Long v. Elliott

206 So. 3d 414, 16 La.App. 3 Cir. 139, 2016 La. App. LEXIS 2035
CourtLouisiana Court of Appeal
DecidedNovember 2, 2016
Docket16-139
StatusPublished

This text of 206 So. 3d 414 (Long v. Elliott) 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
Long v. Elliott, 206 So. 3d 414, 16 La.App. 3 Cir. 139, 2016 La. App. LEXIS 2035 (La. Ct. App. 2016).

Opinion

GENOVESE, Judge.

hIn this legal .malpractice case, Defendants, Charles D. Elliott and Vilar & Elliott, LLC (hereinafter collectively referred to as “Elliott”), filed an exception of peremption asserting Plaintiffs, Julian W. Long, Eva Z. Long, and Long’s Preferred Products, Inc. (hereinafter collectively referred to as “the Longs”), filed their malpractice claim beyond the three-year per-emptive period set forth in La.R.S. 9:5605. The trial court sustained the peremptory exception and dismissed with prejudice all claims asserted against Elliott by the Longs. The Longs appeal. For the following reasons, we affirm as amended the judgment of the trial court.

FACTUAL AND PROCEDURAL BACKGROUND

At the outset, we note that the record reflects that this appeal follows the judgment rendered after the Longs were granted a new trial. The Longs filed their malpractice claim pro se, and, at the time of the first hearing on Elliott’s exception, the Longs represented themselves. The trial court sustained the exception. The Longs, through retained counsel, motioned for and were granted a new trial. Elliott filed a writ application seeking supervisory review, which this court denied. Long v. Elliott, 15-104 (La.App. 3 Cir. 3/4/15) (unpublished writ). The present appeal follows the second decree sustaining Elliott’s peremptory exception.

The Longs filed this legal malpractice claim on April 28, 2014, relative to Elliott’s handling of the Longs’ purchase of Linda Minton’s shares of stock in Long’s-Preferred Products, Inc.1 The Longs alleged [416]*416that Elliott committed malpractice by failing to “provide an escape clause” in the sale “should [they] fail |gto qualify for the proposed loan.” They asserted Elliott’s negligence “caused [them] to suffer damages ... of being saddled with a $500,000.00 original note” as a result of being unable to nullify the sale after they did not qualify for a loan.

Elliott filed an exception of peremption, asserting more than three years had passed since the date of the alleged act of malpractice upon which the Longs’ claims were based, and thus, the Longs’ claims were perempted under La.R.S. 9:5605. He alleged that on March 28, 2011, the Longs agreed to the Terms of Sale regarding the stock purchase, and he argued this was the alleged act of malpractice upon which their claims were based; therefore, the Longs’ suit, filed more than three years later, was perempted. Elliott asserted, in the alternative, that more than one year had passed since the alleged act of malpractice was discovered, and thus, the Longs’ claims were also prescribed under La.R.S. 9:5605. He alleged that on August 23, 2011, the Longs learned they were going to be sued for defaulting on the promissory note, and he argued this revealed the sale could not be nullified; therefore, the Longs’ suit filed more than one year later was prescribed.

The Longs opposed the exception, arguing that their claims stem from the Credit Sale and Promissory Note, which they signed on April 29, 2011, and that their damages did not begin to accrue until their loan was denied in August 2011. The Longs also claimed that they did not know they had a claim for legal malpractice until they consulted with another attorney, Dan Brenner, on May 24, 2013. They asserted they could not have known they had a claim for legal malpractice because Elliott continued to represent them, and, in so doing, he prevented them from discovering the malpractice.

An evidentiary hearing was held on Elliott’s exception of peremption at which the parties submitted evidence and testimony. Following the hearing, the |strial court ruled that the alleged act of malpractice which triggered the running of the per-emptive period was the parties’ agreement to the Terms of Sale on March 28, 2011; therefore, the Longs’ lawsuit filed on April 28, 2014 was perempted. Judgment sustaining Elliott’s exception of peremption was signed August 24, 2015. The Longs appeal.

ASSIGNMENTS OF ERROR

On appeal, the Longs assign the following errors for our consideration:

1. The trial court erred as a matter of law in granting the defendants’ exception of peremption based on the “March 28th” date because “damages” were not suffered until August of 2011 when financing for the stock purchase failed. Additionally, the plaintiffs did not have “knowledge” of their claim until May of 2013 when the plaintiffs were informed of defendants’ malpractice by Dan Brenner, attorney at law.
2. The trial court erred as a matter of law in denying the appellants leave to amend and supplement their Petition to remove the grounds of defendants’ exception of peremption.

STANDARD OF REVIEW

In Lomont v. Bennett, 14-2483, p. 8 (La. 6/30/15), 172 So.3d 620, 627, cert. denied, — U.S. -, 136 S.Ct. 1167, 194 L.Ed.2d 178 (2016) (citations omitted), our supreme court set forth the appellate stan[417]*417dard of review applicable to a peremptory exception as follows:

At a hearing on a peremptory exception of prescription pleaded prior to trial, evidence may be introduced to support or controvert the exception. In the absence of evidence/ an exception of per-emption must be decided upon the facts alleged in the petition with all of the allegations accepted as true. However, when evidence is introduced, the court is not bound to accept plaintiffs allegations as true. If evidence is introduced at the hearing on the peremptory exception of peremption, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. If those findings are reasonable in light of the record reviewed in its entirety, an appellate court cannot reverse even though convinced that had it been sitting as a trier of fact, it would have weighed the evidence differently.

|4In light of the fact that evidence was introduced at the hearing, we must review the entire record to determine whether the trial court manifestly erred in making its factual conclusions.

LAW AND DISCUSSION

“Peremption is a period of time fixed by law for the existence of a right. Unless timely exercised, the right is extinguished upon the expiration of the peremptive period.” La.Civ.Code art. 3458. “Peremption may not be renounced, interrupted,' or suspended.” La.Civ.Code. art. 3461. Louisiana Revised Statutes 9:5605(A) (emphasis added) provides the legal malpractice peremption and prescription periods as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
206 So. 3d 414, 16 La.App. 3 Cir. 139, 2016 La. App. LEXIS 2035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/long-v-elliott-lactapp-2016.