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Murray v. Ward

Court of Appeals of Louisiana, First Circuit

June 10, 2019

LAURIE MURRAY
v.
SAMUEL C. WARD, JR. & ASSOCIATES, LLC & SAMUEL C. WARD, JR.

          Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Suit Number C637977 Honorable Donald R. Johnson, Presiding

          Clifton J. Ivey, Jr. Counsel for Appellant/Plaintiff Baton Rouge, LA Laurie Murray and James C. Carver Baton Rouge, LA

          Samuel C. Ward Counsel for Appellees/Defendants Baton Rouge, LA Samuel C. Ward, Jr. and Samuel C. Ward & Associates, LLC and Alan K. Breaud Timothy W. Basden Lafayette, LA

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          GUIDRY, J.

         Plaintiff, Laurie Murray, appeals from a judgment of the trial court sustaining an exception raising the objection of peremption filed by defendant, Samuel C. Ward, Jr. For the reasons that follow, we affirm.

         FACTS AND PROCEDURAL HISTORY

         On August 31, 2010, Murray was rear-ended by a school bus owned by the Ascension Parish School Board (School Board) and driven by Lisa Caruso, an employee of the School Board. Murray thereafter retained Ward to represent her in a claim for personal injuries as a result of the accident. On March 7, 2011, Ward filed a lawsuit on behalf of Murray in the Twenty-Third Judicial District Court in Ascension Parish, naming as defendants Caruso; Ascension Parish, the alleged employer of the driver; and Louisiana Risk Management Agency (LARMA), the alleged insurer of the school bus. Service of the petition was requested only on Ascension Parish.

         Thereafter, Ward associated A.M. "Tony" Clayton and Michael Fruge to act as co-counsel for Murray. On January 2, 2013, Caruso and LARMA, through their attorney, filed motions for involuntary dismissal pursuant to La. C.C.P. art. 1672(c) and La. R.S. 13:5107(D) because they were not served with Murray's petition within ninety days of the filing of the lawsuit. LARMA also asserted that it was not an insurer. On the same date, Ascension Parish filed a motion for summary judgment, asserting that Ascension Parish was the not the proper party defendant because it did not employ Caruso. The trial court subsequently signed a judgment on February 14, 2013, granting the unopposed motions for involuntary dismissal. Ascension Parish's motion for summary judgment was set for hearing on July 26, 2013.

         On June 28, 2013, counsel for Murray filed a Motion for Leave to File Amended Petition, which named the School Board as a defendant.[1] Thereafter, on July 26, 2013, the trial court conducted a hearing on Ascension Parish's unopposed motion for summary judgment and signed a judgment granting summary judgment in favor of Ascension Parish and dismissing Murray's claims against it with prejudice.

         On August 13, 2013, the School Board filed an Answer and Affirmative Defenses to Murray's petitions, asserting that Murray's cause of action is prescribed. Thereafter, on January 31, 2014, the School Board filed a Peremptory Exception of Prescription, alleging that the School Board was not named as a defendant in the action until almost three years after the accident. Following a hearing, the trial court signed a judgment denying the exception. The School Board thereafter filed an application for supervisory writs with this court on March 17, 2014, requesting that this court overturn the denial of its exception. In an order signed June 12, 2014, this court granted the School Board's writ application, finding that the amending petition did not relate back to the date of filing of the original petition under La. C.C.P. art. 1153. As such, this court reversed the trial court's judgment denying the School Board's exception raising the objection of prescription, granted the exception, and dismissed Murray's case.

         Counsel for Murray thereafter filed an application for writ of certiorari with the Louisiana Supreme Court on July 11, 2014. The supreme court, however, denied the writ application on August 11, 2014. On September 11, 2014, Ward met with Murray and informed her that there was nothing more that could be done following the supreme court writ denial, and that the dismissal of the case was his fault because he sued the wrong person.

         Thereafter, on March 18, 2015, Murray filed a Petition for Damages for Legal Malpractice, naming Ward and his firm, Samuel C. Ward, Jr. & Associates, LLC, as defendants. Murray alleged that Ward was liable to her for legal malpractice for: naming the incorrect defendant, Ascension Parish, when he had evidence indicating that the bus was owned by the School Board; failing to request service of process and citation upon Caruso within ninety days of the filing of the original petition; failing to request service of the amended petition upon Caruso within ninety days of the filing of the amended petition; misnaming defendant Caruso in the amended petition; naming a new defendant, the School Board, in the amended petition filed nearly three years after the accident in an attempt to relate back to the original filing date so as to avoid prescription; continuing to conceal the above instances of malpractice through acts, omissions, and silence until after the supreme court denied writs; and concealing from her that he had sued the wrong defendant, Ascension Parish, and arguably LARMA, in the original petition and had failed to timely request service on Caruso and LARMA.

         Ward answered Murray's petition, asserting that her cause of action is prescribed and barred by the doctrine of peremption. Following a hearing on the exception, the trial court signed a judgment sustaining the exception and dismissing Murray's claims against Ward and his law ...


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