Summary
The Louisiana Second Circuit affirmed dismissal of Karl Pentecost’s legal-malpractice claims against Joseph W. Grassi and McKeithen, Ryland & Champagne as perempted under La. R.S. 9:5605. The court held that Pentecost knew or should have known of the alleged malpractice by April 2018, when the appellate court denied rehearing, making his September 2019 filing untimely; the court declined to consider his fraud argument because it was raised for the first time on appeal.
Topics
Practice areas
Questions Presented
- Whether Pentecost's legal-malpractice claims were perempted under La. R.S. 9:5605 because he knew or should have known of the alleged malpractice more than one year before filing suit.
- Whether the court should consider Pentecost's fraud and fraudulent-concealment theory when that theory was raised for the first time on appeal.
Holdings
- Pentecost's legal-malpractice claims were perempted because he knew or should have known of the alleged malpractice no later than April 2018, when the court of appeal denied rehearing, and he did not file suit until September 2019.
- The court declined to consider Pentecost's fraud and fraudulent-concealment claim because it was not asserted before the trial court and was raised for the first time on appeal.
Key quotations
“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.” (5)
“Therefore, even if the client is aware that 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 that the result might be due to malpractice.” (6)
Factual background
Joseph W. Grassi represented Karl Pentecost and two of Pentecost's companies in the LSAT case. Grassi moved for an involuntary dismissal at trial, which initially succeeded, but the court of appeal later reversed and rendered judgment holding Pentecost's companies liable for insurance premiums; the Louisiana Supreme Court later denied writs. Pentecost filed a legal-malpractice action in September 2019, alleging that the representation caused substantial damages, but the trial court found that he knew or should have known of the alleged malpractice by April 2018, when the court of appeal denied rehearing.
Procedural history
Pentecost sued his former attorney and law firm for alleged malpractice arising from their representation in an earlier insurance-premium case. The Fourth Judicial District Court for Ouachita Parish granted defendants' exception of peremption, pretermitted defendants' summary-judgment motions, dismissed the suit, and assessed costs to Pentecost. The Louisiana Court of Appeal, Second Circuit, affirmed.