HAROLD BREAUX, JR.
TERRY B. SOILEAU
APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF
LAFAYETTE, NO. HONORABLE LAURIE A. HULIN, DISTRICT JUDGE
B. Soileau, Pro Se, Apellant/Defendant
J. Gauthier Attorney for Appellee/Plaintiff, Harold Breaux,
composed of Sylvia R. Cooks, Shannon J. Gremillion and, Van
H. Kyzar, Judges.
R. COOKS JUDGE
AND PROCEDURAL HISTORY
September of 2003 Harold Breaux, Sr. (Breaux) filed suit
against Michael Brown individually and in his official
capacity as a Lafayette Parish police officer, and against
Lafayette City Parish Consolidated Government. Breaux was
represented by Terry B. Soileau (Soileau) in that litigation.
The record reflects the case was removed to federal district
court in Lafayette, Louisiana on November 28, 2006. On
December 18, 2006, the U.S. District Court for the Western
District of Louisiana, Lafayette Division, signed a judgment
dismissing "all remaining federal claims against Officer
Michael Brown and the Lafayette City-Parish Government"
with prejudice. The federal district court adopted the
written recommendations and conclusions of the magistrate
assigned to the matter. The federal district court noted that
no objections to the magistrate's recommendations and
conclusions were filed by either party. The case was remanded
to the Fifteenth Judicial District Court and received by that
court on January 8, 2007. After it was remanded to the
Fifteenth Judicial District Court there was no further
activity on the matter for seven years. On February 8, 2014,
the Fifteenth Judicial District Court signed an Ex Parte
Order of Dismissal on Grounds of Abandonment. The Order of
Dismissal did not state the date on which the matter became
abandoned but merely stated that "no step has been
timely taken in the prosecution or defense of this action for
a period of more than three years, and as such, this matter
has been abandoned pursuant to the provisions of LSA-C.C.P.
art. 561…" The Order dismissed the matter
"with prejudice" against defendant Brown
"individually and in his official capacity" and
Lafayette City-Parish Consolidated Government.
February 26, 2015 Breaux, represented by Trent Gauthier
(Gauthier), filed a "Petition for Damages" against
Soileau and his malpractice insurer, alleging Soileau
committed malpractice when he allowed his client Breaux's
case against Officer Brown and Lafayette City-Parish
Government to become abandoned for failure to prosecute.
Soileau answered the petition on March 26, 2015. Breaux
subsequently filed a motion for summary judgment on liability
which the trial court granted on July 20, 2015. The trial
court did not designate its judgment as a final judgment.
Trial on the merits was set for September 4, 2018. Seven days
prior to trial on the merits Soileau filed an Exception of
Peremption, asserting that any and all claims by Breaux
against Soileau for allowing Breaux's suit to be
abandoned had long been perempted. No date was set for a
hearing on the exception. Trial proceeded on September 4,
2018 without Soileau present and a judgment was rendered in
favor of Breaux awarding him $45, 000.00 in general damages
and all costs of court. Soileau appeals the judgment
asserting two assignments of error:
Assignment of Error No. 1: The trial court committed error
when it allowed this case to proceed to trial in spite of
having received notice that the case was time-barred by
operation of law, through preemption (sic).
Assignment of Error No. 2: The trial court committed
reversible error in granting judgment in favor of the
Plaintiff in spite of the fact that, as was clear on the face
of the record, the suit was time-barred, and any natural
obligation that could have supported such a judgment had been
extinguished by preemption.
against attorneys for malpractice are governed by La.R.S.
9:5605 (emphasis added) which provides:
A. No action for damages against any attorney at law duly
admitted to practice in this state, any partnership of such
attorneys at law, or any professional corporation, company,
organization, association, enterprise, or other commercial
business or professional combination authorized by the laws
of this state to engage in the practice of law, 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
B. The provisions of this Section are remedial and apply to
all causes of action without regard to the date when the
alleged act, omission, or neglect occurred. However, with
respect to any alleged act, omission, or neglect occurring
prior to September 7, 1990, actions must, in all events, be
filed in a court of competent jurisdiction and proper venue
on or before September 7, 1993, without regard to the date of
discovery of the alleged act, omission, or neglect. The
one-year and three-year periods of limitation provided in
Subsection A of this Section are peremptive periods within
the meaning of Civil Code Article 3458 and, in accordance
with Civil Code Article 3461, may not be renounced,
interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all
actions brought in this state against any attorney at law
duly admitted to practice in this state, any partnership of
such attorneys at law, or any professional law corporation,
company, organization, association, enterprise, or other
commercial business or professional combination authorized by
the laws of this state to engage in the practice of law,
the prescriptive and peremptive period shall be governed
exclusively by this Section.
D. The provisions of this Section shall apply to all persons
whether or not infirm or under disability of any kind and
including minors and interdicts.
E. The peremptive period provided in Subsection A of this
Section shall not apply in cases of fraud, as defined in
Civil Code Article 1953.
these provisions a client seeking to recover damages against
his attorney for malpractice must file suit no later than
three years from the date he discovered or should have
discovered the alleged act or omission giving rise to the
suit, except in cases of fraud. There are no allegations of
fraud in Breaux's petition against Soileau. In this case,
when the original suit filed in the Fifteenth Judicial
District Court was remanded from the federal district court
and received by the state district court on February 8, 2007,
Breaux had at most three years to move the
litigation forward to avoid abandonment under the ...