Willie J. Zeno, Sr. v. Jo Ann Nixon

• Court: Louisiana Court of Appeal
• Decided: March 12, 2014
• Docket: CA-0013-1267
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

13-1267

WILLIE J. ZENO, SR.

VERSUS

JO ANN NIXON

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. C-2012-1015 HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

ULYSSES GENE THIBODEAUX CHIEF JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and James T. Genovese, Judges.

AFFIRMED.

Jo Ann Nixon In Proper Person 129 West Pershing Street New Iberia, LA 70560 Telephone: (337) 369-7437 Defendant/Appellee

Willie J. Zeno, Sr. In Proper Person 133 Ambroise Street Lafayette, LA 70501 Telephone: (337) 591-9411 Plaintiff/Appellant THIBODEAUX, Chief Judge.

The plaintiff, Willie J. Zeno, Sr., appeals a judgment dismissing his

legal malpractice suit and granting the exception of prescription filed by the

defendant, Jo Ann Nixon. Where the actions complained of occurred in the 1990s,

we affirm the judgment granting Ms. Nixon’s exception of prescription, and we

affirm the trial court’s denial of a new trial.

I.

ISSUES

We must decide whether the trial court manifestly erred in granting

the defendant’s exception of prescription and in denying the plaintiff’s motion for

a new trial.

II.

FACTS AND PROCEDURAL HISTORY

Mr. Zeno, a pro se plaintiff, is appearing before this court on the same

or related matter for the fifth time. He filed the present suit against Ms. Nixon on

February 17, 2012. Ms. Nixon is an attorney. She represented Mr. Zeno in a

social security disability matter that resolved unfavorably for him in 1996. Ms.

Nixon was recommended to Mr. Zeno by his former attorney, Joslyn Renee Alex,

who had represented Mr. Zeno in a workers’ compensation matter in 1991 and

1992, which also resolved unfavorably for Mr. Zeno. Mr. Zeno has sued almost

every attorney and judge connected with the matters, as well as the Office of

Disciplinary Counsel. When he sued Ms. Alex in 2010 for legal malpractice in

handling the workers’ compensation claim, Ms. Nixon represented Ms. Alex. Mr. Zeno’s current suit asserts that Ms. Nixon had a conflict of interest and should not

have defended Ms. Alex in that malpractice suit because Ms. Nixon had previously

represented him.

Ms. Nixon filed exceptions of insufficiency of service, unauthorized

use of summary proceedings, vagueness, prescription, and no cause of action. At

the hearing on the exceptions, the trial court explained that a conflict of interest

claim involved attorney conduct and is properly directed to the Office of

Disciplinary Counsel. Mr. Zeno asserted that he had filed claims there as well. He

then proceeded with a legal malpractice claim against Ms. Nixon. The trial court

granted Ms. Nixon’s exception of prescription in open court at the end of the

hearing. Her final judgment indicated that she granted the exceptions of

prescription and no cause of action. Mr. Zeno appealed.

III.

STANDARD OF REVIEW

An appellate court may not set aside a trial court’s findings of fact in

absence of manifest error or unless it is clearly wrong. Stobart v. State, Through

DOTD, 617 So.2d 880 (La.1993); Rosell v. ESCO, 549 So.2d 840 (La.1989). Even

where the appellate court believes its inferences are more reasonable than the fact

finders, reasonable determinations and inferences of fact should not be disturbed

on appeal. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

2 IV.

LAW AND DISCUSSION

Conflict of Interest

The current suit was brought in 2012 against Ms. Nixon for her

representation of Ms. Alex in 2010. Ms. Nixon and Mr. Zeno did not have an

attorney-client relationship in 2010, nor had they had an attorney-client

relationship for fourteen years, since 1996. We find, as the trial court found, that

Mr. Zeno’s assertions regarding the conflict of interest issue are governed by the

Office of Disciplinary Counsel. Mr. Zeno indicated that he had pending claims

there which he filed in 2012. The trial court was correct in stating that she did not

have jurisdiction to hear the conflict of interest matter. To the extent the conflict

of interest issue may arguably pertain to Mr. Zeno’s legal malpractice claim, that

claim is now prescribed, as discussed below.

