Kurt Crosby; The Tara E. Crosby Trust; The Allison Crosby Trust; The Tara E. Crosby Trust 2; The Allison Crosby Trust 2; The Lauren Guidry Trust; The Aaron Guidry Trust; And Bertucci Contracting Company, LLC v. Waits, Emmett, Popp & Teich, LLC; Randolph Waits; John Emmett; And Jordan Teich

KURT CROSBY; THE TARA E. * NO. 2022-CA-0395
CROSBY TRUST; THE
ALLISON CROSBY TRUST; *
THE TARA E. CROSBY TRUST COURT OF APPEAL
2; THE ALLISON CROSBY *
TRUST 2; THE LAUREN FOURTH CIRCUIT
GUIDRY TRUST; THE AARON *
GUIDRY TRUST; AND STATE OF LOUISIANA
BERTUCCI CONTRACTING *******
COMPANY, LLC

VERSUS

WAITS, EMMETT, POPP &
TEICH, LLC; RANDOLPH
WAITS; JOHN EMMETT; AND
JORDAN TEICH

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-01609, DIVISION “G-11”
Honorable Robin M. Giarrusso, Judge
******
Judge Roland L. Belsome
******
(Court composed of Judge Roland L. Belsome, Judge Rosemary Ledet, Judge
Paula A. Brown)

David P. Vicknair
Caitlin B. Carrigan
SCOTT VICKNAIR, LLC
909 Poydras Street, Suite 2025
New Orleans, Louisiana 70112

COUNSEL FOR PLAINTIFF/APPELLANT

Gus A. Fritchie, III
Christopher H. Irwin
IRWIN FRITCHIE URQUHART & MOORE, LLC
400 Poydras Street, Suite 2700
New Orleans, Louisiana 70130

COUNSEL FOR DEFENDANTS/APPELLEES

AFFIRMED
November 21, 2022

This is a legal malpractice action. Plaintiff, Bertucci Contracting Company,
RLB
RML LLC (“BCC”)1, appeals the March 15, 2022 judgment maintaining an exception of
PAB
peremption filed by defendants, Randy Waits (“Waits”), John Emmett (“Emmett”),

Jordan Teich (“Teich”), the law firm of Waits, Emmet, Popp & Teich, LLC

(collectively “WEPT”), and Continental Casualty Company. The judgment

dismissed BCC’s legal malpractice “transactional claims” filed against the

defendants2 and dismissed all claims against Emmett, with prejudice. For the

reasons that follow, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The dispute between the parties closely involves a separate action, NASDI,

Inc. v BCC (“NSADI suit”), litigated in the 24th Judicial District Court beginning in

2012. The background of the NASDI suit is pertinent to our review of this

exception of peremption, and is therefore detailed below.

1 This Court previously affirmed the trial court’s December 10, 2020 judgment granting

defendants’ exception of no right of action, dismissing the Crosby plaintiffs from this action,
finding that as shareholders of BCC, they did not have a personal right to sue for malpractice on
behalf of BCC. See Crosby v Waits, Emmett, Popp, Teich, LLC, 21-0054 (La. App. 4 Cir.
10/6/21), ___ So.3d ___, ___ 2021 WL 4592822. Thus, BCC is the plaintiff in this action.
2 By order dated May 28, 2021, individual defendants Waits and Teich were dismissed from this

litigation pursuant to a motion to dismiss filed by BCC.

1

NASDI, Inc. entered into a contract with the State of Louisiana to demolish

the old Twin Span Bridge over Lake Pontchartrain after it was damaged during

Hurricane Katrina. BCC contracted with the State of Louisiana to turn the

demolished bridge material into marine mattresses for use in a shoreline protection

project. NASDI, Inc. also acted as BCC’s subcontractor on the project, requiring

NASDI, Inc. to break down the demolished bridge material into smaller units in

order for BCC to construct the marine mattresses.

