The Succession of H.L. Hawkins, Jr. v. Liskow and Lewis, Aplc

• Court: Louisiana Court of Appeal
• Decided: March 11, 2022
• Docket: 2021-CA-0198
• Status: Published

Opinion

THE SUCCESSION OF H.L. * NO. 2021-CA-0198 HAWKINS, JR. * VERSUS COURT OF APPEAL * LISKOW AND LEWIS, APLC FOURTH CIRCUIT * STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2019-07797, DIVISION “F-14” Honorable Jennifer M Medley, ****** JUDGE SANDRA CABRINA JENKINS ****** (Court composed of Judge Roland L. Belsome, Judge Sandra Cabrina Jenkins, Judge Dale N. Atkins)

ATKINS, J., CONCURS

David L. Browne Cynthia M. Cimino BROWNE LAW, LLC 3330 West Esplanade Avenue South, Suite 302 Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLANT

James A. Brown Sheri L. Corales LISKOW & LEWIS 701 Poydras Street Suite 5000 New Orleans, LA 70139-5099

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED MARCH 11, 2022 SCJ RLB Appellant, the Succession of H.L. Hawkins, Jr. (the “Succession”), appeals

the trial court’s December 30, 2020 judgment granting appellee’s, Liskow and

Lewis, APLC’s (“Liskow”), peremptory exception of peremption. For the

following reasons, the judgment dismissing the Succession’s claims is affirmed.

FACTUAL AND PROCEDURAL BACKGROUND

This legal malpractice suit arises from Liskow’s representation of the

Succession in an oil and gas dispute. Decedent, H.L. Hawkins, Jr., was an oil and

gas investor who entered into a master participation agreement with Meridian

Resource & Exploration, LLC, and the Meridian Resource Corporation

(collectively “Meridian”) to drill a well located on Amoco Production Company’s

(“Amoco”) property. Thereafter, in 1996, Amoco filed suit against Meridian for

unauthorized drilling on its property. On June 28, 1996, a judgment was entered

against Meridian, awarding Amoco over seven million dollars in damages.

On October 6, 1998, Mr. Hawkins passed away, leaving his interest in the

mineral lease vested in the Succession. On August 30, 1999, Meridian sent a

demand of $1,518,937.33 to the Succession for reimbursement of mineral

1 revenues. Thereafter, the Succession, through counsel, John C. Lovell, Jr. (“Mr.

Lovell”), and Virginia Lovell (“Mrs. Lovell”), sought legal advice from Liskow on

how to respond to Meridian’s demand.

On September 16, 1999, Liskow, through attorney Jonathan Hunter sent a

letter to the Succession advising of the choice of law clause in the master

participation agreement, and further advised the Succession to retain Texas counsel

to assist in the matter. On September 17, 1999, the Succession mailed a check

payable to Meridian with a reservation of right.

In January 2002, the Succession re-engaged Liskow to proceed with a suit

against Meridian after learning of another company’s refusal to pay Meridian its

portion of the Amoco judgment. On December 1, 2004, Liskow, on behalf of the

Succession, filed suit against Meridian in the 19th Judicial District Court and

asserted Louisiana breach of contract.

Eleven years later, Meridian filed a peremptory exception of prescription.

Thereafter, Meridian filed an amended and superseding exception of prescription,

asserting that the Succession’s claims were untimely based on the Texas choice of

law clause in the master participation agreement and the Texas four-year statute of

limitations. On May 13, 2016, Liskow informed the Succession via email of

Meridian’s assertions. On August 19, 2016, the 19th Judicial District Court

dismissed the Succession’s breach of contract claims against Meridian as untimely.

On July 26, 2018, a meeting was held between Liskow and the Succession.

Following the meeting, on August 1, 2018, Liskow sent a letter to the Succession

advising them to seek independent legal counsel in respect to questions of the

firm’s performance.

2 Approximately one year after the meeting with Liskow, the Succession filed

suit against Liskow, alleging legal malpractice and fraudulent concealment of the

Texas statute of limitations. On September 9, 2019, Liskow filed a peremptory

exception of peremption and dilatory exception of nonconformity with La. C.C.P.

art. 891.

Trials on the exceptions were conducted on March 16, June 8, and June 9,

2020. Thereafter, on December 30, 2020, the trial court rendered judgment

granting the peremptory exception of peremption. The trial court issued reasons for

judgment on the same date. On March 3, 2021, the Succession filed a motion for

devolutive appeal. This appeal follows.

