AMY, Judge.

The plaintiffs filed this claim against their former attorney, and purported former attorneys, alleging legal malpractice in a number of acts and omissions, including the entry of a settlement. The plaintiffs appealed to this court after the trial court sustained the defendants' exceptions of res judicata and peremption. The plaintiffs further seek review of the trial court's denial of their constitutional challenge of the setting of bond for security for costs pursuant to La.R.S. 13:4522. For the following reasons, we affirm in part; reverse in part; and remand for further limited proceedings as instructed. Upon reversal of the sustaining of the exception of res judicata, we deny that exception.

Factual and Procedural Background

The record indicates that Larry Bize, Sr. was arrested following a March 2008 incident at a bar he owned in Avoyelles Parish. Mr. Bize and his wife, Michelle R. Bize, retained Malcom Larvadain (Mr. Larvadain) to represent them in a suit by which they alleged that the Avoyelles Parish Sheriff's deputies involved in the arrest were liable to them for physical and mental damages resulting from the incident. That initial petition was filed in March 2009.

In September 2010, a first supplemental and amending petition was filed attempting to plead claims pursuant to 42 U.S.C. § 1983. The trial court granted a motion for summary judgment in July 2015 as to those latter claims on the basis of prescription and upon a finding that they did not relate to the original petition due to its lack of allegations in support of the § 1983 claims. The trial court also granted summary judgment on the basis of an absence of genuine issues of material fact, as the plaintiffs "failed to provide any evidence that they will be able to satisfy their evidentiary burden regarding said claims at trial." Thus, the trial court dismissed all § 1983 claims.

The remaining issues proceeded to trial before Judge Kerry Spruill. During a recess in the proceedings, Mr. and Mrs. Bize entered into a November 13, 2015 settlement agreement, whereby they would receive $50,000 over a twelve-month period.1 However, the matter was not dismissed at that point.

In April 2016, with the agreement confected, the defendants in the personal injury suit filed a Motion to Enforce Settlement. While that motion was pending, Mr. Bize discharged Mr. Larvadain and retained Nelson W. Cameron as reflected in a May 2, 2016 Motion to Enroll and Withdraw as Counsel. Mr. Bize thereafter filed a Motion to Recuse,2 asserting that he had lacked capacity to enter into the settlement agreement and that Judge Spruill was a potential witness at the forthcoming hearing on the Motion to Enforce Settlement.3 Judge William J. Bennett was assigned to consider the motion to recuse. Following a hearing, Judge Bennett denied the motion, explaining in his reasons for ruling that Judge Spruill was not a witness to Mr. Bize's alleged deterioration given the latter's testimony that he became distraught during settlement negotiations that occurred during a recess.4

Afterwards, on September 8, 2016, Mr. and Mrs. Bize signed a formal Receipt and Release of All Claims. Therein, they acknowledged that, for the sum of $50,000, they released, acquitted, and discharged the officers named as defendants in the suit. In turn, the trial court granted the parties' Joint Motion to Dismiss and ordered, on November 15, 2016, that Mr. and Mrs. Bize's suit be dismissed as to all defendants.

Mr. and Mrs. Bize instituted the present matter, also in November 2016, by filing a Petition for Damages and Trial By Jury in Rapides Parish. The plaintiffs named Mr. Larvadain and his brother, Edward Larvadain, III, as defendants, as well as their purported partnership. The plaintiffs alleged that Mr. Larvadain committed various instances of legal malpractice in his representation of them in the initial matter, including: 1) failing to timely plead claims allegedly arising under 42 U.S.C. § 1983 and failing to timely pursue an appeal or writ on a determination that such claims had prescribed; 2) failing to file the matter in federal court; and 3) pleading causes of action against the defendants in their official capacities and not in their individual capacities. The plaintiffs additionally alleged that Mr. Larvadain "counseled Plaintiffs to enter into a settlement agreement dismissing the named Defendants with prejudice. Due to failures in the pleading as drafted and the filings and subsequent practice, the settlement obtained was woefully inadequate." They continued, asserting that Mr. Larvadain "knew or should have known during the settlement negotiations that Larry Bize was under duress at the time and was not competent to proceed with a settlement." The plaintiffs alleged that they had suffered "loss of damages including but not limited to attorney fees, punitive damages and sufficient compensation for the losses sustained in the case filed in Avoyelles Parish district court."

The plaintiffs thereafter filed three amending petitions. By those petitions, the plaintiffs named Edward Larvadain, Jr. as an additional defendant, suggesting that he assisted in Mr. Larvadain's representation of them.5 Among other factual assertions, the plaintiffs alleged legal malpractice in the failure to employ experts in the use of force or arrest and in economics; the failure to conduct sufficient and timely discovery; and in the failure to conduct a prompt prosecution of the matter. And, finally, the plaintiffs alleged that certain instances of purported malpractice were not known to them at the time of the occurrence. Rather, by the second and third amended petitions, the plaintiffs contended that Mr. Larvadain acted with an intent to conceal the purported malpractice, doing so by failing to inform them of, among other things, the summary judgment resulting in the dismissal of the 42 U.S.C. § 1983 claims. They alleged that they only became aware of such actions after examination of the Avoyelles Parish Court records in November 2016 and only after receipt of the file from Mr. Larvadain. The plaintiffs further asserted that the delivery of the file was not prompt. Those actions, the plaintiffs contended, reflected concealment and fraud per La.R.S. 9:5605(E).

