ROSEMARY LEDET, Judge.
In this legal malpractice action, the plaintiff, Marco Tulio Miralda, appeals the trial court's judgment granting the peremptory exception of peremption filed by the defendants, Romauldo Gonzalez, Sr., and the Law Offices of Romauldo Gonzalez, L.L.C. d/b/a Braden Gonzalez and Associates (collectively "Mr. Gonzalez"). Because we find the trial court properly applied the one-year peremptive period set forth in La. R.S. 9:5605(A) and because we find the fraud exception set forth in La. R.S. 9:5605(E) is inapplicable, we affirm.
On July 19, 2013, Mr. Miralda filed this legal malpractice suit against Mr. Gonzalez. In his petition, he alleged that he first retained Mr. Gonzalez in January 2008 for assistance in renegotiating a mortgage note held by Wells Fargo (the "Mortgage Note") on his home located on Frenchman Street in New Orleans, Louisiana (the "Property"). At that time, he was significantly in arrears on the Mortgage Note. Although Wells Fargo (through its attorney, the law firm of Dean Morris, L.L.P.
Thereafter, Mr. Miralda met with Mr. Chacon a number of times to issue payments to Wells Fargo and to sign paperwork, which Mr. Miralda understood was being submitted to Wells Fargo. Mr. Miralda alleged that, for reasons not explained to him, Mr. Gonzalez's office was "never available to finalize the negotiation with Wells Fargo." Mr. Miralda further alleged that on September 9, 2009, Dean Morris sent correspondence to Mr. Chacon, in response to a previous offer by Mr. Gonzalez's firm, proposing a lump-sum payment of $20,000 to cease the foreclosure process. Mr. Miralda alleged that "[t]his letter advised [MR.] CHACON that such an offer would need to be forwarded to Wells Fargo directly stating that if DEFENDANTS, on [MR.] MIRALDA's behalf had $20,000 available to put toward the arrearage to contact Loss Mitigation to finalize the arrangement." Mr. Miralda alleged that despite the fact he had over $20,000 remaining of the Deposit, no offer was ever sent to Wells Fargo.
Beginning in March 2009, Mr. Miralda acknowledged that he made several withdrawals from the Deposit. Mr. Miralda, however, alleged that he was neither advised against making the withdrawals nor informed that doing so would have a detrimental effect on Mr. Gonzalez's negotiations on his behalf. Instead, he alleged that these withdrawals always were allowed and unquestioned.
In late September or October 2010, Mr. Miralda alleged that he learned that he was evicted from his home. Following his eviction, Mr. Miralda visited Mr. Gonzalez's office eleven times; however, he "was never informed that the case had been finalized," that he had no further recourse, or that there were "any steps he may take in order to challenge the eviction."
On June 30, 2011, Mr. Miralda alleged that he was informed that Mr. Gonzalez's firm was no longer representing him in this matter and that Mr. Gonzalez was charging him over $6,800 for "legal fees." Mr. Miralda alleged that he never met with Mr. Gonzalez or any other attorney in Mr. Gonzalez's firm. He further alleged that he was never given an accounting of the time spent by Mr. Gonzalez's firm on the matter or advised of the amount of attorney's fees charged on the matter. He still further alleged that no contract was ever executed between him and Mr. Gonzalez's firm related to this matter.
Finally, Mr. Miralda alleged that he was unaware of the nature or extent of Mr. Gonzalez's malpractice until "visiting separate counsel" and "reviewing correspondence from DEFENDANTS concerning the representation of [MR.] MIRALDA." He contends he was "only finally able to meet with his attorneys to
Based on the above facts, Mr. Miralda asserted in his petition roughly six malpractice claims.
In April 2014, a two-day evidentiary hearing was held on the peremptory exception. At the hearing, four witnesses testified — Mr. Miralda, Mr. Gonzalez, Mr. Chacon, and Lourdes Letona — and documentary evidence was introduced. Briefly, the four witnesses provided the following background information.
Mr. Gonzalez testified that he had been practicing law for over forty years. He identified the two members of his firm who were involved in handling Mr. Miralda's case as follows: (i) his legal assistant, Mr. Chacon; and (ii) his office manager, Ms. Letona.
