Opinion
No. 2008 CW 1190.
June 12, 2009. NOT DESIGNATED FOR PUBLICATION
ON WRIT ON CERTIORARI FROM THE 22ND JUDICIAL DISTRICT COURT, PARISH OF ST. TAMMANY, SUIT NO. 2006-16406, DIVISION F, HONORABLE MARTIN E. COADY, JUDGE.
Marc W. Judice, Michael W. Adley, H.L. "Rye" Tuten, III, Lafayette, LA, Counsel for Defendant/Relator, John R. Vermillion.
Walter Antin, Jr., John G. Toerner, Hammond, LA, Counsel for Plaintiff/Respondent, Nancy Boyt.
H. Bruce Shreves, John F. Shreves, New Orleans, LA, Counsel for Defendant/Respondent, Richard Louis Haik
BEFORE: KUHN, DOWNNG, GAIDRY, McCLENDON AND HUGHES, JJ.
This court granted a writ of certiorari to resolve whether the trial court properly overruled defendant John Vermillion's exceptions of peremption and no cause of action under La.R.S. 9:5605, the Louisiana legal malpractice statute. For the following reasons, we hereby grant the writ application and render judgment granting the exception of peremption and/or no cause of action, thereby dismissing the plaintiff's claims against Vermillion with prejudice.
FACTS AND PROCEDURAL BACKGROUND
Sometime during or prior to 2001, John Vermillion, a Texas attorney licensed to practice law in Louisiana, contracted with ALMS Ltd., L.L.P. (ALMS) to obtain marketing services and administrative support, including notary services, in the Louisiana market. In 2001, Gladys Boyt (Gladys) responded to an advertisement run by Vermillion, through ALMS, in her local newspaper for an estate planning seminar. Upon attendance at the seminar, Gladys signed up for Vermillion's estate planning services.
Vermillion prepared Gladys' last will and testament, along with other estate documents, based on the information she provided to him. Thereafter, Vermillion forwarded the blank documents to ALMS. On November 27, 2001, Richard Haik, a Louisiana notary retained by ALMS, delivered the documents to Gladys for execution at her home in Bogalusa. Upon signing of the will by Gladys, Haik neglected to sign the document in his capacity as notary public, although he had previously printed his name thereon.
Four years later, on December 28, 2005, Gladys died. A succession was subsequently opened in the 22nd Judicial District Court for the Parish of Washington, and Gladys' will was submitted for probate. In December 2006, the trial court declared Gladys' will invalid, because it was not authenticated by Haik in his capacity as the acting notary. This court affirmed on appeal, and the judgment invalidating the will became final. In re Succession of Boyt, 2007-0739 (La. App. 1 Cir. 12/21/07) (unpublished opinion), 2007 WL 4465786, writ denied, 2008-0068 (La. 3/7/08), 977 So.2d 905.
In the interim, on December 28, 2006, Nancy Boyt (plaintiff), a designated legatee under Gladys' invalidated will, filed the instant lawsuit against Haik and Vermillion. In paragraph 9 of the petition, it is alleged that Haik is liable in solido under theories of negligence and breach of contract based on his failure to notarize the will. It is alleged in paragraph 10 of the petition that Vermillion, in turn, is liable in solido based upon the omission of his employee, associate, and/or agent (Haik) and directly in negligence and for breach of contract.
A review of the record shows that the petition for damages was received by the district court clerk's office via facsimile transmission on December 28, 2006, and a hard copy was received via first class mail the following day. Accordingly, it is undisputed that the petition was filed within one year of Gladys' death.
Pursuant to a joint motion by Nancy Boyt and Richard Haik, the plaintiffs claims against Haik were dismissed, with prejudice, on June 11, 2008. Notwithstanding that fact, we note that there are still some remaining claims against Haik, as asserted by Vermillion in a cross claim filed on April 9, 2007.
