Gatiuso v. Nicaud

186 So. 3d 1238, 15 La.App. 5 Cir. 670, 2016 La. App. LEXIS 349
CourtLouisiana Court of Appeal
DecidedFebruary 24, 2016
DocketNo. 15-CA-670
StatusPublished

This text of 186 So. 3d 1238 (Gatiuso v. Nicaud) 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
Gatiuso v. Nicaud, 186 So. 3d 1238, 15 La.App. 5 Cir. 670, 2016 La. App. LEXIS 349 (La. Ct. App. 2016).

Opinion

SUSAN M. CHEHARDY, Chief Judge.

| Jn this legal malpractice action, Gretchen Gattuso appeals the trial court judgment sustaining Albert Nicaud’s exceptions of prescription and peremption. For the following reasons, we affirm.

Facts and Procedural History

On September 18, 2014, Gretchen Gattu-so filed a petition for damages against Albert Nicaud and Nicaud & Sunseri, LLC, inter alia, (hereinafter “Mr. Ni-caud”) alleging that Mr. Nicaud committed legal malpractice in his representation of Ms. Gattuso in two separate matters arising out of her ownership of a condominium at Federal Fibre Mills. In particular, first, Ms. Gattuso claimed Nicaud failed to adequately represent her by allowing the matter of Gretchen Gattuso v. Allstate Insurance Company, Docket No. 2006-52627 filed in First City Court for the City of New Orleans, to be dismissed as abandoned. Second, Ms. Gattuso claimed that Nicaud failed to adequately represent her interests in Federal Fibre Mills Condominiom Association v. Gretchen Gattuso, Docket No. 2009-12925 filed in Civil District Court for the Parish of Orleans, by allowing a judgment to be- taken against Ms. Gattuso contrary to her wishes.

|sOn December 1, 2014, Mr. Nicaud filed numerous exceptions. First, Mr. Nicaud filed exceptions of prescription and per-emption with respect to Ms. Gattuso’s action filed in First City Court on the basis that more than three years had passed since the date of the alleged act, omission, or neglect upon which Ms. Gattuso’s claim was based and, thus, her claim was per-empted under La. R.S. 9:5605. Specifically, Mr. Nicaud asserted that Ms. Gattuso’s malpractice action was perempted as it was not filed within three years of the date that the underlying matter was dismissed as abandoned. To his exception, Mr. Ni-caud attached the judgment in the underlying matter as evidence that it was • dismissed on March 9, ■ 2010. Mr. Nicaud argued that, under La. R.S. 9:5605, Ms. Gattuso’s petition would have been timely if filed by March 9, 2013 but her action was untimely as.it was not filed until September 18, 2014, well outside of the three-year peremptive period.

Next, with respect to the matter filed in Civil District Court, Mr. Nicaud filed an exception of no cause of action on the basis that Ms. Gattuso failed to properly allege malpractice as her petition did not allege any negligence on Mr. Nicaud’s part that caused the condominium association to prevail in its motion for summary judgment or any loss caused to .Ms. Gattuso,by that negligence.

In her opposition to Mr. Nicaud’s exceptions, Ms. Gattuso alleged, with respect to her First City Court matter, that Mr. Ni-caud on two occasions assured her that her First City Court case had not been abandoned, ,which “clearly constitute^] ‘ill practice’ .. ■. and fraud.” With respect to the Civil District Court matter, Ms. .Gattu-so contended that Mr. .Nicaud failed to file any response to the condominium association’s motion for summary judgment, failed to appear in court-on the day of the hearing, failed to contest the amount of attorney fees,--and signed-a judgment in the case without Ms. Gattuso’s- consent.

|4On May 25, 2015, in a second supplemental and amending petition, Ms. Gat-tuso, to support her allegation of “ill practices,” stated that -Mr. Nicaud twice assured her that her First 'City Court lawsuit was proceeding. Ms. Gattuso reiterated that Mr. Nicaud’s fraudulent acts rendered the peremptive period in [1240]*1240La. R.S. 9:5605 inapplicable. Further, with respect to her Civil District Court matter, Ms. Gattuso reiterated that she suffered financial losses over $50,000.00 through both Mr. Nicaud’s action and inaction, including signing a judgment without her consent, failing to appear in court on the day of the hearing, and failing to contest the amount of attorney fees awarded.