BCC put NASDI, Inc. and its surety on notice of default under the

subcontract due to an alleged non-performance. After an investigation, the surety

paid BCC approximately $2.2 million on the bond. In October 2012, NASDI, Inc.

sued BCC alleging that BCC failed to pay balances due under the subcontract.

BCC reconvened, alleging that NASDI, Inc. breached the subcontract by failing to

properly process the demolished bridge material. WEPT, predominantly Waits and

Teich, represented BCC in the NASDI suit, which remained pending until 2018.

In late 2014, the original Crosby plaintiffs, particularly Kurt Crosby, on

behalf of the Crosby family companies3, began negotiations to purchase BCC,

which was owned by Tony Zelenka and the Zelenka family trusts. Emmett, an

attorney with WEPT, advised Kurt Crosby in connection with the BCC contract

negotiations. Emmett had also represented Kurt Crosby in both personal and

business matters for over twenty-five years. During the negotiations, because

Emmett represented the Crosby interests in purchasing BCC, and WEPT

represented BCC in the NASDI suit, Emmett requested a conflict waiver from Dan

3 Kurt Crosby and the Crosby family owned numerous businesses related to marine transport and

dredging.

2

Zelenka, BCC’s special counsel4 and Tony Zelenka’s brother. Although Dan

Zelenka agreed, it appears that the conflict waiver was never perfected.

In January 2015, the Crosby family purchased 75% of BCC (“Initial

Transaction”). Pursuant to the agreement in the Initial Transaction, Tony Zelenka

retained 100% of the net recovery in the pending NASDI suit as well as 100% of

the risk, subject to a $5.169 million dollar cap. The agreement also provided that

Tony Zelenka would stay on as manager of BCC and could force a sale of the

remaining 25% of BCC to the Crosby family in the event Tony Zelenka was fired

as manager.

Mediation in 2015 between NASDI, Inc. and BCC in the NASDI suit was

unsuccessful. NASDI, Inc. rejected BCC’s demand for payment and insisted on

full compensation under the contract.

In December 2015, Tony Zelenka was terminated as manager of BCC. In

response, he executed his right to force a sale of the remaining 25% of BCC to the

Crosby family. In January 2016, the Crosby family purchased the remaining 25%

of BCC from Tony Zelenka and the Zelenka family trusts (“Final Transaction”).

Emmett participated in the contract negotiations on behalf of the Crosby family.

The agreement was silent as to any change in the recovery/risk in the ongoing

NASDI suit, i.e., Tony Zelenka maintained 100% of the recovery and the financial

risk associated with the litigation. It also appears that BCC was funding the

litigation costs in the NASDI suit at that time. Emmett expressed his concern on

this issue to Kurt Crosby’s representative and CFO, Farrel Trosclair (“Trosclair”)

on February 23, 2016. Trosclair relayed this information to Tony Zelenka.

4 Dan Zelenka testified in his deposition that during most of the NASDI litigation, he was

physically present in the WEPT office; he rented office space from WEPT. He further explained
that he was counsel of record in the litigation, representing BCC along with WEPT.

3

On March 4, 2016, in negotiation to finalize Tony Zelenka’s employment

contract release, Tony Zelenka sent three proposed options to Trosclair, regarding

the recovery/risk in the NASDI suit, as follows:

a) Leave it as written which comports to the original sale and
employment agreements; or

b) With respect to the NASDI litigation, should any recovery be made
by Bertucci, Bertucci will issue a payment to Zelenka equal to one
half of the net amount of any recovery made after payment of legal
and litigation expenses incurred after January 1, 2015. However,
Zelenka’s indemnity obligation to Bertucci is reduced to one half
of any amount that Bertucci is ordered to pay as a result of the
litigation; or

c) With respect to the NASDI litigation, Bertucci retains one hundred
percent of the amount of any recovery made; however, Zelenka
shall have no indemnity obligation to Bertucci for any amount that
Bertucci is ordered to pay as a result of the litigation.

