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Crane v. Evanston Insurance Co.

Court of Appeals of Louisiana, Fourth Circuit

October 16, 2019

DARRELL H. CRANE
v.
EVANSTON INSURANCE COMPANY, ET AL.

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-06615, DIVISION "M" Honorable Paulette R. Irons, Judge

          Hobart O. Pardue, Jr. LAW OFFICE OF HOBART PARDUE, LLC COUNSEL FOR PLAINTIFF/APPELLANT

          Gustave A. Fritchie, III McDonald G. Provosty IRWIN FRITCHIE URQUHART & MOORE, LLC, Sidney J. Angelle Eric B. Berger LOBMAN CARNAHAN BATT ANGELLE AND NADER COUNSEL FOR DEFENDANTS/APPELLEES

          Court composed of Judge Edwin A. Lombard, Judge Sandra Cabrina Jenkins, Judge Regina Bartholomew-Woods

          REGINA BARTHOLOMEW-WOODS, JUDGE

         Darrell Crane (hereinafter "Appellant") appeals the January 4, 2019 judgment of the Orleans Parish Civil District Court granting the peremptory exception of peremption filed by the law firm Herman, Herman & Katz, L.L.C. (hereinafter "HHK"), and joined by Alterra Excess and Surplus Insurance Company (hereinafter "Alterra") as well as Prosight - Syndicate 1110 at Lloyd's (hereinafter "Prosight") (hereinafter collectively "Appellees"). For the reasons that follow, we affirm the judgment of the district court.

         FACTS AND PROCEDURAL BACKGROUND

         Appellant retained the services of HHK as a result of an alleged police dog bite he suffered on August 18, 2014, when the Livingston Police Department (hereinafter "the LPD") arrested him. HHK, however, did not file its suit in federal district court on behalf of Appellant until August 19, 2015, one day after the prescriptive period of one year had elapsed. HHK anticipated that the LPD would move to dismiss, and met with Appellant to prepare an affidavit attesting to the fact that he did not become aware of the extent of his injuries until the day after he was bitten. The LPD did indeed move to dismiss, and succeeded in the district court on February 23, 2016. HHK recommended Appellant appeal the judgment, which he did. The U.S. Fifth Circuit Court of Appeals affirmed the dismissal on July 11, 2016. Appellant filed a suit for damages against HHK on July 10, 2017, and later amended to add Alterra and Prosight on September 15, 2017. Therein, Appellant alleged general and special damages resulting from HHK's failure to timely file his suit against the LPD.

         HHK filed a peremptory exception of peremption on August 20, 2018, which Alterra and Prosight joined on August 29, 2018. Therein, HHK argued Appellant's damages suit was untimely. Included with the exception was an affidavit from Donald Mau, an associate handling Appellant's case against the LPD, stating he "disclosed to [Appellant] that the LPD would likely argue that [his] lawsuit was filed too late[.]" Also included was an affidavit from Soren Gisleson, a member of HHK, stating that, after the district court dismissed the case, he "recommended that an appeal be taken" but also that he "directly stated that in [his] professional opinion there was a strong likelihood that the [appellate court] would affirm" the dismissal.

         Appellant filed an opposition to the exception on October 2, 2018. The opposition contained no supporting exhibits or affidavits. Instead, the opposition simply argued that a reasonable man in Appellant's position would not have been aware of his cause of action until July 11, 2016, when the appellate court affirmed the dismissal. The district court set the matter for hearing on October 18, 2018, but on October 17, 2018, Appellant's counsel requested a continuance due to an emergency, and HHK consented thereto. The court reset the hearing for December 6, 2018. On November 13, 2018, Appellant filed a motion for Partial Summary Judgment, arguing that HHK had fraudulently lead Appellant to believe he had a viable claim against LPD despite knowing his claim had prescribed. Appellant moved to have his motion heard on the same date that Appellees were to argue their exception, but Appellees objected due to Appellant's failure to follow the timing rules set forth in La.C.C.P. art. 966. The hearing on the exception proceeded as scheduled on December 6, 2018, and the court sustained the exception. A judgment was signed on January 4, 2019. The court denied a subsequent motion for new trial on February 21, 2019.

         ANALYSIS

         We begin with La.R.S. 9:5605(A), which provides:

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.

         According to Appellees, the alleged act of legal malpractice occurred on August 18, 2015, when HHK failed to timely file Appellant's suit against LPD. In response, Appellee notes an exception provided in the La.R.S. 9:5605(E), which states that "[t]he peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953."[1] However, the district court did not specifically address the issue of fraud at the hearing on the exception based upon the timing of Appellant's filing of his motion for partial summary judgment - that is, less than thirty days before the hearing on the exception.[2] Instead, Appellant filed a timely opposition to the exception, arguing that a reasonable man in his position would not have "discovered" his legal malpractice claim until July 11, 2016, when the U.S. Fifth Circuit Court of Appeals affirmed the district court's dismissal. Appellant ...


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