential legal malpractice. However, the
record indicates Plaintiff did not become personally aware of the filing of this
exception until he met with Burdette on December 9, 2005. Plaintiff’s malpractice
suit was filed on November 30, 2006, nine days prior to the lapse of one year from
Plaintiff’s actual discovery of the alleged act, omission or neglect by St.
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STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
08-887
ANTHONY STEVISON
VERSUS
CHARLES ST. DIZIER, LTD. ET AL.
********** APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2006-5665 HONORABLE A.J. PLANCHARD, PRESIDING **********
SYLVIA R. COOKS JUDGE
**********
Court composed of Sylvia R. Cooks, John D. Saunders and Jimmie C. Peters, Judges.
AFFIRMED.
Harry K. Burdette The Glenn Armentor Law Corp. 300 Stewart Street Lafayette, LA 70501 (337) 233-1471 COUNSEL FOR PLAINTIFF/APPELLANT: Anthony Stevison
Maurice L. Tynes Maurice L. Tynes & Associates, PLC 4839 Ihles Road Lake Charles, LA 70605 (337) 479-1173 COUNSEL FOR DEFENDANTS-APPELLEES: Charles St. Dizier, Ltd. and Charles St. Dizier COOKS, Judge.
Plaintiff, Anthony Stevison, appeals the trial court’s judgment granting
defendant, Charles St. Dizier’s, exception of prescription and dismissing Plaintiff’s
legal malpractice suit. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 12, 2003, Plaintiff alleges he was wrongfully arrested by a Lake
Charles police officer. During the arrest, Plaintiff asserts he was assaulted and
battered by the officer which resulted in severe injuries. Plaintiff engaged Charles
St. Dizier to represent him in seeking damages due to the wrongful arrest and
battering. St. Dizier agreed to represent Plaintiff and they entered into a
contingency fee agreement.
On January 12, 2004, a lawsuit was filed on Plaintiff’s behalf by St. Dizier
in the Fourteenth Judicial District Court naming the City of Lake Charles, John
Ciaramitaro, and Officer X as defendants. Suit was filed in the appropriate venue,
but St. Dizier did not request service of process on those defendants and did not do
so within the required ninety day time limit for service provided by La.R.S.
13:5107(D). Plaintiff alleged, during the course of his lawsuit, he became
frustrated with St. Dizier’s representation “due to his failure to do anything in the
case and ultimately would not return any of [his] phone calls.” Plaintiff terminated
St. Dizier and retained Harry K. Burdette to represent him in the matter. On
January 17, 2005, Burdette sent a letter to St. Dizier advising him Plaintiff had
retained his legal services to represent him in regard to the assault and battery case
against the Lake Charles City Police Department. At the same time, Burdette
requested a copy of Plaintiff’s file from St. Dizier. Three more letters were sent to St. Dizier requesting the file, before it was finally delivered. However, according
to Burdette, the file was not complete and was missing photographs taken of
Plaintiff’s injuries, which St. Dizier claimed he could not find. On August 26,
2005, Burdette requested service of process on Defendants. Defendants were
ultimately served and on October 31, 2005, filed a Declinatory Exception of
Insufficiency of Service of Process and Motion to Dismiss, alleging service was
not done timely and requesting a dismissal of Plaintiff’s petition with prejudice.
Burdette could not specifically state on which date he first read the
exception filed by the City of Lake Charles. He asserted it was sometime during
the Thanksgiving holidays. He noted that after reading it, he attempted to set up a
meeting with Plaintiff. Eventually, Burdette met with Plaintiff on December 9,
2005, to inform him of the proceedings in his case.
Burdette contacted St. Dizier by letter on April 9, 2006 and April 26, 2006,
asking St. Dizier to call him as soon as possible to discuss the exception. The
April 9, 2006 letter also requested that St. Dizier forward his legal malpractice
insurance carrier information in the event the exception was granted, which would
likely necessitate a legal malpractice suit. A letter was again mailed to St. Dizier
on August 29, 2006. It read in pertinent part:
I sent you a letter on April 9, 2006 and April 26, 2006
requesting your input on the defendant’s Exception. As of this date, I
have not received a response. After my thorough review and research,
I don’t see an argument to defeat the exception. Therefore, I am
making demand for you to provide me with your legal malpractice
carriers information by September 5, 2006. If I do not receive this
information from you by this date, I will regretfully be forced to file a malpractice claim and proceed accordingly.
Burdette was correct in his belief that the trial court would grant the
exception, and Plaintiff’s case against the City of Lake Charles was dismissed.