Mr. Chacon testified that he was a former banker and a licensed mortgage broker and that he had extensive experience handling difficult credit-related matters. In general, he assisted in handling the firm's foreclosure and bankruptcy matters. In this case, he assisted in preparing the loan workout with Wells Fargo, communicated with potential new lenders, and assisted Mr. Miralda in preparing the loan packages.
Ms. Letona, albeit not an accountant, testified that she handled the firm's banking and bookkeeping. She communicated with Mr. Miralda regarding his repeated requests to withdraw funds from the Deposit, and she prepared a ledger of those withdrawals.
Mr. Miralda testified that he had lived in the United States for the last forty years. He attended six years of school and two years of college in his country, Hondurus. Mr. Miralda testified that between January 2008 and June 2011 he was not steadily employed; instead, he was collecting unemployment.
Based on the testimony and documentary evidence presented at the hearing, the following time line of events was established.
On October 29, 1999, Mr. Miralda and his unmarried sister, Maria Miralda, purchased the Property. They financed the purchase by executing the Mortgage Note — a promissory note for $77,362.00 that was secured by a mortgage encumbering the Property. On September 1, 2001, Maria Miralda died. In 2004, her
On March 19, 2007, the holder of the Mortgage Note, Wells Fargo, commenced a foreclosure proceeding by filing a "Petition to Enforce Security Interest by Executory Process." In its petition, Wells Fargo named the following defendants: (i) Mr. Miralda, as the maker of the Mortgage Note; and (ii) Mr. Miralda's four siblings (sisters), as co-owners of the Property. Wells Fargo alleged that Mr. Miralda defaulted on the Mortgage Note by failing to pay the April 1, 2005 monthly installment and all successive monthly installments.
On September 1, 2007, Mr. Miralda first presented to Mr. Gonzalez; and a new client case file was opened for him.
On January 9, 2008,
Although filing for bankruptcy was an option considered for Mr. Miralda, the firm ruled this option out for multiple reasons, including Mr. Miralda's lack of steady employment. Instead, the firm's plan was to postpone the judicial sale and to negotiate with Wells Fargo to have Mr. Miralda's mortgage loan reinstated. To facilitate the plan, Mr. Chacon instructed Mr. Miralda to bring any paperwork that he received to the firm. He also instructed Mr. Miralda to deposit about $34,000 in a trust account with the firm — $30,000 was earmarked for negotiating with Wells Fargo to reinstate or modify the loan,
On January 9, 2008, the Gonzalez firm faxed correspondence to Wells Fargo's attorney, Dean Morris, informing that the firm was representing Mr. Miralda with regard to renegotiating the loan. On January 17, and January 25, 2008, Mr. Miralda executed powers of attorney authorizing Mr. Gonzalez and Mr. Chacon, respectively, to act on his behalf in connection with the Wells Fargo loan.
On January 16, 2008, Wells Fargo sent Mr. Miralda a payoff statement (good through January 31, 2008), demanding payment of $102,764.34 in certified funds payable to Dean Morris, to stop the foreclosure.
On February 24, 2008, the Gonzalez firm made an offer to Wells Fargo, on Mr. Miralda's behalf, to buy the Property under a "short sale" for $75,000.
On April 24, 2008, Mr. Miralda presented a cashier's check in the amount of $33,864.75, made payable to Braden Gonzalez and Associates — the Deposit. Mr. Gonzalez's office manager, Ms. Letona, acknowledged that she deposited Mr. Miralda's check into the firm's operating — not its trust — account. She explained that she did so because she understood the transaction would be a flow through; shortly after the Deposit was received, she understood that she would be requested to obtain a cashier's check for a similar amount.
On July 16, 2008, Mr. Chacon wrote to Dean Morris and offered $30,000 plus monthly payments due for May, June, July, and August 2008 to stop any further legal proceedings. On August 4, 2008, Dean Morris confirmed receipt of the offer. On August 19, 2008, Dean Morris followed-up and instructed Mr. Chacon to deal directly with Wells Fargo's Loss Mitigation Department ("Loss Mitigation") to discuss alternative resolutions.