In response to the suit, Vermillion filed a peremptory exception of peremption and/or no cause of action and alternative motion to strike paragraph 10 of the petition, alleging that the claims against him were not timely raised in accordance with La.R.S. 9:5605, the legal malpractice statute. Vermillion's exception and alternative motion were set for hearing on May 12, 2008, at which time the trial court overruled the exception and denied the motion to strike in open court, finding that the alleged act of malpractice constituted a continuing tort which continued well beyond the date of Haik's initial omission on November 27, 2001. A written judgment to that effect was signed on May 22, 2008. Vermillion filed a timely writ application seeking review of the overruling of his exception, and we granted certiorari to determine whether the plaintiff's claims are perempted under the law.
DISCUSSION
This case concerns application of the Louisiana legal malpractice statute, La.R.S. 9:5605. The statute provides, in pertinent part, as follows:
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.
Louisiana Civil Code article 3458 defines peremption as "a period of time fixed by law for the existence of a right" and provides that "[u]nless timely exercised, the right is extinguished upon the expiration of the peremptive period."
Louisiana Civil Code article 3461 provides that "[p]eremption 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.
(emphasis added). Pursuant to the statute, there is an absolute three-year peremptive limit on legal malpractice actions. The question that arises in cases such as the one at hand, wherein the alleged act, omission, or neglect does not immediately give rise to ascertainable damages, is when the peremptive period begins to run and whether a claim may be extinguished before the facts ripen into a justiciable case or before the full extent of damages are realized. In granting certiorari, we have asked the parties to address those issues.
In briefs, Vermillion submits that La.R.S. 9:5605 is clear and unambiguous and should, therefore, be applied as written. Vermillion points out that the statute clearly states that "in all events such [legal malpractice] actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect." Reading the statute literally, Vermillion contends that the three-year peremptive period begins to run from the act of malpractice, regardless of when the alleged act or omission is actually discovered or when damages are realized. Moreover, insofar as the statute expressly provides that the one and three-year periods of limitation are peremptive, Vermillion submits that such periods shall not be subject to the suspensive continuous tort theory. Applying the law to the facts herein, Vermillion argues that the alleged omission occurred on November 27, 2001, when Haik failed to notarize the will, and that any action related thereto was extinguished on November 27, 2004. Since suit was not filed by the plaintiff until 2006, Vermillion contends that the cause of action was already extinguished. Accordingly, Vermillion prays that the trial court's judgment be reversed and that his exceptions of peremption and/or no cause of action be granted, thereby dismissing him from the suit, with prejudice.
In opposition to the writ application, the plaintiff argues that December 28, 2005, the date that Gladys died, is the earliest date that she had a vested right as a legatee under the law and that her cause of action could have accrued. However, given the facts, the plaintiff submits that her cause of action actually did not accrue and arise until March 7, 2008, when the Louisiana Supreme Court denied writs as to the judgment invalidating Gladys' last will and testament. In making that argument, the plaintiff contends that a legal malpractice cause of action does not arise before actual and appreciable harm is caused. In this instance, the plaintiff submits that the alleged "act, omission, or neglect" did not become complete until Gladys' death and the subsequent invalidation of her will. The plaintiff submits that only then was there ascertainable damage and did the cause of action ripen so as to begin the running of peremption. To hold otherwise, the plaintiff submits, would result in the inequitable conclusion that her claims were perempted before her cause of action ever arose as a result of Gladys' death.
More specifically, during oral argument on May 27, 2009, counsel for the plaintiff argued that it would be violative of his client's right to due process if this court were to conclude that the plaintiff's claims were perempted before her cause of action arose upon the death of Gladys. We note, however, that constitutional issue was never raised in the trial court; therefore, we will not address that argument in our opinion.