Trosclair sought Emmett’s advice on the proposed options. Very shortly

thereafter, Emmett responded:

It is unlikely that Bertucci owes NASDI anything. NASDI’s bonding
company paid Bertucci $2.2 million. I don’t think they would have
done that if NASDI had performed. That being said, I’m inclined to
go with option b to let both Bertucci and Zelenka have skin in the
game. Tony may lose interest if you go with option b [sic].5 You
need him as a witness and as a point man in the case. Option a, as
mentioned, appears to me to be unfair. (Emphasis added).

Emmett also asked Trosclair to “keep this confidential from Tony and other

Zelenka affiliated people.” After receiving Emmett’s email, Trosclair relayed the

information to Kurt Crosby by telephone. Within minutes, Kurt Crosby directed

Trosclair to accept Emmett’s advice to select option b (“50/50 Option”).

Thereafter, the 50/50 Option was incorporated into a settlement agreement with

Tony Zelenka that was executed on March 14, 2016.6

5 It appears this should have read option “c”.
6 The agreement was later amended on April 6, 2016, with no significant changes.

4

The 50/50 Option turned out to be financially detrimental to BCC and the

Crosby family interests, as the February 15, 2018 jury verdict in the NASDI suit

rendered a substantial judgment in favor of NASDI, Inc. and against BCC on the

breach of contract claims. BCC’s litigation costs were also quite substantial.

On February 12, 2019, (less than one year after the verdict in the NASDI

suit and less than three years after Emmett’s March 4, 2016 advice to take the

50/50 Option) BCC filed suit against the WEPT law firm, and individually against

Waits, Emmett, and Teich, alleging legal malpractice in the handling of the

“transactional claims,” i.e., the contract negotiations between the Crosby family

and BCC.7

Specifically, the original and amended petitions allege that WEPT and/or

Emmett failed to disclose the substantial likelihood of a significant loss in the

NASDI suit, and misrepresented the likely costs of litigating the NASDI suit. The

petition further alleges that Emmett improperly gave advice without speaking to

other members of WEPT or anyone in the Zelenka camp regarding the NASDI

suit. BCC asserts that Kurt Crosby would not have accepted Emmett’s advice for

the 50/50 Option had he known that the Zelenka affiliated people had serious

reservations about the NASDI suit, and were aware that the suit bore serious risk.

Finally, it is alleged that these acts of malpractice were first discovered, at the

earliest, on February 15, 2018, when the jury rendered its verdict in the NASDI

suit.

In response to the petition for damages, WEPT filed an exception of

peremption as to BCC’s legal malpractice transactional claims, and a motion for

7 The petition also alleged WEPT’s malpractice in the handling of trial of the NASDI suit. Those
allegations are not a part of this appeal.

5

partial summary judgment on the legal malpractice claims raised in connection

with the actual trial of the NASDI suit. The matters were heard on February 25,

2022, with the introduction of evidence from the parties. Judgment was rendered

March 15, 2022, granting WEPT’s exception of peremption, dismissing BCC’s

legal malpractice transactional claims and dismissing all claims against Emmett,

with prejudice. 8 The judgment further ordered that the granting of the exceptions

of peremption was deemed to be a final judgment pursuant to La. C.C.P. art.

1915(B). BCC’s timely appeal of the granting of the peremptory exception of

prescription on the transactional claims is now at issue before this Court.

