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Perez v. Trahant12/28/2001
Disposition: AFFIRMED IN PART, REVERSED IN PART AND REMANDED.
Gonzales, J. concurs and assigns reasons.
Ciaccio, J. dissents and assigns reasons.
Plaintiff-appellant, Howard Perez, appeals a judgment dismissing as untimely his demands against defendant-appellee, Richard Trahant, who legally represented him in an earlier-filed personal injury action. We affirm in part, reverse in part and remand.
While Trahant was an associate with a law firm, he began legal representation of Perez for personal injuries sustained in May 1994. When Trahant left the firm, he continued to represent Perez. During a mediation conference in Spring 1997, at which both Trahant and Perez were present, Liberty Mutual, a defendant in Perez's personal injury action, made various settlement offers, the highest of which was $120,000. Trahant contends that Perez was emphatic that the offer was insufficient, and Perez asserts that he instructed Trahant to take the $120,000, but the attorney did not. They agree, however, that the settlement offer made by Liberty Mutual at the mediation conference was not accepted.
Perez's personal injury action proceeded to trial. And while their respective recollection of the course of events preceding the jury trial is not in conformity with one another, the parties do not dispute that immediately before trial, Liberty Mutual reduced its offer to $75,000. After the presentment of evidence, on April 14, 1997, the jury returned a verdict which failed to award any damages to Perez. With Trahant legally representing him, Perez appealed the trial court's judgment. On appeal, that judgment was affirmed. See Perez v. Liberty Mut. Ins., 97-2532 (La. App. 1st Cir. 11/6/99), 728 So.2d 31 (an unpublished opinion). And the Louisiana Supreme Court subsequently denied writs. See Perez v. Liberty Mut. Ins., 99-0077 (La. 2/26/99), 738 So.2d 589.
On September 14, 1999, Perez filed a petition, alleging that Trahant is liable to him for the damages he sustained as a result of the attorney's legal malpractice, which he averred was due to Trahant's failure to: (1) recommend that Perez accept the settlement offers made by Liberty Mutual; and (2) ascertain and follow Perez's directive to accept Liberty Mutual's settlement offers.
Trahant filed a peremptory exception of prescription, urging that Perez's claim was asserted untimely. After a hearing, wherein evidence was adduced, the trial court granted Trahant's exception of prescription and dismissed "any and all of [Perez's] demands, with prejudice," ordering each party to bear his own costs. This appeal by Perez followed. On appeal, Trahant filed a motion seeking to convert his exception of prescription to an exception of no cause of action raising the issue of accrual of the peremptive period, which we have referred to the merits.
In addition to maintaining the trial court erred by dismissing his legal malpractice claim as untimely asserted, Perez suggests, if that claim was untimely asserted, then the time limitations set forth in La. R.S. 9:5605 are unconstitutional as applied in his case.
TIMELINESS OF LEGAL MALPRACTICE CLAIM
Statutory Time Limitation for Filing Malpractice Claims
The time limitations for filing a legal malpractice claim are set forth in La. R.S. 9:5605 which provides:
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
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