Opinion
NO. 2022 CA 1132
04-14-2023
Kacie Magee BREEN v. Alyce B. LANDRY, Barbara Lane Irwin, Sean Michael Breen
Richard Ducote, Covington, Louisiana, Counsel for Plaintiff/Appellant, Kacie Magee Breen James H. Gibson, Michael O. Adley, Lafayette, Louisiana, Counsel for Defendant/Appellee, Barbara Lane Irwin David S. Daly, Elliot M. Lonker, New Orleans, Louisiana, Counsel for Defendant/Appellee, Alyce B. Landry
Richard Ducote, Covington, Louisiana, Counsel for Plaintiff/Appellant, Kacie Magee Breen
James H. Gibson, Michael O. Adley, Lafayette, Louisiana, Counsel for Defendant/Appellee, Barbara Lane Irwin
David S. Daly, Elliot M. Lonker, New Orleans, Louisiana, Counsel for Defendant/Appellee, Alyce B. Landry
BEFORE: GUIDRY, C.J., WOLFE, AND MILLER, JJ.
MILLER, J. This matter is before us on appeal by plaintiff, Kacie Magee Breen, from a judgment of the trial court in favor of defendant, Barbara Lane Irwin, sustaining an exception of peremption and dismissing Ms. Breen's claims against Ms. Irwin with prejudice. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
On November 30, 2017, Kacie Magee Breen filed a suit for damages in Civil District Court in Orleans Parish against Alyce B. Landry, the independent administrator of the succession of Ms. Breen's late husband, Dr. Wayne Breen, and Barbara Lane Irwin, legal counsel for Ms. Landry and the succession, alleging that the defendants breached "a joint fiduciary duty to the heirs and to the estate" to collect, preserve, and manage the estate pursuant to La. C.C.P. art. 3191. Ms. Breen alleged that the defendants were "grossly negligent" in failing to collect, preserve, and manage the succession, which resulted in assets of the estate being squandered, mismanaged, neglected, wasted, and lost, costing the estate and heirs large sums of money. Ms. Breen contended that their negligence required her to use large sums of personal funds to "bail out" assets and pay debts of the estate.
Louisiana Code of Civil Procedure article 3191, which sets forth the general duties of a succession representative, pertinently provides that:
A. A succession representative is a fiduciary with respect to the succession, and shall have the duty of collecting, preserving, and managing the property of the succession in accordance with law. He shall act at all times as a prudent administrator, and shall be personally responsible for all damages resulting from his failure so to act.
Thereafter, following the grant of an exception of improper venue, Ms. Breen's suit was transferred to the Twenty-Second Judicial District Court for the Parish of St. Tammany on August 24, 2018. The defendants filed various other exceptions, including a dilatory exception of vagueness, which was granted in part by the trial court. Ms. Breen then amended her petition, re-urging in further detail her claims of estate mismanagement against the defendants pursuant to La. C.C.P. art. 3191.
MS. Irwin also filed an exception of peremption, contending that Ms. Breen's claims were perempted pursuant to La. R.S. 9:5605, which governs actions for legal malpractice, where Ms. Breen failed to file suit one year from the date of the discovery of the alleged malpractice (mismanagement) in a court of competent jurisdiction and proper venue. Ms. Breen opposed the exception claiming that the peremptive period set forth in La. R.S. 9:5605 was not applicable where she was not a client of Ms. Irwin. The trial court continued this peremptory exception without date.
MS. Breen's original petition also named Sean Michael Breen, Dr. Breen's adult son, as a defendant to her claims that all defendants were liable to her for initiating civil suits against her in federal court when she was entitled to the immunity afforded by La. R.S. 9:2800.19. The trial court dismissed these claims and they were not re-urged in her amended petition.
Ms. Irwin again filed an exception of preemption, seeking dismissal of Ms. Breen's amended petition pursuant to La. R.S. 9:5605. Ms. Irwin maintained that Ms. Breen discovered the alleged malpractice as early as April 1, 2016, when Ms. Breen filed a motion to remove Ms. Landry as independent administrator of the estate on the grounds of mismanagement. Ms. Irwin contended that Ms. Breen's suit filed in Orleans Parish over one year later, on November 30, 2017, was untimely, was filed in an improper venue, and thus could not serve to interrupt the peremptive period. Ms. Irwin further contended that Ms. Breen's suit filed in St. Tammany Parish on August 24, 2018, was filed well over one year from her discovery of the alleged malpractice, and as such, was untimely and/or perempted and must be dismissed. In support, Ms. Irwin attached twenty-four exhibits consisting of various pleadings, judgments, and transcripts from proceedings in the instant and related litigation.
