Bize v. Larvadain

• Citation: 263 So.3d 584
• Decision Date: 28 December 2018
• Docket Number: 18-394
• Parties: Larry BIZE, Sr. and Michelle R. Bize v. Malcolm LARVADAIN, et al.
• Court: Court of Appeal of Louisiana (US)

263 So.3d 584

Larry BIZE, Sr. and Michelle R. Bize

v.Malcolm LARVADAIN, et al.

18-394

Court of Appeal of Louisiana, Third Circuit.

December 28, 2018

Rehearing Denied February 13, 2019

Nelson Welch Cameron, 675 Jordan Street, Shreveport, LA 71101, (318) 226-0111, COUNSEL FOR PLAINTIFFS/APPELLANTS: Larry Bize, Sr., Michelle R. Bize.

James Huey Gibson, Gibson Law Partners, LLC, Post Office Box 52124, Lafayette, LA 70505, (337) 761-6023, COUNSEL FOR DEFENDANTS/APPELLEES: Malcolm Larvadain, Edward Larvadain, III.

Kelvin G. Sanders, 418 Desoto Street, Alexandria, LA 71301-8305, (318) 487-0009, COUNSEL FOR DEFENDANT/APPELLEE: Edward Larvadain, Jr.

Alexander T. Reinboth, Louisiana Department of Justice, Civil Division, Post Office Box 94005, Baton Rouge, LA 70804, (225) 326-6000, COUNSEL FOR OTHER APPELLEE: Attorney General for the State of Louisiana.

Court composed of Ulysses Gene Thibodeaux, Chief Judge, Sylvia R. Cooks, and Marc T. Amy, Judges.

AMY, Judge.

The plaintiffs filed this claim against their former attorney, and purported former attorneys, alleging legal malpractice in a number of acts and omissions, including the entry of a settlement. The plaintiffs appealed to this court after the trial court sustained the defendants' exceptions of res judicata and peremption. The plaintiffs further seek review of the trial court's denial of their constitutional challenge of the setting of bond for security for costs pursuant to La.R.S. 13:4522. For the following reasons, we affirm in part; reverse in part; and remand for further limited proceedings as instructed. Upon reversal of the sustaining of the exception of res judicata, we deny that exception.

Factual and Procedural Background

The record indicates that Larry Bize, Sr. was arrested following a March 2008 incident at a bar he owned in Avoyelles Parish. Mr. Bize and his wife, Michelle R. Bize, retained Malcom Larvadain (Mr. Larvadain) to represent them in a suit by which they alleged that the Avoyelles Parish Sheriff's deputies involved in the arrest were liable to them for physical and mental damages resulting from the incident. That initial petition was filed in March 2009.

In September 2010, a first supplemental and amending petition was filed attempting to plead claims pursuant to 42 U.S.C. § 1983. The trial court granted a motion for summary judgment in July 2015 as to those latter claims on the basis of prescription and upon a finding that they did not relate to the original petition due to its lack of allegations in support of the § 1983 claims. The trial court also granted summary judgment on the basis of an absence of genuine issues of material fact, as the plaintiffs "failed to provide any evidence that they will be able to satisfy their evidentiary burden regarding said claims at trial." Thus, the trial court dismissed all § 1983 claims.

The remaining issues proceeded to trial before Judge Kerry Spruill. During a recess in the proceedings, Mr. and Mrs. Bize entered into a November 13, 2015 settlement agreement, whereby they would receive $50,000 over a twelve-month period.¹ However, the matter was not dismissed at that point.

In April 2016, with the agreement confected, the defendants in the personal injury suit filed a Motion to Enforce Settlement. While that motion was pending, Mr. Bize discharged Mr. Larvadain and retained Nelson W. Cameron as reflected in a May 2, 2016 Motion to Enroll and Withdraw as Counsel. Mr. Bize thereafter filed a Motion to Recuse,² asserting that he had lacked capacity to enter into the settlement agreement and that Judge Spruill was a potential witness at the forthcoming hearing on the Motion to Enforce Settlement. ³

Judge William J. Bennett was assigned to consider the motion to recuse. Following a hearing, Judge Bennett denied the motion, explaining in his reasons for ruling that Judge Spruill was not a witness to Mr. Bize's alleged deterioration given the latter's testimony that he became distraught during settlement negotiations that occurred during a recess.⁴

Afterwards, on September 8, 2016, Mr. and Mrs. Bize signed a formal Receipt and Release of All Claims. Therein, they acknowledged that, for the sum of $50,000, they released, acquitted, and discharged the officers named as defendants in the suit. In turn, the trial court granted the parties' Joint Motion to Dismiss and ordered, on November 15, 2016, that Mr. and Mrs. Bize's suit be dismissed as to all defendants.

