Henry L. Burns v. Christian M. Goudeau

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

04-821

HENRY L. BURNS

VERSUS

CHRISTIAN M. GOUDEAU, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 02-C-0498-A
HONORABLE JAMES T. GENOVESE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Billie Colombaro Woodard, Marc T. Amy, and Billy Howard
Ezell, Judges.

AFFIRMED.

Tommy K. Cryer
4348 Youree Drive
Shreveport, LA 71105
(318) 865-3392
COUNSEL FOR PLAINTIFF/APPELLANT:
Henry L. Burns

James H. Gibson
Allen and Gooch
Post Office Box 3768
Lafayette, LA 70502-3768
(337) 291-1300
COUNSEL FOR DEFENDANTS/APPELLEES:
Christian M. Goudeau
Christian M. Goudeau, APLC

AMY, Judge.

The plaintiff filed suit against the defendant alleging legal malpractice. The

defendant filed exceptions of no cause of action, peremption, and prescription

pursuant to La.R.S. 9:5605. The trial court granted the exceptions, finding that the

matter was not timely filed. The plaintiff appeals. For the following reasons, we

affirm.

Factual and Procedural Background

The plaintiff, Henry L. Burns, engaged the defendant, Christian M. Goudeau,

to represent him in a suit filed in federal court in Alexandria. The federal matter was

ultimately dismissed through unfavorable partial summary judgments, the last of

which was dated September 14, 2000. Although the record evidences telephone

discussions between the plaintiff and Mr. Goudeau subsequent to the judgments, in

particular to that of September 14, 2000, no notice of appeal was filed before the end

of the federal appellate delays on October 14, 2000. The nature of those telephone

calls, in particular, whether the plaintiff was advised of appellate delays and whether

he demonstrated an intent to appeal, is at issue.

After an encounter at a restaurant with co-counsel James Spradling1 on May 3,

2001, and Mr. Spradling’s reference to the fact that any appellate delays would have

lapsed by that point, the plaintiff authorized Mr. Spradling to file a motion pursuant

to Rule 60 of the Federal Rules of Civil Procedure in federal court to seek relief from

the judgment.2 The Rule 60 motion was denied.

1
Although Mr. Goudeau was considered lead attorney on the matter, two other attorneys, Mr.
Spradling and Sam Cravins, were engaged as co-counsel of record.
2
Rule 60 provides, in part:

(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud,
etc. On motion and upon such terms as are just, the court may relieve a party or a
party’s legal representative from a final judgment, order, or proceeding for the
following reasons:

The petition instituting the instant malpractice action was initially filed in

Bossier Parish on October 5, 2001. The petition was followed by an exception

alleging that Bossier Parish was an improper venue. After a determination by the trial

court that Bossier Parish was an improper venue, the exception was granted and the

matter was transferred to St. Landry Parish. The case was filed in St. Landry Parish

on February 6, 2002.

The petition contained allegations that the plaintiff’s appellate delays in the

federal matter were negligently permitted to lapse. Christian M. Goudeau, Attorney

at Law, Christian M. Goudeau, A Professional Law Corporation, and Mr. Goudeau’s,

individual and professional insurers were named as defendants (referred to

collectively hereinafter as “ the defendant”). The plaintiff asserted in the petition that

the defendant failed to institute an appeal in a timely manner and allegedly mislead

the plaintiff as to the possibility of appealing. The plaintiff filed a supplemental and

amending petition, including the assertion that the defendant failed to inform him that

the deadline for appealing had passed and that the plaintiff did not become aware of

the expiration of the delay period until he consulted with another attorney on May 3,

2001.

The defendant filed exceptions of no cause of action, peremption, and

prescription, arguing that the matter was perempted pursuant to La.R.S. 9:5605 as the

(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been
discovered in time to move for a new trial under Rule 59(b);
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation,
or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged, or a prior judgment upon
which it is based has been reversed or otherwise vacated, or it is no longer equitable
that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment.

