NOT DESIGNATED FOR PUBLICATION

MICHAEL E. KIRBY, JUDGE.

In this legal malpractice case, the plaintiff, Grant Lee Jones, individually and as Administrator of the Succession of Carol Ann Jones King ("Ms. King"), appeals the district court's judgment that granted an exception of no cause of action based on peremption pursuant to La. R.S. 9:56051, asserted by the defendants, attorney Richard Arias, and his professional liability insurer, Continental Casualty Company. For the reasons that follow, the trial court judgment is affirmed, in part, and reversed, in part, and the case is remanded to allow Mr. Jones to amend his petition.

On January 19, 2009, Mr. Jones filed suit against the defendants alleging two claims of legal malpractice. Regarding the first, Mr. Jones alleged that he retained Mr. Arias to file a wrongful death suit following the death of Ms. King, who died on July 18, 2003, as the result of injuries she sustained in a vehicular accident while riding an RTA bus. Specifically, Mr. Jones alleged that Mr. Arias committed legal malpractice by not filing the wrongful death suit.

As to the second claim, Mr. Jones alleged that he and his wife had retained Mr. Arias to file a suit on their behalf against Bill Hood Ford, LLC, a car dealership. He alleged that on July 7, 2005, Mr. Arias filed a petition, titled Marilyn B. Jones, wife of and Grant Lee Jones, Jr. v. Bill Hood Ford, et al., in the 34th Judicial District Court for the Parish of St. Bernard. The suit was dismissed on April 23, 2009, on an exception of improper venue.2 Mr. Jones alleged that Mr. Arias commited legal malpractice by filing the suit in the wrong venue.

Mr. Jones further alleged that, from 2003 to 2008, Mr. Arias gave him regular status reports, assuring him that the two cases were proceeding forward, and not until after Mr. Arias withdrew as his counsel and he retained a new attorney, who obtained the case files in January 2009, did he discover Mr. Arias had misrepresented the true status of the suits.

Alternatively, Mr. Jones alleged that La. R.S. 9:5605 was unconstitutional.

In response, the defendants filed a peremptory exception arguing that Mr. Jones' claims were perempted on the face of the petition by operation of La. R.S. 9:5605. They also argued that Mr. Jones failed to assert a claim for fraud pursuant to Subsection (E) of La. R.S. 9:5605 because he merely alleged the fraudulent concealment of malpractice rather than fraud as the act of malpractice itself. Last, they argued that the constitutional challenge to La. R.S. 9:5605 had no merit, citing Needom v. Robein, 2008-0318, 2008-0319 (La. App. 4 Cir. 2/18/09), 7 So.3d 30; writ denied 2009-0635 (La. 5/1/09), 6 So.3d 814.

The trial court rendered a judgment, granting the peremptory exception.

Mr. Jones appeals, arguing the trial court erred in determining his claims had perempted.

La. R.S. 9:5605 provides as follows:

The clear wording of La. R.S. 9:5605(A) indicates the Legislature intended the time limitations on legal malpractice actions to be one year from the alleged act, omission, or neglect, or one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered and, in no event, more than at least three years from the date of the alleged act, omission, or neglect. Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d 1291, 1295. As the Supreme Court emphasized, "there is no doubt that the Legislature intended that three years after the `act, omission, or neglect,' the cause of action is extinguished, regardless when the negligence is discovered and regardless of whether a malpractice action may be brought within that three year period." Id. at 1297. Thus, the latest one can file a legal malpractice action is three years from the date of the alleged act of malpractice, or one year from the date of discovery of the alleged act of malpractice, whichever comes first. Brumfield v. McElwee, 2007-0548, p.5 (La. App. 4 Cir. 1/16/08), 976 So.2d 234, 239.

"Generally, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished by it." Bailey v. Khoury, 04-0620, 04-0647, 04-0684, p. 9 (La. 1/20/05), 891 So.2d 1268, 1275. When addressing an exception of prescription (or in this case peremption), the burden of proof lies with the party asserting prescription (peremption), and in the event the plaintiff's claim is barred on the face of the pleadings, the burden shifts to the plaintiff to show the action has not prescribed (perempted). See Eastin v. Entergy Corp, 03-1030, p. 5 (La. 2/6/04), 865 So.2d 49, 54.

On an exception of no cause of action, the court reviews the petition and accepts all well-pleaded allegations of fact as true, and the issue at trial on the exception is whether on the face of the petition, the plaintiff is legally entitled to the relief sought. See Leaming v. Century Vina, Inc., 2004-1599, 2004-1672, pp.3-4 (La. App. 4 Cir. 6/1/05), 908 So.2d 21, 23.

As to the first allegation of legal malpractice, Mr. Arias' failure to file a wrongful death suit, the petition states that Ms. King died on July 18, 2003. Any wrongful death action for damages as a result of Ms. King's death had to be brought within one year from the date thereof.3 Thus, the latest Mr. Arias could have timely filed the wrongful death suit was July 18, 2004, but he failed to do so.

