Terrence R. Scott v. David L. Browne, Cynthia M. Cimino, and Browne Law, LLC

TERRENCE R. SCOTT * NO. 2024-CA-0120

VERSUS *
COURT OF APPEAL
DAVID L. BROWNE, *
CYNTHIA M. CIMINO, AND FOURTH CIRCUIT
BROWNE LAW, LLC *
STATE OF LOUISIANA
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APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2020-02060, DIVISION “B”
Honorable Marissa Hutabarat,
******
Judge Rachael D. Johnson
******
(Court composed of Judge Rosemary Ledet, Judge Tiffany Gautier Chase, Judge
Rachael D. Johnson)

Terrence R. Scott
23648 Big Branch Drive
Ponchatoula, LA 70454

COUNSEL FOR PLAINTIFF/APPELLANT

Gustave A. Fritchie, III
IRWIN FRITCHIE URQUHART & MOORE, LLC
400 Poydras Street, Suite 2700
New Orleans, LA 70130

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED
SEPTEMBER 30, 2024

RDJ
RML
TGC This appeal concerns a dismissal with prejudice in a legal malpractice case.

Pro Se Appellant Terrence R. Scott (“Mr. Scott”) appeals the trial court’s October

8, 2020 judgment maintaining David Browne (“Mr. Browne”), Cynthia M.

Ciminio, and Browne Law LLC’s (referred to as “Appellees”) peremptory

exception of res judicata and alternative peremptory exception of peremption. For

the following reasons, we affirm the trial court’s judgment.

FACTS AND PROCEDURAL HISTORY

On January 7, 2016, Mr. Scott retained Mr. Browne in anticipation of

litigation commenced by USAA General Indemnity Company (“USAA”). Mr.

Scott filed a claim against USAA for insurance coverage, damages, statutory

penalties, and/or attorney’s fees arising out of a fire to his home on February 20,

2015. On January 7, 2016, Mr. Scott and Mr. Browne executed a retainer

agreement, establishing their attorney-client relationship. On January 8, 2016,

USAA filed a complaint for declaratory judgment against Mr. Scott, commencing

the underlying federal action (“USAA Case”). Mr. Scott alleged that on November

22, 2016, Mr. Browne informed him that he needed to attend a conference with the

US District court to discuss his case on November 28, 2016. After the conference,

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the parties resumed settlement discussions and on November 30, 2016, USAA and

Mr. Scott settled the case for approximately $575,000.

On May 24, 2017, Mr. Browne initiated an open account suit against Mr.

Scott to recover approximately $94,000.00 in attorney’s fees and costs for

representing Mr. Scott in the USAA Case. Mr. Scott failed to respond, and Mr.

Browne obtained a default judgment against Mr. Scott for the attorney’s fees and

costs owed. On May 31, 2019, Mr. Scott filed a petition for breach of contract

against Mr. Browne arising out of Mr. Browne’s representation of Mr. Scott in the

USAA Case. On October 17, 2019, the trial court found that the breach of contract

case, in fact, involves legal services provided by Mr. Browne to Mr. Scott and as

such, is governed by La. R.S. 9:5605.1 The court sustained Mr. Browne’s exception

of preemption based on Mr. Scott’s failure to timely file his legal malpractice

action within the one-year preemptive period outlined in La. R.S. 9:5605. Mr. Scott

never appealed this judgment.

1 La. R.S. 9:5605 states in pertinent part:

A. No action for damages against any attorney at law duly admitted to
practice in this state … whether based upon tort, or breach of contract,
or otherwise, arising out of an engagement to provide legal services
shall be brought unless filed in a court of competent jurisdiction and
proper venue 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.
B. The provisions of this Section are remedial and apply to all causes of
action without regard to the date when the alleged act, omission, or
neglect occurred. … 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 and, in accordance with Civil
Code Article 3461, may not be renounced, interrupted, or suspended.
C. Notwithstanding any other law to the contrary, in all actions brought in
this state against any attorney at law duly admitted to practice in this
state … the prescriptive and peremptive period shall be governed
exclusively by this Section.