On March 10, 2009, Mr. Chacon forwarded to Wells Fargo a Loan Modification Application, which included Mr. Miralda's financial, employment, and income information.
On May 19, 2009, Mr. Chacon sent a letter to Wells Fargo, which was accompanied
On July 30, 2009, Mr. Chacon wrote Dean Morris complaining that they were "getting the run around" on Mr. Miralda's case. He explained that Mr. Miralda had received a payment coupon calling for two payments, including one for $1,114.82, and that those payments had been made but returned to him.
On September 5, 2009, Dean Morris wrote Mr. Chacon and apologized for the present situation; nonetheless, Dean Morris informed him that it lacked the authority to do any type of workout plan. Dean Morris instructed Mr. Chacon to contact the Loss Mitigation Department directly regarding a workout plan. Dean Morris also pointed out that Mr. Miralda was $30,000 to $40,000 in arrears and had a negative escrow balance. Dean Morris noted in its letter that "[i]f you have $20,000 available to put towards the arrearage (
On October 9, 2009, Mr. Chacon, on Mr. Miralda's behalf, submitted another loan modification proposal to Wells Fargo. This proposal included a Letter of Hardship, Proof of Income, and a tender of partial payment of arrearages in the amount of $15,000. According to Mr. Chacon, the amount tendered was "closer to what was available" — the remaining funds from the Deposit.
On November 3, 2009, Wells Fargo notified Mr. Miralda of its final decision on his mortgage loan request. It informed Mr.
On November 17, 2009, Wells Fargo notified Mr. Miralda and his four sisters of the pending acquisition of the Property. The notice of the pending foreclosure, which was sent by certified mail, was in Spanish. On December 29, 2009, Wells Fargo purchased the Property at a sheriff's sale. In March 2010, Wells Fargo secured a judgment for the balance owed. On June 28, 2010, a Notice to Vacate was issued, which was posted at the premises.
On July 9, 2010, Dean Morris responded to Mr. Chacon's request for instructions for purchasing the Property from Wells Fargo; it stated that the purchase price was $122,125.
According to Mr. Gonzalez, after the Property was sold at the sheriff's sale to Wells Fargo, Mr. Miralda was informed that the only feasible alternative was to find a secondary lender who would be willing to lend him the purchase price demanded by Wells Fargo to buy his house back. Mr. Gonzalez explained that the firm shifted its "efforts from trying to convince Wells Fargo of the creditworthiness of Mr. Miralda to trying to get a local lender to join in and approve a mortgage loan application." Mr. Gonzalez further explained that he attempted to obtain a loan for Mr. Miralda through his friend, E.W. King with Coastal Mortgage. Coastal Mortgage, however, refused to extend a loan to Mr. Miralda due to his dismal credit rating and lack of steady income.
In dealing with Coastal Mortgage, Mr. Gonzalez explained that the firm discovered Mr. Miralda had a sister, Rosa Velasquez, who had steady employment and a banking relationship with Regions Bank. Ms. Velasquez was also a co-owner of the Property. In August 2010, the Gonzalez firm contacted Regions Bank regarding a possible joint loan application by Mr. Miralda and Ms. Velasquez. Also in August 2010, Mr. Gonzalez testified that he met with Mr. Miralda and Ms. Velasquez in his office regarding the joint loan application.
On October 22, 2010, Mr. Miralda was evicted from the Property.
On June 30, 2011, Mr. Chacon and Ms. Latona, at Mr. Gonzalez's request, met with Mr. Miralda to close the file. It is undisputed that Mr. Gonzalez did not attend the final meeting. According to Mr. Gonzalez, a few days before the meeting, he instructed Ms. Latona that the firm could no longer function as Mr. Miralda's "ATM machine"; and he requested that she do a final accounting. Between March 2009 and June 2011, the firm, at Mr. Miralda's request, issued eighteen checks to him from the Deposit. Mr. Miralda's withdrawals totaled $27,020.21. At the June 30, 2011 meeting, Mr. Miralda was given a final check for $1,025.21 and informed that the remaining balance of the Deposit — $6,844.54 — would be retained for the legal services the firm had provided to him.