STANDARD OF REVIEW

“A peremptory exception generally raises a purely legal question.” Wells

Fargo Fin. La., Inc. v. Galloway, 2017-0413, p. 7 (La. App. 4 Cir. 11/15/17), 231

So.3d 793, 799-800. When, as here, evidence is introduced at the hearing on a

peremptory exception of peremption, the trial court’s findings of fact are reviewed

under the manifest error/clearly wrong standard of review. Lomont v.

Bennett, 2014-2483, p. 8 (La. 6/30/15), 172 So.3d 620, 627 (citing Rando v. Anco

Insulations Inc., 2008-1163, p. 20 (La. 5/22/09), 16 So.3d 1065, 1082). If those

findings are reasonable in light of the record reviewed in its entirety, an appellate

court cannot reverse even though it is convinced that had it been sitting as the trier

of fact, it would have weighed the evidence differently. Id.

DISCUSSION

The Succession asserts three assignments of error:

(1) The trial court erred in finding that Liskow did not fraudulently conceal the Texas statute of limitations.

3 (2) The trial court erred in determining that La. R.S. 9:5605’s three-year peremptive period applied without Liskow having presented any reliable document to corroborate the verbal advice regarding the lapsed statute of limitations that its attorneys claim to have provided the Succession before July 26, 2018.

(3) The trial court erred in applying the peremptive period when Liskow failed to present evidence at trial to show that it informed the Succession of the lapsed Texas statute of limitations.

While the Succession assigns three errors, we narrow our discussion to two

issues: 1) whether the trial court erred in finding that Liskow did not fraudulently

conceal the Texas statute of limitations; and 2) whether the trial court erred in

dismissing the Succession’s claims pursuant to La. R.S. 9:5605.

Legal Malpractice and Peremption

The Succession contends that Liskow allowed the Texas statute of

limitations to lapse and committed legal malpractice. Pursuant to La. R.S. 9:5605,

plaintiffs must file their legal malpractice claims within one year from their

attorney’s negligent act or omission, or one year from the date that the malpractice

was discovered. Moreover, regardless of the date of discovery, the claim must be

filed within three years of the alleged acts of malpractice. La. R.S. 9:5605(A). Both

the one-year and three-year periods of limitations are, by statute, characterized as

peremptive in nature “within the meaning of Civil Code Article 3458, and in

accordance with Civil Code Article 3461, may not be renounced, interrupted, or

suspended.” La. R.S. 9:5605(B). As stated in Article 3458, “[p]eremption is a

period of time fixed by law for the existence of a right.” La. C.C. art. 3458.

Therefore, “unless timely exercised, the right is extinguished upon the expiration

of the peremptive period.” Id. However, the peremptive period “shall not apply in

cases of fraud, as defined in Civil Code Article 1953.” La. R.S. 9:5605(E).

Burden of Proof

4 “Ordinarily, the party pleading peremption bears the burden of proof at the

trial of the peremptory exception of peremption.” Thrasher Constr., Inc. v. Gibbs

Residential, L.L.C., 2015-0607, p. 8 (La. App. 4 Cir. 6/29/16), 197 So.3d 283, 289

(citing Rando v. Anco Insulations Inc., 2008-1163, p. 20 (La.5/22/09), 16 So.3d

1065, 1082; Carter v. Haygood, 2004-0646, p. 8 (La. 1/19/05), 892 So.2d 1261,

1267). However, if peremption is evident on the face of the pleadings, then the

burden shifts to the plaintiff to show that the claim is not perempted. Thrasher

Constr., Inc., 2015-0607, p. 8, 197 So.3d at 289 (citing Metairie III v. Poche

Constr., Inc., 2010-0353, p. 4 (La. App. 4 Cir. 9/29/10), 49 So.3d 446, 449; Rando,

2008-1163, p. 20, 16 So.3d at 1082).

Fraud

In this matter, there is no dispute that the Texas statute of limitations expired

on June 30, 2000. Thus under the clear wording of La. R.S. 9:5605(A) and (B), the

Succession’s suit filed on July 26, 2019, more than three years after the expiration

of the Texas statute of limitations would be perempted. However, in an attempt to

avoid the harsh consequences of peremption, the Succession pled that Liskow

committed fraud and concealed its malpractice, and it discovered the alleged

malpractice on July 26, 2018.

La. C.C. art. 1953 defines fraud as “a misrepresentation or a suppression of

the truth made with the intention either to obtain an unjust advantage for one party

or to cause a loss or inconvenience to the other. Fraud may also result from silence

or inaction.”

In the complaint, the Succession alleged that Liskow learned of the expired

Texas statute of limitations in June 2004, but concealed the alleged malpractice.