In support of her position, the plaintiff primarily cites Leger v. Weinstein, 2003-1497 (La. App. 3 Cir. 10/27/04), 885 So.2d 701, writ denied, 2004-2903 (La. 2/4/05), 893 So.2d 873, writ denied, 2004-2899 (La. 2/4/05), 893 So.2d 882. In Leger, the plaintiffs brought a legal malpractice action against an attorney, Weinstein, based on his abandonment of an underlying malpractice suit against another attorney. The original underlying malpractice suit was dismissed as abandoned on May 10, 2002. Without the consent of his former clients, Weinstein filed a motion to set aside the dismissal of that case. In the interim, on September 20, 2002, approximately four months after the first suit was dismissed but before the hearing on the motion to set aside the dismissal, the plaintiffs brought a malpractice action against Weinstein on the grounds that he allowed the case against their other attorney to be abandoned and dismissed. Subsequently, on November 21, 2002, prior to the hearing on his motion to set aside the dismissal, Weinstein filed an exception of prematurity, arguing that any malpractice action against him was premature until the court ruled on his motion to set aside the dismissal of the first suit. The exception of prematurity was granted on December 24, 2002, but the trial court refused to dismiss the case at that time. On writs, the Third Circuit Court of Appeal held that after the exception was granted the trial court had no further authority to act in that case. Accordingly, the trial court dismissed the action against Weinstein without prejudice on June 2, 2003. Thereafter, the plaintiffs re-filed their action against Weinstein on June 19, 2003.
In the interim, Weinstein's motion to set aside the dismissal of the underlying malpractice suit was heard on January 15, 2003. At that hearing, the trial court concluded that Weinstein lacked standing, and the appellate court affirmed that ruling on August 13, 2003, after the first malpractice action against Weinstein was dismissed as premature. Thereafter, Weinstein filed exceptions of res judicata, prematurity, and peremption, arguing that the subsequent suit against him should be dismissed and plaintiffs filed an exception of res judicata on the issue of liability for the abandonment of the original malpractice suit. Judgment was rendered in favor of the plaintiffs on all issues, and Weinstein once again sought supervisory writs.
The appellate court in Leger affirmed that portion of the trial court's ruling denying Weinstein's exceptions of prematurity, res judicata, and peremption. The appellate court applied the law of the case doctrine, noting that it had already determined that the plaintiffs' claim had to be dismissed when the trial judge ruled that it was premature until the issue of Weinstein's standing to challenge the dismissal of the first malpractice action was resolved. The court reasoned that a grant of the exception of peremption would be inconsistent and would essentially hold that the claim was both premature and perempted at the same time. 885 So.2d at 705. Moreover, having found that the doctrine of law of the case was applicable, the appellate court went on to state in what appears to be dicta that in a malpractice case based on abandonment, the client suffers no injury until a final judgment of dismissal is entered. 885 So.2d at 706-707. Recognizing that the requirement that there be actual harm in order to bring a malpractice action is at odds with the limitations on a malpractice action provided by La.R.S. 9:5605, the court noted that to hold that the peremptive period for a legal malpractice claim begins to run before the client suffers harm is to hold that the legislature intended to change the substantive elements of a legal malpractice action. 885 So.2d at 707. Noting that there are several instances in which this change would render it impossible for someone to timely bring an action for legal malpractice, the appellate court stated that there was no evidence that such a harsh result was what the legislature intended. Id.
In considering the respective arguments of the parties, we reject the plaintiff's suggestion that Leger is applicable herein. The decision reached in Leger, as expressly stated by the Third Circuit Court of Appeal, was the result of the court's application of the law of the case doctrine, and that case must be considered in light of its unique facts. Herein, unlike the factual scenario in Leger, there has been no prior judicial determination that the plaintiff's claims are precluded. Thus, the doctrine of law of the case is not applicable, and the issue of peremption is ripe for consideration.
Further, we respectfully disagree with our brethren at the Third Circuit Court of Appeal to the extent that they have suggested that the peremptive period for a legal malpractice action under La.R.S. 9:5605 cannot begin to run before the client suffers actual and appreciable harm. Rather, in considering the issue of peremption under La.R.S. 9:5605, we find guidance in the Louisiana Supreme Court case of Reeder v. North, 1997-0239 (La. 10/21/97), 701 So.2d 1291, and its progeny. In Reeder, an investor in a fraudulent check kiting and Ponzi scheme brought an action in federal court in July 1989 against the organizers of the scheme, asserting securities claims. After that action was dismissed, the investor brought a second action in May 1990 in state court asserting securities law claims, which was dismissed on the basis of res judicata. After the state court action was dismissed, and an application for writ of certiorari was ultimately denied by the United States Supreme Court in February 1994, the investor brought a legal malpractice action against his attorney in September 1994 based on his failure to assert the state claims in the original federal suit. In response to the malpractice action, the attorney filed an exception claiming that the malpractice action was perempted by La.R.S. 9:5605, which was granted by the trial court. The court of appeal reversed and remanded the matter for trial on the merits, finding that a cause of action did not arise until the judgment dismissing the state court suit became final upon denial of writs by the U.S. Supreme Court.
