Opinion
2018 CA 1641
07-11-2019
Frederick A. STOLZLE, Jr. v. Tony CLAYTON
Frederick A. Stolzle, Jr., Baton Rouge, Louisiana, Plaintiff/Appellant, In Proper Person Michael P. Frugé, Michael C. Hendry, Port Allen, Louisiana, Counsel for Defendant/Appellee Tony Clayton
Frederick A. Stolzle, Jr., Baton Rouge, Louisiana, Plaintiff/Appellant, In Proper Person
Michael P. Frugé, Michael C. Hendry, Port Allen, Louisiana, Counsel for Defendant/Appellee Tony Clayton
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McClendon, J. In this appeal, the plaintiff challenges a judgment of the trial court that sustained the defendant's peremptory exception raising the objection of prescription. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
On January 3, 2018, Frederick A. Stolzle, Jr. filed a pro se petition for damages against Tony Clayton. Therein, Mr. Stolzle asserted that he and Mr. Clayton entered into a joint venture agreement to share on an equal basis attorney fees in two separate personal injury lawsuits. Mr. Stolzle further alleged that Mr. Clayton received $400,000.00 in attorney fees in each case, for a total of $800,000.00, and that Mr. Clayton owes him his share of the attorney fees in the amount of $400,000.00. In response, Mr. Clayton filed a peremptory exception raising the objection of prescription, asserting that, on its face, Mr. Stolzle's petition was prescribed. Specifically, he maintained that, based on a ten-year prescriptive period and the allegations in the petition, prescription began to run in 2007 and ended in 2017, and Mr. Stolzle did not file his petition until the beginning of 2018.
Although Mr. Stolzle asserts in his brief that the petition was fax-filed on December 29, 2017, and then physically filed on January 3, 2018, the only petition in the record is the one filed on January 3, 2018.
After a hearing, the trial court sustained the exception and dismissed Mr. Stolzle's claims. Mr. Stolzle now appeals the August 16, 2018 judgment.
DISCUSSION
An objection of prescription is a peremptory exception. LSA-C.C.P. art. 927A(1). At the trial of a peremptory exception, evidence may be introduced to support or controvert any of the objections pleaded, when the grounds thereof do not appear from the petition. LSA-C.C.P. art. 931. Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiff's claim has prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed. Hogg v. Chevron USA, Inc., 09-2632 (La. 7/6/10), 45 So.3d 991, 998. When, as in this case, no evidence is introduced at the hearing to support or controvert the exception of prescription, the exception must be decided upon facts alleged in the petition with all allegations accepted as true. Cichirillo v. Avondale Industries, Inc., 04-2894 (La. 11/29/05), 917 So.2d 424, 428. 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. Harris v. Breaud, 17-0421 (La.App. 1 Cir. 2/27/18), 243 So.3d 572, 578-79. Moreover, as a general rule, prescription statutes are strictly construed against prescription and in favor of the claim sought to be extinguished. Taranto v. Louisiana Citizens Property Ins. Corp., 10-0105 (La. 3/15/11), 62 So.3d 721, 726.
The prescriptive period applicable to an action is determined by the character of the action disclosed in the pleadings. Fishbein v. State ex rel. Louisiana State University Health Sciences Center, 04-2482 (La. 4/12/05), 898 So.2d 1260, 1265. Where an attorney retained in a case employs or procures the employment of another attorney to assist him, as regards the division of the fee, the agreement constitutes a joint adventure or special partnership. Duer and Taylor v. Blanchard, Walker, O'Quin and Roberts, 354 So.2d 192, 194-95 (La. 1978) ; McCann v. Todd, 203 La. 631, 14 So.2d 469 (1943). The interest that each attorney possesses under such an agreement is the right to participate in the fund resulting from the payment of the fee by the client. Therefore, in a suit by an attorney against another attorney to recover, pursuant to such an agreement, a portion of the fee collected by the latter party from the client is not one for the recovery of attorney fees, but rather is one for breach of the agreement to share in the fund resulting from the payment of the fee. Duer, 354 So.2d at 195. The applicable prescriptive period is ten years. See LSA-C.C. art. 3499 ; Duer, 354 So.2d at 195.
Louisiana Civil Code Article 3499 provides that "[u]nless otherwise provided by legislation, a personal action is subject to a liberative prescription of ten years."
At the hearing on the exception, Mr. Clayton disputed that he ever entered into an agreement with Mr. Stolzle. He argued that, regardless, Mr. Stolzle's claim is prescribed. Mr. Clayton stated that the only dates relevant to prescription in the petition were the dates of October 22, 2002, when some type of arrangement was allegedly entered into between Mr. Stolzle and Mr. Clayton to share attorney fees, and late 2007, when Mr. Stolzle alleged that it became difficult to contact Mr. Clayton. Mr. Clayton acknowledged that the petition failed to identify when the alleged fees became due, but he argued that at the very latest, from the allegations in the petition, it can be inferred that would have been in late 2007. Therefore, because Mr. Stolzle did not file his lawsuit until January 3, 2018, Mr. Clayton asserted that the suit was prescribed on the face of the petition.