LAW AND ANALYSIS

Standard of Review

As recently reiterated by this Court in Hawkins v. Liskow and Lewis, APLC,

2021-0198, p. 3 (La. App. 4 Cir. 3/11/22), 336 So.3d 534, 536:

A peremptory exception generally raises a purely legal
question. Wells Fargo Fin. La., Inc. v. Galloway, 2017-0413, p. 7
(La. App. 4 Cir. 11/15/17), 231 So.3d 793, 799-800. When, as here,
evidence is introduced at the hearing on a peremptory exception of
peremption, the trial court’s findings of fact are reviewed under the
manifest error/clearly wrong standard of review. Lomont v. Bennett,
2014-2483, p. 8 (La. 6/30/15), 172 So.3d 620, 627 (citing Rando v.
Anco Insulations Inc., 2008-1163, p. 20 (La. 5/22/09), 16 So.3d 1065,
1082). If those findings are reasonable in light of the record reviewed
in its entirety, an appellate court cannot reverse even though it is
convinced that had it been sitting as the trier of fact, it would have
weighed the evidence differently. Id.

Ordinarily, the exceptor bears the burden of proof at the trial of the

peremptory exception of prescription. Barkerding v Whittaker, 2018-0415, p. 14

(La. App. 4 Cir. 12/28/18), 263 So.3d 1170, 1180 (citing Rando v. Anco

8 The judgment also denied WEPT’s motion for partial summary judgment on BCC’s

malpractice claims raised in connection with the trial of the NASDI suit. WEPT filed a
supervisory writ application from that ruling, which this Court denied. Crosby v Waits, Emmett,
Popp & Teich, LLC, 2022-C-0278 (La. App. 4 Cir. 6/1/22), unpub.

6

Insulations, Inc., 2008-1163, p. 20 (La. 5/22/99), 16 So.3d 1065, 1082). If

prescription is evident on the face of the petition, the burden shifts to the plaintiff

to show the action is not prescribed. Id.

Legal Malpractice Peremption

Pursuant to La. 9:5605(A), a legal malpractice claim shall be filed:

within 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 is discovered or should have been discovered; however, even
as to actions filed within one year from the date of such discovery, in
all events such actions shall be filed at the latest within three years
from the date of the alleged act, omission, or neglect.

Both the one-year and three-year periods of limitations are, by statute,

characterized as peremptive in nature “within the meaning of Civil Code Article

3458, and in accordance with Civil Code Article 3461, may not be renounced,

interrupted, or suspended.” La. R.S. 9:5605(B). As provided by La. C.C. art.

3458, “Peremption is a period of time fixed by law for the existence of a right.

Unless timely exercised, the right is extinguished upon the expiration of the

peremptive period.”

Considering the peremptive period in a legal malpractice action, our

Supreme Court has held:

The “date of discovery” from which prescription or peremption begins
to run is the date on which a reasonable man in the position of the
plaintiff has, or should have, either actual or constructive knowledge
of the damage, the delict, and the relationship between them sufficient
to indicate to a reasonable person he is the victim of a tort and to state
a cause of action against the defendant.... Put more simply, the date of
discovery is the date the negligence was discovered or should have
been discovered by a reasonable person in the plaintiff’s position.

Teague v. St. Paul Fire and Marine Ins. Co., 2007-1384, p. 13 (La. 2/1/08), 974

So.2d 1266, 1275.

In Jenkins v. Starns, 2011-1170, p. 15 (La. 1/24/12), 85 So.3d 612, 621,

7

the Supreme Court summarized its holding in Teague by stating:

[P]eremption commences to run in a legal malpractice case when a
claimant knew or should have known of the existence of facts that
would have enabled him to state a cause of action for legal
malpractice. A claimant's mere apprehension something may be
wrong is insufficient to commence the running of peremption unless
the claimant knew or should have known through the exercise of
reasonable diligence his problem may have been caused by acts of
malpractice. The Court further held even if the client is aware an
undesirable result has developed arising out of the representation,
peremption will not run as long as it was reasonable for the plaintiff
not to recognize the result might be due to malpractice.

