Thomas Pike Barkerding v. Jacques Bezou, Sr., Jacques Bezou, Jr. Erica Hyla and the Bezou Law Firm, LLC

• Court: Louisiana Court of Appeal
• Decided: March 8, 2022
• Docket: 2021CA0644
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

NO. 2021 CA 0644

THOMAS PIKE BARKERDING

VERSUS

JACQUES BEZOU, SR., JACQUES BEZOU, JR., ERICA HYLA, AND THE BEZOU LAW FIRM, LLC

Judgment Rendered. MAR 0 8 2022

Appealed from the 22nd Judicial District Court In and for the Parish of St. Tammany State of Louisiana Case No. 2020- 12799, Division E

The Honorable William H. Burris, Judge Presiding

Thomas Pike Barkerding Plaintiff/Appellant Covington, Louisiana Pro Se

Richard E. King Counsel for Defendants/ Appellees Matthew T. Biggers Jacques Bezou, Sr., Jacques Bezou, New Orleans, Louisiana Jr., Erica Hyla, and The Bezou Law Firm

BEFORE: WELCH, THERIOT, AND CHUTZ, JJ. THERIOT, J.

In this suit arising from claims of legal malpractice, the plaintiff appeals a

judgment dismissing his suit with prejudice on the basis of peremption. We affirm.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Thomas Pike Barkerding, filed suit against his former attorneys on

July 6, 2020. The factual allegations giving rise to the claim, as set forth in

Barkerding' s petitions, are as follows:

On May 23, 2017, plaintiff, Thomas Pike Barkerding, retained The Bezou

Law Firm to serve as co -counsel along with his attorney, John Alden Meade, in

ongoing litigation against a number of defendants, including another law firm. On

March 12, 2018, Barkerding signed an " updated and consolidated" engagement

agreement with Meade and The Bezou Law Firm attorneys. Barkerding alleged

that the March 12, 2018 agreement contained a clause prohibiting the recording of

conversations with any attorneys and non -attorney employees without first

obtaining their written consent. The clause further provided that a breach of the

provision would serve as good cause for the immediate termination of the

agreement and obligate the client to pay reasonable attorney fees incurred by the

firm to enforce the provision.

In time, Barkerding became dissatisfied with The Bezou Law Firm' s

representation and the progress of the litigation. His complaints included

discovery delays, the attorneys' failure to recognize the value of evidence

Barkerding identified, and the attorneys pushing him to accept unfavorable

settlement terms. In his frustration, he began " secretly record[ ing]" conversations

with the attorneys. On September 5, 2018, Barkerding " bumped into" one of his

attorneys, Jacques Bezou, Sr., at a coffee shop and decided to take the opportunity

to question him about the progress of the suit. Barkerding secretly recorded his

conversation with Bezou, Sr. " for reference," since he expected " vague and

N confusing deflection" of his questions. Barkerding alleges that in this recorded

conversation, Bezou, Sr. acknowledged the potential relevance to the litigation of

evidence Barkerding had discovered. On October 5, 2018, Barkerding had another

fortuitous encounter with one of his attorneys at the same coffee shop. According

to Barkerding, when Jacques Bezou, Jr. entered the coffee shop and saw him

sitting there, he approached Barkerding' s table, sat down, and pushed Barkerding' s

laptop shut. Barkerding alleges that Bezou, Jr. did this to prevent Barkerding from

recording their conversation, but " Barkerding' s fingers kept the laptop from

closing completely, allowing him to inconspicuously engage the keyboard shortcut

to initiate an audio recording." Barkerding alleges that in the recorded

conversation, he and Bezou, Jr. argued about the scope of The Bezou Law Firm' s

representation. Barkerding alleges that Bezou, Jr. mentioned Barkerding' s alleged

plan to fire his attorneys, encouraged him to do so, and finally informed

Barkerding that he ( Bezou, Jr.) could withdraw from the representation if he chose

to do so.

Barkerding alleges that several days after this meeting with Bezou, Jr., he

sent a letter to Meade, Bezou, Jr., and others, stating that Bezou, Jr. had quit on

October 5. Barkerding alleges that Bezou, Jr. responded to all parties copied on

the letter, stating that Barkerding' s accusations constituted an irreconcilable

conflict. Barkerding alleges that the Bezou Law Firm formally withdrew from the

representation on October 10, 2018.

According to Barkerding, after The Bezou Law Firm withdrew from the

case, Meade advised him that unless he could find a competent attorney willing to

take over Jacques' s role," he should reconsider a settlement offer that he had

previously rejected regarding one aspect of his lawsuit. On this advice, Barkerding

reluctantly accepted the settlement agreement.