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matter was dismissed from federal court on September 14, 2000, transferred from a

court of improper venue on December 13, 2001,3 and not filed in a court of proper

venue until February 6, 2002. Following a hearing, the trial court granted the

exceptions.

The plaintiff appeals and, in his brief to this court, asserts that the trial court

erred in the following respects:

1. In granting the defendant’s exception of peremption;

2. In failing to apply the reasonable man standard to determine when
plaintiff/appellant should have discovered the malpractice in
order to establish the commencement of the peremptive period;

3. In finding that plaintiff should have discovered that defendant had
not filed notice of appeal in the underlying [sic] within two weeks
after the omission; and

4. In failing to find that the defendant’s continuing to serve as
counsel of record for plaintiff in the underlying [sic] prevented
the running of the peremptive period.

Discussion

The plaintiff first contends that the trial court erred in concluding that any

alleged malpractice relating to the lack of notice of appeal being filed was discovered

or should have been discovered more than a year before the petition instituting this

matter was filed. In making this argument, the plaintiff uses the December 2001 date

of the Bossier Parish district court’s determination that it was a court of improper

venue and transfer of the matter to St. Landry Parish as the date on which prescription

was interrupted. He contends that the period between the lapse of the appellate

deadline in October 2000 and any interruption in December 2001 leaves only a two

3
We note that December 13, 2001, is the date that both parties refer to as the date the matter
was transferred from Bossier Parish. However, the judgment memorializing that transfer is dated
December 20, 2001.

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month period in which the trial court found that he discovered or should have

discovered of any malpractice in failing to file the malpractice issue. This period of

time, the plaintiff argues, is insufficient to have put a reasonable man on notice of

potential malpractice.

The applicable statutory authority in this matter is La.R.S. 9:5605, which

provides, in part:

A. No action for damages against any attorney at law duly
admitted to practice in this state, any partnership of such attorneys at
law, or any professional corporation, company, organization,
association, enterprise, or other commercial business or professional
combination authorized by the laws of this state to engage in the practice
of law, 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 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 34584 and, in accordance with Civil
Code Article 3461,5 may not be renounced, interrupted, or suspended.

....

E. The peremptive period provided in Subsection A of this
Section shall not apply in cases of fraud, as defined in Civil Code
Article 1953.6

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Article 3458 provides:
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.
5
Article 3461 provides:
Peremption may not be renounced, interrupted, or suspended.
6
Reference to La.Civ.Code art. 1953 indicates:
Fraud is 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. Fraud may also result from silence or inaction.

4

As can be seen in Subsection B, the one and three-year periods provided for in

La.R.S. 9:5605(A) are peremptive in nature. The statute provides that the one-year

period, that which is applicable in this case, begins to run from the date of the

allegedly tortious act or from the date that such an act is discovered or should have

been discovered. La.R.S. 9:5605(A). In considering whether facts were such that a

plaintiff should have discovered a cause of action, the courts have considered the

facts of the case in light of a reasonable man standard. See Paternostro v. LaRocca,

01-0333 (La.App. 1 Cir. 3/28/02), 813 So.2d 630. See also Taussig v. Leithead, 96-

960 (La.App. 3 Cir. 2/19/97), 689 So.2d 680. As stated in Paternostro, 813 So.2d at

634, when considering the reasonable man standard, the focus is on “the

appropriateness of the claimant’s actions or inactions.”

In ruling on the exceptions, the trial court rendered extensive reasons for

ruling, ultimately concluding that the plaintiff discovered or should have discovered

any failure to file an appeal immediately after the lapse of the appellate delay, in

October 2000, and that suit was not filed in a proper venue until more than a year

after the expiration of the one-year peremptive period. In doing so, the trial court

explained that the underlying federal case was one of great importance to the plaintiff

and one in which he had actively participated. The plaintiff’s educational and

professional background as a certified public accountant and a chief financial officer

of a hospital were also taken into account. The trial court further remarked as to

telephone and billing records indicating that the plaintiff and the defendant engaged

in a number of telephone conversations during the time period of the judgment and

appeal period. The trial court stated that:

When I look at it from the standpoint and you consider Mr.
Goudeau, the attorney with a subspecialty in the field of First

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Amendment cases, balanced out with Mr. Burns, who is a well-educated
C.P.A. with considerable experience in the field and a business man I
might note, this court finds it very difficult to believe that there was not
a discussion regarding appeal. And I think that both parties agree that
there was a discussion regarding appeal. . . .