Mr. Miralda similarly testified that his last meeting with Mr. Chacon was in the summer of 2011. He acknowledged that, at that meeting, he was given his last check and told that he was being charged between $4,000 and $6,000 for the work the firm performed; however, he testified that no one explained to him how the amount he was charged was calculated. He further testified that he never met with Mr. Gonzalez and that he believed Mr. Chacon was his attorney. Although he admitted that he had no trouble communicating with Mr. Chacon (who was from the same country as him),
Thereafter, Mr. Miralda consulted a new attorney, Caesar Burgos. On May 10, 2012, Mr. Burgos wrote to Mr. Gonzalez stating as follows:
Mr. Gonzalez testified that this letter was the first time the firm heard from Mr. Miralda since the June 30, 2011 meeting. Mr. Gonzalez further testified that he requested Mr. Miralda's authorization before responding to the May 10th request.
On June 4, 2012, Mr. Gonzalez received Mr. Miralda's authorization to provide the requested information to Mr. Burgos. On June 8, 2012, Mr. Gonzalez replied, in writing, to Mr. Burgos' May 10th request. Thereafter, Mr. Burgos made another request for information. Mr. Gonzalez responded in writing to that request on July 24, 2012.
On July 19, 2013, Mr. Miralda filed this legal malpractice suit against Mr. Gonzalez. As noted, Mr. Gonzalez replied by filing a peremption exception. Following the two-day evidentiary hearing, the trial court, on May 20, 2014, rendered judgment in Mr. Gonzalez's favor, granting the exception and dismissing Mr. Miralda's claims with prejudice. The judgment also provided for "each party to bear their costs." This appeal by Mr. Miralda followed. Mr. Gonzalez answered the appeal seeking costs and frivolous appeal damages.
The timeliness of a legal malpractice claim is measured by La. R.S. 9:5605. Hodges v. Reasonover, 12-0043, p. 3 (La.7/2/12), 103 So.3d 1069, 1080-81 (Weimer, J., concurring), cert. denied,
Three other sections of La. R.S. 9:5605 are pertinent to this case. First, Section A of the statute provides the one-year and the three-year peremptive periods; it reads as follows:
La. R.S. 9:5605(A).
Second, Section D of the statute provides that it applies to everyone; it reads as follows: "[t]he provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts." La. R.S. 9:5605(D).
Third, Section E of the statute sets forth a statutory exception for fraud;
"The statute itself is clear and unambiguous, and our jurisprudence interpreting this statute is well-settled." Smart v. Vazquez, 12-1694, p. 7 (La.App. 4 Cir. 6/12/13), 119 So.3d 901, 905, writ denied, 13-1661 (La. 11/8/13), 125 So.3d 452. Under the statute, "[a]n action for legal malpractice must be brought within one year of the date of the act, omission, or neglect or within one year of the date of discovering the act, omission or neglect. In all events, a claim must be filed within three
The party raising an exception of peremption normally bears the burden of proof at trial of the exception. Schonekas, Winsberg, Evans & McGoey, L.L.C. v. Cashman, 11-449, p. 6 (La.App. 5 Cir. 12/28/11), 83 So.3d 154, 158 (citing McKinley v. Scott, 44,414, p. 4 (La.App. 2 Cir. 7/15/09), 17 So.3d 81, 83). When, however, the plaintiff's petition is perempted on its face, the burden shifts to the plaintiff to show otherwise. Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112, p. 15 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1253; Lomont v. Myer-Bennett, 14-351 (La.App. 5 Cir. 10/29/14), ___ So.3d ___, 2014 WL 5463316. "In applying this standard, the law requires that we strictly construe the statutes against prescription and in favor of the claim that is said to be extinguished." Rondeno v. Yun-How Lee, 14-0063, p. 4 (La.App. 4 Cir. 6/25/14), 143 So.3d 1285, 1288, writ denied, 14-1577 (La. 10/24/14), 151 So.3d 609 (citing cases).
The proper procedural mechanism to raise an exception of peremption under La. R.S. 9:5605 is a peremptory exception. See La. C.C.P. art. 927 A(2).