On writ of certiorari in Reeder, the Louisiana Supreme Court reversed and reinstated the judgment of the trial court. Therein, the supreme court noted that the "act, omission, or neglect" complained of in the petition was the attorney's failure to include all state law claims in the federal court complaint. 701 So.2d at 1295. Under the clear wording of La.R.S. 9:5605, the court determined that the court of appeal was wrong in holding that the peremptive period did not begin to run until the facts ripened into a viable cause of action sufficient to support a lawsuit. 701 So.2d at 1296. Rather, under subparagraph (B) of the statute, because the negligent act occurred before September 7, 1990, the court held that the plaintiff only had until September 7, 1993 to file the malpractice action, without regard to the date of the discovery of the alleged act, omission, or neglect. Id.
Louisiana Revised Statute 9:5605(B) provides, in pertinent part, as follows:
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. . .
(emphasis added).
In reaching this conclusion, the supreme court in Reeder recognized the perceived inequities of the legal malpractice statute. Id. Indeed, the court pointed out that all of the court rulings in the subsequent state action had been in the client's favor until four days prior to expiration of the limitations period. Id. Nonetheless, while the terms of the legal malpractice statute may seem unfair in that a person's claim may be extinguished before he realizes the full extent of his damages, the court reasoned that such a statute of limitations is exclusively a legislative prerogative. Id. Turning then to the language of the statute, the court stated that the legal malpractice statute of limitations is even more strongly worded than the medical malpractice statute of limitations in that La.R.S. 9:5605 expressly states that the period is "peremptive" and "in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended." 701 So.2d at 1297. Given the strong language selected, the court reasoned that there is no doubt that the legislature intended that three years after the "act, omission, or neglect," the cause of action is extinguished, regardless of when the negligence is discovered and regardless of whether a malpractice action may be brought within that three-year period. Id.
Subsequent to the Reeder decision, this court has followed the rationale of the Louisiana Supreme Court. In Raby-Magee v. Matzen, 98-2364 (La. App. 1 Cir. 3/31/00), 764 So.2d 978, for example, the plaintiff filed suit for legal malpractice, alleging that the defendant attorney failed to timely file suit on her behalf. On appeal following judgment on the merits, this court raised the issue of peremption under La.R.S. 9:5605 on its own motion. Reasoning that the three-year peremptive period for legal malpractice commences on the date of the malpractice regardless of discovery or acquisitional knowledge of the malpractice, this court reasoned that the malpractice in that instance occurred upon the failure of the defendant to timely file suit in 1988 and that, under subparagraph (B) of the statute, which provides a grace period for filing suit as to any alleged, act, omission, or neglect occurring prior to September 7, 1990, the plaintiff had to file suit on or before September 7, 1993. 764 So.2d at 979. Given that the plaintiff did not file a legal malpractice action until 1996, this court held that the legal malpractice action was filed after any claim or right the plaintiff once possessed had expired based on peremption.Id. Although it was recognized that the result was inequitable, this court explained that the result could not be altered without manipulating the statute. Id. The court explained that the legislature made a policy determination that there is a three-year peremptive period which may not be renounced, interrupted, or suspended, and that the Louisiana Supreme Court has applied the statute as written. Id. Thus, this court reversed the judgment on the merits rendered against the defendant.
Because the parties did not initially address the applicability of peremption in the lower court proceedings, this court in Raby-Magee reversed and remanded the matter in the interest of justice.