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On April 6, 2019, Mr. Scott alleged that he became aware that Mr. Browne’s

actions on November 28, 2016, may be grounds for a legal malpractice lawsuit. On

May 20, 2019, Mr. Scott initiated his legal malpractice lawsuit against Appellees.

In response, Mr. Browne filed a peremptory exception of res judicata and

alternative peremptory exception of peremption on June 23, 2020, asserting that

Mr. Scott cannot maintain this lawsuit because the trial court already found that the

claims were time barred. The hearing was held on September 11, 2020. On

October 8, 2020, the trial judge ruled in favor of Mr. Browne, granting his

peremptory exception of res judicata and alternative peremptory exception of

peremption, dismissing Mr. Scott’s legal malpractice case with prejudice.

Mr. Scott filed a notice of intent to seek supervisory writs with the trial court

on October 8, 2020. Mr. Scott then timely filed his writ application with this Court.

Finding that the trial court judgment was final and appealable, this court granted

the writ application “for the sole purpose of remanding the matter to the trial court

to consider the notice of intent [for supervisory writ] as a motion for appeal.” The

writ was granted on November 10, 2020. On October 4, 2023, Mr. Scott filed his

motion for appeal.

On appeal, Mr. Scott’s sole assignment of error is that the trial court erred in

granting Mr. Browne’s peremptory exception of res judicata and alternative

peremptory exception of peremption.

STANDARD OF REVIEW

“The standard of review of a peremptory exception of res judicata requires

an appellate court to determine if the trial court's decision is legally correct or

incorrect.” Myers v. Nat'l Union Fire Ins. Co. of Louisiana, 09-1517, p. 5 (La.

App. 4 Cir. 5/19/10), 43 So. 3d 207, 210 (citations omitted). “Louisiana courts

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recognize that ‘a final judgment has the authority of res judicata only as to those

issues presented in the pleadings and conclusively adjudicated by the court.”’ Ins.

Co. of N. Am. v. Louisiana Power & Light Co., 08-1315, pp. 6-7 (La. App. 4 Cir.

3/4/09), 10 So. 3d 264, 268 (quoting Deckmann Assoc. v. IP Timberlands

Operating Co., Ltd., 96-2209, p. 9 (La. App. 1 Cir. 2/20/98), 710 So. 2d 1091,

1096)). “[T]he doctrine of res judicata is stricti juris, thus, any doubt concerning

the application of the principle must be resolved against its application.” Id. at p. 7,

10 So. 3d at 268 (citing Kelty v. Brumfield, 93-1142, p. 7 (La. 2/25/94), 633 So. 2d

1210, 1215).

DISCUSSION

As an initial matter we address the timeliness of Mr. Scott’s appeal.

Although the November 10, 2020 writ disposition instructed the trial court to

consider Mr. Scott’s notice of intent as a motion for appeal, the order does not

appear in the trial court record. According to the trial court record, the trial court

first received the November 10, 2020 writ disposition when Mr. Scott filed his

motion for appeal on October 4, 2023. As a result, the trial court record was never

lodged with this Court in 2020 and the parties never received a notice of lodging

which would have provided a briefing schedule.

Rule 4-2 and Rule 4-3 of the Uniform Rules of Louisiana Courts of Appeal

provide the following guidelines when applying for supervisory writ:

Rule 4-2. Notice of Intention
The party, or counsel of record, intending to apply to the
Court of Appeal for a writ shall give to the opposing
parties or the opposing counsel of record, notice of such
intention. The party, simultaneously, shall give notice to
the judge whose ruling is at issue, by requesting a return
date to be set by the judge within the time period
provided for in Rule 4-3.

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Rule 4-3. Time to File; Extension of Time
The judge who has been given notice of intention as
provided by Rule 4-2 shall immediately set a reasonable
return date within which the application shall be filed in
the Court of Appeal. The return date in civil cases shall
not exceed 30 days from the date of notice of the
judgment, as provided in La. C.C.P. art. 1914.