In July of 2016, Ms. Breen renewed and supplemented her motion to remove Ms. Landry as the independent administrator. The motion to remove Ms. Landry was ultimately denied.
Ms. Breen opposed the exception challenging the commencement of the peremptive period and the effect of her intitial filing in Orleans Parish. In support, Ms. Breen attached the citation of service of her suit filed in Orleans Parish, the judgment terminating Ms. Landry's appointment as the independent administrator of Dr. Breen's estate, the exception of improper venue and the judgment granting the exception. Ms. Breen's attachments were not introduced into evidence at the hearing on the exception.
Following a hearing on July 14, 2021, the trial court concluded that utilizing either the Orleans Parish filing date of November 30, 2017, or the St. Tammany filing date of August 24, 2018, the matter was perempted under La. R.S. 9:5605. On August 2, 2021, the trial court signed a judgment sustaining the exception of peremption and dismissing Ms. Breen's claims against Ms. Irwin with prejudice.
Ms. Breen now appeals. In her sole assignment of error on appeal, she contends that the trial court erred in concluding that the peremptive time periods for legal malpractice actions set forth in La. R.S. 9:5605 applied to her claims against Ms. Irwin in the absence of an attorney-client relationship.
DISCUSSION
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. La. C.C. art. 3458. Peremption may not be renounced, interrupted, or suspended. La. C.C. art. 3461. Peremption may be raised by a peremptory exception. See La. C.C.P. art. 927(A)(2) ; Rando v. Anco Insulations Inc., 2008-1163, 2008-1169 (La. 5/22/09), 16 So. 3d 1065, 1082.
Ordinarily, the exceptor bears the burden of proof at the trial of the peremptory exception raising the objection of peremption. Carter v. Haygood, 2004-0646 (La. 1/19/05), 892 So. 2d 1261, 1267. However, if peremption is evident on the face of the pleadings, then the burden shifts to the other party to show that the claim is not perempted. Rando, 16 So. 3d at 1082.
At the hearing on the exception of peremption, evidence may be introduced to support or controvert the exception. See La. C.C.P. art. 931. If evidence is introduced at the hearing, the district court's findings of fact are reviewed under the manifest error-clearly wrong standard of review. Satterfield & Pontikes Construction, Inc. v. Breazeale Sachse & Wilson, LLP, 2015-1355 (La. App. 1st Cir. 1/10/17), 212 So. 3d 554, 558, writ denied, 2017-0268 (La. 3/31/17), 217 So. 3d 363. However, in the absence of evidence, an exception of peremption must be decided based upon the facts alleged in the petition with all of the allegations accepted as true. Regions Bank v. Eymard, 2021-0926, 2021-0927 (La. App. 1st Cir. 5/23/22), 342 So. 3d 908, 915, writ denied, 2022-00977 (La. 10/18/22), 348 So. 3d 731.
Unless properly offered and introduced into evidence, documents attached to memoranda do not constitute evidence and cannot be considered as such on appeal. Denoux v. Vessel Management Services, Inc., 2007-2143 (La. 5/21/08), 983 So. 2d 84, 88. If no evidence is introduced to support or controvert the exception, the manifest error standard of review does not apply, and the appellate court's role is to determine whether the trial court's ruling was legally correct. Atain Speciality Insurance Co. v. Premier Performance Marine, LLC, 2015-1128, 2015-1129 (La. App. 1st Cir. 4/8/16), 193 So. 3d 187, 190.
In the instant case, where peremption was not evident on the face of the pleadings, Ms. Irwin bore the burden of establishing that Ms. Breen's claims were perempted. The parties attached numerous exhibits to their respective memoranda. At the hearing on the exception, Ms. Irwin offered, filed, and introduced the exhibits attached to her exception, which were deemed admitted by the trial court. Ms. Breen did not attempt to introduce any evidence at the hearing to controvert Ms. Irwin's evidence.
