Lisette Schroth Morice Versus Yorkshire Court Condominium Association, Inc., Gary Klein, Alex A. Lauricella, and Didriksen, Saucier & Woods, Plc.

• Court: Louisiana Court of Appeal
• Decided: November 29, 2023
• Docket: 23-CA-118
• Status: Unknown

Opinion

LISETTE SCHROTH MORICE NO. 23-CA-118

VERSUS FIFTH CIRCUIT

YORKSHIRE COURT CONDOMINIUM COURT OF APPEAL ASSOCIATION, INC., GARY KLEIN, ALEX A. LAURICELLA, AND DIDRIKSEN, SAUCIER STATE OF LOUISIANA & WOODS, PLC.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 829-142, DIVISION "L" HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING

November 29, 2023

SCOTT U. SCHLEGEL JUDGE

Panel composed of Judges Jude G. Gravois, Stephen J. Windhorst, and Scott U. Schlegel

AFFIRMED SUS JGG SJW COUNSEL FOR PLAINTIFF/APPELLANT, LISETTE SCHROTH MORICE Louis R. Koerner, Jr.

COUNSEL FOR DEFENDANT/APPELLEE, YORKSHIRE CONDOMINIUM ASSOCIATION, INC. AND GARY KLEIN Richard G. Duplantier, Jr. Jennifer R. Buckingham Madeline G. Smith

COUNSEL FOR DEFENDANT/APPELLEE, ALEX A. LAURICELLA Dane S. Ciolino Clare S. Roubion

COUNSEL FOR DEFENDANT/APPELLEE, DIDRIKSEN, SAUCIER & WOODS, PLC Caleb H. Didriksen, III Erin B. Saucier Carl A. Woods, III SCHLEGEL, J.

Plaintiff, Lisette Schroth Morice (“Morice”), appeals the trial court’s

October 17, 2022 judgment which granted the peremptory exceptions of

prescription filed by defendants, Didriksen, Saucier, and Woods, PLC (“DSW”),

and Alex Lauricella (“Lauricella”), and dismissed with prejudice plaintiff’s claims

against the remaining defendants, Yorkshire Court Condominium Association, Inc.

(“YCC”) and Gary Klein (“Klein”). Finding that Morice’s claims have prescribed,

we affirm the grant of the exceptions of prescription. We further affirm the trial

court’s denial of the motion for sanctions against Morice filed by DSW and

Lauricella.

Facts and Procedural History

A. Lawsuits in First Parish Court of Jefferson Parish

Morice has owned condominium Unit # 226 at YCC since April 2010. In

late April 2010, Morice had washer and dryer connections installed. Klein, who

was the property manager of YCC, sent Morice a letter dated April 27, 2010,

indicating that the condominium did not permit washer or dryer connections, and

requested that the connections be removed or Morice would be fined. On June 21,

2010, YCC and its board notified Morice in writing that washer and dryer

appliances were not allowed to be installed in Unit # 226 per the condominium

declaration. Morice installed a washer and dryer in the unit at some point

thereafter.

On or about December 19, 2017, YCC was notified that Morice had installed

washer and dryer appliances in the unit. On May 8, 2018, Lauricella, an attorney

with DSW law firm, sent Morice a letter demanding the removal of the washer and

dryer, indicating that the appliances were in violation of YCC’s bylaws and

condominium declaration, and itemizing penalties if the appliances were not

removed.

23-CA-118 1 Subsequently, YCC, represented by Lauricella and DSW, filed two lawsuits

in the First Parish Court of Jefferson Parish, consisting of an open account petition

in Yorkshire Court Condominium Association, Inc. v. Lisette Schroth Morice, No.

166-966, and a petition for injunctive relief in Yorkshire Court Condominium

Association, Inc. v. Lisette Schroth Morice, No. 166-944. The cases were

consolidated (“First Parish Court cases”).

In advance of the trial, Morice filed an exception of prescription alleging

that the appliances had long been installed with YCC’s knowledge. In opposition,

YCC filed an affidavit dated October 4, 2019 by Klein, which stated that “Mr.