Mr. Stolzle did not offer any evidence at the hearing and his oral argument was waived due to the late filing of his opposition to the exception. See Louisiana District Court Rules, Rule 9.9. At the conclusion of the hearing, the trial court granted the exception.
At the hearing, Mr. Clayton argued that the evidence attached to Mr. Stolzle's memorandum in opposition to the exception, filed on the morning of the hearing, was not authenticated or certified and was not competent evidence. The trial court stated it would not consider the memorandum or evidence. Mr. Stolzle made a proffer of his memorandum with the attached exhibits. In his appeal, Mr. Stolzle has not raised as an issue the exclusion of the evidence.
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On appeal, Mr. Stolzle contends that the trial court drew incorrect inferences from the petition. Mr. Stolzle asserts that the granting of the exception was based on a "specious, fallacious and misleading (unintentional) interpretation of the original petition by ‘inferring’ fabricated time spans to support [the] exception." Essentially, he is claiming that the inferences are not supported by the allegations in the petition.
Mr. Stolzle asserts in his petition that he was retained as counsel for one of the personal injury lawsuits on October 22, 2002, and that he associated and retained Mr. Clayton to assist with same. The petition then alleges that "shortly thereafter," Mr. Clayton referred to Mr. Stolzle the second personal injury case. The petition then averred:
5.
In essence Stolzle and Clayton had agreed to a joint venture in which they could help each other and work these cases to maximize their efficiency [to] the benefit of their clients and delegate work which played to the strengths of each, again enhancing the benefit to the client. By sharing the workload equally
as much as possible justified the sharing of attorneys fees on a 50%-50% basis. They could justify to each other sharing the attorney's fees gain[ed] from these cases due to the enhanced benefit to the clients as well as the maximized efficiency in their relative practices.
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7.
However, Clayton, on information and belief, settled each of these cases for over One Million Dollars ($1,000,000) obtaining attorneys fees of approximately $400,000 on each case for a total of $800,000 and has yet to pay Stolzle his portion of the fees, i.e. $400,000.
8.
Stolzle has done everything possible to mediate and/or settle these issues: e.g. Clayton became difficult to contact in late 2007 and so when Clayton called Stolzle to gather some information about costs [in one of the cases], Stolzle attempted to initiate a time frame for payment of fees. Clayton seemed to be in a big hurry but said that we would get together and get it straightened out.
* * *
15.
It now becomes obvious that Clayton had been stringing this matter out by falsely and fraudulently promising and misrepresenting to Stolzle or agree to some settlement or payment of the funds owed and then backing out of them.
It appears from the face of the petition, that Mr. Stolzle's action is prescribed. The only date in the petition that indicates when prescription may have commenced is found in Paragraph 8, wherein Mr. Stolzle asserted that Mr. Clayton became difficult to contact in late 2007. Mr. Stolzle contends that the trial court drew an incorrect conclusion that he had a conversation with Mr. Clayton about fees and costs in late 2007, arguing that the conversation was after 2007. However, while we may agree with Mr. Stolzle that Paragraph 8 is not definitive as to when "Clayton called Stolzle to gather some information about costs," the paragraph is clear that, as of late 2007, a fee dispute existed between the parties and that Mr. Stolzle was trying to mediate payment of fees. There simply is no evidence in the record that controverts the exception of prescription.
Next, we must consider whether Mr. Stolzle should be allowed to amend his petition. In this regard, LSA-C.C.P. art. 934 provides that when the grounds of the objection pleaded by the peremptory exception may be removed by amendment of the petition, the judgment sustaining the exception shall order such amendment within the delay allowed by the court. If the grounds of the objection raised through the exception cannot be so removed, the action shall be dismissed. The decision to allow amendment of a pleading to cure the grounds for a peremptory exception is within the discretion of the trial court. Harris, 243 So.3d at 581.
In his appeal, Mr. Stolzle did not assign as error nor brief the failure of the trial court to allow him to amend his petition to state a cause of action. Moreover, Mr. Stolzle did not ask the trial court that he be allowed to amend his petition nor did he raise an objection to the trial court's not giving him leave to amend his petition so as to state a cause of action. As such, we find this issue to be waived or abandoned. See Hershberger v. LKM Chinese, L.L.C., 14-1079 (La.App. 4 Cir. 5/20/15), 172 So.3d 140, 144 ; Magill v. Lowery, 43,261 (La.App. 2 Cir. 5/7/08), 990 So.2d 18, 20, writ denied, 08-1237 (La. 10/10/08), 993 So.2d 1283 ; State v. Hamilton, 03-0556 (La.App. 3 Cir. 11/5/03), 858 So.2d 822, 827. Accordingly, based on the allegations of the petition, the ten-year prescriptive period had lapsed when Mr. Stolzle filed his petition on January 3, 2018, and we find no error by the trial court in concluding that Mr. Stolzle's claims against Mr. Clayton were prescribed.
CONCLUSION
For these reasons, we affirm the August 16, 2018 judgment of the trial court sustaining the peremptory exception pleading the objection of prescription filed by the defendant, Tony Clayton. All costs of this appeal are assessed to the plaintiff, Frederick A. Stolzle.
AFFIRMED.
Higginbotham, J. concurs