In this case, there is no one "act, omission, or neglect" alleged to constitute malpractice; rather, as noted earlier, Mr. Miralda alleges in his petition roughly six malpractice claims. Moreover, the allegations of the petition, contrary to Mr. Gonzalez's contention, do not establish that Mr. Miralda's claims are barred by peremption. Apparently anticipating a peremption
Mr. Gonzalez contends that Mr. Miralda was aware of all of the necessary facts constituting each of his alleged malpractice claims before either June 2011 — when his representation of Mr. Miralda ended — or May 2012 — when Mr. Miralda consulted a new attorney. Mr. Gonzalez thus contends that Mr. Miralda's suit — which was not filed until July 2013 — was barred by peremption under the one-year peremptive period set forth in La. R.S. 9:5605(A). Agreeing with Mr. Gonzalez, the trial court sustained his exception of peremption.
On appeal, Mr. Miralda assigns as error the trial court's finding that he had actual or constructive knowledge of the alleged malpractice in either June 2011 — when he had his final meeting at Mr. Gonzalez's office — or May 2012 — when he initially met with his new attorney to understand why he had lost his house. Mr. Miralda contrarily contends that because he never met with Mr. Gonzalez, he had no way of knowing about Mr. Gonzalez's malpractice claims until he not only met with his new attorney, but also his new attorney communicated to him what had occurred. Mr. Miralda also contends that being disappointed with an attorney's work product is not equivalent to being informed of the attorney's malpractice. In support, Mr. Miralda cites Wong v. Hoffman, 05-1483 (La.App. 4 Cir. 11/7/07), 973 So.2d 4, for the principle that the peremptive period began to run "after [the plaintiff] consulted another attorney and discovered that [the plaintiff's] previous attorney's advice to her ... constituted potential malpractice." Wong, 05-1483 at p. 10, 973 So.2d at 10. Based on this principle, Mr. Miralda contends that the proper date of discovery in this case is July 24, 2012 — when he first was advised by his new attorney of the potential legal malpractice and fraud committed by Mr. Gonzalez.
In addressing the issues presented by Mr. Miralda's appeal, we divide our analysis into two parts: the one-year peremptive period from the date of discovery and the fraud exception.
Because the statutory discovery rule for commencement of the one-year peremptive period set forth in La. R.S. 9:5605(A) resembles the discovery rule embodied in the jurisprudential contra non valentem doctrine, the Louisiana Supreme Court recognized that interpretation of the statutory discovery rule should proceed in accordance with the jurisprudential doctrine. Teague v. St. Paul Fire and Marine Ins. Co., 07-1384, p. 12 (La.2/1/08), 974 So.2d 1266, 1274. For this reason, the Supreme Court held that the date of discovery is determined as follows:
Teague, 07-1384 at p. 13, 974 So.2d at 1275. Continuing, the Supreme Court cited Campo v. Correa, 01-2707 (La. 6/21/02), 828 So.2d 502, and noted that the same principles that apply to the calculation of time in a medical malpractice case, despite being prescriptive in nature, apply to calculation of the peremptive period in a legal malpractice action. Teague, 07-1384 at p. 14, 974 So.2d at 1276.
More recently, the Supreme Court in Jenkins v. Starns, 11-1170 (La. 1/24/12), 85 So.3d 612, summarized its holding in Teague as follows:
Jenkins, 2011-1170 at p. 15, 85 So.3d at 620-21.
The jurisprudence has held that the one-year peremptive period under La. R.S. 9:5605(A) commences when "a client knows or should have known that a lawyer's actions or inactions may cause the client to incur damages, thereby creating a legal cause of action." Atlas Iron and Metal Co. v. Ashy, 05-458, p. 5 (La.App. 3 Cir. 1/4/06), 918 So.2d 1205, 1210. "[T]he determination as to when the client's cause of action arose must be made on a case-by-case basis." Jones, Walker, Waechter, Poitevent, Carrere and Denegre, L.L.P. v. Homestead Ins. Co., 97-0710, p. 4 (La.App. 4 Cir. 9/10/97), 700 So.2d 233, 235. In making the case-by-case determination, the jurisprudence has noted that the focus is on the appropriateness of the plaintiff's actions or inactions. Ledbetter v. Wheeler, 31,357, p. 5 (La.App. 2 Cir. 12/9/98), 722 So.2d 382, 385; Carroll v. Wolfe, 98-1910, p. 6 (La.App. 1 Cir. 9/24/99), 754 So.2d 1038, 1041.