Before pleading, Mr. Larvadain and Edward Larvadian, III ("the defendants") responded to the initial petition with a Motion to Set Bond For Security For Costs, seeking a bond in the amount of $25,000, pursuant to La.R.S. 13:4522. The trial court granted the motion, ordering the posting of a bond by April 10, 2017. By the ruling, the trial court set for hearing the plaintiffs' motion and rule to show cause by which they prayed that La.R.S. 13:4522 be declared unconstitutional pursuant to La.Const. art. 1, § 2 (Due Process of Law); La.Const. art. 1, § 19 (Right to Judicial Review); and La.Const. art. 1, § 22 (Access to Courts).6 Following that hearing, the trial court denied the plaintiffs' claim and entered judgment indicating that "the constitutionality of La.R.S. 13:4522 is hereby upheld." The trial court maintained its earlier order that the plaintiffs post a $25,000 bond, but modified the date for the posting to "two weeks after any ruling by the Louisiana Third Circuit Court of Appeal regarding this Judgment."

The defendants further filed various proceedings, including an Exception of Peremption, an Exception of Res Judicata, and a Motion for Summary Judgment on Estoppel. Following two hearings on the matters, the trial court denied the motion for summary judgment, but sustained the exception of peremption as well as the exception of res judicata. In sustaining the exception of res judicata, the trial court ordered that "all claims of plaintiffs Larry Bize, Sr. and Michelle R. Bize concerning the alleged lack of mental capacity of Larry Bize, Sr. when the plaintiffs settled the underlying lawsuit are hereby dismissed with prejudice."

The plaintiffs appeal, asserting that the trial court erred in: 1) requiring them to post bond pursuant to La.R.S. 13:4522, as it violates La.Const. art. 1, § 22 and the Due Process Clause of the U.S. Constitution; 2) requiring them to post bond when there was insufficient evidence to support the amount imposed; 3) granting the exception of preemption, as the record indicates that acts of malpractice occurred within the one-year period before the filing of suit, and other acts occurred within one year of discovery and within three years of the filing of suit; 4) not applying prescription upon the demonstration of fraudulent concealment; and in 5) granting the exception of res judicata when the parties to the prior judgment and the case at issue are not the same.

Discussion

Louisiana Revised Statutes 13:4522

The plaintiffs first two assignments of error address the trial court's order that they post a bond for security and its determination "that the constitutionality of La.R.S. 13:4522 is hereby upheld." Titled "Defendant may demand security for costs[,]" the subject statute provides:

Id. The supreme court has explained that the requirement for the advance posting of security for costs "secures the payment of those expenses incurred by the defendant in defense of the suit which may be taxed as court costs and which the plaintiff may finally be condemned to pay." Carter v. Phillips, 337 So.2d 187, 188 (La.1976). We turn to consideration of the plaintiffs' related arguments.

Access to the Courts

We first examine the plaintiffs' constitutional claim. In addition to the defendants' arguments rebutting the plaintiffs' contention, the Attorney General of the State of Louisiana files an amicus curiae brief with this court,7 arguing that La.R.S. 13:4522 maintains the plaintiffs' right of access to the courts.

As noted by the Attorney General, this court must first determine whether the constitutional issue presented by the plaintiffs in their brief is appropriately before this court. See State v. Lanclos, 07-0082 (La. 4/8/08), 980 So.2d 643. On this point, the supreme court has explained that:

Id. at 647-48 (quoting Ring v. State, Dep't of Transp. & Dev., 02-1367, pp. 4-5 (La. 1/14/03), 835 So.2d 423, 426-27).

In addressing this preliminary question, the Attorney General suggests that if it is determined that the trial court appropriately dismissed the plaintiffs' suit upon sustaining the defendants' exception, then resolution of the constitutional challenge may not otherwise be required and, therefore, should not be addressed. As we below find reversal of aspects of the judgment necessary, we continue with discussion of the constitutional claim. We do not find, however, that the breadth of the plaintiffs' argument as now presented to this court is preserved for review.

Rather, the supreme court has explained that "litigants must raise constitutional challenges in the trial court rather than in the appellate courts, and that the constitutional challenge must be specially pleaded and the grounds for the claim particularized." Arrington v. Galen-Med, Inc., 06-2968, p. 3 (La. 2/2/07), 947 So.2d 727, 728-29. Such a requirement permits the parties to brief and argue the issues raised at a contradictory hearing and affords the opportunity for a full record for review. Id. (citing Vallo v. Gayle Oil Co., Inc. 94-1238 (La. 11/30/94), 646 So.2d 859). The supreme court continued, stating that:

Id. at 729 (quoting Vallo, 646 So.2d at 865).

In pertinent part, the plaintiffs specifically pleaded in the motion instituting their constitutional claim that La.R.S. 13:4522 violated La.Const. art. 1, § 2 (Due Process of Law); La.Const. art. 1, § 19 (Right to Judicial Review); and La.Const. art. 1, § 22 (Access to Courts). Yet, the motion's incorporated memorandum8 did not particularize the ground arising under Section 2, failing to separately cite to that provision. And, to the extent it superficially cited Section 19, it did so within its discussion of access to the courts. The plaintiffs did, however, address and further particularize this latter ground, arising under Section 22 and the due process considerations contained therein. We make final note here that, in framing their assignments of error, the plaintiffs also assert that the La.R.S. 13:4522 as applied here violates "the First Amendment and Due Process Clause of the U.S. Constitution." See U.S. Const. amend. I and U.S. Const. amend. XIV. However, we again note those grounds were not raised by the plaintiffs' motion and were referenced in the memorandum only within the reporting of jurisprudence. Accordingly, we limit review to that ground raised in the motion and ultimately preserved for review.