Klein did not learn that a washer and dryer were installed in Ms. Morice’s unit

until December of 2017.” In addition, a Lien Affidavit and Statement of

Assessment (“lien affidavit”) dated October 9, 2020 was filed on YCC’s behalf,

signed by Lauricella, as agent in fact and attorney for YCC. In its lawsuit and at

trial, YCC highlighted the distinction between the installation of washer and dryer

connections versus the installation of washer and dryer appliances because the

amended condominium declaration prohibited the installation of “individual

automatic clothes washers and dryers.” The First Parish Court denied Morice’s

exception.

At the trial on March 29, 2022, the First Parish Court ruled from the bench

and dismissed YCC’s claims, with each party to bear their own costs. The

judgment was entered on April 11, 2022.

B. Lawsuit in the 24th Judicial District Court

On June 10, 2022, Morice filed her petition in the 24th Judicial District Court

naming as defendants, YCC and Klein, the plaintiffs in the First Parish Court

cases, and also adding as defendants, Lauricella and DSW, the attorney and law

firm representing YCC and Klein. The gravamen of Morice’s petition involves

allegations regarding two documents filed in the First Parish Court cases: (1) the

23-CA-118 2 October 4, 2019 affidavit by Klein and notarized by Lauricella (“Exhibit 1”) was

“perjured”, and (2) the October 9, 2020 lien affidavit by Lauricella (“Exhibit 2”)

was false. The petition alleged that these documents were falsely sworn under oath

in violation of La. R.S. 14:123 (perjury), and in violation of La. R.S. 14:133 (filing

of false public records). Morice further asserted she was entitled to civil damages

for racketeering activity under La. R.S. 15:1356[E], damages available under

general negligence, and reasonable attorney’s fees, expenses, and costs. DSW and

Lauricella filed exceptions to the petition and also motions for sanctions.

In response, Morice filed an amended petition on August 3, 2022, which

added statements and claims against the attorney defendants, stating, for example

that by filing the October 9, 2020 lien affidavit “Lauricella, on information and

belief, acted with malice and greed in order to receive continued payment of

attorney fees and also intended that petitioner suffer financial, physical, and

emotional harm on account of the falseness of Exhibit 2 and the continued

prosecution of knowingly false factual accusations and meritless litigation.” The

amended petition further claimed that the attorney defendants intentionally violated

their ethical obligations to the First Parish Court by intentionally violating the

Louisiana Rules of Professional Conduct, including Rule 1.2 – Scope of

Representation, and Rule 3.3(a) – Candor Toward the Tribunal. An additional

claim of abuse of process under La. C.C. art. 2315 was made against all

defendants.

The attorney defendants reset the previously filed exceptions of prescription,

res judicata, no cause of action, no right of action, prematurity, vagueness and

ambiguity, which were set on October 17, 2022. YCC and Klein also set their

exceptions of res judicata, no cause of action, and no right of action for the same

day. On October 14, 2022, Morice filed an “Opposed Motion to Continue” the

hearing.

23-CA-118 3 At the hearing on October 17, 2022, the trial court denied Morice’s motion

to continue the hearing as untimely filed; granted the exceptions of prescription

filed by DSW and Lauricella; and dismissed the plaintiff’s claims against all

defendants. The motions for sanctions filed by the attorney defendants were

denied.

Law and Analysis

A. Exception of Prescription

An exception of prescription is a type of peremptory exception. The function

of the peremptory exception is to have the plaintiff’s action declared legally

nonexistent, or barred by the effect of law, and hence this exception tends to

dismiss or defeat the action. Ruffins v. HAZA Foods of Louisiana, LLC, 21-619

(La. App. 5 Cir. 5/25/22), 341 So.3d 1259, 1262. Ordinarily, the exceptor bears

the burden of proof at the trial of the peremptory exception, including prescription.

However, if prescription is evident on the face of the pleadings, the burden shifts to

the plaintiff to show that the action has not prescribed. When a cause of action is

prescribed on its face, the burden is upon the plaintiff to show that the running of

prescription was suspended or interrupted in some manner. Id., citing, Woods v.

Cousins, 12-100 (La. App. 5 Cir. 10/16/12), 102 So.3d 977, 979, writ denied, 12-

2452 (La. 1/11/13), 107 So.3d 617.