The jurisprudence has identified three factors to be evaluated in determining whether a plaintiff's actions or inactions were reasonable. The first factor is the plaintiff's statements reflecting his dissatisfaction with, or suspicions of, the attorney's actions, and whether the plaintiff investigated his accusations or suspicions. See Turnbull v. Thensted, 99-0025, p. 9 (La.App. 4 Cir. 3/1/00), 757 So.2d 145, 151 (finding that the plaintiff "inexcusably allowed 15 months to elapse before she filed her Original malpractice suit ... after verbally expressing her disapproval of [her attorney's] work product."). The second factor is the plaintiff's hiring of another attorney. See Turnbull, 99-0025 at p. 9, 757 So.2d at 150 (noting that "hiring an attorney is evidence of the awareness of a potential legal malpractice claim"). The third factor is the issuance of an adverse judicial ruling. See Perez v. Trahant, 00-2372 (La.App. 1 Cir. 12/28/01), 806 So.2d 110, 118 (finding a jury's return of a verdict failing to award any damages was sufficient to excite a reasonable person's
First, noting Mr. Miralda's awareness of the adverse judicial ruling relative to his property, the trial court stated:
Second, noting Mr. Miralda's expression of his suspicion and dissatisfaction with Mr. Gonzalez's firm, the trial court stated:
Third, noting Mr. Miralda's concerns about his dissatisfaction with Mr. Gonzalez's firm prompted him to seek another attorney, the trial court stated:
The trial court's analysis of these three factors supports its finding that Mr. Miralda was aware of the events underlying his malpractice claims more than one year before filing suit. The trial court thus found Mr. Miralda's suit barred by peremption under the one-year peremptive period. Summarizing its reasons for sustaining the exception, the trial court stated:
On appeal, Mr. Miralda relies on the Wong case in support of his position that he could not have known of his malpractice claims until he consulted with a new attorney and was informed by that attorney of the malpractice claims. The Wong case, however, is distinguishable from this case, factually and legally.
We further note, as the trial court pointed out, that "it is what Mr. Miralda knew or should have known that is considered when deciding an Exception of Peremption. It is not when Mr. Burgos, his attorney, discovered the alleged acts of malpractice." Indeed, "[t]he law does not require that a plaintiff be informed of possible malpractice by an attorney ... before prescription begins to run." Davidson v. Glenwood Resolution Auth., Inc., 47,640, p. 11 (La.App. 2 Cir. 1/23/13), 108 So.3d 345, 352 (citing Heirs of Jackson v. O'Donovan, 44,314 (La.App. 2 Cir. 5/13/09), 12 So.3d 435); see also Smith v. Boothe, 28,065, p. 4 (La.App. 2 Cir. 2/28/96), 669 So.2d 682, 685 (noting that "a layman may not escape commencement of prescription by asserting that his ability to comprehend and evaluate the facts is limited" and that "[t]his is true despite appellant's [sic] contention that, as non-lawyers, they could not know their attorney had committed a negligent or illegal act.") This, however, is precisely what Mr. Miralda's argument would require. We find his argument unpersuasive.
In sum, the record supports the trial court's factual finding that Mr. Miralda knew or should have known of the events supporting his malpractice claims over one year before he filed suit. Accordingly, we cannot conclude that the trial court was manifestly erroneous in finding Mr. Miralda's claim barred by peremption under the one-year peremptive period set forth in La. R.S. 9:5605(A).
The fraud exception to the statutory provision is set forth in La. R.S. 9:5605(E), which provides that the "peremptive period provided in Subsection A of this Section shall not apply in cases of fraud, as defined in Civil Code Article 1953." The Louisiana Civil Code defines fraud as "a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other. Fraud may also result from silence or inactions." La. C.C. art. 1953. Fraud must be pled with particularity. La. C.C.P. art. 856.