La. C.C.P. art. 2126 provides the duty of the clerk of trial court when

preparing the record for appeal:

[t]he clerk of the trial court, immediately after the order
of appeal has been granted, shall estimate the cost of the
preparation of the record on appeal, including the fee of
the court reporter for preparing the transcript and the
filing fee required by the appellate court. The clerk shall
send notices of the estimated costs by certified mail to
the appellant and by first class mail to the appellee.

The trial court record does not show: (1) whether November 10, 2020 writ

disposition was mailed or e-mailed to the trial court, (2) whether the clerk of the

trial court received the writ disposition, and (3) whether the clerk of the trial court

estimated the cost of preparing the record on appeal and informed Mr. Scott and

Appellees. Although Mr. Scott timely filed his notice of intent and supervisory writ

application within the thirty day guidelines provided by Rule 4-2 and Rule 4-3 of

the Uniform Rules of Louisiana Courts of Appeal, a clerical error delayed his

motion for appeal. The circumstances surrounding the timing of the appeal

reaching this court were not in Mr. Scott’s control. Mr. Scott has a right to seek an

appeal and should not be hindered by any clerical error committed by the trial

court or this Court. See Succession of Horrell, 21-0168 (La. App. 4 Cir. 5/3/22),

367 So. 3d 6, 8. Therefore, we will consider Mr. Scott’s appeal timely because he

filed his notice of intent and writ application within the guidelines of Rule 4-2 and

Rule 4-3 of the Uniform Rules of Louisiana Courts of Appeal.

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Peremptory Exception of Res Judicata

“Res judicata is designed to ‘promote judicial efficiency and final resolution

of disputes,’ and generally precludes the re-litigation of claims arising out of the

same facts and circumstances between the same parties of a previous suit in which

there is a valid, final judgment. Sutton v. Adams, 22-01674, 22-1672, 22-1677 p. 3

(La. 3/7/23), 356 So. 3d 1030, 1032 (quoting Avenue Plaza, LLC v. Falgoust, 96-

173 (La. 7/2/96), 676 So.2d 1077). The requirements of res judicata are set forth in

La. R.S. 13:4231, which states:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except
on appeal or other direct review, to the following extent:
(1) If the judgment is in favor of the plaintiff, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of the litigation are extinguished and merged in the
judgment.
(2) If the judgment is in favor of the defendant, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of the litigation are extinguished and the judgment bars a
subsequent action on those causes of action.
(3) A judgment in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action
between them, with respect to any issue actually litigated
and determined if its determination was essential to that
judgment.

To succeed on a res judicata claim, the mover must prove, by a preponderance of

the evidence, the following five elements:

1) the judgment is valid; 2) the judgment is final; 3) the
parties are the same; 4) the cause or causes of action
asserted in the second suit existed at the time of final
judgment in the first litigation; and 5) the cause or causes
of action asserted in the second suit arose out of the
transaction or occurrence that was the subject of the first
litigation.

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Barrasso Usdin Kupperman Freeman & Darver, L.L.C. v. Burch, 14-1020, 14-

2021, pp. 11-12 (La. App. 4 Cir. 3/18/15), 163 So. 3d 201, 209 (citing Chevron

USA, Inc. v. State, 07-2469, p. 10 (La. 9/8/08), 993 So. 2d 187, 194). La. C.C.P.

art. 425, which defines preclusion by judgment, provides in part that “[a] party

shall assert all causes of action arising out of the transaction or occurrence that is

the subject matter of the litigation.”

The exceptions to the general rule of res judicata are set forth in La. R.S.

13:4232, which states in pertinent part:

A. A judgment does not bar another action by the
plaintiff:
(1) When exceptional circumstances justify relief from
the res judicata effect of the judgment;
(2) When the judgment dismissed the first action without
prejudice; or,
(3) When the judgment reserved the right of the plaintiff
to bring another action.

