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Coffey v. Block6/23/2000
the merits of the claim. If this is treated as an attempted hearing on an innominate peremptory exception of preemption, the trial court did not give the parties a full opportunity to litigate the fraud issue. Therefore, the usual manifest error standard of review for factual findings is not appropriate under the peculiar posture of this record. Based on the foregoing, we vacate the judgment sustaining the defendants' exception and dismissing the action as untimely.
Because a remand on the applicability of the fraud exception in 9:5605(E) is required, it is not necessary for this court to address Coffey's assertion that La. R.S. 9:5605 is unconstitutional. Courts should not reach or determine whether or not a statute is constitutional unless said resolution is necessary to decide the case. Williams v. State, Department of Health and Hospitals, 97-0055 (La. 12/2/97), 703 So. 2d 579, 581. In the present situation, if it is determined that Labat committed fraud, then the peremptive periods will not be applicable to Coffey's claim. If the peremptive periods of La. R.S. 9:5605 are applied to this claim, then the issue of whether or not La. R.S. 9:5605 is constitutional will be ripe for adjudication.
Finally, a remand is mandated. The trial court erred in maintaining the defendants' exception of prescription and peremption. Moreover, in dismissing Coffey's claim as untimely, the trial court erred in not giving her an opportunity to amend her pleadings under La. C.C.P. art. 934 which states:
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 cannot be so removed, or if plaintiff fails to comply with the order to amend, the action shall be dismissed.
DECREE
The trial court's judgment sustaining defendants' exception of prescription and peremption is vacated and the matter is remanded to the trial court for further proceedings. The issue of the constitutionality of La. R.S. 9:5605 is pretermitted. Costs of this appeal are assessed to the defendants.
JUDGMENT VACATED. MATTER REMANDED FOR FURTHER PROCEEDINGS.
CARAWAY, J., concurring.
I concur in the majority's reversal of the trial court. The plaintiff has alleged a cause of action for fraudulent misrepresentation which is distinct from a claim for legal malpractice. Such cause of action is not facially prescribed, and its merits should not be tried summarily through an exception of prescription.
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