Titus v. Wilson

216 So. 3d 928, 2015 La.App. 4 Cir. 0575, 2015 La. App. LEXIS 2432
CourtLouisiana Court of Appeal
DecidedDecember 4, 2015
DocketNo. 2015-C-0575
StatusPublished
Cited by4 cases

This text of 216 So. 3d 928 (Titus v. Wilson) 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
Titus v. Wilson, 216 So. 3d 928, 2015 La.App. 4 Cir. 0575, 2015 La. App. LEXIS 2432 (La. Ct. App. 2015).

Opinion

TERRI F. LOVE, Judge.

|,The relator filed suit against his former attorney for allegedly committing malpractice by advising him to agree to a plea agreement in a federal criminal case. The trial court first held that the attorney’s actions committed on or after being admitted pro hac vice were perempted pursuant to La. R.S. 9:5605, and allowed the relator to amend his petition. Subsequently, the trial court conducted a hearing on the attorney’s exceptions of peremption, no cause of action, and motion for summary judgment, which the trial court denied. Relator now seeks supervisory review of the trial court’s denials. We find that peremption does not apply to acts committed by an out-of-state attorney prior to his admission pro hac vice. Alleged acts of negligence prior to pro hac vice admission are subject to a prescriptive period of one year. Under the facts and circumstances of this case, the doctrine of continuous representation does not apply. Thus, Mr. Titus’ claims were prescribed. The writ is granted.1

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Mark J. Titus retained Paul H. Villalo-bos, a Louisiana lawyer, to represent him in conjunction with a federal criminal investigation. James Ardoin III, and I2ARDOINLAW, PLLC., from Texas, (“Ardoin defendants”) were later hired for Mr. Ardoin’s knowledge and experience in the field of federal criminal law. In June 2011, Mr. Ardoin began advising Mr. Titus regarding his impending charges. On June 20, 2011, Mr. Titus signed a written plea agreement. Following, on June 29, 2011, he was charged with eighteen counts of mail fraud by bill of information, which included the information that the government would recover $1,200,320.00 from him as the proceeds of his fraud. The bill of information included a provision that if the proceeds of Mr. Titus’ fraud were unavailable, then the government would recover the money from his personal property.

On August 22, 2011, Mr. Ardoin was granted pro hac vice admission for this matter. Subsequently, on February 15, 2012, the United States Attorney’s office filed a Motion for Preliminary Order of Forfeiture against Mr. Titus. The motion claimed that Mr. Titus violated his plea agreement by “engaging in continued criminal activity” by making structured transactions to conceal money from the government. On June 3, 2012, Mr. Titus e-mailed Mr. Ardoin to express his displeasure about the government seeking forfeiture of his property.

On August 5, 2013, Mr. Titus filed suit against Tim Wilson, Sr.; Tim D. Wilson Investigations, Incorporated; Mr. Villalo-bos; and the Ardoin defendants alleging malpractice and negligence. Mr. Titus contended that the reason he entered into the plea agreement was because the defendants assured him that an oral “side deal” was reached wherein the government agreed not to seek the forfeiture of his personal property to satisfy the $1,200,320.00 judgment.

The Ardoin defendants, as well as Mr. Villalobos, filed peremptory exceptions of peremption contending “that Titus had notice that his property was going to be forfeited when he signed the guilty plea of June 20, 2011 that expressly ^acknowledged the forfeiture.” The trial court held that Mr. Titus had notice no later than June 3, 2012, that the government was seeking forfeiture of his personal property. Accordingly, pursuant to La. [931]*931R.S. 9:5605, Mr. Titus’ legal malpractice claims regarding acts committed after Mr. Ardoin was admitted pro hac vice were perempted, since they were filed over a year after June 3, 2012. The trial court granted Mr. Titus thirty days to amend his petition to state a claim against Mr. Ardoin for acts occurring prior to his admission pro hac vice. Mr. Titus’ amendment to his petition restated his legal malpractice claims, but asserted Mr. Ardoin’s negligence. Accordingly, the Ardoin defendants filed another peremptory exception of peremption, an exception of no cause of action, and a Motion for Summary Judgment. The trial court overruled the exception of peremption/prescription, overruled the exception of no cause of action, and denied the Motion for Summary Judgment.

The Ardoin defendants noticed then.’ intent to seek a writ of supervisory review and timely filed this application. They contend that the trial court erred by denying relief because Mr. Titus’ claims regarding Mr. Ardoin’s alleged acts of negligence were perempted and prescribed prior to the filing of the petition on August 5, 2013.

STANDARD OF REVIEW

Appellate courts review legal questions, like the denial of peremptory exceptions, de novo. Robert v. Robert Mgmt. Co., LLC, 11-0406, p. 3 (La.App. 4 Cir. 12/7/11), 82 So.3d 396, 398. “Appellate courts review peremptory exceptions by reviewing the entire record to ‘determine whether the trial court was manifest ly erroneous with its factual conclusions.’ ” Metairie III v. Poche’ Const., Inc., 10-0353, p. 4 (La.App. 4 Cir. 9/29/10), 49 So.3d 446, 449, quoting Patriot American Hospitality Partnership, LP v. Mississippi Land Holdings, Inc., 06-0601, p. 3 (La. App. 4 Cir. 12/13/06), 948 So.2d 249, 251.

PEREMPTION

The Ardoin defendants seek supervisory review of the trial court’s denial of their peremptory exception of peremption/pre-scription because Mr. Ardoin was “authorized” to practice law prior to being admitted pro hac vice. Therefore, they contend that peremption applies, as outlined in La. R.S. 9:5605.

“Peremption is a period of time fixed by law for the existence of a right.” Rando v. Anco Insulations Inc., 08-1163, p. 19 (La.5/22/09), 16 So.3d 1065, 1082. “The right is extinguished upon the expiration of the peremptive period.” Id. “When the peremptive period has run, the cause of action itself is extinguished unless timely exercised.” Id. “Peremption may not be renounced, interrupted, or suspended.” La. C.C. art. 3461. “When an exception of prescription is filed, ordinarily, the burden of proof is on the party pleading prescription or peremption.” Metairie III, 10-0353, p. 4, 49 So.3d at 449. “However, when prescription or peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action has not been perempted.” Id.

The Ardoin defendants assert that all of Mr. Ardoin’s actions were encompassed by La. R.S. 9:5605 because he was “authorized” to practice law in Louisiana. We find this argument lacks merit. La. R.S. 9:5605(A) provides that an action for legal malpractice shall be filed 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.” The trial court held that “the one-year peremptive period provided by La. R.S. 9:5605 does not apply to an out-of-state attorney’s representation of a client prior to his pro hac \ ¡(vice admission.” We agree. The statute provides [932]*932that the peremptive period applies to “any attorney at law duly admitted to practice in this state.” La. R.S. 9:5605(A). Mr. Ardoin was not “duly admitted” prior to the trial court granting his motion for pro hac vice status. La. R.S.

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216 So. 3d 928, 2015 La.App. 4 Cir. 0575, 2015 La. App. LEXIS 2432, Counsel Stack Legal Research, https://law.counselstack.com/opinion/titus-v-wilson-lactapp-2015.