Jenkins v. Starns

85 So. 3d 612, 2012 WL 182135, 2012 La. LEXIS 105
CourtSupreme Court of Louisiana
DecidedJanuary 24, 2012
Docket2011-C-1170
StatusPublished
Cited by62 cases

This text of 85 So. 3d 612 (Jenkins v. Starns) is published on Counsel Stack Legal Research, covering Supreme Court of Louisiana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Jenkins v. Starns, 85 So. 3d 612, 2012 WL 182135, 2012 La. LEXIS 105 (La. 2012).

Opinions

[613]*613KIMBALL, C.J.

IjWe granted certiorari in this case to determine whether the continuous representation rule, an application of the doctrine of contra non valentem, can apply to suspend the commencement of the one-year peremptive period under La. R.S. 9:5605. For the reasons discussed herein, we reverse the court of appeal and conclude the commencement of the peremp-tive periods in La. R.S. 9:5605 cannot be suspended by the application of the continuous representation rule.

FACTS AND PROCEDURAL HISTORY

On April 27, 2006, the plaintiff in this matter, Laurie Jenkins, entered into a contract with Chet Medlock-whereby Medlock would sell, transfer, and deliver a metal building to Jenkins on or before May 27, 2006. The total price of the project was $25,000, with thirty-three percent, or $8,333.33, due immediately as a deposit for the materials, the second thirty-three percent due upon erection of the steel frame, and the remaining thirty-three percent due upon completion of the project.

After the building was completed, issues arose regarding the quality of work and Jenkins withheld payment of the last installment due under the contract. Jenkins consulted attorney Larry G. Starns, the defendant in this matter, who wrote a letter to Medlock on her behalf, which appears to be in response to a demand by 12Medlock for the final payment. The letter points out several complaints Jenkins had with the building and states any lawsuit filed by Medlock will be met with a demand for a reduction in the contract price based upon defects in the building. Medlock sued Jenkins for breach of contract on November 28, 2006, seeking the last installment of the contract, $8,333.33, with legal interest and court costs. Jenkins was personally served with the suit on December 4, 2006. Starns was in contact with Medlock’s attorney and believed there was an informal agreement for an extension of time to file responsive pleadings. When no answer was filed, Medlock obtained a preliminary default judgment against Jenkins on December 20, 2006, in the amount of $8,333.33 and $230.00 in court costs. The default judgment was confirmed on January 3, 2007. Jenkins was served with a copy of the confirmed default judgment on January 16, 2007.

Jenkins notified Starns of the default judgment and on January 25, 2007, Starns filed a petition to annul the judgment, asserting the entry and confirmation of the default judgment constituted fraud and/or ill practices. Medlock filed declinatory exceptions of insufficiency of service of process and improper venue to the petition to annul. A minute entry shows the exceptions were considered at a hearing on April 16, 2007. Medlock’s counsel was personally present and presented argument, but neither Jenkins nor Starns made an appearance in court. The trial court sustained the exceptions on April 23, 2007, dismissing the suit.

Medlock subsequently filed a judgment debtor rule on Jenkins, which was served on Starns. A minute entry confirms the judgment debtor rule was heard on May 12, 2008, and continued until July 7, 2008. In May of 2008, Starns requested reissuance of service on Medlock of the petition to annul judgment. On June 18, 2008, Medlock filed an answer to the petition to annul, denying the allegations of fraud and ill practices therein. On June 27, 2008, Medlock filed a motion for summary judgment, which was heard on July 28, 2008. Starns attended the | shearing and the trial court granted the motion, dismissing Jenkins’ suit to annul the judgment and awarding Medlock attorney fees. On Au[614]*614gust 28, 2008, Medloek filed a petition for garnishment, seeking $10,464.25, representing the principal amount due plus legal interest, court costs, and sheriff’s costs. The trial court issued a judgment of garnishment on September 29, 2008, which was served on Hancock Bank on October 1, 2008. Upon discovery of the loss of funds, Jenkins consulted another attorney and filed suit against Starns for legal malpractice on November 5, 2008.

In her petition for damages, Jenkins alleged the garnishment resulted from Starns’ negligent act of failing to file a responsive pleading to Medlock’s petition for breach of contract. Jenkins further asserted Starns failed to act as a reasonable, prudent attorney when he failed to appear and defend her at the April 16, 2007, hearing on Medlock’s declinatory exceptions to her petition to annul judgment. Starns answered the petition, stating he had talked to Medloek’s attorney and was under the impression he would be given an informal extension of time to file responsive pleadings due to the holiday season. Starns was unaware a preliminary default had been entered on December 20, 2006, and confirmed on January 3, 2007. Starns further claimed he did not remember receiving a notice of court for April 16, 2007. Due to his involvement in a separate matter in that division, however, Starns had notified the court he would be in another jurisdiction that day and would be late for court.

Jenkins subsequently filed a motion for judgment on the pleadings, asserting Starns’ allegations regarding the informal extension and his failure to appear were not defenses to the suit. Starns opposed the motion, admitting Jenkins may have had some defense against the entire outstanding balance, but arguing he should not be cast in judgment for the full amount of the default judgment. The trial court granted a partial judgment on the pleadings, finding a claim for legal malpractice |4had been established, but reserved for determination the extent and amount of damages sustained by Jenkins as a result of the malpractice.

Starns subsequently filed an exception of prescription/peremption, asserting Jenkins’ malpractice suit was not filed within the one-year peremptive period in La. R.S. 9:5605. The statute provides:

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.
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 [615]*615regard 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.

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Bluebook (online)
85 So. 3d 612, 2012 WL 182135, 2012 La. LEXIS 105, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jenkins-v-starns-la-2012.