5 The Succession also contends that the peremptive period is not applicable pursuant

to La. R.S. 9:5605(E).

In opposition to the Succession’s contentions, Liskow asserts that in 1999 it

informed the Succession to retain Texas counsel regarding the choice of law clause

in the Meridian master participation agreement. Liskow further contends that after

the Succession re-engaged Liskow on the matter, the Succession was informed of

the expiration of the Texas statute of limitations and advised that there may be

success with proceeding with a case under Louisiana law.

It is undisputed that Liskow did not provide much written communication to

the Succession about the Meridian dispute. At the trial on the exception of

peremption, Mrs. Lovell testified that Liskow did not send any written engagement

agreement to the Succession. Mr. Lovell also testified that the Succession did not

receive any written communication detailing Liskow’s representation.

MR. JAMES A. BROWN [for Liskow]: Did Liskow & Lewis send the Succession any type of written engagement agreement at the end of August or beginning of September 1999 outlining what it was doing on this matter?

MR. LOVELL: No, Sir. * * *

MR. BROWN: Did Liskow send you any type of written representation agreement in 2002 to suggest it was limiting what it would do in its representation of the Succession as it related to the Meridian demand for one million?

MR. LOVELL: No. * * *

MR. BROWN: Mr. Lovell, was there any time in the 15 years that Liskow was representing the Succession related to this matter that Liskow sent a written representation agreement?

MR. LOVELL: No, Sir.

6 Further, Joseph Giarrusso, a previous Liskow attorney and shareholder,

testified that he did not recall seeing any written communication to the client

advising of the Texas statute of limitations.

However, the record provides that on September 16, 1999, Liskow sent a

letter to the Succession regarding the Meridian dispute. The letter advised of the

choice of law, and that “[a]though we are not licensed to practice law in the State

of Texas, we have included certain aspects of Texas law in our research.” Liskow

also advised “[a]s we have discussed, for a number of reasons, it would be

advisable for the Estate to retain Texas counsel to assist in this matter. We will

assist you in selecting such counsel if you desire.”

The record further provides that on September 17, 1999, Mrs. Lovell issued

a memorandum to the Succession’s file, providing that after consideration of the

opinion letter from Liskow, the Succession would pay the bill presented by

Meridian and not sue.

Former Liskow attorney, Jonathan Hunter testified that Liskow advised the

Succession in early 2002, after the Succession re-engaged the firm, that the Texas

statute of limitations may have barred the Succession’s claim.

MR. BROWN: And by this time as I understand it, you had already believe [sic] that the Texas 4 year statute of limitations had in fact run on the Succession’s breach of contract claims?

MR. HUNTER: That’s right. I continue to tell the client that I was not a Texas lawyer so couldn’t give them hard fast advice. It was my understanding that there was a 4 year period and it had probably run.

MR. BROWN: Your testimony was that you advised the client of that fact verbally, correct?

MR. HUNTER: Orally.

7 Liskow attorney Cheryl Kornick testified that on June 2, 2004, Mr. Lovell

attended a meeting with her, Joseph Norman and Joseph Giarrusso to discuss the

Meridian dispute and case strategy. She stated that during the meeting she asked

why they were not proceeding in Texas and was informed that it was too late to file

a suit in Texas. Ms. Kornick testified that this discussion was held in the presence

of Mr. Lovell.

Conversely, Mr. Lovell testified that he does not remember various events of

meeting with Liskow attorneys to discuss the Meridian dispute. He also testified

that he did not recall any attorney informing him of the Texas statute of limitations.

MR. DAVID L. BROWNE [for the Succession]: All right, Sir. And you were present in court last March when Mr. Hunter testified that he advised you of the risk of the application of the Texas 4 year statute of limitations on breach of contract, you were present when he gave that testimony to the Court, weren’t you, Sir?

MR. LOVELL: Yes, Sir.

MR. BROWNE: And you’re not saying he’s lying about that testimony, are you?

MR. LOVELL: No, not calling him a liar.

MR. BROWNE: You simply say you have no memory of that?

MR. LOVELL: That is correct.

However, the record includes Liskow’s billing entries from September 11 to

November 10, 1999, that reflect phone calls and meetings with the Succession.

There are also billing entries from January 23, 2002, to December 30, 2004, that

reference several telephone conferences with the Succession, research related to

the Meridian dispute, meetings regarding merits of potential claims, and filing of

pleadings with the 19th Judicial District Court.