Legal Malpractice

Mr. Zeno has made overly burdensome assertions in the current

petition that toggle back and forth between the workers’ compensation matter and

the social security disability matter, both of which resolved in the 1990s. He now

attempts to combine the separate matters into one, and he asserts that both women

represented him in both matters. He demands documentation from Ms. Alex, even

though she is not a party to this suit. In fact, we affirmed the dismissal of his legal

malpractice suit against Ms. Alex in 2012. See Zeno v. Alex, 11-1240 (La.App. 3

Cir. 4/4/12), 89 So.3d 1223. He makes demands of Ms. Nixon for the return of

records, but he attaches a 1996 ten-page decision from the Social Security

Administration explaining exactly why his claim was denied. All pertinent

3 assertions regarding the mishandling of his workers’ compensation suit and the

social security disability claim are assertions of legal malpractice.

“In order to establish a claim for legal malpractice, a plaintiff must

prove that (1) there was an attorney-client relationship; (2) the attorney was

negligent in his representation of the plaintiff; and (3) the plaintiff sustained a loss

as a result of the attorney’s negligence.” Waste Mgmt. of Louisiana, LLC v. Penn-

America Ins. Co., 12-1033, pp. 3-4 (La.App. 3 Cir. 2/6/13), 110 So.3d 200, 203,

writ denied, 13-526 (La. 4/12/13), 111 So.3d 1009 (citing Costello v. Hardy, 03-

1146 (La. 1/21/04), 864 So.2d 129, and Morgan v. Simon, 00-1556 (La.App. 3 Cir.

2/28/01), 780 So.2d 626).

The attorney-client relationship that Mr. Zeno had with Ms. Nixon

ended in 1996. Under La.R.S. 9:5605, his malpractice claims against Ms. Nixon

have prescribed:

A. No action for damages against any attorney at law duly admitted to practice in this state . . . 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 prescription periods set forth in this statute are peremptory. Atlas

Iron and Metal Co. v. Ashy, 05-458 (La.App. 3 Cir. 1/4/06), 918 So.2d 1205.

Accordingly, both the underlying cause of action and the legal right to bring that

cause of action to court dissolve at the end of the specified periods of limitation.

Id. The evidence indicates that Ms. Nixon’s representation of Mr. Zeno ended in

4 1996. Thus, he had until 1999 at the latest to file suit against her. Mr. Zeno did

not bring the applicable claims during the peremptive period, and he no longer has

a cause of action or a right of action against her.

To the extent that Mr. Zeno asserts fraud and argues that fraud claims

do not prescribe, he is incorrect. While Subsection La.R.S. 9:5605(E) provides

that the three-year peremptive period of Subsection (A) does not apply in cases of

fraud, the one-year peremptive period from the date of discovery of the fraud does

apply. Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112 (La.App. 3

Cir. 3/13/02), 811 So.2d 1242. Mr. Zeno now seems to assert that Ms. Nixon was

involved in the workers’ compensation claim in 1992. In his prior appeal before

this court, regarding Ms. Alex’s exception of prescription, Mr. Zeno said he

suspected fraud in 1995 or 1996 after enrolling in paralegal school. We have

already held that claims for fraud in the workers’ compensation suit have

prescribed. See Zeno v. Alex, 89 So.3d 1223.

Mr. Zeno asserts on appeal, though not in his petition, that he is

alleging theft and misappropriation of funds under La.R.S. 9:5605.1, and that his

2012 claim against Ms. Nixon in the Office of Disciplinary Counsel interrupted

prescription against her. This argument is also without merit. There is nothing in

the record to document a claim with the Office of Disciplinary Counsel for theft

and misappropriation of funds against Ms. Nixon. Therefore, he has failed to

establish that La.R.S. 9:5605.1 applies. See McKinley v. Scott, 44-414 (La.App. 2

Cir. 7/15/09), 17 So.3d 81. Additionally, prescription cannot be interrupted if it

has already run. Moreover, there was no money involved in the social security

disability matter to be stolen or misappropriated.

