Waldrop v. Hurd

907 So. 2d 890, 2005 WL 1523364
CourtLouisiana Court of Appeal
DecidedJune 29, 2005
Docket39,855-CA
StatusPublished
Cited by6 cases

This text of 907 So. 2d 890 (Waldrop v. Hurd) 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
Waldrop v. Hurd, 907 So. 2d 890, 2005 WL 1523364 (La. Ct. App. 2005).

Opinion

907 So.2d 890 (2005)

Gerald Thomas WALDROP, and Wanda Ruth Telano Waldrop, Plaintiffs-Appellants
v.
Paul Loy HURD, Defendant-Appellee.

No. 39,855-CA.

Court of Appeal of Louisiana, Second Circuit.

June 29, 2005.

*891 The Bezou Law Firm by Jacques F. Bezou, Candice L. Jenkins, Covington, for Appellants.

Mayer, Smith & Roberts, LLP, by David F. Butterfield, Shreveport, for Appellee.

Before CARAWAY, PEATROSS & DREW, JJ.

PEATROSS, J.

In this legal malpractice case, Tommy and Wanda Waldrop hired attorney Paul Loy Hurd to handle the sale of their business, Mud City Yamaha, Inc., to Wade Cleveland and Riverside Kawasaki Suzuki, Inc. ("Riverside"). Mr. Hurd failed to properly perfect a security interest in certain collateral offered by Mr. Cleveland to secure owner financing for the sale; and, when Mr. Cleveland defaulted on the note, the Waldrops were unable to proceed against the collateral. The Waldrops subsequently filed this suit against Mr. Hurd for malpractice and Mr. Hurd filed an Exception of Prescription which was sustained by the trial court. The Waldrops appeal the ruling on the exception. For the reasons stated herein, we affirm.

FACTS

As stated, Mr. Cleveland and Riverside purchased the Waldrops' business, paying a portion of the purchase price with proceeds from a small business loan and issuing a promissory note for the balance. The note was to be secured by certain assets of Riverside and property owned by Mr. Cleveland, including an 18-wheel Peterbilt truck and trailer and certain immovable property. The sale took place on May 24, 2000.

Mr. Cleveland and Riverside failed to make payment on the note due February 1, 2001. The Waldrops then attempted to get information from Mr. Cleveland's banker at Community Trust Bank regarding Mr. Cleveland's failure to pay. Mr. Waldrop testified in deposition that the banker told him that Mr. Cleveland "did not have to pay ... because they had it in the contracts that he could stop paying me the interest on the loan if his money got tight. So that was the first account that I had of anything like that happening...." In February or March 2001, the Waldrops learned that Mr. Cleveland had sold the Peterbilt truck and trailer. The Waldrops questioned Mr. Cleveland about the sale of the collateral and told him that it was subject to a security interest in their favor. Mr. Waldrop testified:

One of my collaterals or promissories that Paul Hurd had wrote up for me, which was an 18-wheeler truck and trailer, [Mr. Cleveland] sold it. I went to him about it. I said, you cannot — you couldn't even sell that truck, I've got a mortgage on it. He laughed and he said, oh no, you don't, it's not even filed at the courthouse. I called the bank, and they said, no, it's not filed at the courthouse.

Regarding the call to the bank concerning whether the lien had been filed on the truck and trailer, Mr. Waldrop testified:

*892 I called Brian Turner at Community Trust Bank and was complaining about it, and he said, well, there wasn't a mortgage filed against it. So I checked to see if there was a mortgage filed on it. Mr. Hurd had not even filed the mortgage on the truck, and they all laughed. So I lost on that part, too, right there. This was one — that's — those two things that happened right there got me to go see the attorney, Joe LeBeau....

The date of the conversation with the banker and the date on which they became aware of the sale of the truck and trailer are not certain. As indicated in the above-quoted testimony, the Waldrops confirmed, with the bank and the Office of Motor Vehicles, that the security interest on the truck and trailer had not been filed.

In addition, Mrs. Waldrop had a conversation with Mr. Hurd at which time she asked him where she should look to determine if a valid lien existed against the truck and trailer. In this same conversation, she requested a copy of their file at the closing of the business. These events all occurred prior to her picking up the file from Mr. Hurd's office on March 9, 2001.

Subsequently, on April 6, 2001, the Waldrops met with attorney Joseph LeBeau to retain him to review the file and advise them. Mr. LeBeau explained the meaning of all of the closing documents to the Waldrops and, on April 12, 2001, sent a letter to them advising them that his review of the file revealed that Mr. Hurd had improperly drawn and/or failed to file the security instruments on the collateral. The Waldrops filed this suit against Mr. Hurd on March 21, 2002.

Mr. Hurd filed an Exception of Prescription, which was sustained by the trial court and this appeal ensued.

ACTION OF THE TRIAL COURT

The applicable time period(s) for filing legal malpractice claims is found in La. R.S. 9:5605(A), which provides as follows:

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.

The petition and supplemental petition in the case sub judice do not contain any dates on which the Waldrops claim the negligence occurred or when they became aware of the alleged negligence. Although the date of the closing of the sale is not set forth in the petition, the closing date is, however, easily determined by examining the closing documents. Finding that the acts of malpractice alleged in the petition occurred in conjunction with the sale of the business, finalized on May 24, 2000, and that the suit was not filed until March 21, 2002, the trial court properly found that the claim of the Waldrops was prescribed on its face. Accordingly, the trial court held that the burden shifted to the Waldrops *893 to show that their claim was timely filed.

The trial court's focus then turned to contra non valentem and, finding that the Waldrops did not show that their suit was filed within one year of the date on which they became aware, or should have become aware of, Mr. Hurd's negligent omission, the trial court sustained the exception. The trial court stated that the Waldrops were "clearly" aware that something might be wrong several weeks prior to their meeting with Mr. LeBeau and noted that Mr. Waldrop admitted that the first account he had that something was wrong was after his initial conversation with Mr. Cleveland's banker. Further, the Waldrops became aware in mid-to-late February that the security interest on the truck and trailer had not been filed. The trial court concluded that the events of February/March 2001 (all of which occurred no later than March 9, 2001) would be enough to put a reasonable man on notice that the collateral had not been secured properly by Mr. Hurd, and, therefore, ruled that the suit filed on March 21, 2002, was untimely.

DISCUSSION

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. CDY Development Corp.
124 So. 3d 1 (Louisiana Court of Appeal, 2013)
Davis v. Conroy
27 So. 3d 869 (Louisiana Court of Appeal, 2009)
RAMELLI GROUP v. City of New Orleans
997 So. 2d 612 (Louisiana Court of Appeal, 2008)
Brumfield v. McElwee
976 So. 2d 234 (Louisiana Court of Appeal, 2008)
Pratt v. STATE MEDICAL CENTER IN SHREVEPORT
953 So. 2d 876 (Louisiana Court of Appeal, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
907 So. 2d 890, 2005 WL 1523364, Counsel Stack Legal Research, https://law.counselstack.com/opinion/waldrop-v-hurd-lactapp-2005.