Opinion
CIVIL ACTION NUMBER 02-1844, SECTION "L" (2)
November 13, 2003
ORDER REASONS
Pending before the Court is the Defendants' Motion for Summary Judgment. The Motion came before the Court for hearing on Wednesday, November 5, 2003. Mr. William J. Furnish, Jr. appeared on behalf of the Plaintiff. Ms. Tracie J. Renfroe, Mr. David Walter, and Mr. Ronald Wilson appeared for the Defendants. Ms. Toni Tusa served as court reporter. For the following reasons, the motion is GRANTED.
BACKGROUND
On October 18, 1995, Plaintiff Carroll Johnson claims to have sustained serious injuries while at a Burger King Restaurant in Port Arthur, Texas. The Plaintiff had a long-standing relationship with Defendants David Whitmore and Lawrence Blake Jones, who had served as Mr. Johnson's attorneys in another, unrelated lawsuit.
To assist Mr. Johnson, the Defendants directed one of their associates to draft a pro se petition against Burger King that Mr. Johnson could file in Texas state court. One of the associates in the Defendants' law firm drafted and mailed Mr. Johnson three copies of this petition, enclosed a check from the Defendants to cover filing costs, and directed Mr. Johnson to file the petition at the county courthouse in Beaumont, Texas. Mr. Johnson filed the petition on October 14, 1997, four days before the Texas limitations period ran. Mr. Johnson had the clerk date stamp all three copies of the petition and mail two copies to the Defendants. From the filing of the petition until January 1999, the Defendants took no action on Mr. Johnson's behalf in the Burger King litigation. On January 19, 1999, Defendant Whitmore applied pro hac vice to be enrolled as Mr. Johnson's counsel. On April 8, 1999, Burger King took the position that the original petition was defective because it did not name the franchisee.
The Defendants filed a supplemental petition naming the franchisee as a defendant to the underlying litigation. The Texas trial court dismissed the Plaintiffs complaint on October 20, 1999. On August 17, 2000, the Texas Court of Appeals affirmed the trial court's judgments dismissing the Burger King litigation.
Plaintiff Carroll Johnson brought this legal malpractice action against the Defendants in Texas state court on March 2, 2001. The Defendants removed the matter to the United States District Court for the Eastern District of Texas on April 27, 2001. Judge Cobb held that Louisiana legal malpractice law was applicable and transferred the action to the Eastern District of Louisiana.
LAW ANALYSIS
Louisiana Revised Statute § 9:5605 governs actions for legal malpractice, including the peremptive periods applicable to that cause of action. The statute provides that any legal malpractice claim must be brought in a court of competent jurisdiction, "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" and "in all events such actions shall be filed at the latest within three years from the date of the alleged act omission or neglect." La. Rev. Stat. Ann. § 9:5605 (West 2003).
A. The Three-Year Peremptive Period
The Plaintiff alleges that the Defendants owned him a duty to take such reasonable and diligent steps as required to represent him against Burger King. He claims that the Defendants breached this ongoing duty and that the last act of legal malpractice occurred within three years of the filing date. The Plaintiff claims that the Defendants had the continuous duty to take whatever actions were necessary to protect and preserve the Plaintiffs rights in the Burger King litigation. The Plaintiff contends that the Defendants' malpractice ceased only when they filed the corrected, but untimely, state court petition against the proper Burger King parties on April 22, 1999.
The Louisiana Supreme Court rejected the Plaintiffs continuous representation theory argument in Reeder v. North, 701 So.2d 1291, 1295-96 (La. 1997). There, the Supreme Court reversed a lower court's holding that a legal malpractice claim does not ripen into a cause of action until the judgment giving rise to the malpractice claim becomes definitive. The Supreme Court held that the clock ran from the "act, omission, or neglect" that gave rise to the Plaintiffs complaint. Id. at 1295. In the Reeder case, the peremptive period thus ran from the time of the defendant's "failure to include all state law claims in his federal court complaint," not from the time the U.S. Supreme Court denied certiorari. Id.