The fraud exception under La. R.S. 9:5605(E) does not suspend the running of prescription indefinitely; rather, "it lifts the three year peremptive period, giving the claimant one year from the date of the discovery of the actions which allegedly constitute malpractice." Granger v. Middleton, 06-1351, p. 4 (La.App. 3 Cir. 2/7/07), 948 So.2d 1272, 1275.
In his petition, Mr. Miralda asserted the following fraud claims:
Mr. Miralda contends that because he has alleged legal malpractice based on fraud, pursuant to La. R.S. 9:5605(E), the one-year peremptive period set forth in La. R.S. 9:5605(A) does not apply to bar his claim. Contrary to Mr. Miralda's contention, "[a]llegations in a petition are presumed true for purposes of a hearing on an exception of peremption only when no evidence is presented at the hearing on the exception." Lomont, 14-351 at p. 10, ___ So.3d at ___ (citing Carriere v. Bodenheimer, Jones, Szwak, & Winchell, L.L.P., 47,186, p. 4 (La.App. 2 Cir. 8/22/12), 120 So.3d 281, 284). In this case, a two-day evidentiary hearing was held on the exception.
Mr. Gonzalez contends that the facts underlying Mr. Miralda's fraud claims are essentially the same as the facts underlying the roughly six malpractice claims, which the trial court found that Mr. Miralda knew or should have known about more than one year before he filed suit.
As Mr. Gonzalez correctly points out, this court has held that post-malpractice, fraudulent concealment does not constitute fraud as contemplated by the fraud exception codified in La. R.S. 9:5605(E). In Vazquez, we noted that "Louisiana courts of appeal have consistently rejected the idea that the concealment of legal malpractice constitutes fraud under Louisiana Revised Statute 9:5605(E)." 12-1694 at p. 15, 119 So.3d at 909 (collecting cases).
As Mr. Gonzalez points out, the trial court in its reasons for judgment addressed several of Mr. Miralda's fraud allegations and found that Mr. Miralda was either aware or should have been aware of the alleged acts of fraud over one year before filing suit. Addressing Mr. Miralda's allegations that he was invoiced for services never provided and that he was unaware of Mr. Gonzalez's efforts to assist him in saving the Property, the trial court stated:
Addressing Mr. Miralda's allegation that Mr. Gonzalez failed to meet with him or to advise him regarding his case, the trial court stated:
Addressing Mr. Miralda's allegation that Mr. Chacon failed to give to him the money from a check that Wells Fargo returned, the trial court stated:
At the hearing, Mr. Gonzalez was questioned regarding the fraud claim and expressly denied it. We find it unnecessary to reach the issue of whether fraud was established in this case. Regardless of whether fraud was established, Mr. Miralda "failed to bring the malpractice action within one year of the alleged act or within the always-applicable one-year period, beginning from the date that the alleged act was discovered or should have been discovered." Dauterive Contractors, 01-1112 at p. 29, 811 So.2d at 1261. "Subsection E of La. R.S. 9:5605 carves out an exception for the three-year peremptive period only." Id. (citing Broussard v. F.A. Richard & Assoc. Inc., 98-1167 (La.App. 3 Cir. 3/17/99), 732 So.2d 578 (holding that a fraud claim, while not subject to the three-year peremptive period, remains subject to the one-year period.)). In this case, we find, as in Dauterive Contractors, that "[t]he three-year peremptive period is therefore inapplicable, as is the fraud exception thereto." Id. We thus find Mr. Miralda's reliance on the fraud exception is misplaced.
Mr. Gonzalez answered the appeal to raise the following two issues: (i) whether the trial court erred in failing to award his costs as prayed for in his exception; and (ii) whether he is entitled to frivolous appeal damages. We separately address each issue.
The first issue is whether the trial court erred in failing to award Mr. Gonzalez his costs as prayed for in his peremptory exception of peremption. The trial court, in its judgment, granted the exception of peremption dismissing Mr. Miralda's claims with prejudice. The trial court, however, provided in its judgment that "each party [was] to bear their own costs." Mr. Gonzalez contends that pursuant to La. C.C.P. art. 1920, as the prevailing party, he should not have been cast with his own costs. Article 1920 provides that "[u]nless the judgment provides otherwise, costs shall be paid by the party cast, and may be taxed by a rule to show cause." La. C.C.P. art. 1920.