On appeal in the present case, BCC asserts that the trial court erred in

finding that the alleged legal malpractice regarding Emmett’s March 4, 2016

advice (the 50/50 Option)9, and the failure of Emmett and WEPT to secure a

conflict waiver from the firm’s adversely positioned clients at the same time, were

perempted pursuant to La. R.S. 9:5605. The crux of BCC’s argument is that the

date of discovery of the alleged malpractice was February 15, 2018, the date of the

jury verdict. Thus, it is argued that the petition, filed February 12, 2019, was filed

less than one year from the date of discovery and within three years from the date

of the alleged malpractice.

In support of this argument regarding the date of discovery, BCC contends

that the “Crosby-side” of BCC (mainly Kurt Crosby, Trosclair and certain Crosby

family members working in the Crosby companies) had no way of knowing that

Emmett’s advice was malpractice prior to the adverse result rendered in the jury

verdict. Until then, Emmett’s advice was not questioned; Kurt Crosby trusted

Emmett. More specifically, BCC asserts that the Crosby-side of BCC did not

9 We note that BCC’s petitions and its opposition to the exception of peremption also reference

the Initial Transaction and the Final Transaction. However, the focus of BCC’s malpractice
action is the advice given for the 50/50 Option.

8

possess a totality of facts that would reasonably put them on notice that the 50/50

Option was going to be a problem, particularly given Emmett’s explicit directive

that they not discuss the matter with Tony Zelenka or the Zelenka affiliated people.

It is BCC’s position that people in the Zelenka camp were well aware of the

substantial risks involved in the NASDI suit. However, as explained in his

deposition, Kurt Crosby did not tell anyone about the advice on the 50/50 Option

because Emmett told him not to do so. Kurt Crosby also testified that he trusted

Emmett’s opinion - as stated in the March 4, 2016 email, that “[i]t is unlikely that

[BCC] owes NASDI anything.” Finally, as stated in the petition, Kurt Crosby also

believed Emmett’s advice to be sound because Emmett “had a direct line” to

WEPT, who was handling the NASDI suit.

WEPT counters that the date of discovery would have occurred on March 4,

2016, the date that the alleged “bad advice” was given, because at that time, the

Crosby-side of BCC knew or should have known the financial risk involved if

BCC were to lose the NASDI suit. WEPT submits that BCC, through Kurt Crosby

and Trosclair, received periodic updates from BCC’s Controller Gene Simon

(“Simon”) and others about the status of the NASDI suit starting shortly after the

Crosby family obtained full ownership of BCC in the Spring of 2016.

Additionally, WEPT argues that Emmett’s alleged failure to secure a conflict

waiver at the time he participated in the transactions for Kurt Crosby would be

perempted because that action, or inaction, also occurred on or before March 4,

2016.10 As a result, WEPT maintains that the trial court properly granted the

exception of peremption on the issue of the conflict waiver.

10WEPT argues that BCC raises the failure to obtain a conflict waiver for the first time on

appeal. However, the trial court record demonstrates that BCC briefed this issue in opposition to
WEPT’s exception of peremption.

9

Upon review of the record, we find no manifest error in the trial court’s

judgment granting the exception of peremption. More specifically, we find that

BCC’s petition was not filed within one year from the date of discovery of the

alleged malpractice, i.e., the March 4, 2016 advice given on the 50/50 Option and

the failure to secure a conflict waiver.

In response to the options offered by Tony Zelenka on the indemnity issue,

Emmett said he was inclined to go with option b. Kurt Crosby, within just a few

minutes, agreed to take that option. Clearly, Kurt Crosby trusted Emmett and

relied on his advice. However, it appears that Kurt Crosby never investigated the

status of the NASDI suit before accepting the advice, and he never requested that

Emmett, or anyone else on his team investigate further.

Kurt Crosby stated in his deposition that he never received updates on the

NASDI suit and never asked anyone to report directly to him on the case; he did

not follow the trial. Trosclair confirmed in his deposition testimony that Kurt

Crosby never asked him to investigate how the NASDI suit was going.