In a case involving no dispute regarding material facts, only the determination of a legal issue, a reviewing court must apply the de novo standard of review, under which the district court's legal conclusions are not entitled to deference. Shannon v. Vannoy, 2017-1722 (La. App. 1st Cir. 6/1/18), 251 So. 3d 442, 449. Interpretation and application of relevant statutes are legal issues, which are reviewed de novo. Stevenson v. Progressive Security Insurance Company, 2019-00637 (La. 4/3/20), 341 So. 3d 1202, 1204.
Thus, as noted by Ms. Breen in her brief, where the issue before us in this appeal is a "legal question involving statutory interpretation of the peremptive statute, La. R.S. 9:5605," the standard of review applied by this court is de novo.
Louisiana Revised Statute 9:5605 sets forth the peremptive periods for filing legal malpractice actions, in pertinent 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.
(Emphasis added.)
Accordingly, an action for legal malpractice must be brought within one year of the date of the act, omission, or neglect, or within one year of the date of discovering the act, omission, or neglect and within three years of the date of the act, omission, or neglect. Murray v. Ward, 2018-1371 (La. App. 1st Cir. 6/10/19), 280 So. 3d 625, 629, writ denied sub nom. Murray v. Samuel C. Ward, Jr. & Associates, LLC, 2019-01149 (La. 10/21/19), 280 So. 3d 1166. The one-year and three-year periods of limitation provided in La. R.S. 9:5605(A) are peremptive periods within the meaning of La. C.C. art. 3458 and, in accordance with La. C.C. art. 3461, may not be renounced, interrupted, or suspended. La. R.S. 9:5605(B).
Louisiana Revised Statute 9:5605(E), however, excepts the peremptive periods in cases of fraud as defined by La. C.C. art. 1953.
Ms. Breen contends on appeal that La. R.S. 9:5605 and the peremptive periods set forth therein for legal malpractice cases do not apply to her claims against Ms. Irwin for mismanagement of Dr. Breen's estate where she did not have an attorney-client relationship with Ms. Irwin. Ms. Breen contends that her action against Ms. Irwin is not a "traditional legal malpractice case" brought by a former client against her attorney.
Nonetheless, Ms. Irwin contends that Ms. Breen asserted a malpractice claim in her capacity as an alleged third-party beneficiary of Ms. Irwin's legal services provided to the administrator of the estate of Dr. Breen. Ms. Irwin contends that non-client, third-party beneficiary malpractice claims fall within the ambit of La. R.S. 9:5605.
As noted by Ms. Irwin, this court has applied La. R.S. 9:5605, and the peremptive periods set forth therein, to third-party beneficiary claims. See Murphy v. MKS Plastics, L.L.C., 2019-1485 (La. App. 1st Cir. 9/21/20), 314 So. 3d 65, 71-72, writ denied, 2020-01225 (La. 12/22/20), 307 So. 3d 1041. Most recently, in Murphy, plaintiff was expelled from his employment with a corporation in the conversion of the corporation to an L.L.C. Following his discovery that he had no membership interest in the newly formed L.L.C., plaintiff filed legal malpractice and damage claims against the attorney retained by another member of the corporation to convert the corporation and to prepare an operating agreement. The attorney filed a motion for summary judgment seeking dismissal of the malpractice claims contending he was not plaintiff's attorney. Plaintiff filed an amended petition alleging that he and other members were third-party beneficiaries of the engagement agreement between the L.L.C. and the attorney. Plaintiff alleged that the attorney had a duty to the shareholders to ensure their shareholdings were properly converted to L.L.C. membership interests. Murphy, 314 So. 3d at 68. As to plaintiffs third-party beneficiary claims, the trial court applied the peremptive periods set forth in La. R.S. 9:5605 and determined that those claims were perempted. On appeal, this court agreed and affirmed. Murphy, 314 So. 3d at 71-72.
Additionally, the Fourth and Fifth Circuits have applied the peremptive periods of La. R.S. 9:5605 to suits by heirs, including heirs in their capacity as third-party beneficiaries of an estate, against attorneys for the estate and/or succession administrators. See Strahan v. Maytag Corporation, 99-0869 (La. App. 4th Cir. 4/5/00), 760 So. 2d 463, 468 ; Davis v. Conroy, 2009-142 (La. App. 5th Cir. 10/13/09), 27 So. 3d 869, 872-874, writ denied, 2009-2413 (La. 2/5/10), 27 So. 3d 299 ; and Sanches v. Morris, 2001-398 (La. App. 5th Cir. 11/14/01), 802 So. 2d 755, 761.
