Natasha Simona A. Benoit v. James Michael Wooderson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1473

NATASHA SIMONA A. BENOIT, ET AL.

VERSUS

J. MICHAEL WOODERSON

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT,
PARISH OF LAFAYETTE, NO. C-2006-0662, DIV. F
HONORABLE GLENNON P. EVERETT, DISTRICT JUDGE

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J. DAVID PAINTER
JUDGE

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Court composed of Sylvia R. Cooks, Marc T. Amy, and J. David Painter, Judges.

AFFIRMED.

Barry L. Domingue
Simon Law Offices
P.O. Box 52242
Lafayette, LA 70505
Counsel for Plaintiffs-Appellants:
Natasha Simona A. Benoit and Kimberly G. Racca

Charles E. Soileau, Attorney at Law
P.O. Box 5
Rayne, LA 70578-0005
Counsel for Defendant-Appellee:
J. Michael Wooderson

PAINTER, Judge.

Plaintiffs, Natasha Simona A. Benoit and Kimberly G. Racca, individually and

as natural tutrix of the minor, Brittany Lynn Benoit, appeal the dismissal of their legal

malpractice suit against Defendant, J. Michael Wooderson, on the ground of

prescription. For the following reasons, we affirm the judgment rendered in favor of

Defendant.

FACTUAL AND PROCEDURAL BACKGROUND

Bryan Benoit, the father of Natasha and Brittany, was murdered on February

11, 1997. Natasha, who was a minor at the time of Bryan’s death, through her

grandfather and tutor, Norbert Benoit, and Brittany, through her mother and natural

tutrix, Kimberly, retained the services of Barry L. Domingue to represent them in

their wrongful death against Floyd Flugence, the man who was convicted for the

murder of their father. After suit was filed, Domingue withdrew as counsel, and J.

Michael Wooderson enrolled as counsel for Plaintiffs. Shortly after his enrollment,

one of the defendants in the wrongful death suit was dismissed on summary

judgment, which was signed April 23, 2002. Wooderson filed a timely motion for

appeal, but said appeal was dismissed by judgment signed November 13, 2002 and

filed on November 13, 2002. Notice of this dismissal was sent to Norbert and

Kimberly on or about November 20, 2002.

Natasha, who had reached the age of majority, and Kimberly, on behalf of her

minor daughter, Brittany, filed this legal malpractice suit on February 8, 2006,

alleging that Wooderson failed to take any action in the wrongful death litigation for

a period of over three years causing an abandonment of their action. Wooderson filed

an exception of prescription alleging that any cause of action arose three years prior

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to the filing of the suit against him. Following a hearing, at which testimony was

given and evidence was received, the trial court granted the exception of prescription.

The trial court specifically found that Kimberly terminated Wooderson’s

representation of her and that Wooderson properly took no action after February 20,

2003, such that any claim for malpractice would commence to run from that date, at

the latest. Plaintiffs now appeal, asserting that the trial court’s factual findings

regarding Wooderson’s discharge and their failure to communicate and monitor their

case were manifestly erroneous.

DISCUSSION

Plaintiffs seek a de novo review of their case, however, the Louisiana Supreme

Court has set forth the standard of review applicable to this case:

When prescription is raised by peremptory exception, with
evidence being introduced at the hearing on the exception, the trial
court’s findings of fact on the issue of prescription are subject to the
manifest error-clearly wrong standard of review. Carter v. Haygood,
04-0646 (La.1/19/05), 892 So.2d 1261, 1267. Under the manifest error
standard of review, a factual finding cannot be set aside unless the
appellate courts [sic] finds that it is manifestly erroneous or clearly
wrong. Smith v. Louisiana Dept. of Corrections, 93-1305 (La.2/28/94),
633 So.2d 129, 132; Stobart v. State through Dept. of Transp. and
Development, 617 So.2d 880, 882 (La.1993); Rosell v. ESCO, 549 So.2d
840, 844 (La.1989). In order to reverse a fact finder’s determination of
fact, an appellate court must review the record in its entirety and (1) find
that a reasonable factual basis does not exist for the finding, and (2)
further determine that the record establishes that the fact finder is clearly
wrong or manifestly erroneous. Id. The appellate court must not
re-weigh the evidence or substitute its own factual findings because it
would have decided the case differently. Id.; Pinsonneault v. Merchants
& Farmers Bank & Trust Co., 01-2217 (La.4/3/02), 816 So.2d 270,
278-79. Where there are two permissible views of the evidence, the fact
finder’s choice between them cannot be manifestly erroneous or clearly
wrong. Id.