The comments to La. R.S. 13:4232 further explain that it is under the court’s

discretion “to grant relief from the judgment for exceptional circumstances”. Id.

The court’s discretion is on a case by case basis and “allow[s] the court to balance

the principle of res judicata with the interests of justice”. Id. Particularly, it is

stated that this exception to res judicata “is not intended to apply in the case where

the plaintiff has simply failed to assert a right or claim for damages through

oversight or lack of proper preparation.” Id.

Mr. Scott does not argue that Mr. Browne did not prove by a preponderance

of evidence his res judicata claim. Instead, he argues that the application of res

judicata is improper because the case sub judice, under La. R.S. 13:4232, is

exempt from the general rule of res judicata. He further argues that Louisiana

Courts have recognized inadequate legal representation as an exceptional

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circumstance, resulting as an exception to res judicata under La. R.S. 13:4232. Mr.

Scott cites Skipper v. Berry, arguing that the Court recognized that a mistake by a

party’s legal representation should not bar the party from seeking action. 99-1433,

p. 5 (La. App. 3 Cir. 3/15/00), 762 So. 2d 56, 60. After review of the record, we

find that Mr. Scott’s argument is without merit.

Mr. Scott’s reliance on Skipper v. Berry is misplaced. In Skipper v. Berry,

the “exceptional circumstance” was a mistake where the plaintiff’s attorney

misfiled their petition in 15th Judicial District Court of Lafayette, rather than in

Lafayette City Court, where they intended to litigate his action. 99-1433, p. 1 762

So. 2d at 58. Plaintiff and defendants progressed through discovery and set trial in

Lafayette City Court. Id. The Plaintiff’s attorney then accidentally filed a motion to

dismiss with prejudice the action pending in 15th Judicial District Court of

Lafayette. Id. Defendants, in Lafayette City Court, then filed a peremptory

exception of res judicata. Id. at pp. 1-2, 762 So. 2d at 58. The trial court, under its

discretion, found that this was an “exceptional circumstance” and commenced with

trial. Id. at p. 2, 762 So. 2d at 58. These set of facts are clearly different from the

case sub judice. Mr. Scott is incorrect when he argues that any form of inadequate

legal representation would be exempt from the application of res judicata. Skipper

v. Berry involves a clear mistake in misfiling which could lead to an improper

application of res judicata and automatically bar a plaintiff from bringing their

action. Mr. Browne’s case pertains to a lack of representation for an ex parte

meeting and does not involve an improper application of res judicata. Mr.

Browne’s reliance on Skipper v. Berry is unpersuasive.

As stated earlier, the exceptions for res judicata under La. R.S. 13:4232 are

not intended to apply to cases where the plaintiff failed to assert a right or claim

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due to his or her lack of preparation or oversight. According to the record, that

seems to be the case here. Mr. Scott initially filed a breach of contract claim

against Mr. Browne on May 31, 2019. As stated in Mr. Scott’s petition for the case

sub judice, he became aware that Mr. Browne’s actions on November 28, 2016,

constituted grounds for a legal malpractice lawsuit on April 6, 2019. Both the

contract claim and legal malpractice claim involve the same parties and arose out

of the same transaction or occurrence—Mr. Browne’s legal representation of Mr.

Scott. Mr. Scott knew of Mr. Browne’s actions prior to bringing his breach of

contract claim, and he could have asserted the legal malpractice claim on May 31,

2019 as well. As stated in the comments to La. R.S. 13:4232, the exception to res

judicata is not intended to apply in cases where the plaintiff “failed to assert a right

or claim for damages through oversight or lack of proper preparation.”

Accordingly, we find that the exceptions to res judicata do not apply.

DECREE

For the foregoing reasons, we affirm the trial court’s October 8, 2020

judgment maintaining Appellees peremptory exception of res judicata and

alternative peremptory exception of peremption.

AFFIRMED

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