Finding that the plaintiffs preserved for review the single ground of the constitutionality of La.R.S. 13:4522 in light of La.Const. art. 1, § 22, we turn to de novo review of the trial court's rejection of that constitutionality claim. See City of New Orleans v. Clark, 17-1453, p. 4 (La. 9/7/18), 251 So.3d 1047, 1051 ("The determination of the constitutionality of a statute presents a question of law, which is reviewed by this court de novo."). In doing so, we are mindful that statutes are presumed to be constitutional and that, in turn, it is the party challenging a statute's validity who must bear the burden of proving its unconstitutionality. Id. As "[a] facial constitutional challenge seeks more drastic relief than" those presented on an "asapplied" basis, "the movant in a facial challenge bears an especially heavy burden." LaPointe v. Vermilion Parish Sch. Bd., 15-0432, p. 10 (La. 6/30/15), 173 So.3d 1152, 1159 (citing U.S. v. Salerno, 481 U.S. 739, 107 S.Ct. 2095, 95 L.Ed.2d (1987)). In such a challenge, the movant "must establish that no set of circumstances exists under which the statute would be valid, that is, that the law is unconstitutional in all its applications." Id. at 1159-60.

Titled "Access to Court[,]" La.Const. art. 1, § 22 provides: "All courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights."

In lodging their constitutional claim, the plaintiffs observed in their memorandum to the trial court that, in Michel v. Edmondson, 218 So.2d 103 (La.App. 3 Cir. 1968), a panel of this court upheld the constitutionality of La.R.S. 13:4522. However, they noted both that Michel was rendered prior to the enactment of the 1974 Louisiana Constitution and that the Michel panel appeared to be addressing a facial constitutional challenge. The plaintiffs suggest that they alternatively lodged an "as-applied" challenge.

Reference to Michel, 218 So.2d 103, indicates that the plaintiff in that case filed suit for damages allegedly sustained to his crops due to flooding caused by the defendant's construction of a dam across a drainage canal. The defendant filed a motion for security for costs pursuant to La.R.S. 13:4522 based on the need to employ engineers, surveyors, and agricultural experts for his defense. The plaintiff, however, raised various constitutional concerns, including one arising under Article 1, § 6 of the 1921 Louisiana Constitution. Then titled "Open courts; legal remedies[,]" the provision indicated at the time of Michel, that:

Notwithstanding the plaintiff's assertion of unconstitutionality, the trial court in Michel ordered the plaintiff to post a $750 bond for costs. Michel, 218 So.2d 103. When the plaintiff failed to do so, the trial court dismissed the suit. The plaintiff appealed. Id.

On review, however, the panel rejected the plaintiff's claim that La.R.S. 13:4522 discriminated against civil suit plaintiffs as they, distinct from defendants, could be required to furnish security for costs. Michel, 218 So.2d 103. The panel explained:

Id. at 105. While the plaintiffs point out that Michel was decided under the prior constitution, comparison of Article 1, § 6 of the 1921 Louisiana Constitution to La.Const. art. 1, § 22 reveals substantively equivalent language. Further, the version of La.R.S. 13:4522 under review in Michel has not been amended since that time.

Although they acknowledge Michel, the plaintiffs argue that the 1968 opinion is no longer authoritative. They instead assert that Detraz v. Fontana, 416 So.2d 1291 (La.1982) is reflective of a contemporary view of La.Const. art. 1, § 22 and is similar to the present case. In Detraz, the defendants filed a rule to require the plaintiffs in that case to furnish a bond for attorney fees pursuant to La.R.S. 42:261(E) as it existed at that time.9 The plaintiffs opposed the rule on the basis of state and federal equal protection. The trial court ordered the posting of a $15,000 bond and ultimately dismissed the suit when the plaintiffs failed to post the bond.

After the appellate panel upheld the constitutionality of the statute, the supreme court granted the writ application in order to consider the constitutional question presented, i.e., the equal protection mandate of U.S. Const. amend. XIV and La.Const. art. 1, § 22. Detraz, 416 So.2d 1291. The supreme court observed that the statute treated litigants opposing governmental defendants differently than those opposing private defendants. It noted that only the first class of litigants would suffer the burden of the bond for attorney fees. Id. It found no justification for that disparate treatment and, thus, the statute was found to violate both the state and federal constitutions. Following that determination as to equal protection, the supreme court further determined that the statute deprived the plaintiff of due process and denied open access to the courts. Id. (citing U.S. Const. amend. V; U.S. Const. amend. XIV; La.Const. art. 1, § 2; La.Const. art. 1, § 22). This reasoning, the plaintiffs suggest, should be applied in the present case to find La.R.S. 13:4522 similarly unconstitutional.

As urged by both the defendants and the Attorney General in opposition, however, reference to Detraz, 416 So.2d 1291 in full undermines the plaintiffs' comparison. Rather, the supreme court therein discussed at length the illegitimate "motivating force" in the enactment of La.R.S. 42:261(E) in 1960. Id. at 1292. Namely, the supreme court reviewed legislatively-endorsed materials from the time period that revealed "contempt of state leaders for the decision of the United States Supreme Court in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, [98 S.Ct. 873] (1954)." Id. at 1293 (footnote omitted). The supreme court remarked that although the specific legislative history was unavailable, the context in which it was passed indicated that it too would further the segregationist purpose "by making it extremely costly, if not prohibitive, for minority groups or individuals to bring suit against any public official (school board member, police officer, police juror) for the redress of grievances suffered because of race." Id. at 1293-94 (footnote omitted).

The supreme court acknowledged that "[w]ide discretion is normally afforded legislative classifications" and that "legislative judgment will be upheld `if any state of facts reasonably may be conceived to justify it.'" Detraz, 416 So.2d at 1294 (quoting McGowan v. State of Maryland, 366 U.S. 420, 426, 81 S.Ct. 1101, 1105, 6 L.Ed.2d 393 (1961)). It further explained, however, that racial classifications such as the one before it are "suspect and subject to the `most rigid scrutiny.'" Id. (quoting Loving v. Virginia, 388 U.S. 1, 11, 87 S.Ct. 1817, 1823, 18 L.Ed.2d 1010 (1967)). Such has not been alleged to be the context of the statute in the present case. Further recall that the plaintiffs have not preserved an equal protection claim.