Pursuant to La. R.S. 9: 5605, Mr. Jones had one year from the date of the alleged act, omission, or neglect or within one year from the date that the alleged act, omission, or neglect was discovered or should have been discovered to file a legal malpractice claim against Mr. Arias for his failure to file the wrongful death action. However, even as to claims filed within one year from the date of discovery, the claim must have been filed at the latest within three years from the date of the alleged act, omission or neglect. See La. R.S. 9:5605. The record indicates Mr. Jones filed the legal malpractice suit on January 19, 2009, which was within a year from the date he discovered Mr. Arias' omission but more than three years after July 18, 2004, the date a wrongful death action would have prescribed. Thus, Mr. Jones' legal malpractice claim against Mr. Arias for his failure to file the wrongful death suit was perempted on the face of the petition.

As to the second allegation, the petition states that Mr. Arias filed the Jones' suit against Bill Hood Ford, LLC, in the wrong venue on July 7, 2005. Clearly, the second malpractice claim was also perempted because Mr. Jones filed it more than three years after the second act of malpractice.

Nonetheless, Mr. Jones argues that Mr. Arias' continued false representations regarding the status of the lawsuits constituted fraud within the meaning of Subsection (E) of La. R.S. 9:5605, rendering the peremptive period in Subsection (A) inapplicable.

Mr. Arias, on the other hand, contends that the fraud exception in Subsection (E) does not defeat peremption in this case because Mr. Jones merely alleged the fraudulent concealment of malpractice rather than fraud as the act of malpractice itself, citing Brumfield v. McElwee, 2007-0548 (La. App. 4 Cir. 1/16/08), 976 So.2d 234.

In Brumfield, supra, the plaintiff filed a legal malpractice action against the attorneys who had represented him in a personal injury suit after his suit was dismissed with prejudice for abandonment. Specifically, the plaintiff alleged that the attorneys committed fraud by not disclosing to him the true status of the suit, and, therefore, pursuant to Subsection (E) of La. R.S. 9:5605, the three-year peremptive period did not apply. The trial court granted the attorneys' exception of prescription, concluding the legal malpractice action was perempted because the plaintiff filed it more than three years after the dismissal of his personal injury case. This Court affirmed on appeal, noting that "the jurisprudence applying fraud provisions in the malpractice actions applied it in cases where the alleged fraudulent act itself comprised the malpractice, unlike the case herein, where the fraud occurred after the legal malpractice took place." Id. at pp. 7-8, 976 So. 2d at 240.

In this case, Mr. Jones has alleged that from 2003 to 2008, Mr. Arias repeatedly represented to him that his two cases were proceeding forward, when in fact the wrongful death action had never been filed. In other words, Mr. Arias allegedly made false statements. The petition specifically alleges that these "misrepresentations to Plaintiff constitutes [sic] fraud." These alleged facts are clearly distinguishable from those in Brumfield, where the only allegation was that the attorneys had failed to communicate with their client regarding his case.

In Brumfield, this court noted that the fraud exception contained in La. R.S. 9:5605(E) references Louisiana Civil Code article 1953, which 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...." Brumfield, supra, 2007-0548, p. 7, 976 So. 2d at 240. Moreover, under Louisiana law, fraud must be pled with particularity. See La. C.C.P. art. 856.

Considering the facts already alleged in the original and supplemental petitions, we are convinced that, unlike in Brumfield, Mr. Jones may be able to state an allegation of fraud and thereby defeat peremption, at least on the face of the petition. La. C.C.P. art. 934 provides that when the grounds of objection pleaded by a peremptory exception, such as no cause of action, may be removed by amendment of the petition, the judgment sustaining the exception "shall order such amendment within the delay allowed by the court." Therefore, the case shall be remanded for that purpose.

Finally, Mr. Jones argues that the trial court erred by failing to render La. R.S. 9:5605 unconstitutional because it denies him access to the courts in violation of La. Const. Art. I, § 22 and equal protection and due process under the law in violation of La. Const. Art. I, §2 and §3. This Court considered the same constitutional challenge and upheld the statute in Needom v. Robein, 2008-0318, 2008-0319 (La. App. 4 Cir. 2/18/09), 7 So.3d 30; writ denied 2009-0635 (La. 5/1/09), 6 So.3d 814. Thus, the final argument is without merit.

Accordingly, for the above reasons, the trial court judgment is affirmed, in part, to maintain the granting of the exception of no cause of action, and reversed, in part, insofar as it dismissed Mr. Jones' claims with prejudice. Further, the case is remanded for the trial court to allow Mr. Jones to amend his petition, if he can, to allege with particularity circumstances amounting to fraud, within a delay set by the court.

AFFIRMED INPART; REVERSED IN PART; AND REMANDED