London Towne Condo. Homeowner’s Assoc. v. London Towne Co., 06-401, pp. 4-5

(La. 10/17/06), 939 So.2d 1227, 1231.

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Louisiana Revised Statutes 9:5605 provides, in pertinent part, as follows:

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.

We have recognized that “[t]hough different in their operation, the relatedness

of the two theories justifies application of prescription’s burden-shifting principles

enunciated in the jurisprudence to peremption.” Dauterive Contractors, Inc. v.

Landry & Watkins, 01-1112, p. 16 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1253.

Thus, “when the plaintiff's petition is perempted on its face, the burden shifts to the

plaintiff to show why the claim has not perempted.” Id.

In Campo v. Correa, 01-2707, pp. 11-12 (La.6/21/02), 828 So.2d 502, 510-511

(citations omitted), the Louisiana Supreme Court said:

Prescription commences when a plaintiff obtains actual or constructive
knowledge of facts indicating to a reasonable person that he or she is the
victim of a tort. A prescriptive period will begin to run even if the
injured party does not have actual knowledge of facts that would entitle
him to bring a suit as long as there is constructive knowledge of same.
Constructive knowledge is whatever notice is enough to excite attention
and put the injured party on guard and call for inquiry. Such notice is
tantamount to knowledge or notice of everything to which a reasonable
inquiry may lead. Such information or knowledge as ought to
reasonably put the alleged victim on inquiry is sufficient to start running
of prescription.

Plaintiffs contend that that the trial court erred in finding that Wooderson’s

representation was terminated by Kimberly’s phone call of February 20, 2003. In that

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phone call, she requested a return of her “materials.” Wooderson’s secretary testified

that it is was her impression from this phone call that Wooderson was fired, even

though Kimberly did not use those words. Kimberly denied making the call and

testified that she never terminated his services or had the intention to terminate his

services. The trial judge made a credibility determination in finding that Wooderson’s

services were terminated, and since there are two permissible views of the evidence,

we can find no manifest error in this determination.

Norbert testified, through affidavit and sworn statement, that he did not want

to pursue the suit on behalf of Natasha. Wooderson wrote numerous letters to his

clients suggesting that the underlying file be closed. He received no response from

Kimberly to his letters or his phone calls.

A copy of the dismissal of the appeal was mailed to Norbert and Kimberly on

November 20, 2002. Kimberly called Wooderson’s office on February 20, 2003. We

find that the notice of the dismissal coupled with Wooderson’s correspondence to

Norbert and Kimberly amounted to constructive knowledge in that it was “enough to

excite attention and put the injured party on guard and call for inquiry.” Campo, 822

So.2d at 511. We agree with the trial court that, at the latest, on February 20, 2003,

Kimberly had constructive knowledge. Thus, suit should have been filed within one

year of that date.

Plaintiffs contend that the date of Wooderson’s “final act of malpractice” was

the date on which the underlying wrongful death suit abandoned, July 1, 2002, and

that they had no cause of action against Wooderson until then because they “had

every reason to believe that he was pursing their claims.” They point to the

stipulation that the last date on which Wooderson took any action was July 1, 2002.

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We find no merit in this argument since we find that Plaintiffs knew or should have

known that no action was being taken as of November 20, 2002, at the earliest, or

February 20, 2003, at the latest.

DECREE

For all of the foregoing reasons, we affirm the trial court’s judgment dismissing

the Plaintiffs’ claims against Wooderson. Costs of this appeal are assessed against

Plaintiffs.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—Courts
of Appeal. Rule 2-16.3.

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