While the supreme court in Detraz also found that the statute at issue in that case violated concepts of due process and access to the courts, it is critical to recognize that the statute under review by the supreme court afforded neither an opportunity to be heard nor did it include an exception for litigants qualified as paupers.10 By contrast, La.R.S. 13:4522 includes an express exception for those qualified as paupers. Carter, 337 So.2d 187; Whitson v. American Ice Co., 164 La. 283, 113 So. 849 (1927). In fact, and as it relates to the plaintiffs' suggestion that they have raised an as-applied challenge, we note that the record demonstrates that the plaintiffs have not qualified as paupers, but have instead received settlement proceeds and, as developed at trial, the plaintiffs have multiple sources of income. They were also afforded a hearing at which they were able to oppose the necessity and the size of the bond (as well as a separate hearing for consideration of the instant constitutional challenge). The record does not otherwise demonstrate, other than a bare assertion, any way in which the application of La.R.S. 13:4522 is an economic hardship or is otherwise violative of the plaintiffs' right of access to the courts as guaranteed by La.Const. art. 1, § 22.11

Similarly, we find no merit in the plaintiffs' suggestion that the analysis in Michel, 218 So.2d 103, is now antiquated. Instead, the supreme court has explained that "the legislature is free to allocate access to the judicial machinery in any system or classification which is not totally arbitrary." Moore v. RLCC Tech., Inc., 95-2621, p. 16 (La. 2/28/96), 668 So.2d 1135, 1144 (quoting Bazley v. Tortorich, 397 So.2d 475, 485 (La.1981)). Finding no indication of such unreasonableness in the limitations attendant to the bond requirement provided by La.R.S. 13:4522, we find no merit to the plaintiffs' constitutional claim.

Evidentiary Support for the Bond

The plaintiffs alternatively assert that the defendants failed to demonstrate sufficient need for the $25,000 bond. They contend that, rather than presenting specific evidence of the necessity of the bond, the defendants relied upon the bare allegations of their motion to set the bond. This type of reliance, the plaintiffs suggest, is insufficient for the type of bond provided by La.R.S. 13:4522.

In Carter, 337 So.2d at 189, the supreme court examined a trial court's bond order and stated that: "We agree that it is within the discretion of the trial judge to determine whether the showing required may be made by the allegations in the motion, supporting affidavits, the arguments of counsel at the hearing, introduction of evidence, or in any other manner which the trial judge deems appropriate." Under the facts of the case before it, however, the supreme court annulled the order, explaining that:

Id. at 189.

Following review, we find no abuse of discretion in the trial court's determinations that a bond was appropriate in this matter. Distinct from Carter, the record in this case contains the transcript of the hearing conducted on the Motion to Set Bond for Security for Cost. Instead, the record reveals a substantially similar scenario to that presented in Clarkston v. Funderburk, 16-681 (La.App. 3 Cir. 2/1/17), 211 So.3d 509, writ denied, 17-0403 (La. 4/13/17), 218 So.3d 631. As here, the plaintiff in Clarkston brought a legal malpractice claim against the defendant, who, in turn, sought a bond for costs. The defense in Clarkston asserted at the hearing on the bond that it would be required to retain various experts in preparation of its case, including those in legal malpractice, tenure law (the subject matter of the underlying representation), and economics. A panel of this court affirmed the $10,000 bond ordered by the trial court and ultimately upheld the trial court's dismissal of the suit upon the plaintiff's failure to post the bond. Id.

In doing so, the Clarkston panel referenced supreme court jurisprudence discussing the role of expert testimony in legal malpractice matters as well as the necessity of proving that any such negligence caused the alleged injuries. Clarkston, 211 So.3d 509 (citing MB Indus., LLC v. CNA Ins. Co., 11-0303 (La. 10/25/11), 74 So.3d 1173).12 The panel explained that:

Regarding the showing of necessity for posting bond, the supreme court in Carter agreed that it was "within the discretion of the trial judge to determine whether the showing required may be made by the allegations in the motion, supporting affidavits, the arguments of counsel at the hearing, introduction of evidence, or in any other manner which the trial judge deems appropriate." Id. at 189. In Carter, the court found an abuse of discretion where the trial court had granted a doctor's request for bond to cover the depositions of five medical experts. Such is not the case here, where [the defendant] reasonably requested a bond to cover possibly three experts from three different disciplines: legal standard of care, teacher tenure and wrongful discharge, and possibly an economist to evaluate loss of earnings.

Id. at 515 (second alteration in original).

The application of those principles in the present case again supports the trial court's order of the bond. The defendants here referenced the complexity and multifaceted nature of the causes of action lodged by the plaintiffs. By their memorandum, the defendants noted the need for experts related to Mr. Bize's mental state and purported damages in the underlying suit as well as those who could testify as to matters of standards of legal representation. The defendants estimated a $300 hourly rate for those experts. Additionally, the defendants suggested that deposition and subpoena expenses associated with numerous fact witnesses would be incurred. Finally, we note too, that the trial court initially set the $25,000 bond in March 2017. The plaintiffs have since amended the petition and included additional allegations of malpractice. Given those circumstances, we find no abuse of discretion in the trial court's order as it related to the necessity of the bond pursuant to La.R.S. 13:4522.