Also, this court in Kennedy v. Macaluso, 1999-3016, pp. 5-6 (La. App. 1 Cir. 2/16/01), 791 So.2d 697, 700, writ denied, 2001-0691 (La. 5/4/01), 791 So.2d 655, citing Reeder, specifically rejected the proposition that under La.R.S. 9:5605 "appreciable harm" flowing from the attorney's negligent conduct is necessary to establish a cause of action upon which the client may sue, as previously held in Braud v. New England Ins. Co., 576 So.2d 466 (La. 1991), which case was also cited by the plaintiff herein. Kennedy distinguished Braud by pointing out that it was decided prior to the enactment of La.R.S. 9:5605 . Kennedy holds that the one-year peremptive period of La.R.S. 9:5605 begins to run on the date a plaintiff knows or should know of an attorney's alleged wrongful conduct. Kennedy, 791 So.2d at 700-701.
Applying the rationale of Reeder and Raby-Magee to the facts of this case, we find that the alleged omission occurred on November 27, 2001, when Haik and/or Vermillion failed to ensure that Gladys' last will and testament was formally notarized, and that the three-year peremptive period for bringing a legal malpractice action commenced at that time. In enacting La.R.S. 9:5605, the legislature clearly intended to limit the time for bringing legal malpractice actions and, by expressly adopting peremptive rather than prescriptive periods of limitation, provided for the extinguishment of any such claims upon the passage of one-year from the date of the alleged act, omission, or neglect or within one year from the date the alleged act, omission, or neglect was discovered or should have been discovered. However, even as to actions filed within a year of 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. The three-year peremptive period accrues without regard to acquisitional knowledge or when the damages become appreciable. To hold otherwise would result in legal malpractice claims running ad infinitum, contrary to the intent of the legislature. Thus, we find that the cause of action in this case was perempted on November 27, 2004, more than two years before suit was filed, regardless of whether the plaintiff's legal malpractice cause of action had accrued or whether her damages were ascertainable at that time.
In reaching this conclusion, we note that the three-year peremptive period for legal malpractice actions is not subject to suspension, thereby dismissing any argument by the plaintiff that the omissions of Vermillion and/or Haik constituted a continuous tort which was repeated each day from November 27, 2001, up until and including the date of Gladys' death on December 28, 2005. The Louisiana Supreme Court rejected similar arguments in Reeder, wherein the plaintiff argued that the peremptive period of La.R.S. 9:5605 was suspended during the period in which the defendant attorney continued to represent him in state court. Since the continuous representation rule is a suspension principle based on contra non valentum, which applies to prescriptive but not peremptive periods, the court held that the continuous representation rule does not apply to delay the peremptive period for legal malpractice actions under La.R.S. 9:5605. Reeder, 701 So.2d at 1297-1298.
Moreover, the mere fact that Vermillion may be authorized to act as a notary public in this State does not exempt him from legal malpractice claims, as the plaintiff argues. Subparagraph (C) of La.R.S. 9:5605 expressly provides that all actions brought in this state against any attorney at law duly admitted to practice in this state shall be "governed exclusively" by that Section. Likewise, subparagraph (F) of La.R.S. 35:200, dealing with actions against notaries public, provides that the provisions of that section "shall not apply to notaries who are attorneys, who shall be subject to the provisions of R.S. 9:5605." Vermillion was retained as an attorney for the purpose of drafting Gladys' last will and testament. The mere fact that he was also a notary does not exclude him from the possibility of a legal malpractice claim or subject him to the extended grace period for bringing suit under La.R.S. 35:200(B). See LeBlanc v. Andrieu, 2003-355 (La. App. 5 Cir. 7/29/03), 852 So.2d 1046, 1048, writ denied, 2003-2424 (La. 11/21/03), 860 So.2d 558.
Louisiana Revised Statute 35:200 provides the same one and three-year prescriptive and peremptive periods as contained in La.R.S. 9:5605. However, the plaintiff points out that the notary malpractice statute, as amended in 2004, contains the following grace period:
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 July 1, 2004, actions shall, in all events, be filed in a court of competent jurisdiction and proper venue on or before July 1, 2007, 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.