Although a trial court has discretion in assessing court costs, Mr. Gonzalez points out that the trial court's discretion is not unlimited. He further points out that the jurisprudence has held it is an abuse of discretion to tax the prevailing party with costs unless that party in some way incurred additional costs pointlessly or engaged in other conduct that justified the assessment of costs against that litigant. In support, he cites the following two cases from other circuits: Treen Const. Co. v. Schott, 03-1232 (La.App. 5 Cir. 1/27/04), 866 So.2d 950, 957; and Penton v. Schuster, 98-1068 (La.App. 5 Cir. 3/30/99), 732 So.2d 597, 599, 602. Mr. Gonzalez contends that he prevailed in all respects, that he "did nothing to justify the assessment of costs," and that Mr. Miralda "engaged in delaying tactics to avoid resolution of the claims." Mr. Gonzalez thus contends that the trial court abused its discretion by assessing him with costs.
Although the general rule is that the party cast in judgment should be taxed with costs, a trial court is granted the discretion to assess costs in any equitable manner. Spillers v. ABH Trucking Co., 30,332, pp. 9-10 (La.App. 2 Cir. 4/13/98), 713 So.2d 505, 511. This court has held that "[t]he language of Article 1920
As noted above, Mr. Gonzalez contends that Mr. Miralda should pay all the costs because he lost after an evidentiary hearing on the peremption exception. The record is devoid of any indication as to why the trial court declined to tax Mr. Miralda with all the costs. Based on the record before this court, we are unable to conclude that the trial court abused its discretion in condemning each party to bear his own costs.
The second issue Mr. Gonzalez raises in his answer is whether he is entitled to damages, including attorney's fees and costs, for frivolous appeal under La. C.C.P. art. 2164.
In the Vincent case, cited by Mr. Gonzalez, this court denied the appellee's request for frivolous appeal damages. In so doing, we quoted the governing principles for frivolous appeal damages set forth in Johnson v. Johnson, 08-0060, pp. 5-6 (La.App. 4 Cir. 5/28/08), 986 So.2d 797, 801, which are as follows:
Any doubt regarding whether an appeal is frivolous must be resolved in the appellant's favor. City of Ruston v. Perritt, 30,896, p. 13 (La.App. 2 Cir. 9/23/98), 718 So.2d 1044, 1052; see also Troth Corp. v. Deutsch, Kerrigan & Stiles, L.L.P., 06-0457, p. 5 (La.App. 4 Cir. 1/24/07), 951 So.2d 1162, 1166. Applying the rule of strict construction against the appellee (Mr. Gonzalez) and considering the record in this case, we cannot conclude that the appellant's (Mr. Miralda's) appeal is frivolous. Therefore, we deny Mr. Gonzalez's request for frivolous appeal damages.
For the foregoing reasons, the judgment of the trial court is affirmed. The request for frivolous appeal damages is denied.
This exception is not cited by Mr. Miralda. Nor do we find any support in the record for applying this exception.
Wong, 05-1483 at p. 11, 973 So.2d at 11.
As to Ms. Wong's second claim, we noted that this claim was that during the summer 2001 hearing on the plaintiff's request to relocate, her attorney failed to object to the expert's testimony on the basis that the expert had previously served as a court-appointed mediator in the case. The plaintiff's argument was that "she was not aware that Mr. Hoffman's failure to raise this particular objection could potentially constitute malpractice until she was so informed by her new attorney in April, 2002." The defendants countered that the plaintiff possessed sufficient knowledge to put her on notice that defendant's conduct could be considered malpractice on August 25, 2001, when the district court rendered judgment denying Ms. Wong's request to relocate. Rejecting that argument, we reasoned that "[i]t is ludicrous to suggest that a reasonable lay person would know the import of an attorney's failure to raise a particular legal objection. We also reject defendants' suggestion that the mere fact that the trial court ruled against Ms. Wong on her motion to relocate should have raised an inference in her mind that her attorney was negligent." Wong, 05-1483 at pp. 11-12, 973 So.2d at 11.