Neither do we find merit in the plaintiffs' suggestion that the setting of bond at $25,000 was excessive. The plaintiffs assert in their brief that "the Defendants illogically seem to argue that the underlying case which has already been litigated and partially tried would militate in favor [of] imposing a bond on Plaintiffs for court costs, expert trial testimony, fact witness depositions, and fact witness testimony." Dismissing the defendants' contention, the plaintiffs instead suggest that due to the presence of "a complete record of the underlying case, up through and including trial, expenses of the Defendants are therefore minimized, not maximized." By way of example, the plaintiffs point out that "Plaintiff[s'] answers to interrogatories in this case concerning witnesses refers to the underlying case's answers to interrogatories and other case file documents." The plaintiffs continue, asserting that "no one is in a better position to know whether the alleged undue influence was exerted than the accused attorney Defendants and the Plaintiffs." And, to the extent Mr. Bize's mental state is at issue, the plaintiffs correspondingly contend that "no one is [in] a better position to know his mental state than the parties and those experts employed by plaintiffs and defendants in the underlying case. Defendants have possession of deposition transcripts of Mr. Bize's treating physician and expert." The plaintiffs suggest that the defendants "were intimately familiar with [Mr.] Bize's mental state by their representation of him."

This assertion, however, ignores the fact that the plaintiffs have instituted a wholly new cause of action in legal malpractice, one involving entirely different considerations than those encapsulated in the records of the underlying proceeding. The defendants cannot be expected to forego the security envisioned by La.R.S. 13:4522 upon the suggestion of those now adverse to them. This is apparent given the above discussion regarding the role of expert testimony in legal malpractice claims. See MB Indus., 74 So.3d 1173; Clarkston, 211 So.3d 509.

This assignment lacks merit.

Exception of Peremption

By their next two assignments of error, the plaintiffs question the trial court's determination that their malpractice claim was perempted. In the defendants' exception of peremption, they noted that the plaintiffs cited various instances of alleged malpractice throughout the defendants' representation of them in the underlying litigation arising from the 2008 altercation. The final act of alleged malpractice occurred in relation to the plaintiffs' settlement of that underlying matter on November 13, 2015. The defendants suggested in their exception, however, that the suit in this matter was not filed until November 16, 2016.13 Although the trial court ultimately sustained the exception of peremption, it did so without reference to individual allegations of malpractice and without issuing reasons for ruling. By these assignments, the plaintiffs challenge that ruling and suggest that the record demonstrates that suit was filed within one year of the discovery of the majority of the allegations of malpractice (but within three years of their occurrence). The plaintiffs also allege that suit was filed within one year of the allegation of malpractice regarding the entry of settlement at the time of Mr. Bize's alleged mental incapacity.

Turning to review of the claim, we first note that the time limitations for filing a legal malpractice claim are set forth in La.R.S. 9:5605, which provides, in pertinent part, that:

Paragraph B further explains that: "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[14] and, in accordance with Civil Code Article 3461,[15] may not be renounced, interrupted, or suspended." Significantly, La.R.S. 9:5605(E) 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." On this latter point, La.Civ.Code art. 1953 explains that: "Fraud is 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 inaction."

Albeit by the final amending petitions, the plaintiff raised allegations of fraud in contending that the defendants made an effort to conceal the alleged acts of malpractice. In particular, the plaintiffs asserted that the defendants failed to inform them of an alleged failure to make federal claims in the underlying litigation, failed to inform them of the dismissal of the federal claims to the extent they were alleged, failed to apprise them of appellate rights associated with that dismissal, and failed to timely deliver the entire contents of the client file upon demand. Given those allegations of concealment, it appears that as a point of starting, the plaintiffs made an initial showing that their claims were timely filed and, thus, the burden of proving peremption was with the defendants. See Lomont v. Bennett, 14-2483 (La. 6/30/15), 172 So.3d 620.

On review, we find that the defendants did so with the majority of claims related to the unsuccessful federal claims brought in the underlying level. On this point, Mr. Larvadain testified extensively at the hearing on the exception of peremption, detailing his communications with the plaintiffs regarding the conduct of the underlying litigation. He described the plaintiffs' active involvement in the underlying litigation and further explained that he extensively informed Mr. Bize of decisional points now complained of by the plaintiffs. Mr. Larvadain specifically and repeatedly denied an intent to conceal, mislead, or defraud. Further, and with respect to the delivery of the plaintiffs' client file at the time of demand, Mr. Larvadain both testified as to his attempts to make that file available and submitted documentary evidence indicating an attempt to facilitate that transfer with the plaintiffs' counsel. Certainly, Mr. Bize testified otherwise, denying Mr. Larvadain's communications of litigation developments.

Given those starkly opposed accounts, the trial court clearly accepted Mr. Larvadain's account of disclosure. That credibility determination is patent in the trial court's rejection of the plaintiffs' claim of the applicability of the principles of prescription (due to their claim of discovery of the alleged malpractice only after delivery of the client file). That determination of contemporaneous knowledge on the part of the plaintiffs' further undermines the plaintiffs' suggestion that their claim was suspended during a period of continuous representation. See Lomont, 172 So.3d 620 (wherein the supreme court explained that, although the contra non valentem application of the continuous representation rule may not interrupt or suspend the peremptive periods of La.R.S. 9:5605, such an application may be warranted in the event that the one-year prescriptive period is found applicable).

On review, we are mindful that when, as here, evidence is introduced at the hearing on an exception of peremption, the trial court is not bound to accept a plaintiff's allegations as true. Lomont, 172 So.3d 620. Further, a trial court's findings of fact must be considered on appeal pursuant to the manifest error, clearly wrong standard of review. Id. Following review of the record, we find no such error as to the majority of the plaintiffs' claims.

The allegation of malpractice surrounding Mr. Bize's capacity to enter into the settlement on November 13, 2015 is not as clear however, nor is the trial court's ruling thereon. On this claim, the plaintiffs alleged that the defendants encouraged the November 13, 2015 settlement at a time when Mr. Bize's purported mental incapacity should have been apparent. Their allegations of lack of knowledge and allegations of "fraud" do not reach that specific allegation.16 The claims of fraud and applicability of La.R.S. 9:5606(E) instead relate to the earlier aspects of the representation.