5 All of Mr. Zeno’s claims have prescribed. If applicable, an action

against an attorney for the return of papers is subject to a liberative prescription of

three years, pursuant to La.Civ.Code art. 3496. Whether viewed as a fiduciary’s

simple negligence or delict with a one-year prescriptive period under La.Civ.Code

art. 3492, or as a fiduciary’s contractual or deliberate act with a ten-year

prescriptive period under La.Civ.Code art. 3499, the acts complained of occurred

eighteen years ago. See dela Vergne v. dela Vergne, 99-364 (La.App. 4 Cir.

11/17/99), 745 So.2d 1271. Thus, all claims for negligence or intentional acts,

fraud, misappropriation, conversion, tort, breach of duty, and breach of contract are

prescribed. Moreover, they had prescribed in 2010 when Mr. Zeno brought suit

against Ms. Alex and when Ms. Nixon represented Ms. Alex in that suit.

The Trial Court’s Judgment

At the end of the trial of the exceptions on February 19, 2013, the trial

court orally granted Ms. Nixon’s exception of prescription and asked her to prepare

a judgment and submit it to Mr. Zeno before filing it. In July 2013, Mr. Zeno filed

a rule to show cause why Ms. Nixon should not be held in contempt and

sanctioned for not submitting the written judgment. The written judgment was

prepared by the trial judge herself on August 28, 2013.

The hearing on the rule to show cause was held on September 3, 2013.

Counsel for Ms. Nixon indicated that he thought a judgment was handed to the

judge at the end of the exception hearing in February. The trial court explained

that she did not find a judgment in the record, and she therefore drafted and issued

her own judgment on August 28, 2013, which was her practice to do if the parties

failed to submit a judgment of their own. Mr. Zeno argued that the August 28

6 judgment was signed over forty-five days after the February hearing and that it

was, therefore, null and void. The trial court disagreed, as do we, as will be fully

explained below. Mr. Zeno attempted to have the court accept a judgment he had

prepared. The trial court refused, stating that she had prepared the August 28

judgment and the case was dismissed.

Two days later, on September 5, 2013, Mr. Zeno filed a motion for a

new trial, which the trial court denied. His motion for a new trial mentioned

La.Code Civ.P. arts. 1972 1 and 1973, 2 but did not apply them. Instead of

addressing the issue of prescription on a malpractice claim, his motion focused on

procedurally attacking the timeliness of the trial court’s written judgment of

August 28, the same issue complained of in the rule to show cause which was

heard on September 3.3

Pursuant to La.Code Civ.P. art. 1911: “Except as otherwise provided

by law, every final judgment shall be signed by the judge. For the purpose of an

appeal as provided in Article 2083, no appeal may be taken from a final judgment

1 Pursuant to the pertinent parts of La.Code Civ.P. art 1972, a new trial is granted when the “judgment appears clearly contrary to the law and the evidence” or when the mover discovers after trial “evidence important to the cause, which he could not, with due diligence, have obtained before or during the trial.” La.Code Civ.P. art. 1972(1)-(2). 2 Under La.Code Civ.P. art. 1973, the trial court has discretion to grant a new trial if there is “good ground therefor” unless contrary law provides otherwise. 3 Notwithstanding the trial court’s refusal to accept Mr. Zeno’s prepared judgment at the September 3 hearing on the rule to show cause, Mr. Zeno filed a judgment on September 9, 2013, into the record which addresses the February hearing on the exception. It does not accurately reflect the oral judgment entered by the trial court at the end of the hearing; rather, it favors Mr. Zeno. The trial court marked through the entire page and wrote “denied” at the top of his judgment. The record indicates that Mr. Zeno is appealing this September 9 judgment, submitted by him, along with the trial court’s August 28 judgment. On September 10, 2013, the trial court signed an order, submitted also by Mr. Zeno, regarding the nullity of her August 28 judgment. The court again marked through the text, which was favorable to Mr. Zeno, and wrote “denied” at the top of the order. Because the September 9 judgment and the September 10 order were filed after the motion for a new trial, we will treat them as rulings on the motion for a new trial, and we affirm the court’s denial of a new trial.

7 until the requirement of this Article has been fulfilled.” Thus, a judgment must be

written and signed in order to file an appeal. While other delay periods, such as

the time for filing a motion for a new trial and the time for filing a motion for

appeal, begin to run when the final judgment is signed and certified as mailed, the

signing of the judgment itself is not subject to a specific time restriction. The 1960

OFFICIAL REVISION COMMENTS to La.Code Civ.P. art. 1911 state:

(a) While the rule of this article is substantially the same as the former rule on the subject, the articles in this Chapter make a radical change in the rules respecting the time when judgments may and shall be signed.

