Appealed from the Forty-Second Judicial District Court for
the Parish of DeSoto, Louisiana Trial Court No. 78, 761
Honorable Amy B. McCartney, Judge
W. HENDRIX EDWARD M. CAMPBELL Counsel for Appellant
N. JOHNSON In Proper Person
S. CHEVALLIER Counsel for Appellee Exco Resources
MOORE, PITMAN, and McCALLUM, JJ.
Rushing appeals a judgment that denied her motion for new
trial, sustained an earlier judgment granting Makiva
Johnson's peremptory exception of no right of action and
prescription, and dismissed all claims against Ms. Johnson.
For the reasons expressed, we amend and affirm.
exception was tried on the pleadings, with no evidence
Rushing filed this petition in DeSoto Parish on September 15,
2017, against Terrance Simpson, Makiva Johnson and EXCO
Operating LP. She alleged that EXCO maintained a mineral
lease on a tract of land in DeSoto Parish owned by Thomas
Simpson. However, Thomas Simpson "deeded" this
tract to Ms. Rushing by quitclaim deed dated December 7,
2010. Thomas Simpson died in January 2011, and the quitclaim
was not recorded until April 7, 2011. According to Ms.
Rushing's petition, the district court rendered a
judgment of possession on March 30, 2011, and, after further
litigation challenging the will, reinstated the judgment of
possession on August 18, 2014; at a later hearing, the
validity of the quitclaim deed was "discussed."
However, the judgment of possession included the tract of
land subject to the EXCO lease as part of the decedent's
estate, despite the quitclaim deed that had transferred it to
Rushing alleged that she would have objected to the proposed
judgment, but she did not because it was "not approved
by Ms. Rushing counsel [sic] as to form and content,
nor was a copy of the judgment served upon Ms. Rushing's
counsel, nor was any notice received by counsel of the
issuance of judgment." When she found out about it, she
filed a motion to amend judgment, on September 9, 2015. Even
earlier, in February 2013, she had written to EXCO demanding
that it not disburse mineral royalties pending further
Rushing further alleged that the court granted her motion to
amend judgment in March 2016. Then, Ms. Johnson filed an
appeal, which was dismissed in September 2016, as well a
"motion for new hearing," which was dismissed for
nonpayment of costs.
tenor of Ms. Rushing's claim was that as counsel for
Terrance Simpson, Ms. Johnson failed to provide a proposed
judgment to Ms. Rushing's counsel for approval, resulting
in the inclusion of the tract subject to the EXCO lease as
part of the estate; also, she provided this unapproved
judgment to EXCO, resulting in the release of suspense
royalties to Terrance Simpson instead of to Ms. Rushing. She
demanded that Ms. Johnson produce "any policy of
malpractice insurance" within 15 days, that EXCO provide
an accounting and that Terrance Simpson return any royalties
as payment of a thing not due.
Johnson filed a combined exception of no right of action, no
cause of action and prescription. In her memorandum, she
conceded that she was a Louisiana attorney and had
represented Terrance Simpson in his father's succession
since 2013. However, she had never represented Ms.
Rushing, and without an attorney-client relationship there
can be no legal malpractice claim, Red River Valley Bank
v. Home Ins. Co., 607 So.2d 892 (La.App. 2 Cir. 1992).
For this reason, she argued, Ms. Rushing had no right of
action to make a legal malpractice claim against her. She
conceded that in some circumstances, an attorney may owe a
duty to a third party, but Ms. Rushing had not alleged any
such duty, so she also had no cause of action. Finally, she
argued that by Ms. Rushing's own admission, she had
knowledge of the alleged malpractice no later than September
9, 2015, when she filed a motion to amend the judgment of
possession, but she did not file the instant suit until
September 15, 2017, over two years later. For this reason,
she argued, the claim was ...