In Strahan, plaintiffs, who were heirs of a succession, filed suit against Whitney National Bank for damages as a result of the Bank's mismanagement of the succession while acting as its provisional administrator as well as claims of legal malpractice against the attorney and firm representing the Bank. Pursuant to a motion by the Bank, the trial court dismissed plaintiffs’ suit, as an individual and an heir, with prejudice. On appeal, the Bank's attorney filed an exception of prescription based on the trial court's recognition that the claims against him had prescribed. The appellate court sustained the exception finding that, pursuant to La. R.S. 9:5605, plaintiffs’ malpractice claims against the attorney representing the succession administrator had prescribed. Strahan, 760 So. 2d at 466-468.
In Davis, plaintiffs filed a legal malpractice suit against an attorney hired to assist in opening their mothers’ succession. Plaintiffs contended that the attorney's waiver of service of a suit to nullify the judgment authorizing the sale of the family home, and failure to notify them of same, demonstrated a "clear conflict of interest in violation of the Rules of Professional Conduct and the standard of care of lawyers practicing in this community." Davis, 27 So. 3d at 872. The attorney filed an exception contending that heirs’ claims were perempted pursuant to La. R.S. 9:5605. The attorney argued that he never agreed to represent plaintiffs individually and was acting solely as the succession attorney at all times. The trial court sustained the exception and plaintiffs appealed. The appellate court affirmed, finding that plaintiffs’ claims that the attorney "breached his fiduciary duty" and "acted ... in a negligent fashion ... causing harm to plaintiffs" were perempted pursuant to La. R.S. 9:5605. Davis, 27 So. 3d at 872-874.
In Sanches, a legatee of the decedent brought a legal malpractice action against the decedent's attorney for negligence in drafting her mother's will. She alleged that the attorney was liable for any loss she suffered as a result of the challenge to the will by her sister, as well as attorney's fees, court costs, and litigation expenses. Sanches, 802 So. 2d at 757. The attorney's professional malpractice insurance carrier, which was also named as a defendant, filed an exception of prescription contending that plaintiff's claims were barred by the peremptive period contained in La. R.S. 9:5605. Sanches, 802 So. 2d at 757. Plaintiff opposed the exception arguing that La. R.S. 9:5605 was inapplicable because there was no attorney/client relationship between herself and the attorney so as to trigger the application of La. R.S. 9:5605. She further argued that, as a third-party beneficiary of the contract between her mother and the attorney, her claim is based in contract and is subject to a ten-year prescriptive period. The trial court denied the exception. Sanches, 802 So. 2d at 761-762. On review, the appellate court held that La. R.S. 9:5605 governs prescription of legal malpractice claims and is controlling in all malpractice claims without distinction between a claim that lies in contract and one that lies in tort. The court thus concluded that "[a]lthough plaintiff is a third-party beneficiary in this case, her claim against [the attorney] was nevertheless based on legal malpractice in [the attorney's] preparation of the will. Thus, ... La. R.S. 9:5605 [is] applicable to this legal malpractice action." Sanches, 802 So. 2d at 761.
On appeal, Ms. Breen relies on Broussard v. F.A. Richard & Associates, Inc., 98-1167 (La. App. 3rd Cir. 3/17/99), 732 So. 2d 578, writ denied, 99-1048 (La. 6/4/99), 744 So. 2d 625 ; Velez v. Carbonett, 99-2891 (La. App. 1st Cir. 12/22/00), 779 So. 2d 12 ; and Smith v. Zibilich, 2012-1123 (La. App. 1st Cir. 2/15/13), 2013 WL 595825 (unpublished). The cases relied on by Ms. Breen on appeal set forth the general precept that in order for La. R.S. 9:5605 to apply, there must be an attorney-client relationship. Broussard, 732 So. 2d at 585 ; Velez, 779 So. 2d at 14 ; Smith, 2013 WL 595825 at *3. However, none of these cases involve a suit by an heir of a succession against the succession attorney for mismanagement of the estate or third-party beneficiary claims. Thus, we find those cases to be factually distinguishable from the instant case, where the claims asserted against the attorneys therein were not brought by third-party beneficiaries of the estate.