Under the articles in this Chapter, judgments are to be signed at the time of rendition or at any time thereafter. No time limit for the signing is imposed in any of these articles, but it is contemplated that all judgments will be signed within a reasonable time after rendition, which in turn depends upon the circumstances.

The 1999 amendment to La.Code Civ.P. art. 1911 only clarified the

law as to partial judgments under Article 1915; it did not change or affect the

salient issues under review. Under La.R.S. 13:4207, the maximum delay for

rendering a written judgment on a case taken under advisement is thirty days from

the time the case is submitted for a decision, with a ten-day extension under certain

circumstances. However, this case was not taken under advisement. Here, the trial

judge orally granted the exception at the end of the hearing. Therefore, La.R.S.

13:4207 is not applicable. We could find no statute or article to support the forty-

five day delay period that Mr. Zeno asserts in this case, and he has not cited a

statute that supports his argument.

Moreover, Mr. Zeno has not been prejudiced by the timing of the

written judgment. Under La.Code Civ.P. art. 1974, the delay for applying for a

new trial is seven days after the notice of judgment is mailed. The trial judge

8 mailed her August 28 judgment and notice of the judgment on August 30, 2013.

Mr. Zeno filed his motion for new trial on September 5, 2013. He subsequently

filed a motion for appeal, which was granted without opposition, and we are here

reviewing the appeal. The purpose of the notice of written judgment is to protect

the litigant’s rights to apply for a new trial and to petition for an appeal. See Hertz

Lease Plan, Inc. v. Urban Transp. & Planning Assocs., Inc., 342 So.2d 886

(La.App. 4 Cir.), writ denied, 344 So.2d 1054 (La.1977), and X-L Finance Co. v.

Hollinger, 185 So.2d 873 (La.App. 3 Cir. 1966). Accordingly, Mr. Zeno has not

been prejudiced as he was not prevented from filing a motion for a new trial or an

appeal. We find no violation of the relevant article, La.Code Civ.P. art. 1911.

Even if the six-month period between the oral judgment and the written judgment

were viewed as unreasonable, any untimeliness of the written judgment was

harmless.

Trial court is accorded vast discretion in deciding whether to grant a

motion for a new trial under La.Code Civ.P. arts 1972 and 1973; its decision

whether to do so is reviewed pursuant to the abuse of discretion standard of review.

G.S. v. T.S., 04-1566 (La.App. 3 Cir. 4/13/05), 900 So.2d 1088. Here, Mr. Zeno

presented no new evidence on the prescription issue, and he failed to show that the

judgment granting the exception was contrary to the law and the evidence.

Accordingly, we find no abuse of discretion in the denial of a new trial.4

4 The record does not indicate that a hearing was held after Mr. Zeno filed his motion for a new trial on September 5. While La.Code Civ.P. art. 1976 references a hearing, we are guided by the jurisprudential exception “whereby a motion for new trial may be summarily denied in the absence of a clear showing in the motion of facts or law reasonably calculated to change the outcome or reasonably believed to have denied the applicant a fair trial.” Lopez v. Wal-Mart Stores, Inc., 94-2059, p. 9 (La.App. 4 Cir. 8/13/97), 700 So.2d 215, 220, writ denied, 97-2522 (La. 12/19/97), 706 So.2d 457 (citing Sonnier v. Liberty Mut. Ins. Co., 258 La. 813, 248 So.2d 299 (1971), and Allen v. Noble Drilling, Inc., 93-2383 (La.App. 4 Cir. 05/26/94), 637 So.2d 1298). Moreover, because Mr. Zeno’s September 5 motion for a new trial substantively tracked

9 V.

CONCLUSION

Based upon the foregoing, we affirm the judgment of the trial court

granting the exception of prescription in favor of the defendant, Jo Ann Nixon, and

we affirm the denial of a new trial. All costs of this appeal are assessed to the

plaintiff, Willie J. Zeno, Sr.

his rule to show cause, which was heard by the court two days earlier on September 3, the substance of the motion for a new trial was the subject of a contradictory hearing.