8 The Succession relies on the Supreme Court’s decision in Lomont, 2014-

2483, 172 So.3d 620. In Lomont, the Supreme Court reviewed whether the lower

courts erred in sustaining a peremptory exception of peremption. 2014-2483, p. 1,

172 So.3d at 623. A client filed a legal malpractice suit against her former attorney

after discovering a lien on her property and that the attorney failed to file the

community property agreement in the mortgage and conveyance records. Id., 2014-

2483, p. 4, 172 So.3d at 625. The attorney filed an exception of peremption

asserting that more than three years had passed since the date of the malpractice.

Id. at p. 4, 172 So.3d at 625. The client amended her petition to allege the attorney

acted fraudulently in misrepresenting and/or suppressing the truth regarding the

malpractice she committed. Id.

The Court noted that because the client pled fraud, the attorney had the

burden of proving the claim was perempted, and the burden of proving she did not

commit fraud as alleged by the client. Id. at p. 8, 172 So.3d at 627.

The Lomont court explained that “[s]pecific intent to deceive is a necessary

element of fraud, and fraud cannot be based on mistake or negligence, regardless

how great.” 2014-2483, p. 19, 172 So.3d at 624. The Court noted that the attorney

only produced a self-serving email to herself, and did not produce any other

evidence documenting any work done on behalf of the client. Id. at p. 19, 172

So.3d at 634.

The Court found the attorney intended to defraud the client by lulling her

into inaction in an effort to avoid a malpractice suit, and therefore the attorney’s

actions “fit squarely within the definition of fraud in La. C.C. art. 1953.” Id. at p.

20, 172 So.3d at 635. The Court held that because it found the attorney committed

fraud, the peremptive periods were inapplicable and the legal malpractice claim

9 was governed by the one-year prescriptive period set forth in La. C.C. art. 3492.1

Id. at pp. 23-24, 172 So. 3d at 636-37. The Court reasoned:

Because all of the time periods in La. R.S. 9:5605 are peremptive in nature, the clear wording of Subsection (E) mandates that none of the time periods in the statute can be applied to legal malpractice claims once fraud had been established. After de novo review we interpret the statute to provide that once fraud is established, no peremptive period set forth in the statute is applicable.

Id. at p. 23, 172 So.3d at 636.

The Court also held that the doctrine of contra non valentem prevents the

running of prescription “where the debtor himself has done some act effectually to

prevent the creditor from availing himself of his cause of action . . . .” Id. at p. 25,

172 So. 3d at 637. The Lomont Court provided that although, the client was

previously aware of the lien, the record established that the attorney effectively hid

her malpractice. 2014-2483, p. 26, 172 So.3d at 638. The Court found that the

client’s suit was timely because it was filed less than a month after the client

discovered the attorney’s malpractice. Id. at p. 27, 172 So.3d at 638-39.

The facts in Lomont are distinguishable from this matter because the record

is devoid of any evidence that indicates that Liskow concealed the Texas statute of

limitations. Despite the absence of written communication between the Succession

and Liskow, there was a letter from Liskow advising the Succession to contact

Texas counsel regarding the Meridian dispute. We further note that there is no

evidence of Liskow lulling the Succession into inaction of contacting legal counsel

in Texas and filing its claims in Texas. Unlike the attorney in Lomont, Liskow

produced billing entries documenting communication and work done on behalf of

the Succession.

1 Article 3492 provides in pertinent part that “[d]elictual actions are subject to a liberative prescription of one year.”

10 We further note that the specific intent to deceive is a necessary element of

fraud. See Lomont, 2014-2483, p. 19, 172 So.3d at 634. Mr. Lovell testified that he

was not asserting that the Liskow attorneys lied about informing the Succession of

the Texas statute of limitations, but that he had no memory of receiving that

information. Accordingly, we do not find that the trial court erred in finding that

Liskow’s actions did not rise to the level of fraud under Louisiana law.

Peremptive Period

The Succession’s reliance on La. R.S. 9:5605(E) fails. The three year

peremptive period pursuant to La. R.S. 9:5605(A) and (B) is applicable to the facts

and circumstances of this case. The Succession failed to show Liskow acted

fraudulently. A timely filing of a legal malpractice suit would have been on or

before June 30, 2003, three years from the expiration of the Texas statute of

limitations. Additionally, even if the Succession had not discovered the expiration

of the Texas statute of limitations until July 26, 2018, its claims are also perempted

because the suit was not filed within three years of the alleged acts of malpractice.

Therefore, the trial court did not err in dismissing the Succession’s claims.

CONCLUSION

For the foregoing reasons, we affirm the trial court’s December 30, 2020

judgment granting the peremptory exception of peremption, and dismissing with

prejudice the Succession’s claims.

AFFIRMED