At the trial of a peremptory exception of prescription, “evidence may be

introduced to support or controvert any of the objections pleaded, when the

grounds thereof do not appear from the petition.” Ruffins v. HAZA Foods of

Louisiana, LLC, 341 So.3d at 1262, citing, La. C.C.P. art. 931. In the absence of

evidence, the exception of prescription must be decided on the facts alleged in the

petition, which are accepted as true. Ruffins v. HAZA Foods of Louisiana, LLC,

341 So.3d at 1262. But the latter principle applies only to properly-pleaded

23-CA-118 4 material allegations of fact, as opposed to allegations deficient in material detail,

conclusory factual allegations, or allegations of law. Id.

The standard of review of a trial court’s ruling on a peremptory exception of

prescription turns on whether evidence is introduced. Id. When no evidence is

introduced, appellate courts review judgments sustaining an exception of

prescription de novo, accepting the facts alleged in the petition as true. Id.

However, when evidence is introduced at a hearing on an exception of

prescription, the trial court’s findings of fact are reviewed under the manifest error

standard. Id.

No evidence was introduced at the trial court hearing. Thus, we review the

trial court’s judgment de novo, and accept the facts alleged in the amended petition

as true.

Morice’s first assignment of error is that the trial court was erroneously

induced to grant the exceptions of prescription under the one-year peremptive

period of La. R.S. 9:5605. Morice argues that the trial court erred in applying La.

R.S. 9:5605 to her claims against the defendants because she had no legal

relationship and did not receive any legal advice from any defendant.

La. R.S. § 9:5605, entitled “Actions for legal malpractice,” provides in

pertinent 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 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.

23-CA-118 5 The jurisprudence considering Section 5605 has held that in order for the

statute to apply, the action for damages must arise out of an engagement to provide

legal services. Broussard v. F.A. Richard & Assocs., Inc., 98-1167 (La. App. 3

Cir. 3/17/99), 732 So.2d 578, 583, writ denied, 99-1048 (La. 6/4/99), 744 So.2d

625; Raspanti v. Raspanti, 07-295 (La. App. 5 Cir. 12/11/07), 977 So.2d 95, 98,

writ denied, 2008-0096 (La. 3/7/08), 977 So.2d 906. The seminal case of

Broussard held that Section 5605 did not apply to the plaintiff’s claim against the

defendant-attorney because her claim arose from an alleged tort of concealment

and was not a claim for legal malpractice. The Broussard Court held that “[t]he

statute was not designed to protect every action of every attorney simply because

the attorney was practicing law at the time the act or omission was committed.

Such application would be unjust and would lead to unreasonable results.” 732

So.2d at 583.

As applied to the case at bar, Morice’s claims against the attorney

defendants do not arise from alleged legal malpractice, but are asserted based upon

negligence or intentional torts. As a result, the peremptive period for legal

malpractice claims set forth in La. R.S. 9:5606 does not apply to the pending case.

We next consider the attorney defendants’ alternative argument that the

prescriptive period applicable to delictual actions applies as set forth in La. C.C.

art. 3492. Delictual actions are subject to a liberative prescriptive period of one

year, which commences to run from the date the injury is sustained. La. C.C. art.

3492. Delictual liability includes intentional misconduct. Revision Comment –

1983, Comment (b), to La. C.C. art. 3492. Morice’s claims for abuse of process

raise delictual claims that are subject to a prescriptive period of one year. See

Foster v. Bias, 2022-0329 (La. App. 1 Cir. 12/22/22), 358 So.3d 520, 530, writ

denied, 2023-00090 (La. 3/28/23), 358 So.3d 503 (“Foster’s abuse of process claim

is a delictual action subject to a prescriptive period of one year.”)

23-CA-118 6 Morice asserts claims of negligence or intentional torts against defendants.

The actions complained of arise from the filing in the First Parish Court of the

October 4, 2019 affidavit by Klein and the October 9, 2020 lien affidavit signed by

Lauricella. The lawsuit in the 24th Judicial District Court was not filed until June

10, 2022, which was more than one year after the actions of which Morice

complains. Thus, the suit is barred by La. C.C. art. 3492. Counsel for Morice even

acknowledged during oral argument in the trial court that her claims based on the

allegedly false affidavit and lien statement were prescribed, stating “[y]es, there

may be prescription on that aspect. But malicious civil prosecution doesn’t accrue

until the date of the judgment.”

