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Rushing v. Simpson

Court of Appeals of Louisiana, Second Circuit

January 16, 2019

CAROLYN RUSHING Plaintiff-Appellant
v.
TERRENCE SIMPSON, MAKVIA JOHNSON, EXCO RESOURCES, INC. Defendant-Appellees

          Appealed from the Forty-Second Judicial District Court for the Parish of DeSoto, Louisiana Trial Court No. 78, 761 Honorable Amy B. McCartney, Judge

          JOEY W. HENDRIX EDWARD M. CAMPBELL Counsel for Appellant

          MAKIVA N. JOHNSON In Proper Person

          JOSHUA S. CHEVALLIER Counsel for Appellee Exco Resources

          Before MOORE, PITMAN, and McCALLUM, JJ.

          MOORE, J.

         Carolyn 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.

         PROCEDURAL HISTORY

         The exception was tried on the pleadings, with no evidence offered.

         Ms. Rushing filed this petition in DeSoto Parish on September 15, 2017, against Terrance Simpson, Makiva Johnson and EXCO Operating LP.[1] 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 Ms. Rushing.

         Ms. 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 notice.

         Ms. Rushing further alleged that the court granted her motion to amend judgment in March 2016.[2] 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.

         The 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.

         Ms. 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 ...


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