The record, however, indicates that the facsimile filing bears the Clerk of Court's stamp of November 14, 2016, and the regular standard filing bears the Clerk of Court's stamp of November 16, 2016. See La.Code Civ.P. art. 253;17 La.R.S. 13:850.18 While even that facsimile filing date ostensibly exceeds the one-year peremptive period related to the purported malpractice of November 13, 2015, the plaintiffs assert that the final day of the peremptive period fell on a weekend and, thus, would not be included in the computation of time. See La.Code Civ.P. art. 5059.19 Notwithstanding the fact that the record includes both the facsimile filing and the filing by delivery of the document, the record includes no indication that the trial court considered whether the facsimile filing was effective. Neither does it reveal consideration of the evidence the plaintiffs submitted in support of the facsimile filing.20 Significantly, La.R.S. 13:850(C) provides that, in the event a party fails to comply with the facsimile filing requirements, "the facsimile filing shall have no force or effect." This burden of proving the satisfaction of the requirements is on the sender. See Hunter v. Morton's Seafood Rest. & Catering, 08-1667 (La. 3/17/09), 6 So.3d 152.

Instead, the trial court merely granted the exception of peremption and was silent on any single allegation of malpractice, including the allegation surrounding diminished capacity at the time of the settlement, a claim that we have identified existed outside of the allegation of fraud and concealment. The trial court spoke to Mr. Bize's mental capacity and the allegation of malpractice related thereto in its ruling on the exception of res judicata, a ruling we find it necessary to reverse below. Given that ruling, it is unclear whether the trial court has addressed the exception of peremption as it relates to the allegation of malpractice relating to the entry of settlement and whether it has made a factual finding regarding the date of the filing of the petition. We thus find it necessary to reverse the trial court's judgment sustaining of the exception of peremption on this final, non-fraud based allegation of malpractice, i.e., that related to the entry of settlement in light of the allegation of mental incapacity. We below remand for the trial court's further consideration of the exception of peremption on that single cause of action. See Hunter, 6 So.3d 152 (wherein the supreme court remanded an unresolved issue of the effectiveness of a facsimile filing when the trial court made no such factual finding).

Exception of Res Judicata

Finally, we turn to the plaintiffs' assignment of error addressing the trial court's sustaining of the defendants' exception of res judicata. By the exception, the defendants observed that a portion of the plaintiffs' claim against them involved an allegation that Mr. Bize lacked mental capacity to enter into the settlement during trial of the underlying lawsuit. This issue of mental capacity, the defendants contended, was resolved by the trial court's ruling on a motion to recuse whereby Judge Bennett considered the proceedings below in ultimately determining that Judge Spruill would not be a witness in further proceedings. The defendants noted that, in doing so, Judge Bennett made certain findings regarding Mr. Bize's mental capacity. That determination, the defendants asserted, precluded relitigation of that capacity in pursuit of the plaintiffs' claim that the defendants committed malpractice in facilitating the settlement when Mr. Bize lacked mental capacity to enter into a contract. The trial court found merit in that contention and sustained the exception of res judicata, thereby ordering that "all claims of plaintiffs ... concerning the alleged lack of mental capacity of Larry Bize Sr. when the plaintiffs settled the underlying lawsuit are hereby dismissed with prejudice." The plaintiffs challenge that determination here, pointing out that, although they were parties to the underlying litigation, the defendants were not.

Under La.R.S. 13:4231, res judicata is comprised of the following:

Direct reference to La.R.S. 13:4231 reveals merit in the plaintiffs' opposition to the exception. As noted by the plaintiffs, the defendants to the litigation in which the allegedly determinative judgment arose were the Avoyelles Parish Sheriff and certain deputies of that office. But, and although the plaintiffs are the same in the present matter, the defendants are not. By its introductory wording, La.R.S. 13:4231 provides that "a valid and final judgment is conclusive between the same parties ...[.]" (Emphasis added.) It is simply inapplicable here.21

Accordingly, we find manifest error in the trial court's sustaining of the exception of res judicata. See Haybeych v. JPMorgan Chase Bank, N.A., 15-90, p. 3 (La.App. 3 Cir. 11/4/15), 180 So.3d 491, 494 "When evidence is introduced by the parties in support of an exception of res judicata, the appropriate standard of appellate review is manifest error."). We below reverse that ruling and enter a denial of the exception of res judicata and, as explained above, remand for further proceedings on the remaining issue.

DECREE

For the foregoing reasons, the trial court's denial of the Motion to Oppose Setting of Bond for Security of Costs, Rule to Show Cause & Declare Statu[t]e Unconstitutional is affirmed. The trial court's judgment sustaining the Exception of Peremption is reversed as to the Petition's allegation of malpractice related to the mental capacity of the plaintiff, Lawrence Bize, Sr., at the time of the underlying settlement as reflected in Paragraphs IV, V, and VI of the Third Amended Petition for Damages And Trial By Jury. This matter is remanded for the trial court's specific consideration of the Exception of Peremption on that sole issue and for further proceedings if appropriate. In all other respects, the judgment sustaining the Exception of Peremption is maintained. The trial court's judgment sustaining the Exception of Res Judicata is reversed and that exception is denied.

One-half of the costs of this proceeding are assessed to the plaintiffs—appellants, Larry Bize, Sr. and Michele R. Bize. The remaining one-half of the costs are assessed to the defendants—appellees, Malcolm Larvadain and Edward Larvadain, III.

JUDGMENT DENYING MOTION TO OPPOSE SETTING OF BOND FOR SECURITY OF COSTS, RULE TO SHOW CAUSE & DECLARE STATUTE UNCONSTITUTIONAL AFFIRMED.