In Broussard, a widow brought a wrongful death suit against the law firm and attorney that represented her deceased husband's employer in a workers’ compensation action alleging that they fraudulently withheld a medical report. The trial court dismissed her claims, applying the peremptive periods of La. R.S. 9:5605. The court of appeal reversed, finding that her claims of tortious concealment against an adverse party's attorney did not arise from a relationship contemplated by La. R.S. 9:5605. Broussard, 732 So. 2d at 584-585.
In Velez, plaintiff filed a legal malpractice suit against his attorney, Mr. Carbonette, for failing to introduce a certain piece of evidence at trial. Mr. Carbonette hired an attorney who filed an exception of prescription that was subsequently heard and led to the matter being dismissed. Over two years later, plaintiff sued Mr. Carbonette's attorney, alleging that at the earlier hearing of the exception, she slandered his name and business. Velez, 779 So. 2d at 13. This court determined that the three-year peremptive period of La. R.S. 9:5605 did not apply to plaintiff's intentional tort (slander) claims. Velez, 779 So. 2d at 14.
Finally, Smith involved a legal malpractice claim filed against plaintiff's attorney for, among other reasons, his failure to appear in court on behalf of the plaintiff. The appellate court affirmed the trial court's dismissal of his claims as perempted pursuant to La. R.S. 9:5605. Smith, 2013 WL 595825, *3-4. Again, this case presents a factual scenario, which is distinguishable from the matter before us.
In the instant case, the record reveals that Ms. Breen's original petition was brought in her capacity as an heir to Dr. Breen's estate. Ms. Breen alleged that Ms. Irwin, acting as the attorney for Ms. Landry, was negligent and breached her duty to the heirs and the estate, thus harming Ms. Breen as a third-party beneficiary of the estate. Ms. Breen re-urged those claims in her amended petition and further detailed her claims against the defendants, alleging that they failed to: appraise or inventory assets and liabilities of Dr. Breen's medical practice, real estate, and movable property; inspect, repair, and maintain the estate's real property; properly rent, sell, liquidate; or otherwise prudently utilize the estate's real property to generate income for the estate; properly pay the mortgages and other costs due on the estate's real property to avoid foreclosure; and properly and timely file court-ordered monthly accounting. Ms. Breen further alleged that the defendants squandered assets and funds of the estate, and put their own interests above the estate and heirs in the only sale of estate property they engineered.
To the extent that Ms. Breen alleged in her amended petition that the defendants failed to timely transfer files and records regarding the estate to Ms. Breen, we note that Ms. Landry, who was in possession of the files, was ordered by the trial court to transfer the files to Ms. Breen, pursuant to an "Ex Parte Motion to Transfer Succession Administration Files" filed by Ms. Breen against Ms. Landry.
After a thorough review of the claims asserted in the original and amended petition, we find Ms. Breen's claims of mismanagement against Ms. Irwin were brought in her capacity as an heir to her late husband's estate, i.e., as a third-party beneficiary of the estate. As such, we choose to follow the jurisprudence cited herein by Ms. Irwin. See Murphy, 314 So. 3d at 71-72 ; Strahan, 760 So. 2d at 468 ; Davis, 27 So. 3d at 872-874 ; and Sanches, 802 So. 2d at 761. Accordingly, we find no error in the trial court's application of the peremptive periods set forth in La. R.S. 9:5605 to Ms. Breen's claims against Ms. Irwin and its ultimate determination that those claims were perempted.
Considering our ruling on the merits of the appeal herein, we pretermit discussion of Ms. Irwin's motion to strike, motion to dismiss appeal, and exception of no right of action filed with this court on appeal as moot.
CONCLUSION
Based on the above and foregoing reasons, the August 2, 2021 judgment of the trial court granting Ms. Irwin's exception of peremption and dismissing Ms. Breen's claims against Ms. Irwin is affirmed. Costs of this appeal are assessed against the plaintiff/appellant, Kacie Magee Breen.
AFFIRMED.
Wolfe, J. concurs in the result only.