3 On January 18, 2019, upset about an unfavorable appellate court ruling in

his remaining litigation, Barkerding " emailed [ his secret recordings] to his ex -

lawyers in a bitter send- off." Then, months later, Barkerding emailed Bezou, Jr. " a

sincere request to reduce ... part of their fee," pointing to " Counsel' s premature

withdrawal and subsequent failure to do their job." According to Barkerding, a

heated email exchange followed. In a July 5, 2019 email, in reference to

Barkerding' s statements about his withdrawal being improper, Bezou, Jr. allegedly

pointed to the provision of the March 2018 engagement agreement prohibiting

voice recordings and allowing for immediate termination of the agreement for

violation of the provision.

Barkerding alleges that on July 6, 2019, he reviewed Rule 1. 8( h)( 1) of the

Louisiana Rules of Professional Conduct regarding conflicts of interest, which

provides that a lawyer shall not make an agreement prospectively limiting the

lawyer' s liability to a client for malpractice unless the client is independently

represented in making the agreement. Barkerding suspected that the provision

prohibiting voice recording in the March 2018 engagement contract violated this

rule and alleges that he emailed Bezou, Jr. again on July 6, 2019 to inform him of

this belief.

On July 6, 2020, Barkerding filed a Petition for Legal Malpractice, Breach

of Fiduciary Duty, and Fraudulent Misrepresentation against The Bezou Law Firm

and its attorneys Bezou, Sr., Bezou, Jr., and Erica Hyla.' Barkerding' s allegations,

although lengthy and confusing, appear to be that the defendants violated the Rules

of Professional Conduct by impermissibly limiting their potential liability for legal

malpractice by including the voice recording prohibition in the engagement

agreement, failed to conduct discovery to his satisfaction, ignored evidence that he

1 Barkerding also filed a " First Amended and Restated Petition for Legal Malpractice, Breach of Fiduciary Duty, and Fraudulent Misrepresentation" on July 13, 2020, which simply provided more detail about his claims.

L'! brought to their attention, pushed him to accept unfavorable settlement terms, and

improperly withdrew from the representation.

Defendants filed a peremptory exception raising the objections of

prescription and peremption. A hearing was held on the exception on January 6, 2021. No evidence was introduced by either party. Following argument by both

parties, the trial court sustained the exceptions and dismissed Barkerding' s petition

with prejudice. Barkerding appealed, arguing that the trial court erred in

dismissing his claims as untimely.

DISCUSSION

Ordinarily, the party pleading prescription bears the burden of proving the

claim has prescribed. However, when the face of the petition reveals that the

plaintiffs' claims have prescribed, the burden shifts to the plaintiffs to demonstrate

that prescription was suspended or interrupted. Cook v. Rigby, 2019- 1475, p. 3

La.App. 1 Cir. 11/ 25/ 20), 316 So. 3d 482, 485, writ denied sub nom., Soileau v.

Rigby, 2020- 01493 ( La. 3/ 9/ 21), 312 So. 3d 588. When, as in this case, no

evidence is introduced at the hearing to support or controvert the exception of

prescription, the exception must be decided upon facts alleged in the petition with

all allegations accepted as true. See La. C. C. P. art. 931; Cook, 2019- 1472 at p. 4,

316 So. 3d at 482. If no evidence is introduced to support or controvert the

exception, the manifest error standard of review does not apply, and the appellate

court' s role is to determine whether the trial court' s ruling was legally correct.

Harris v. Breaud, 2017- 0421, p. 9 ( La.App. 1 Cir. 2/ 27/ 18), 243 So. 3d 572, 578-

579.

Louisiana Revised Statutes 9: 5605 provides the applicable periods of

limitation for actions for legal malpractice:

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,

5 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 regard 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. Notwithstanding any other law to the contrary, in all actions brought in this state against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional law 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, the prescriptive and peremptive period shall be governed exclusively by this Section.

D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts.