JUDGMENT SUSTAINING THE EXCEPTION OF PEREMPTION AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH INSTRUCTIONS.

JUDGMENT SUSTAINING THE EXCEPTION OF RES JUDICATA REVERSED. EXCEPTION OF RES JUDICATA DENIED.

Cooks, J., concurs in part and dissents in part with reasons.

COOKS, J., concurs in part and dissents in part.

I agree with the majority's reversal of the trial court's ruling sustaining the exception of res judicata and the reversal of the trial court's ruling sustaining the exception of peremption as to the allegation of malpractice related to Plaintiff Lawrence Bize's mental capacity at the time of the underlying settlement. However, I disagree with the majority's affirming the trial court's denial of the motion to oppose the setting of bond for security of costs. I believe the provisions of La.R.S. 13:4522, both on its face and as applied to Plaintiffs, violates Plaintiffs constitutional rights under La.Const. art. 1 §§ 3 and 22, and U.S. Const. amends. I and XIV. The Louisiana Constitution "mandates equal protection of the laws," Butler v. Flint Goodrich Hosp. of Dillard Univ., 92-559 (La. 10/19/92), 607 So.2d 517, 518, and La.Const. art. I, Section 3, provides that "[a]ll courts shall be open, and every person shall have an adequate remedy by due process of law and justice, administered without denial, partiality, or unreasonable delay, for injury to him in his person, property, reputation, or other rights." La.Const. art. I, § 22. Under the United States Constitution all persons are guaranteed equal protection of the law, a right made applicable to the states through the fourteenth amendment to the United States Constitution. Louisiana Revised Statute 13:4522 does not treat all litigants the same but instead carves out certain exceptions to its requirement that litigants may be compelled to deposit security for costs before proceeding with their claims in court:

The phrase "Parish of Orleans" must refer to the people of the parish because the statute exempts the State and its political subdivisions which would include the Orleans Parish and the City of New Orleans governing bodies. Thus, under the express provisions of this statute, all residents of Orleans Parish are exempt from the requirement to post security in order to proceed with their day in court. Also exempt are those litigants who are so financially challenged that they meet the requirements for pauper status. Additionally, the State and all its political subdivisions cannot be compelled to post bond in order to proceed in court. But the unfortunate litigant, such as Plaintiffs herein, who make up the fast-growing segment of our society sometimes referred to as "the working poor," or in this case the retired poor, are singled out to provide large sums of money, in this case, $25,000, to insure that should their claim against Defendants fail, court costs and other costs that may be recoverable by the party victorious will be paid. The State and Defendants posit that litigants compelled to provide surety for costs can put up unmortgaged property, if they own any, or obtain a surety bond from a bonding company, if they can financially qualify. But all too often these options are not available to litigants and in this case, Plaintiffs attempted to post a property bond, but it was refused by the trial court. Here, Mr. Bize is a retired postal worker and Mrs. Bize is a retired commissary worker. They assert this surety requirement works an unnecessary, substantial financial hardship on them.

It is easy to discern the basis for exempting the pauper from such a requirement who would otherwise have no access to justice. It is also not difficult to understand the wisdom of exempting the State and its political subdivisions from the requirement to post surety as a prerequisite for proceeding to enforce claims on behalf of the general citizenry. But, any justification for exempting the good people of Orleans Parish from this requirement totally eludes me. Is it because that parish contains a disproportionate number of lower economic citizens or is it just that they had more capable representation in the legislature when this law was enacted? I am also at a loss to reconcile any basis to treat the citizenry different than governmental entities whenever either is a plaintiff in a civil matter. But the reason for such glaring disparate treatment is not for me or these Plaintiffs to figure out, it is the burden of the State to justify such disparity, if they can, once this constitutional challenge is before the court. I do not believe the State met that challenge in this case nor can I imagine how such disparity can be justified. The Louisiana State Supreme Court has rejected such disparate treatment in the past on the basis of both La.Const. art. I § 3 and § 22. In Detraz v. Fontana, 416 So.2d 1291 (La. 1982) the supreme court found La.R.S. 42:261E, as it read at that time, unconstitutional as violative of both Louisiana's constitutional guarantee of equal protection and equal access to the courts. That statute provided:

Id. at 1292.

In Detraz, the supreme court discussed the ways in which the jurisprudence had developed numerous exceptions to the requirement, but in its final analysis the court determined that even those exceptions could not save the statute. The supreme court held the statute unconstitutional as violative of both state and federal constitutional guarantees of equal protection, and Louisiana's constitutionally mandated equal access to our courts of justice. The supreme court explained its holding based on equal protection as follows:

Detraz, 416 So.2d at 1295-96 (emphasis added).

Likewise, the current challenged statute divides litigants into three classes: governmental, non-governmental, and paupers. No justifiable reason is advanced by the state here to justify this disparate treatment. Additionally, the state supreme court in Detraz also found the challenged statute in that case violative of due process and access to the courts:

Id. at 1296-97 (emphasis added).