....

Now, when I break this thing down and I want to know why, if I
take what Mr. Burns has told me about this matter, all of what he knew
in August, September, up until October the 6th, 5th or 6th, the last
phone conversation, why wasn’t this suit timely filed in a court of proper
jurisdiction and venue? And I repeat the last day of appeal the case in
Federal court would have been October 14th, 2000. But, if he was
aware of the fact that things were not going good for him in this matter,
which he knew that Judge Little had decided the case against him,
nothing was done in that matter for seven months relying on the premise
that, oh well, it always takes lawyers a long time - - or C.P.A.’s - - to get
things done, and they tell you they’re going to take depositions and it
takes months to take depositions. I can go along with that Mr. Burns,
for a certain period of time; if it’s taking depositions and if it’s moving
the case along, I can go along with their [sic] being delays. With
whether it’s lawyers or C.P.A.’s or anyone else, I can go along with that.
But, Mr. Burns, when you cut to the chase in this particular matter, this
was something wherein your case was thrown out. You lost this case.
This case was dear to you and you lost it, and you had to have been
upset and there had to have been action taken on your appeal
immediately because I believe what you have told me, that you would
have wanted something done because your case was thrown out by
Judge Little.

With that said, there would have had to have been some follow-
up, not only by Mr. Goudeau, but by you yourself, sir, as to what was
going on with this particular case. If you really felt that you wanted Mr.
Goudeau to appeal and he just dropped the ball and never did appeal, do
you really think it would have taken seven months for you to get some
sort of notice of this? Seven months for you to appeal a case that you
were thrown out of court on, seven months of not hearing anything?
That’s okay, it’s all right, Mr. Goudeau’s handling that. Seven months
before you even think of calling your friend and your attorney, Mr.
Spradling, and saying . . . “Hey, Jim, what’s going on with this guy,
Goudeau? What’s the deal here? I lost my case. Where’s the appeal?
What’s gonna happen here? What’s going on? How long - - how much
time do I have to appeal? . . . Nothing in that regard. Nothing except,
over a meal in May of 2001, some seven months later[.] . . .

....

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And you knew about that certainly by October of 2000, so the
period began to run at least by then and the one year period is up. And
you have to sue not only in a proper jurisdiction, you’ve got to sue in
proper venue. So that even puts you back to December the 13th, 2001,
because it was filed in the wrong venue. It’s got to be in proper
jurisdiction and proper venue. So, I can only consider the fact that you
filed suit September the - - I mean December the 13th, 2001, when the
judge in Bossier Parish granted the exception, and then transferred it
down here where it was ultimately filed in February of 2002. All the
time periods in this matter are lagging; in Federal court, in State court,
in Bossier, and in St. Landry. It’s all lagging, and it’s not timely filed.

And the issue, the court finds that the evidence preponderates in
favor of the defendants, Mr. Goudeau, as corroborated by his records,
his logs, and other documentary evidence, and the testimony of Mr.
Spradling, and that by a preponderance of the evidence, more probable
than not, 50 percent plus one, that the one year time period that is both
prescriptive and peremptive was not met. As a result thereby, the court
grants the Exception of Prescription and Peremption and dismisses the
case accordingly. . . .

A trial court’s finding as to when the one-year peremptive period of La.R.S.

9:5605(A) begins to run is factual in nature and will not be disturbed on appeal absent

manifest error. See, e.g., Lambert v. Toups, 99-72 (La.App. 3 Cir. 10/13/99), 745

So.2d 730. Our review of the record reveals no such error.

