Ascension School Emp. Credit Union v. Psha

916 So. 2d 252, 2005 WL 1366499
CourtLouisiana Court of Appeal
DecidedJune 10, 2005
Docket2004 CA 1227
StatusPublished
Cited by14 cases

This text of 916 So. 2d 252 (Ascension School Emp. Credit Union v. Psha) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ascension School Emp. Credit Union v. Psha, 916 So. 2d 252, 2005 WL 1366499 (La. Ct. App. 2005).

Opinion

916 So.2d 252 (2005)

ASCENSION SCHOOL EMPLOYEES CREDIT UNION
v.
PROVOST, SALTER, HARPER & ALFORD, L.L.C.

No. 2004 CA 1227.

Court of Appeal of Louisiana, First Circuit.

June 10, 2005.

*253 H. Alston Johnston, III, Baton Rouge, for Plaintiff/Appellant, Ascension School Employees Credit Union.

Michael A. Patterson, Baton Rouge, for Defendant/Appellee, Provost, Salter, Harper & Alford, L.L.C.

Before: CARTER, C.J., PETTIGREW, and MCDONALD, JJ.

CARTER, C.J.

The Ascension School Employees Credit Union (the Credit Union) appeals a judgment that sustained a peremptory exception raising the objection of prescription, granted a motion for summary judgment, and dismissed all of the Credit Union's claims against the accounting firm of Provost, Salter, Harper & Alford, L.L.C. (PSHA).

FACTS AND PROCEDURAL HISTORY

The Credit Union retained PSHA to provide auditing and attestation services for the years 1998, 1999, and 2000. Those services allegedly involved confirming the existence of the Credit Union's investments, including those made with various financial institutions through Bentley Financial Services (Bentley). PSHA issued the Credit Union reports for each of those years, verifying the Credit Union's investments and stating it confirmed the balances shown in the Credit Union's general ledger with the financial institutions' balances using generally accepted auditing standards.

In October 2001, the Securities and Exchange Commission charged Bentley with securities fraud.[1] Allegedly, money entrusted to Bentley was not being invested in certificates of deposit held by other financial institutions as represented by Bentley. Bentley was subsequently placed in receivership. The Credit Union worked with the receiver and made appropriate claims in an attempt to recover over $4,000,000.00 that it had invested through Bentley.

Thereafter, the Credit Union claimed that it lost money because PSHA failed to properly perform its required obligations as auditor and accountant. Specifically, the Credit Union complained that PSHA failed to take the necessary steps to adequately confirm the existence of investments the Credit Union made through Bentley. The Credit Union contends that PSHA's actions violated generally accepted accounting standards, which PSHA stated it followed in conducting its audits and reports.

The Credit Union requested a review of its claims by a public accountant review *254 panel, pursuant to LSA-R.S. 37:71, et seq. PSHA then filed in the Nineteenth Judicial District Court a peremptory exception raising the objection of prescription with regard to its alleged failure to perform agreed upon procedures in 1998 and 1999, as well as a motion for summary judgment based on prescription with regard to its alleged failure to perform agreed upon procedures in 2000.[2] The district court sustained the peremptory exception raising the objection of prescription, granted the motion for summary judgment, and dismissed all of the Credit Union's claims against PSHA. The Credit Union now appeals.

APPLICABLE LAW

This case involves application of LSA-R.S. 9:5604 as well as legislative enactments found in Title 37 of the Revised Statutes.

Louisiana Revised Statute 9:5604 contains the time limitations applicable to actions concerning professional accounting liability and provides:

A. No action for damages against any accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide professional accounting service 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.
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, or 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 limitation 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 accountant duly licensed under the laws of this state, or any firm as defined in R.S. 37:71, whether based on tort or breach of contract or otherwise arising out of an engagement to provide professional accounting service, the prescriptive and peremptive period shall be governed exclusively by this Section and the scope of the accountant's duty to clients and nonclients shall be determined exclusively by applicable Louisiana rules of law, regardless of the domicile of the parties involved.
D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any 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.
F. The peremptive periods provided in Subsections A and B of this Section *255 shall not apply to any proceedings initiated by the State Board of Certified Public Accountants of Louisiana.

Five years after the legislature amended LSA-R.S. 9:5604 to add subsection B specifying that the statutes' time limitations are peremptive, the legislature enacted statutes in Title 37 pertaining to claims of professional accountant liability. Most pertinent to the issues presented in this case, the legislature imposed a requirement that those advancing claims of professional accounting liability present their claims to a review panel before they commence any action in court. See LSA-R.S. 37:102; LSA-R.S. 37:105.

Louisiana Revised Statute 37:102 provides, in pertinent part:

A. All claims against certified public accountants or firms, other than claims validly agreed for submission to a lawfully binding arbitration procedure, shall be reviewed by a public accountant review panel established pursuant to R.S. 37:109.
B. Review of a claim by a public accountant review panel shall not take place unless, within the time limitations provided for in R.S. 9:5604, a claimant files with the society a written request for review of the claim and pays to the society a one hundred dollar filing fee to defray the society's administrative costs incurred in performing the duties imposed on it by this Part.

Additionally, LSA-R.S. 37:105 provides:

A.

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Bluebook (online)
916 So. 2d 252, 2005 WL 1366499, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ascension-school-emp-credit-union-v-psha-lactapp-2005.