Under this rationale I believe the statute challenged in this proceeding is constitutionally defective on its face and as applied to Plaintiffs. I note here too, there is no requirement that a hearing be had to "inquire into the merits of the litigation" Id. Indeed, the record shows that there was absolutely no inquiry made as to the merits of Plaintiffs' claims. Though there is some requirement under this statute to inquire as to "the reasonableness of the amount of the bond in light of the defendant's probable expenses," Id., the only inquiry made here as to the reasonableness of the amount of bond set by the trial court was based on Defendants' representations regarding the anticipated need for, and anticipated concomitant costs of, experts. Defendants have made no showing that Plaintiffs' lawsuit for legal malpractice is frivolous or at least that Plaintiffs cannot prevail. Nor has there been any showing by Defendants that Plaintiffs would be unable to pay whatever costs are incurred and ultimately assessed against them should they lose. Further, I am not in the least persuaded by the suggestion that Plaintiffs might have some ability to post this bond because they received $50,000 in settlement of their claim which is now the subject of litigation. It is not hard to imagine, especially given Plaintiff's allegations, that this sum was woefully inadequate to even meet Plaintiff's out-of-pocket medical costs much less to assume that any portion of that amount is readily available for posting bond. And I am inclined to believe the attorneys did not waive their substantial percentage of attorney's fees. The Plaintiffs present a serious claim for legal malpractice which they have already shown appears to have merit and a reasonable chance at success. Under the rationale articulated in Detraz, the challenged statute in this case cannot withstand constitutional scrutiny.

The Louisiana State Supreme Court in Sibley v. Bd. of Sup'rs of La. State Univ., 477 So.2d 1094, 1105 (La.1985) expressly held that "the federal three level system is an inappropriate model for equal protection analysis under the Louisiana Constitution." Instead, the state supreme court declared:

Id. at 1107-08 (emphasis added).

The state supreme court has repeatedly held that Louisiana's "constitutional guarantee of equal protection mandates that state laws affect alike all persons and interests similarly situated. Beauclaire v. Greenhouse, 05-0765, p. 5 (La. 2/22/06), 922 So.2d 501, 505." City of New Orleans v. Louisiana Assessors' Ret. & Relief Fund, 05-2548 p. 36 (La. 10/1/07), 986 So.2d 1, 26, on reh'g (1/7/08) (emphasis added). Additionally, the supreme court has explained that "[t]his guarantee does not remove from the legislature all power of classification, or require absolute equality or precisely equal advantages; the law merely requires equal application in similar circumstances." Id. (emphasis added).

In City of New Orleans, the supreme court rejected the city's constitutional challenge to La.R.S. 11:1481 based on its assertion that New Orleans' taxpayers were being treated differently from all other taxpayers in the state, and that such disparate treatment violated equal protection. That law required "all tax recipient agencies of ad valorem taxes ... to furnish the legislative auditor the authorizing ordinances or resolutions, the tax rolls, and the tax rate to be applied to the assessed values for ad valorum tax purposes no later than June first of every year." La.R.S. 11:1481(1)(a) (ii)(aa). New Orleans asserted it was being treated differently but it failed to provide proof of that allegation. In fact, the supreme court's basis for rejecting the city's challenge to the statute was its finding that the statute had been amended and now provided the same treatment to all governing bodies including the City of New Orleans. Thus, there was no longer a singling out of New Orleans. Implicit in this ruling, and explicit in the court's rationale, is the notion that if the contested law had indeed continued to single out New Orleans for different treatment the statute would not pass constitutional scrutiny. Our courts have also addressed this type of equal protection challenge in the cases concerning the constitutionality of Louisiana's cap on medical malpractice recovery. In that line of cases the courts have engaged in important discussions regarding constitutional notions of equal protection embodied in our state constitution. In Oliver v. Magnolia Clinic, 09-439 (La. App. 3 Cir. 8/31/11), 71 So.3d 1170, writ granted, 11-2132 (La. 11/14/11), 75 So.3d 440, and writ granted, 11-2139 (La. 11/14/11), 75 So.3d 440, and writ granted, 11-2142 (La. 11/14/11), 75 So.3d 441, and aff'd in part, rev'd in part, 11-2132 (La. 3/13/12), 85 So.3d 39, this court addressed the disparate treatment of a suspect class and whether such disparity could survive constitutional scrutiny. In Oliver, as in this case according to the majority, the court faced the question of whether the plaintiffs' constitutional claim was procedurally deficient. Relying on our holding in Arrington v. Galen-Med, Inc., 04-1235 (La. App. 3 Cir. 7/6/07), 970 So.2d 540, writs denied 07-1614, 07-1628 (La. 12/7/07), 969 So.2d 631 we rejected that challenge to the plaintiffs' constitutional attack:

Id. 71 So.3d at 1189-90.

Likewise, I believe Plaintiffs here have sufficiently preserved their constitutional claim and we are fully obliged to address it. In Oliver we faced the first type of equal protection analysis under Louisiana law, discriminatory treatment based on a suspect classification. Such a challenge places a heavier burden on the state to justify the challenged law. Here, we analyze disparate treatment based on the statute's exempting from its requirement for posting surety the whole of Orleans Parish, the State and all its political subdivisions and paupers. The state must show that it has a compelling interest in denying these Plaintiffs their constitutional right of access to the courts and equal protection of the law. I believe the provision in the statute expressly exempting Orleans Parish, the State and its political subdivisions, and paupers, on its face, demonstrates the law unreasonably and arbitrarily creates classes of Louisiana residents treated differently. I can fathom no state interest that would justify treating all residents the same except those who happen to reside in Orleans Parish. Such a classification appears arbitrary on its face. This blatant disparate treatment embodied in the statute falls far short of Louisiana's constitutional mandate that all "state laws affect alike all persons and interests similarly situated." City of New Orleans, 986 So.2d at 26. This law, on its face, does not affect all Louisiana residents who find themselves plaintiffs in law suits. I can discern no difference between a plaintiff who is a resident of Orleans Parish and one who resides anywhere else in this state. Likewise, the State has advanced no reasonable basis to support its preferential treatment to the State and its political subdivisions. As to the treatment of paupers, I believe the jurisprudence and common sense require no further comment. Clearly, the law as written does not affect all citizens of Louisiana the same and is, for the reasons stated, constitutionally infirm as applied to Plaintiffs. I therefore respectfully dissent from this portion of the majority opinion.