Court: Louisiana Court of Appeal; August 17, 1994; Louisiana; State Appellate Court
Liquid Air Corporation appeals a judgment that upheld Sessions, Fishman’s exception of prescription and dismissed Liquid Air’s reconventional demand. Sessions, Fishman, L.L.P. had filed a petition against Liquid Air for $47,596.90 in unpaid legal fees. Liquid Air did not respond, leading to a confirmed preliminary default judgment, which was later reversed by the Louisiana Supreme Court due to the lack of an invoice or itemized statement. After the reversal, Liquid Air answered and filed a reconventional demand alleging malpractice by Sessions, Fishman.
The trial court initially overruled the exception of prescription but later granted Sessions, Fishman’s motion for reconsideration, ultimately dismissing the reconventional demand with prejudice. Liquid Air contends that the trial court erred in several aspects: it incorrectly found that the reconventional demand had prescribed, misinterpreted the timeliness under La.C.C.P. art. 1067, and failed to acknowledge that the malpractice claim could serve as a defense.
Liquid Air had been sued by multiple plaintiffs following an explosion on an offshore platform and retained Sessions, Fishman as defense counsel. It discovered on August 6, 1990, that its expert did not support its case, leading to a costly settlement. Liquid Air was aware of the alleged malpractice by that date, and the one-year prescriptive period for legal malpractice expired on August 6, 1991. The relevant statute, La.R.S. 9:5605, effective September 7, 1990, did not apply, affirming that the malpractice claim arose from the same transaction and was valid for reconventional demand as per La.C.C.P. art. 1061. Liquid Air argued the reconventional demand could not be filed earlier due to potential res judicata claims by Sessions, Fishman.
The legal framework indicates that a defendant must assert all related claims in a reconventional demand or risk being barred from future litigation on those claims. The definition of a final judgment suggests that a trial court's judgment does not gain definitive authority while under appeal.
Res Judicata does not prevent a reconventional demand in the same lawsuit, as no exception was filed in this case. Liquid Air contended it could not file its reconventional demand due to the trial court’s allegedly divested jurisdiction after the appeal motion was granted. However, La.C.C.P. art. 2088 specifies that the trial court is only divested of jurisdiction over matters reviewable on appeal, not the entire case. Since the malpractice claim was not on appeal, the trial court retained jurisdiction over all other matters, allowing Liquid Air to file its reconventional demand.
Liquid Air invoked the equitable doctrine of contra non valentem, arguing that it was unable to act after Sessions. Fishman wrongly confirmed the default. However, the court found no grounds for applying this doctrine. Liquid Air also argued that its reconventional demand was timely under La.C.C.P. art. 1067, which states that such demands are not barred by prescription if filed within ninety days of service of the main demand. Liquid Air asserted that the ninety-day period was paused during the appeal until the Supreme Court’s decision became final, but the court rejected this claim and affirmed that the period had expired.
La.C.C.P. art. 1067 is characterized as an exemption statute, protecting incidental demands from prescriptive statutes during the ninety-day window. The trial court did not explicitly deny Liquid Air's right to its reconventional demand, and Liquid Air may still use its legal malpractice claim as a defense. The judgment affirming Sessions. Fishman’s exception of prescription was upheld.
