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Breaux v. Soileau

Court of Appeals of Louisiana, Third Circuit

October 16, 2019

HAROLD BREAUX, JR.
v.
TERRY B. SOILEAU

          ON APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF LAFAYETTE, NO. HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

          Terry B. Soileau, Pro Se, Apellant/Defendant

          Trent J. Gauthier Attorney for Appellee/Plaintiff, Harold Breaux, Sr.

          Court composed of Sylvia R. Cooks, Shannon J. Gremillion and, Van H. Kyzar, Judges.

          SYLVIA R. COOKS JUDGE

         FACTS AND PROCEDURAL HISTORY

         In 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.

         On 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.

         Legal Analysis

         Actions 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 neglect.
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.

         Under 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 ...


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