Ewing v. Sharp

294 So. 2d 902, 1974 La. App. LEXIS 3197
CourtLouisiana Court of Appeal
DecidedApril 23, 1974
DocketNo. 12301
StatusPublished
Cited by2 cases

This text of 294 So. 2d 902 (Ewing v. Sharp) 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
Ewing v. Sharp, 294 So. 2d 902, 1974 La. App. LEXIS 3197 (La. Ct. App. 1974).

Opinion

HALL, Judge.

This is a malpractice suit by a client against an attorney for allegedly allowing a claim against an insurance company to prescribe. On defendant’s motion, the insurance company was also made a party to the suit. This appeal by the defendant attorney is from a judgment of the district court sustaining an exception of prescription filed by the insurance company and overruling the defendant attorney’s motion to strike the plea of prescription and his motion to dismiss plaintiff’s suit. We affirm the judgment of the district court.

Plaintiff, Carruther Ewing, brought suit against defendant, James Sharp, Jr., a Monroe attorney, seeking to recover damages in the amount of $4,000. The essential allegations of the petition are that:

(1) A building owned by plaintiff was totally destroyed by fire on March 27, 1970;
(2) The building was insured against loss by fire by Royal Insurance Company;
(3) Plaintiff employed defendant on May 22, 1970, to represent him in connection with his claim against the insurance company;
(4) Plaintiff checked regularly with defendant to ascertain the progress on [904]*904the case and each time was advised it would take a while longer and a settlement would be obtained in due course;
(S) On July 6, 1971, plaintiff became impatient and contacted the insurance company’s adjuster who advised plaintiff that his claim against the insurance company had prescribed and was no longer enforceable : and
Plaintiff has been damaged in the amount of $4,000, the policy limits, as a direct consequence of the negligence and fault of the defendant in permitting the claim to prescribe.

The defendant Sharp filed:

(1) An exception of nonjoinder of necessary party, praying that the plaintiff be ordered to amend his petition to join Royal Insurance Company as a necessary party defendant and in default of such amendment within a reasonable delay to be fixed by the court that plaintiff’s suit be dismissed ;
(2) Exception of lack of procedural capacity ; and
(3)Exception of vagueness or ambiguity.

The minutes of the court reflect that at the hearing on the exceptions it was stipulated between counsel that the exception of lack of procedural capacity be overruled and that the exception of vagueness and ambiguity and the exception of nonjoinder of necessary party be sustained which was so ordered by the court.

Plaintiff then filed an amended petition supplying the information called for in the exception of vagueness, attaching the policy of insurance, and naming Royal Insurance Company as an additional defendant. The amended petition prayed “for all of the relief originally sought in the prayer of the original petition”.

Defendant Sharp then filed a motion to dismiss based on allegations that the amended petition did not join Royal Insurance Company as a necessary party defendant pursuant to the ruling of the court in that it failed to allege any claim against Royal Insurance Company and failed to pray for any relief against the insurance company.

Royal Insurance Company then filed a peremptory exception of prescription alleging that the fire occurred on March 27, 1970, plaintiff’s amended petition joining the insurance company as a party defendant was filed on September 4, 1973, more than twelve months following the date of the fire, and, therefore, any cause of action which plaintiff may have had against the insurance company had prescribed under the provisions of the policy and statutory law.

Defendant Sharp then filed a motion to strike the peremptory exception of prescription contending that since plaintiff had failed to allege any claim against the insurance company and had failed to make the insurance company a party defendant the peremptory exception of prescription was an invalid defense and should be stricken.

The minutes of the court reflect that the exception of prescription and motions to dismiss and to strike were taken up, argued and taken under advisement, with counsel for all parties present at the hearing. Subsequently, in well-reasoned written reasons for judgment, the district court sustained the exception of prescription and overruled the motions to dismiss and to strike. Judgment was rendered accordingly. After a motion for new trial filed by defendant Sharp was overruled, the defendant Sharp perfected a devolutive appeal. Plaintiff did not appeal and has made no appearance on appeal.

On appeal defendant Sharp contends the district court erred in overruling his motions to dismiss and to strike and in sustaining the defendant insurance company’s [905]*905exception of prescription. The defendant insurance company urges the correctness of the judgment of the district court and further contends that defendant Sharp has no right to appeal from the judgment sustaining the plea of prescription and dismissing plaintiff’s suit in that he is not a party to that controversy between the plaintiff and the defendant insurance company.

Before discussing the issues, it should be noted, as pointed out in the trial court’s reasons for judgment, that the order sustaining the exception of nonjoinder of a necessary party was made pursuant to a stipulation of counsel and was not based on a considered judgment of the district court that the insurance company was, in fact, a necessary party. The presence of the insurance company in this suit when neither the plaintiff nor the defendant Sharp actually makes any claim against it accounts for the somewhat unusual posture of the case at this point.

Right to Appeal

The defendant insurance company attacks the right of the defendant Sharp to appeal from the judgment sustaining the insurance company’s exception of prescription and dismissing plaintiff’s demands against the insurance company.

In Emmons v. Agricultural Insurance Company, 245 La. 411, 158 So.2d 594 (1963), the court held:

“Appeal is the exercise of the right of a party to have a judgment of a trial court revised, modified, set aside, or reversed by an appellate court. LSA-C.C. P., Article 2082. Appeals are favored and aided by the courts. Succession of Tullier, 216 La. 821, 44 So. 2d 880; Vidrine v. American Employers Ins. Co., La.App., 129 So.2d 284. The law is too well settled to require the citation of authority that appeals are favored in the law, must be maintained wherever possible and will not be dismissed for technicalities. Sam v. Deville Gin, Inc., La. App., 143 So.2d 838. Unless the ground urged for the dismissal is free from doubt an appeal will be sustained. Police Jury of Parish of St. James v. Borne, 192 La. 1041, 190 So. 124.
“ . . . Any one aggrieved by the judgment of a trial court has the right to appeal, unless he has acquiesced therein, or is otherwise deprived of that remedy. White v. White, 153 La. 313, 95 So. 791. A party to a suit is given an unqualified right to appeal from adverse final judgment and need not allege and show a direct pecuniary interest in order to be entitled to appeal. Krauss Company v. Develle, 235 La. 1013, 106 So.2d 452.”

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Delanzo v. ABC CORP.
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516 So. 2d 1192 (Louisiana Court of Appeal, 1987)

Cite This Page — Counsel Stack

Bluebook (online)
294 So. 2d 902, 1974 La. App. LEXIS 3197, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ewing-v-sharp-lactapp-1974.