Plaintiff then filed a Petition for Damages for Legal Malpractice against St. Dizier
on November 30, 2006. An Exception of Prescription was filed by St. Dizier on
December 21, 2006 claiming that Plaintiff failed to file his lawsuit for legal
malpractice within one year of the date when Plaintiff knew or should have known
of the malpractice. Specifically, St. Dizier claimed Plaintiff obtained imputed
knowledge of the potential legal malpractice from his attorney when the City of
Lake Charles exception was filed and mailed on October 31, 2005. The trial judge
agreed and granted the Exception of Prescription. This appeal followed.
ANALYSIS
The time limits to file legal malpractice actions are set forth in La.R.S.
9:5605, and provide in pertinent part:
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 latest within three years from
the date of the alleged act, omission, or neglect.
A straightforward reading of the statute clearly shows it sets forth two peremptive
limits within which to bring a legal malpractice action, namely one year from the
date of the alleged act, omission, or neglect or one year from the date of discovery,
but not more than three years from the date of the alleged act, omission, or neglect.
The issue in this case is whether the suit was filed within one year from the date of
the discovery of the alleged act, omission or neglect.
St. Dizier argues the filing of the Declinatory Exception of Insufficiency of
Service on October 31, 2005 began the one year prescriptive period, as it should
have given constructive notice of the potential legal malpractice. However, the
record indicates Plaintiff did not become personally aware of the filing of this
exception until he met with Burdette on December 9, 2005. Plaintiff’s malpractice
suit was filed on November 30, 2006, nine days prior to the lapse of one year from
Plaintiff’s actual discovery of the alleged act, omission or neglect by St. Dizier.
Thus, Plaintiff argues his claim was timely. St. Dizier argued, and the trial court
accepted, that when Burdette read the Declinatory Exception of Insufficiency of
Service prior to November 30, 2005, he became aware of any potential legal
malpractice committed. St. Dizier argued that under Louisiana law, the knowledge
held by an attorney can be imputed to his client. Therefore, he contends the
November 30, 2006 filing was not timely. Regrettably, we are forced to agree.
The jurisprudence has consistently held that “the knowledge of an attorney,
actual or otherwise, is imputed to his or her client.” Andre v. Golden, 99-689, p. 8
(La.App. 5 Cir. 12/21/99), 750 So.2d 1101, 1104, writ denied, 00-174 (La. 3/17/00), 757 So.2d 643. See also: Reg’l Transit Auth. v. Levey, 595 So.2d 1255
(La.App. 4 Cir.), writ denied, 604 So.2d 996 (La.1992); Wilco March Buggies &
Draglines v. XYZ Ins. Co., 520 So.2d 1292 (La.App. 5 Cir.), writ denied, 522 So.2d
1094 (La.1988); Orgeron v. Mine Safety Appliances Co., 603 F.Supp. 364 (E.D.La.
1985). Although the result to Plaintiff is undeniably harsh, we are compelled by
the jurisprudence to affirm the trial court’s grant of St. Dizier’s exception of
prescription. Clearly, Burdette was alerted to St. Dizier’s potential malpractice
when he read the Declinatory Exception of Insufficiency of Service of Process and
Motion to Dismiss filed on October 31, 2005. Although Burdette argues he was
not sure exactly when he read the exception, he stated it was sometime during the
Thanksgiving holidays, which would have been prior to November 30, 2005.
Therefore, the suit filed on November 30, 2006, was not timely given the
imputation of Burdette’s knowledge to Plaintiff. 1
FRIVOLOUS APPEAL
St. Dizier answered the appeal and requested attorney fees for a frivolous
appeal. An appeal is not automatically deemed frivolous simply because it lacks
merit. La.Code Civ.P. art. 2164 is penal in nature and must be strictly construed. It
provides that an appellate court may award damages for frivolous appeal when
there is no serious legal question, when the appeal is taken solely for the purpose
of delay, or when it is evident that appellant's counsel does not seriously believe in
the position he advocates. Gallien v. Winn Dixie, 96-832 (La.App. 3 Cir.
12/11/96), 685 So.2d 531. We do not find that the present matter meets the
requirements of a frivolous appeal, and therefore we decline to award attorney
1 We note that Plaintiff may well have an action in malpractice against Burdette for his
failure to timely file the malpractice action against St. Dizier. fees. Further, considering the circumstances of this case, particularly noting the
substandard performance of St. Dizier in representing Plaintiff, we will not reward
St. Dizier by granting an award of attorney fees.
DECREE
For the foregoing reasons, the judgment is affirmed. Costs of this appeal are
assessed to appellant, Anthony Stevison.