Rushing v. Simpson

Citation: 264 So. 3d 612Docket: No. 52,443-CA

Court: Louisiana Court of Appeal; January 15, 2019; Louisiana; State Appellate Court

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Carolyn Rushing's appeal involves the denial of her motion for a new trial and the affirmation of a judgment that granted Makiva Johnson's peremptory exception of no right of action and prescription, resulting in the dismissal of all claims against Johnson. The procedural history reveals that Rushing filed a petition in DeSoto Parish on September 15, 2017, against Johnson, Terrance Simpson, and EXCO Operating LP, related to a mineral lease on land owned by Thomas Simpson, who had transferred the property to Rushing via a quitclaim deed on December 7, 2010. Thomas Simpson passed away in January 2011, and the quitclaim deed was recorded on April 7, 2011. Despite Rushing's claim to the land, a judgment of possession rendered on March 30, 2011, included the land in the decedent's estate.

Rushing contended she was unaware of the judgment due to a lack of communication from her counsel and filed a motion to amend the judgment on September 9, 2015, after discovering the situation. She alleged that Johnson, as counsel for Terrance Simpson, failed to provide a proposed judgment for approval, leading to the wrongful release of royalties to Terrance Simpson instead of Rushing. In response, Johnson filed a combined exception claiming Rushing had no standing for legal malpractice, asserting that no attorney-client relationship existed between them and that Rushing failed to allege any duty owed to her. Johnson also argued that Rushing’s claims were prescribed because she had knowledge of the alleged malpractice by September 9, 2015, but did not file her suit until over two years later, exceeding the one-year limit set by La. R.S. 9:5605 A. Rushing attempted to seek additional discovery and continue the hearing on the exception but did not formally oppose Johnson's exception.

In November 2017, the district court addressed Ms. Rushing's case, noting prior extensive pretrial conferences. Ms. Johnson highlighted that Ms. Rushing did not oppose an exception, while Ms. Rushing's counsel cited difficulties with filings but claimed to have articulated his opposition through motions for discovery and continuance. The court ruled that, due to the lack of a formal opposition, counsel could not argue against the exception according to District Court Rule 9.9. The court also noted the absence of supporting evidence from Ms. Rushing's counsel, such as quitclaim deeds or judgments, and granted exceptions of no right and prescription, deeming the exception of no cause moot and stating that the grounds for the exceptions could not be amended. Ms. Rushing sought a new trial, arguing the court erred in not allowing her petition amendment and claiming Ms. Johnson violated District Court Rule 9.5 by not providing a proposed judgment to opposing counsel. She also asserted that three categories of contra non valentem applied to her claim, which she argued suspended the prescription period. Ms. Johnson opposed the new trial motion, which the court ultimately denied, affirming the previous judgment and dismissing claims against Ms. Johnson, designating it as a final judgment. Ms. Rushing appealed the denial of her new trial motion.

In her appeal, Ms. Rushing's brief lacked compliance with URCA 2-12.4, failing to include assignments of error and a table of authorities. However, her arguments were treated as assignments of error for judicial efficiency. The appeal of the new trial denial was recognized as interlocutory but analyzed in relation to the underlying judgment. Notably, Ms. Rushing claimed that the prescription did not begin until the final judgment was filed, asserting she timely filed her suit just before that anniversary. She argued that her claim was premature until the possession judgment was finalized and contended she was unaware of EXCO's royalty payments until February 2017. She invoked three categories of contra non valentem to support her argument: a legal cause preventing her claim's notice, a condition hindering her from acting, and concealment of facts by the defendants that obstructed her awareness of her cause of action.

Claims against attorneys for professional services in Louisiana are strictly governed by La. R.S. 9:5605, which establishes a one-year period to file an action based on alleged malpractice, starting either from when the act occurred or when it was discovered, with a maximum limit of three years from the act's occurrence. The time limitations are peremptive and cannot be interrupted or suspended. However, fraudulent concealment by an attorney can potentially extend these time limits. In the case of Ms. Rushing, her claims against Ms. Johnson for malpractice were deemed perempted, as she filed her suit over two years after discovering the alleged negligent conduct, which was known to her by September 9, 2015. The court affirmed the district court's decision to sustain the exception of prescription, stating that the concept of contra non valentem does not apply because there were no allegations of post-malpractice concealment. Additionally, Ms. Rushing argued that Ms. Johnson could be held personally liable for intentional misconduct regarding procedural violations. However, her claims regarding Rule 9.5, which mandates attorneys to circulate proposed judgments, did not change the outcome regarding the peremptive period.

The court briefly addressed the plaintiff's claims, noting that a determination of the plaintiff's right to assert them was irrelevant due to the finding of peremption. An attorney's primary duty is to their client, with no legal obligation to the client's adversary. However, an attorney may be held personally liable for intentional torts if it is shown they acted with specific malice aimed at causing direct harm to the adversary. In this case, Ms. Rushing's allegation of a Rule 9.5 violation was categorized as negligence, and it was deemed that her prompt action to amend judgment mitigated any claim of direct harm. Previous cases indicated that such Rule 9.5 violations are generally considered harmless errors.

Consequently, the district court concluded that Ms. Rushing did not have a viable nonclient malpractice claim against Ms. Johnson based on the peremption of the claim under Louisiana law. However, the court found that the district court incorrectly sustained an exception of no right of action, which questions whether the plaintiff belongs to a legally recognized class for the cause of action asserted. This exception is distinct from one of no cause of action, which assesses whether the law provides a remedy for the alleged facts. Ms. Johnson did not demonstrate that Ms. Rushing lacked the standing or capacity to assert her claim.

Ultimately, while the district court erred in sustaining the no right of action exception, the court upheld the exception of no cause of action regarding Ms. Rushing's nonclient malpractice claim, indicating that the judgment would be amended accordingly.

Ms. Rushing argues for the right to amend her petition to eliminate the grounds for the exception, referencing La. C.C.P. art. 934. However, her admission of awareness regarding Ms. Johnson's actions by September 9, 2015, and the subsequent delay in filing suit until September 15, 2017, prevents her from removing the peremption grounds under R.S. 9:5605. Consequently, her argument is deemed meritless. 

The judgment is affirmed concerning the prescription exception but amended to deny the exception of no right of action and to grant an exception of no cause of action. Ms. Rushing's request to amend her petition is denied, and she is responsible for all costs. Additionally, the court notes that Ms. Rushing misspelled Ms. Johnson's name and incorrectly named the corporate defendant prior to submitting an amended petition, which did not accurately reflect the judgment. Ms. Rushing cited Sciortino v. Sciortino, which was overruled by State v. Augillard, undermining her argument. Her amendment alleging intentional actions by the defendants was disallowed for Ms. Johnson due to the prior dismissal.