Filed: Aug. 08, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D August 8, 2007 UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FIFTH CIRCUIT Clerk No. 07-30072 Summary Calendar REBECCA SEROU, Plaintiff - Appellant, versus S. GUY DELAUP; S. GUY DELAUP PLC, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Louisiana (2:05-CV-847) Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* In this diversity action, Rebecca Serou contests the adver
Summary: United States Court of Appeals Fifth Circuit F I L E D August 8, 2007 UNITED STATES COURT OF APPEALS Charles R. Fulbruge III FIFTH CIRCUIT Clerk No. 07-30072 Summary Calendar REBECCA SEROU, Plaintiff - Appellant, versus S. GUY DELAUP; S. GUY DELAUP PLC, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of Louisiana (2:05-CV-847) Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges. PER CURIAM:* In this diversity action, Rebecca Serou contests the advers..
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United States Court of Appeals
Fifth Circuit
F I L E D
August 8, 2007
UNITED STATES COURT OF APPEALS
Charles R. Fulbruge III
FIFTH CIRCUIT Clerk
No. 07-30072
Summary Calendar
REBECCA SEROU,
Plaintiff - Appellant,
versus
S. GUY DELAUP; S. GUY DELAUP PLC,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Louisiana
(2:05-CV-847)
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
In this diversity action, Rebecca Serou contests the adverse
summary judgment on her legal-malpractice claim against S. Guy
DeLaup and S. Guy DeLaup, PLC.
In May 2002, Serou’s husband filed a petition for, inter alia,
divorce. The action was tried in October 2002, and a divorce was
granted that November. Dissatisfied with her representation during
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
the proceedings, Serou fired her attorney and retained DeLaup for
any outstanding issues. DeLaup represented Serou from July 2003 to
August 2004; during that time, a written judgment was issued and
the parties signed a consent agreement for the division of
property.
Serou contends: DeLaup knew about allegations of domestic
violence and abuse that occurred during her marriage; however, he
did not advise her of her right to file a tort claim against her
ex-husband. In May 2004, Serou terminated her relationship with
DeLaup. That August, her newly retained counsel advised her: she
had a tort claim against her ex-husband; but the right to file an
action for it had expired.
In March 2005, Serou filed this legal-malpractice action
against DeLaup. She claimed, inter alia: DeLaup breached a duty
by failing to inform her about her right to file a tort claim
against her ex-husband for personal injury sustained during the
marriage.
In September 2006, DeLaup moved for summary judgment. In a
detailed opinion granting such judgment, the district court held:
Serou’s malpractice claim was barred by the one-year statute of
limitations, under Louisiana law.
Summary judgment is reviewed de novo. Celotex Corp. v.
Catrett,
477 U.S. 317, 330 (1986). It is appropriate “if ... there
is no genuine issue as to any material fact and ... the moving
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party is entitled to a judgment as a matter of law”. FED. R. CIV.
P. 56(c).
Under Louisiana law, Serou had one year from the date of the
alleged “act, omission, or neglect”, or one year from the date she
discovered, or should have discovered, any alleged act of
malpractice, in which to file a legal-malpractice action. LA. REV.
STAT. ANN. § 9:5605 (2007); Dauterive Contractors, Inc. v. Landry
and Watkins,
811 So. 2d 1242, 1251-53 (La. Ct. App. 2002). Serou
claims that she did not learn of her right to file a tort action
against her ex-husband until August 2004, when she engaged new
counsel; therefore, her action against DeLaup in March 2005 was
within one year from the date she discovered the alleged
malpractice. As the district court ruled, however, Serou made
numerous claims, both through written correspondence and electronic
mail, of malpractice continuously throughout the course of DeLaup’s
representation of her. Under Louisiana law, “any plaintiff who had
knowledge of facts that would place a reasonable man on notice that
malpractice may have been committed shall be held to have been
subject to the commencement of prescription by virtue of such
knowledge”, even if she asserts a limited ability to evaluate the
facts. Taussig v. Leithead,
689 So. 2d 680, 684 (La. Ct. App. 1997)
(internal citations and quotation marks omitted). Essentially for
the reasons stated by the district court, Serou was aware of the
facts which formed the basis for her malpractice claim; and,
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accordingly, that knowledge is sufficient to have triggered the
one-year preemptive period under Louisiana law and, therefore, bar
her claim.
AFFIRMED
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