The Defendant argues that, as in Reeder, the prescription clock ran from the time of omission of the proper Burger King parties from the pro se petition in October 1997. The Defendant contends that even if the three-year peremptive period ran "from the latest date on which the [proper defendants] could have timely been made defendants" in the Burger King litigation, Mr. Johnson's claim still must be dismissed. See Graham v. Conque, 626 So.2d 870, 873 (La.App. 3 Cir. 1993). The last date on which the proper Burger King parties could have been timely added was October 18, 1997, two years after the Plaintiffs alleged injury occurred, and four days after the Plaintiff filed the pro se petition. See Tex. Civ. Prac. Rem. Code Ann. § 16.003 (Vernon 2003) (setting a two-year limitations period for personal injury' claims). § Because October 18, 1997, predated the Plaintiffs filing date by more than three years, Mr.Johnson's legal malpractice claim is barred by § 9:5605's three-year limitations period.
B. The One-Year Peremptive Period
The Defendant also contends that the Plaintiffs claim is also prescribed by section 9:5605's one-year limitations period. That period commences to run from the time the claimant "knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice." Paternostro v, LaRocca, 813 So.2d 630, 634 (La.App. 1 Cir. 2002). The peremptive statute imposes an objective standard. "[A]ny plaintiff who had knowledge of facts that would place a reasonable man on notice that malpractice may have been committed" is subjected to the commencement of prescription "even though he asserts a limited ability to comprehend and evaluate the facts." Id. (citing Carroll v. Wolfe, 754 So.2d 1038, 1041 (La.App. 1 Cir. 1999)). The one-year period thus runs from the time that a reasonable man would be on notice that malpractice may have occurred.
The Plaintiff claims that he became aware of the Defendant's malpractice within one year of the time he filed suit. The Plaintiff argues that the earliest time at which a reasonable person would have notice of facts suggesting the existence of legal malpractice was in October 2000. That was when Mr. Johnson received a letter from the Defendants detailing the petition to the Texas Supreme Court and explaining the judgments rendered below.
The Defendant contends that the one-year limitations period ran from that point of the alleged "act, omission, or neglect." The neglect at issue, the Defendants' failure to bring suit against the Burger King franchisees, occurred in October 1997. The Defendants further argue that if the one-year limitations period ran from the point at which the Plaintiff knew or should have known of the existence of facts that "would have enabled him to state a cause of action for legal malpractice," then the relevant date was December 13, 1999. On that date, the Defendants sent Mr. Johnson a letter informing him of the adverse summary judgment ruling. Because all of these dates predate the Plaintiffs malpractice claim by more than one year, the Defendants argue that the claim is barred by § 9:5605.
The Plaintiff claims not to have received this letter, but he received and signed for a December 23, 1999, package, which contained a copy of the December 13, 1999, letter.
The Court need not rule on whether Carroll Johnson knew or should have known of the existence of facts that would have enabled him to state a cause of action for legal malpractice in October 1997 or December 1999. The clear applicability of the three-year peremptive period makes it unnecessary for the Court to determine whether a reasonable plaintiff in Mr. Johnson's position had sufficient information on those dates to enable him to state a claim for legal malpractice. C. Plaintiffs Argument that Texas Law Should Apply
In the Plaintiffs memorandum in opposition to the Motion for Summary Judgment, he argues that Texas law should apply to this case. Judge Cobb Eastern District of Texas transferred the matter here and held that Louisiana legal malpractice law will apply. The Plaintiff cites no law in support of his argument, and simply makes the conclusory assertion that "Plaintiff would show that applying conflict of laws provisions, the Court should apply Texas law." Pl.'s Opp'n Mem. at 15. The Plaintiff offers no evidence indicating that Judge Cobb's ruling was judicial error, and the Court declines to revisit the conflict of laws issue under the law of the case doctrine. See United States v. O'Keefe, 128 F.3d 885, 891 (5th Cir. 1997); Loumar. Inc. v. Smith, 698 F.2d 759, 762 (5th Cir. 1983).
CONCLUSION
For the foregoing reasons the Defendants' Motion for Summary Judgment is GRANTED.