On July 1, 2015, the trial judge heard the exceptions. After argument, the trial court overruled Mr. Nicaud’s exception of no cause of action with respect to the Civil District Court case. Mr. Nicaud did not seek review of that ruling.

Regarding Mr. Nicaud’s exceptions of prescription and peremption, both Ms. Gattuso and Mr. Nicaud testified at the hearing. Ms. Gattuso testified that Mr. Nicaud had been her attorney for á number of cases including the First City Court matter and several matters consolidated in Civil District Court, which all arose out of her ownership of a condominium at Federal Fibre Mills.

Ms. Gattuso testified that she first learned that her First City Court case was abandoned on September 12, 2014 when she went to the City Court Clerk’s Office to investigate as Mr. Nicaud Would not give her the necessary files for this case. She did admit that, sometime before April of 2012, Mr. Nicaud had told her that her case was abandoned. In June of 2012, however, Mr. Nicaud informed her at least twice that her case was “not abandoned.”

Mr. Nicaud testified that he had represented Ms. Gattuso in several matters, which he took over from Ms. Gattuso’s previous attorney. He admitted that he allowed one of those matters to be abandoned in March of 2010. Mr. Nicaud | ^claimed that, .within two weeks, he contacted Ms. Gattuso and personally told her that one of her cases was abandoned. Mr. Nicaud stated that he gave Ms. Gattuso his malpractice carrier’s information and told her that she could sue him. Mr. Nicaud testified that Ms. Gattuso stated that she did not want to sue but rather wanted him to focus on all of her other cases. He further testified that he never told her that her case had- “not abandoned” since this is a legal impossibility.

At the conclusion of the hearing, the trial court sustained Mr. Nicaud’s exceptions of prescription and peremption and signed a judgment to that effect' that day.

Law and Argument

On appeal, . Ms. Gattuso alleges two assignments of error: first, the “district court below committed legal error in granting the defendants’ Exceptions of Peremption and Prescription in regard to the plaintiffs claims alleging malpractice on the part ,of the defendants in the matter entitled: Federal Fibre Mills Condominium Association, Inc. v. Gretchen Gattuso, filed in Civil District Court for the Parish of Orleans, because her malpractice lawsuit ... was filed ... on September 18, 2014, less than one (1) year after the alleged malpractice committed by the defendants and well within three (3) years of the alleged malpractice committed by the defendants in that matter;” and second, the district court below committed legal error in granting the defendants’ Exceptions of Peremption and Prescription in regard to the plaintiffs claims alleging malpractice in Gretchen Gattuso v. Allstate Insurance Company, Docket No. 2006-52627 filed in First City Court for the City of New Orleans because Mr. Nicaud’s statements concerning the status of Ms. Gattuso’s case clearly constituted fraud within the definition of that term as set forth in La. C.C. art.1953 and La. R.S. 9:5605(E).

| fiWith respect to Ms. Gattuso’s first assigned error, Mr. Nicaud correctly points [1241]*1241out that he did not file exceptions of prescription and peremption regarding the malpractice claims arising out of the matter entitled Federal Fibre Mills Condominium Association, Inc. v. Gretchen Gattuso, filed in Civil District Court nor did the trial judge sustain an exception of prescription or. peremption with respect to that matter. In fact, as noted above, the trial court overruled Mr.

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Cite This Page — Counsel Stack

Bluebook (online)
186 So. 3d 1238, 15 La.App. 5 Cir. 670, 2016 La. App. LEXIS 349, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gatiuso-v-nicaud-lactapp-2016.