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Currier v. Anding

Court of Appeals of Louisiana, First Circuit

November 1, 2017

DR. CHARLES P. CURRIER AND CHARLES BRADLEY CURRIER
v.
GREGORY M. ANDING AND CNA INSURANCE COMPANY

         ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT NUMBER 635624, DIVISION D, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE JANICE G. CLARK, JUDGE

          Robert T. Talley Baton Rouge, Louisiana Counsel for Plaintiff-Appellant Dr. Charles P. Currier

          Connell L. Archey Keith J. Fernandez Baton Rouge, Louisiana Counsel for Defendants-Appellees Gregory M. Anding and Continental Casualty Company

          Gracella Simmons Collin J. LeBlanc Baton Rouge, Louisiana Counsel for Defendants-Appellees Paul Ray Dry and Continental Casualty Company

          BEFORE: WHIPPLE, C.J., McDONALD AND CHUTZ, JJ.

          CHUTZ, J.

         Plaintiff-appellant, Dr. Charles Currier, appeals the trial court's judgment, sustaining a peremptory exception raising the objection of peremption filed by defendants-appellees, Gregory Anding and Continental Casualty Company, and dismissing Dr. Currier's legal malpractice against them. We affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         The following facts are undisputed. Dr. Currier resided at 4755 Claycut Road and owned two undeveloped lots adjacent to and contiguous with the property upon which his residence is located. Sometime before July 2011, Dr. Currier received notice from the City of Baton Rouge/Parish of East Baton Rouge (the City) advising him that the City proposed to acquire the two lots to improve its adjacent sewerage facility. Dr. Currier contracted with Anding, an attorney practicing law with the Kean Miller law firm, for legal representation. According to the letter of engagement, on July 8, 2011, Anding stated that Kean Miller would provide legal services related to the City's proposed expropriation of Dr. Currier's property on an hourly basis. Dr. Currier accepted the engagement on July 18, 2011.

         On July 8, 2011, Anding wrote a letter advising the City of his representation of Dr. Currier. Anding expressly stated, "Dr. Currier had plans to construct a home for his son on the area of the proposed taking. The plans and intent of doing that are so his son could care for him and avoid the necessity of having to place Dr. Currier in a retirement community or nursing home as he continues to age." On July 18 and August 11, 2011, Dr. Currier and Anding met with City representatives to discuss Dr. Currier's concerns about the aesthetics of the project and how the City's upgrade of its pump station at the sewerage facility near his house would impact his property value.

          Two appraisals were undertaken by the City. On December 27, 2011, in a letter addressed solely to Dr. Currier, the City determined that the just compensation of Dr. Currier's property, including compensable damage, was $80, 312.00, and made "a firm offer" of that amount to Dr. Currier for the voluntary sale of his two lots. On December 30, 2011, the City's attorney emailed Anding asking if he could return a telephone call from Anding's client, Dr. Currier. Anding responded in the affirmative.

         On January 25, 2012, Dr. Currier accepted the City's offer of $80, 312.00 for the sale of his two lots. An act of sale was executed by Dr. Currier on February 17, 2012.

         Dr. Currier filed a petition for damages on December 8, 2014, naming Anding and his liability insurer as defendants.[1] According to Dr. Currier's allegations, in September of 2014, he "discovered that the advice rendered by ... Anding was negligent and deficient." The petition averred that Anding failed to fully inform Dr. Currier of his right to recover compensation to the full extent of his loss and, in particular, to severance damages to the remainder of his property. Dr. Currier alleged that had he been fully and appropriately advised by Anding, he would not have voluntarily sold the lots and sought damages as a result.

         Defendants subsequently filed a peremptory exception asserting that Dr. Currier's petition was untimely and perempted. A hearing was held on September 28, 2016. During examination of Dr. Currier by his attorney, the trial judge inquired how much testimony he had left to present. Dr. Currier's attorney replied, "Ten minutes, " and the trial judge stated, "You can have ten more minutes." Later, the trial judge apparently determined that Dr. Currier's examination was not relevant to the issue of the timeliness of his lawsuit, indicating that counsel would be allowed to brief the timeliness issue and expressly stating, "You may extrapolate some of the testimony that's been adduced today but not the testimony that is woefully outside the ambit" of the timeliness issue. The trial court subsequently signed a judgment on October 18, 2016, sustaining defendants' peremptory exception and dismissing Dr. Currier's claims. Dr. Currier's motion for new trial or, alternatively, motion for reconsideration, was denied. Dr. Currier appeals.

         PEREMPTION

         Peremption is raised by a peremptory exception. See La. C.C.P. art. 927. Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception. Peremption has been likened to prescription; namely, it is prescription that is not subject to interruption or suspension. Straub v. Richardson, 2011-1689 (La.App. 1st Cir. 5/2/12), 92 So.3d 548, 552, writ denied, 2012-1212 (La. 9/21/12), 98 So.3d 341.

         As such, the following rules apply to peremption. If peremption is evident on the face of the pleadings, the burden shifts to the plaintiff to show the action is not perempted. If evidence is introduced at the hearing on the exception of peremption, the trial court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. If the findings are reasonable in light of the record reviewed in its entirety, an appellate court may not reverse even though ...


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