Morice argues that her abuse of process claim was a continuing tort. This

argument is unavailing. Her amended petition made no reference to continuing

torts. Even if it had, the continuing tort theory would not apply. See No Drama,

LLC v. Caluda, 15-211 (La. App. 5 Cir. 10/14/15), 177 So. 3d 747, 752 (“For the

continuing tort doctrine to apply, both the tortious conduct and the resulting

damages must be continuous. . . . Although plaintiff alleges to have continuously

sustained damages to its reputation and its finances until the dismissal of the

underlying suit, the operating cause, the filing of the lawsuit, is not a continuous

tort.”) As in No Drama LLC v Caluda, the filing of the allegedly false affidavit

and lien affidavit are not continuous actions.

Morice further asserts that her claim for malicious civil prosecution is timely

because the liberative prescriptive period for a malicious prosecution claim does

not begin to run until the underlying prosecution claim is dismissed. She therefore

argues that prescription on this claim began to run on April 11, 2022, the day the

judgment was entered in First Parish Court. But this argument is without merit

because her amended petition did not include a claim for malicious civil

prosecution.

23-CA-118 7 At the hearing on October 17, 2022, the trial court granted the exceptions of

prescription, and did not rule upon the defendants’ remaining exceptions, which

were withdrawn by the defendants. Thus, although some of the remaining

exceptions may have merit, we need not consider them.

Morice further argues that the trial court erroneously denied her motion for

new trial as being untimely filed. Irrespective of the timeliness of the motion for

new trial, we find that plaintiff’s claims are prescribed for the reasons discussed

above.

B. Motion for Sanctions

DSW and Lauricella appeal the trial court’s denial of their motions for

sanctions under La. C.C.P. art. 863, asserting that Morice never had any

evidentiary support for the factual allegations made against them in the trial court.

On appeal, a trial court's imposition of sanctions pursuant to La. C.C.P. art.

863 will not be reversed unless clearly wrong or manifestly erroneous. Teal v.

Zeagler, 21-586 (La. App. 5 Cir. 7/6/22), 345 So.3d 1092, 1099; Martin v. Martin,

14-749 (La. App. 5 Cir. 2/25/15), 168 So.3d 829, 834. We find no abuse of the

trial court’s broad discretion in denying DSW and Lauricella’s motions for

sanctions.

AFFIRMED

23-CA-118 8 SUSAN M. CHEHARDY CURTIS B. PURSELL

CHIEF JUDGE CLERK OF COURT

SUSAN S. BUCHHOLZ FREDERICKA H. WICKER CHIEF DEPUTY CLERK JUDE G. GRAVOIS MARC E. JOHNSON ROBERT A. CHAISSON LINDA M. WISEMAN STEPHEN J. WINDHORST FIRST DEPUTY CLERK JOHN J. MOLAISON, JR. SCOTT U. SCHLEGEL FIFTH CIRCUIT MELISSA C. LEDET JUDGES 101 DERBIGNY STREET (70053) DIRECTOR OF CENTRAL STAFF POST OFFICE BOX 489 GRETNA, LOUISIANA 70054 (504) 376-1400

(504) 376-1498 FAX www.fifthcircuit.org

NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY NOVEMBER 29, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:

23-CA-118 E-NOTIFIED 24TH JUDICIAL DISTRICT COURT (CLERK) HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE) LOUIS R. KOERNER, JR. (APPELLANT) JENNIFER R. BUCKINGHAM (APPELLEE) MADELINE G. SMITH (APPELLEE) RICHARD G. DUPLANTIER, JR. CLARE S. ROUBION (APPELLEE) DANE S. CIOLINO (APPELLEE) (APPELLEE) CARL A. WOODS, III (APPELLEE) ERIN B. SAUCIER (APPELLEE) CALEB H. DIDRIKSEN, III (APPELLEE)

MAILED NO ATTORNEYS WERE MAILED