Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L.L.P.

120 So. 3d 281, 2012 WL 3587509, 2012 La. App. LEXIS 1078
CourtLouisiana Court of Appeal
DecidedAugust 22, 2012
DocketNo. 47,186-CW
StatusPublished
Cited by7 cases

This text of 120 So. 3d 281 (Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L.L.P.) 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
Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L.L.P., 120 So. 3d 281, 2012 WL 3587509, 2012 La. App. LEXIS 1078 (La. Ct. App. 2012).

Opinions

STEWART, J.

|TIn this legal malpractice action, the defendants, David Szwak (“Szwak”), his law firm Bodenheimer, Jones, Szwak, and Winchell, L.L.P., and his insurer, seek supervisory review of the trial court’s denial of their exception of peremption. Because the plaintiff, Larry Carriere, II (“Carri-ere”), did not timely file his legal malpractice action in the proper venue as required by La. R.S. 9:5605, the trial court erred in denying the exception. Therefore, we vacate the trial court’s ruling, grant Szwak’s exception of peremption, and dismiss the plaintiffs action with prejudice.

FACTS

In July of 2003, Carriere, then a resident of Lafayette Parish, hired Szwak, a Shreveport attorney, to represent him in a suit against Experian Information Solutions, Inc. (“Experian”). Szwak filed suit against Experian in the federal district court in Shreveport. On February 21, 2006, Carriere filed a legal malpractice suit in Lafayette Parish against Szwak.

Carriere alleges in his petition that on November 19, 2004, he authorized Szwak to solicit offers from Experian, but he did not authorize Szwak to settle the case. On February 22, 2005, Szwak faxed a settlement and release document to Carriere at his in-laws’ residence. Carriere claims that when he learned of the settlement, he sent an email to Szwak seeking an explanation, but Szwak did not respond. Carri-ere alleges that he subsequently made it clear to Szwak that he had not authorized or agreed to a settlement. Carriere claims that Szwak then “engaged in an elaborate campaign to obscure the truth suggesting that he had emails from [Carriere] grant-[283]*283tag authority to settle.” Carriere further alleges that his case against | {¡Experian was dismissed in April of 2005 without notice to him due to Szwak’s failure to file for an extension to prevent dismissal when the settlement was not consummated. Carriere claims that he did not learn of the dismissal until June of 2005.

In response to Carriere’s suit, Szwak filed an exception of improper venue on June 12, 2006. Because he practiced in Shreveport, filed suit against Experian in federal district court in Shreveport, and did all the work on the case there, Szwak asserted that venue was proper in Caddo Parish, not Lafayette Parish.

The exception languished due to continuances of hearing dates, a discovery dispute that led Szwak to move for a protective order, and the withdrawal of Carriere’s attorney. Before a hearing date in July of 2008, the parties agreed to a consent judgment, which states in relevant part:

The parties agreed to remove the hearing from the docket. Plaintiff agrees to the granting of this Consent Judgment, maintaining the Exception of Improper Venue due to this action being filed in a parish of improper venue, and the transferring of this suit to Caddo Parish.

The trial judge signed the consent judgment on July 21, 2010. The matter was transferred to the First Judicial District Court in Caddo Parish in August of 2010, and Carriere’s petition was filed on February 8, 2011.

Szwak answered the petition and filed a peremptory exception. He asserted that the action was perempted on the face of the petition and that the burden was on Carriere to show why his claim was not perempted.

The trial court heard Szwak’s peremptory exception on February 13, 2012. At the hearing, Carriere, through his wife who enrolled as counsel, Largued that his malpractice claim is not perempted because his petition alleges fraud by Szwak. The trial court was not persuaded by this argument. Instead, the pertinent issue for the trial court was whether the action should be viewed as a new filing to which the peremptive period would apply or whether, since the peremptive period had lapsed, the parties agreed to transfer the action to Caddo to continue litigation. Szwak asserted that peremption did not become a viable defense until the consent judgment resolved the pending venue exception. Carriere asserted that the consent judgment merely effected a transfer to Caddo and did not state that venue was improper in Lafayette.

After arguments, the trial court stated that “had the parties not agreed to transfer to Caddo, I would say, yes, exception granted.” However, the trial court denied the exception upon concluding “that the parties agreed to transfer the case to this jurisdiction for litigation because at the time of the agreement ... the principles of peremption, the one or the three-year, would have already been in effect.”

Szwak filed a writ with this court seeking supervisory review of the trial court’s ruling. We granted his writ, and the matter is now before us for review.

DISCUSSION

Applicable Law

An objection of peremption is raised by the peremptory exception. La. C.C.P. art. 927(A)(2). The rules that govern the burden of proof as to prescription likewise govern peremption. Rando v. Anco Insulations, Inc., 2008-1163 (La.5/22/09), 16 So.3d 1065. As such, the party who raises an exception of peremption ordinarily bears the burden of proof at [284]*284trial on the exception. Id.; Hunter v. Jindal, 45,130 (La.App.2d Cir.10/13/09), 20 So.3d 592, writ denied, 2009-2237 (La.10/15/09), 18 So.3d 1292. However, when peremption is evident on the face of the petition, the burden is on the plaintiff to prove that his action is not perempted. Hunter, supra.

When a peremptory exception is pleaded prior to trial, the parties may introduce evidence to support or controvert the objection pleaded, when the grounds thereof do not appear from the petition. La. C.C.P. art. 932. When evidence is introduced, the trial court’s factual conclusions are reviewed under the manifest error / clearly wrong standard. Smith v. Slattery, 38,693 (La.App.2d Cir.6/23/04), 877 So.2d 244, writ denied, 2004-1860 (La.10/29/04), 885 So.2d 592. However, when no evidence is introduced at the hearing on the exception of peremption (prescription), all allegations of the petition are to be accepted as true. Cichirillo v. Avondale Industries, Inc., 2004-2894 (La.11/29/05), 917 So.2d 424; Sanders Family, LLC No. 1 v. Sanders, 46,476 (La.App.2d Cir.12/14/11), 82 So.3d 434, writ denied, 2012-0414 (La.4/9/12), 85 So.3d 702.

Actions for legal malpractice are governed by La. R.S. 9:5605, which provides, in relevant 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 [fiproper 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.

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Cite This Page — Counsel Stack

Bluebook (online)
120 So. 3d 281, 2012 WL 3587509, 2012 La. App. LEXIS 1078, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carriere-v-bodenheimer-jones-szwak-winchell-llp-lactapp-2012.