Recall that the relevant dates in this matter are as follows: Judgment rendered

in federal matter - September 14, 2000; Appellate delay terminates - October 14,

2000; Malpractice action filed in Bossier Parish - October 5, 2001; Judgment

transferring matter to St. Landry Parish - December 20, 2001; Matter filed in St.

Landry Parish - February 6, 2002. Given these dates, we first note that all parties

agree, and that the trial court found, any appeal in the federal matter must have been

filed by October 14, 2000. Furthermore, La.R.S. 9:5605(A) requires that a suit must

be “filed in a court of competent jurisdiction and proper venue” within the one year

of discovery or imputed discovery. In this case, venue was proper in St. Landry

Parish, not Bossier Parish. Although transferred earlier, the matter was not filed in

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St. Landry Parish until February 6, 2002. Thus, the matter was not timely filed unless

the date of the plaintiff’s discovery or constructive discovery of the failure to file was

after February 6, 2001. As seen above, the trial court’s reasons reveal a finding that

the date of discovery or constructive discovery was well before this date. The record

supports this determination.

The plaintiff testified that he had, in fact, received a copy of the ruling

dismissing his action from federal court. Furthermore, the record evidences

conversations the plaintiff had with the defendant subsequent to that ruling, on

September 19th, September 25th, and October 6th. The plaintiff testified that he

expressed his desire to appeal the judgment to Mr. Goudeau, but was told that

research had to be done as to applicable appellate delays. Therefore, he waited to

hear from Mr. Goudeau.

Mr. Goudeau’s version of events differs. He testified that he would not have

had to conduct research as to applicable appellate delays, that the plaintiff was aware

of the delays, and that the plaintiff never authorized the filing of an appeal. As for

his October 6th conversation with the plaintiff, the defendant contends that the

plaintiff informed him at that time that he did not want to appeal. These conflicting

versions require a credibility determination from the trial court as to what the plaintiff

discovered or should have discovered. Although the trial court explained that it did

not necessarily disbelieve the testimony offered by the plaintiff or the defendant, the

trial court found that the plaintiff’s previous active participation and interest in the

suit indicate that, if interested in an appeal, he should have been on alert that

something was amiss when information as to the filing of that appeal was not

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immediately forthcoming. This type of factual finding, which is supported by the

record, will not be disturbed on review.

This assignment lacks merit.

Continuous Representation

The plaintiff alternatively argues that the defendant’s continuation as counsel

of record during co-counsel’s attempt to remedy any lost appellate rights through the

Rule 60 mechanism “tolled” the peremptive period of La.R.S. 9:5605 until this

potential avenue was “exhausted and the case irretrievably lost.”

This argument by the plaintiff is essentially an assertion that the “continuous

representation rule,” which predated the enactment of La.R.S. 9:5605, should be

applied along with the statute’s peremptive period. However, the continuous

representation rule has been found inapplicable in La.R.S. 9:5605 cases by the

Louisiana Supreme Court in Reeder v. North, 97-0239 (La. 10/21/97), 701 So.2d

1291. In Reeder, the supreme court referenced the specific wording of La.R.S.

9:5605 in concluding that: “As a suspension principle based on contra non valentem,

the ‘continuous representation rule’ cannot apply to peremptive periods.” Id. at 1298

(footnote omitted). Thus, after the date of discovery or the date any alleged

malpractice should have been discovered, the one-year peremptive period of La.R.S.

9:5605 began. Due to its nature as a period of peremption, the “continuous

representation rule” cannot be found to have suspended that rule. See La.R.S.

9:5605(A) and (B); Reeder, 701 So.2d 1291.

This assignment lacks merit.

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DECREE

For the foregoing reasons, the decision of the trial court is affirmed. All costs

of this proceeding are assigned to the plaintiff, Henry L. Burns.

AFFIRMED.

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