Kurt Crosby also stated in his deposition that prior to the trial, he met with

Tony Zelenka at the Windsor Court Hotel in order to make sure Tony Zelenka

would be able to cover his 50% in connection with the indemnity agreement. At

that time, he never asked Tony Zelenka how the litigation was going.

BCC claims that it would have been nearly impossible for a lay person, such

as Kurt Crosby or Trosclair to know that Emmett’s advice was negligent prior to

the verdict in the NASDI suit. The record does not support that position. It should

have been obvious to all concerned that the 50/50 Option was favorable to Tony

10

Zelenka who, at that time, was adverse to BCC and the Crosby family interests.

Tony Zelenka testified in his deposition that he knew it was a bad deal for BCC.

Simon began working for BCC in 1990, and was a longtime close friend of

Tony Zelenka. As Controller for BCC, Simon reported to Trosclair after the

Crosby family purchased BCC from the Zelenka family. Simon testified by

deposition that he thought the risk of loss in the NASDI suit had become apparent

to everyone involved. He thought more likely than not that the case was going to

go the wrong way, i.e., against BCC. Simon further explained that after the failed

mediation in 2015, it was apparent that NASDI wanted 100% recovery and that

they were going to go the distance – meaning, it was going to be expensive to

litigate and that BCC had significant risk.

Simon did not know about the 50/50 Option until after it was agreed to by

Kurt Crosby and Tony Zelenka. He thought it was a bad idea that would be

damaging for BCC. Simon did not share his opinion with Trosclair because, as he

said, it was “water under the bridge” by that time - it was “unchangeable.”

Simon did not know the 50/50 Option was based on Emmett’s advice until after the

jury verdict.

Simon stated that he had frank conversations with Aaron Guidry (Kurt

Crosby’s nephew and part owner of BCC through the Crosby family trusts) about

the 50/50 Option being a mistake. 11 Simon did not remember if he gave updates to

Trosclair on the NASDI suit. However, Simon identified a July 5, 2016 email to

Trosclair and Myles Cheramie (Kurt Crosby’s son-in-law, working as an

accounting assistant under Trosclair), wherein he informed them “I do not want

11 Guidry was in law school at the time. He occasionally performed work at BCC’s office and
attended some of the NASDI trial.

11

anyone to be surprised. This litigation is horribly expensive. (I personally liked it

better when this was not a company [BCC] exposure.)” The email further stated

that the legal bill from WEPT for the NASDI suit for April and May was

“[a]nother $100K.” Simon explained that the email was to put his boss, i.e.,

Trosclair, on notice of how much money they were spending so they would know

what to expect going forward as a result of the change in the indemnity provision

(meaning the 50/50 Option).

Based on the facts set forth in the record, we find that BCC knew or should

have known prior to the jury verdict that Emmett’s March 4, 2016 advice on the

50/50 Option was not in BCC’s best interest. More specifically, the record

demonstrates that BCC had constructive knowledge of the alleged malpractice over

a year before the suit was filed and, therefore, BCC was subject to the

commencement of peremption by virtue of such knowledge. Regarding the

conflict waiver, it is evident that a conflict existed between Tony Zelenka, BCC,

the Crosby family interests, and their respective lawyers (Dan Zelenka, Emmett

and WEPT) as early as December 2014, when the contract negotiations began

between Kurt Crosby and Tony Zelenka for the purchase of BCC. Emmett

specifically recognized the need for a waiver at that time, yet a waiver was never

perfected. As any alleged malpractice regarding the conflict waiver occurred as

early as 2014, this claim is also perempted. Accordingly, we cannot conclude that

the trial court was manifestly erroneous in finding that BCC’s claim is barred by

peremption pursuant to La. R.S. 9:5605(A).

CONCLUSION

After a thorough review of the record, we find no error in the trial court’s

March 15, 2022 judgment, maintaining the exception of peremption, dismissing all

12

transactional claims of BCC, and dismissing all claims against Emmett, with

prejudice. Accordingly, we affirm.

AFFIRMED

13