E. The peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953.

Thus, the applicable time limitations on legal malpractice actions are one

year from the date of the alleged act, omission, or neglect, or one year from the

date that the alleged act, omission, or neglect is discovered or should have been

discovered, or, at the latest, within three years from the date of the alleged act,

omission, or neglect. La. R.S. 9: 5605( A). In other words, the latest one can file a

C legal malpractice action is three years from the date of the alleged act of

malpractice, or one year from the date of discovery of the alleged act of

malpractice, whichever occurs first. Straub v. Richardson, 2011- 1689, p. 6

La.App. 1 Cir. 5/ 2/ 12), 92 So -3d 548, 553, writ denied, 2012- 1212 ( La. 9/ 21/ 12),

98 So. 3d 341. Prescription commences to run when a claimant knew or should

have known of the existence of facts that would have enabled him to state a cause

of action for legal malpractice. Straub, 2011- 1689 at p. 7, 92 So. 3d at 553. The

standard imposed is that of a reasonable man —any plaintiff who had knowledge of

facts that would place a reasonable man on notice that malpractice may have been

committed shall be held to have been subject to the commencement of prescription

by virtue of such knowledge even though he asserts a limited ability to

comprehend and evaluate the facts. Paternostro v. LaRocca, 2001- 0333, p. 5

La.App. 1 Cir. 3/ 28/ 02), 813 So. 2d 630, 634. The focus is on the appropriateness

of the claimant' s actions or inactions; therefore, the inquiry becomes when would a

reasonable man have been on notice that malpractice may have been committed.

Id.

The last act of malpractice alleged by Barkerding was the improper

withdrawal from the case for allegedly false reasons, which Barkerding suggested

placed him at a disadvantage in his pending litigation and forced him to accept an

unfavorable settlement agreement. The improper withdrawal was alleged to have

occurred on October 10, 2018, almost two years before Barkerding' s petition was

filed on July 6, 2020. Barkerding does not allege that he was not aware of the

improper act at the time it happened, and in fact alleges that he believed at the time

that his recordings proved misconduct, i.e., that the attorneys' stated reason for

withdrawal was false. In his petition, Barkerding states that although he " believed

his recordings proved misconduct, he never used them to pursue legal action

against his attorneys due to his reliance on the Voice Recordings Prohibited

7 VRP") clause in the 2018/ 03/ 02 contract, which supposedly made them useless."

Thus, Barkerding seems to argue that he was aware that malpractice may have

been committed, but was unaware that he would be able to use evidence in his

possession to prove the acts of malpractice. As noted above, prescription

commences to run when a plaintiff has knowledge of facts that would place a

reasonable man on notice that malpractice may have been committed, regardless of

his alleged limited ability to comprehend and evaluate the facts. Paternostro,

2001- 0333 at p. 5, 813 So. 2d at 634. Thus, prescription began to run on

Barkerding' s claims at the latest on October 10, 2018, and these claims were time-

barred under La. R.S. 9: 5605 when Barkerding filed suit on July 6, 2020.

Barkerding also argues that his claims are not prescribed because Bezou,

Jr.' s reference to the voice recording provision in July 2019 was " a fraudulent

attempt to conceal or mislead" Barkerding to prevent him from learning of the

alleged invalidity of the clause, which led Barkerding to believe that he could not

use the evidence in his possession to prove the " acts of malpractice he discovered

in October 2018."

The Louisiana Supreme Court has held that both the one- year and three- year

time periods set forth in La. R. S. 9: 5605( A) are inapplicable to a claim of legal

malpractice once fraud has been established. See La. R.S. 9: 5605( E); Lomont v.

Bennett, 2014- 2483, p. 24 ( La. 6/ 30/ 15), 172 So. 3d 620, 636. Fraud, which would

prevent the application of the time periods set forth in La. R. S. 9: 5605( A), is

defined in La. C. C. art. 1953 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, and may also result from silence or

inaction. Such fraud may be triggered by either a fraudulent act of malpractice by

the attorney or a post -malpractice fraudulent concealment of the act. Murray v.

Ward, 2018- 1371, p. 6 ( La.App. 1 Cir. 6/ 10/ 19), 280 So. 3d 625, 630, citing Lomont v. Bennett, 2014- 2483 at pp. 9- 10, 172 So. 3d at 627- 28. Barkerding argues

that when Bezou, Jr. allegedly mentioned the voice recording clause in their July

2019 email exchange regarding the October 2018 withdrawal from representation,

this led Barkerding to believe that he would be unable to use his secret recordings

to prove his claims of malpractice. Barkerding does not allege that Bezou, Jr.' s

actions constituted a concealment of the malpractice; rather, he alleges that he was

aware of the malpractice, but was misled about his ability to use his secret

recordings as evidence in a malpractice suit. These allegations in Barkerding' s

petition do not establish fraud for purposes of La. R.S. 9: 5605( E). As such, the

time limitations set forth in La. R.S. 9: 5605 remain applicable, and Barkerding' s

claims are barred.

CONCLUSION

For the reasons set forth herein, the January 28, 2021 judgment of the trial

court dismissing Thomas Pike Barkerding' s petition with prejudice is affirmed.

Costs of this appeal are assessed to plaintiff-appellant, Thomas Pike Barkerding.

AFFIRMED.