(emphasis added). Nonetheless, to the extent that we find that the notary malpractice statute is inapplicable to the claims against Vermillion, we reject the plaintiff's argument that the instant suit was timely because it was filed prior to July 1, 2007, the extended grace period provided by La.R.S. 35:200(B).
CONCLUSION
Based on the foregoing, the writ is granted, and the judgment of the trial court dated May 22, 2008 overruling defendant John Vermillion's peremptory exception raising the objection of peremption is reversed. We hereby render judgment granting the exception, thereby dismissing the plaintiff's claims against Vermillion with prejudice.
WRIT GRANTED; JUDGMENT REVERSED AND RENDERED.
I agree with the majority that Reeder v. North, 1997-0239 (La. 10/21/97), 701 So.2d 1291, provides a well-reasoned pronouncement of the law on legal malpractice. However, given the unique facts herein, I believe that the majority's reliance on Reeder and its progeny is misplaced. In Reeder, the entirety of plaintiff's claims was in existence at all relevant times, and the act of malpractice was unmistakably complete upon failure of the defendant attorney to assert the state law claims in the original federal suit. Herein, by contrast, the alleged malpractice arises out of Vermillion's failure to ensure that the will that he prepared was properly executed and subject to probate. Even though the will was executed in November 2001, it was not until the death of Gladys in December 2005 and the subsequent probate of her will that the alleged "act, omission, or neglect" by Vermillion was complete so as to trigger the commencement of the one and three-year peremptive periods under La.R.S. 9:5605.
I find the facts herein more analogous with the circumstance considered by the Louisiana Third Circuit Court of Appeal in Leger v. Weinstein, 2003-1497 (La. App. 3 Cir. 10/27/04), 885 So.2d 701, writ denied, 2004-2903 (La. 2/4/05), 893 So.2d 873, writ denied, 2004-2899 (La. 2/4/05), 893 So.2d 882. As in Leger, wherein the malpractice action against the defendant was premature until the issue of the defendant's standing to challenge the dismissal of the underlying lawsuit was resolved, the plaintiff herein could not have filed suit against Vermillion prior to the death of Gladys. Before that time, any action arising out of the defective will would have been premature, because the error could have been corrected by a new and properly notarized will. Further, it is clear that the plaintiff could not have filed suit prior to the death of Gladys, because she was not yet an interested legatee.
Louisiana Revised Statute 9:5605 provides that no suit 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. Since this suit was timely filed within one year of Gladys' death and well within the three-year peremptive period provided by law, the plaintiff's claims against Vermillion were timely raised. I believe, therefore, that the trial court did not err in overruling Vermillion's peremptory exception raising the objections of peremption and/or no cause of action and denying the defendant's alternative motion to strike, and I would deny the writ application.
To the extent that the majority disregarded the assertion by plaintiff's counsel during oral argument that a grant of the exception of peremption would violate her constitutional right to due process and went on to reverse and render judgment dismissing the claims against Vermillion with prejudice, I would respectfully suggest that the majority erred. Notwithstanding the jurisprudential rule that litigants must raise constitutional challenges in the trial court, not the appellate courts, and that the constitutional challenge must be specially pleaded, it is within the province and authority of an appellate court to vacate the lower court's ruling and remand a case for proper pleading and consideration of constitutional arguments raised on appeal.See La. Code Civ. P. art. 2164; see also David v. Our Lady of the Lake Hospital, Inc., 2002-2675 (La. 7/2/03), 849 So.2d 38, and Williams v. State, Dept. of Health and Hospitals, 1995-0713 (La. 1/26/96), 671 So.2d 899. Herein, the plaintiff has raised valid due process concerns regarding whether her claims were perempted before she ever acquired rights as a legatee and her cause of action arose. The unique factual circumstance and issues raised herein have never been directly addressed by a court of this state. Thus, the majority should have vacated the judgment of the trial court and remanded the matter so as to afford the plaintiff an opportunity to file a pleading urging her constitutional challenge and for consideration thereof by the trial and appellate courts.