Mr. and Mrs. Bize instituted the present matter, also in November 2016, by filing a Petition for Damages and Trial By Jury in Rapides Parish. The plaintiffs named Mr. Larvadain and his brother, Edward Larvadain, III, as defendants, as well as their purported partnership. The plaintiffs alleged that Mr. Larvadain committed various instances of legal malpractice in his representation of them in the initial matter, including: 1) failing to timely plead claims allegedly arising under 42 U.S.C. § 1983 and failing to timely pursue an appeal or writ on a determination that such claims had prescribed; 2) failing to file the matter in federal court; and 3) pleading causes of action against the defendants in their official capacities and not in their individual capacities. The plaintiffs additionally alleged that Mr. Larvadain "counseled Plaintiffs to enter into a settlement agreement dismissing the named Defendants with prejudice. Due to failures in the pleading as drafted and the filings and subsequent practice, the settlement obtained was woefully inadequate." They continued, asserting that Mr. Larvadain "knew or should have known during the settlement negotiations that Larry Bize was under duress at the time and was not competent to proceed with a settlement." The plaintiffs alleged that they had suffered "loss of damages including but not limited to attorney fees, punitive damages and sufficient compensation for the losses sustained in the case filed in Avoyelles Parish district court."

The plaintiffs thereafter filed three amending petitions. By those petitions, the plaintiffs named Edward Larvadain, Jr. as an additional defendant, suggesting that he assisted in Mr. Larvadain's representation of them.⁵ Among other factual assertions, the plaintiffs alleged legal malpractice in the failure to employ experts in the use of force or arrest and in economics; the failure to conduct sufficient and timely discovery; and in the failure to conduct a prompt prosecution of the matter. And, finally, the plaintiffs alleged that certain instances of purported malpractice were not known to them at the time of the occurrence. Rather, by the second and third amended petitions, the plaintiffs contended that Mr. Larvadain acted with an intent to conceal the purported malpractice, doing so by failing to inform them of, among other things, the summary judgment resulting in the dismissal of the 42 U.S.C. § 1983claims. They alleged that they only became aware of such actions after examination of the Avoyelles Parish Court records in November 2016 and only after receipt of the file from Mr. Larvadain. The plaintiffs further asserted that the delivery of the file was not prompt. Those actions, the plaintiffs contended, reflected concealment and fraud per La.R.S. 9:5605(E).

Before pleading, Mr. Larvadain and Edward Larvadian, III ("the defendants") responded to the initial petition with a Motion to Set Bond For Security For Costs, seeking a bond in the amount of $25,000, pursuant to La.R.S. 13:4522. The trial court granted the motion, ordering the posting of a bond by April 10, 2017. By the ruling, the trial court set for hearing the plaintiffs' motion and rule to show cause by which they prayed that La.R.S. 13:4522 be declared unconstitutional pursuant to La.Const. art. 1, § 2 (Due Process of Law); La.Const. art. 1, § 19 (Right to Judicial Review); and La.Const. art. 1, § 22 (Access to Courts).⁶ Following that hearing, the trial court denied the plaintiffs' claim and entered judgment indicating that "the constitutionality of La.R.S. 13:4522 is hereby upheld." The trial court maintained its earlier order that the plaintiffs post a $25,000 bond, but modified the date for the posting to "two weeks after any ruling by the Louisiana Third Circuit Court of Appeal regarding this Judgment."

The defendants further filed various proceedings, including an Exception of Peremption, an Exception of Res Judicata, and a Motion for Summary Judgment on Estoppel. Following two hearings on the matters, the trial court denied the motion for summary judgment, but sustained the exception of peremption as well as the exception of res judicata. In sustaining the exception of res judicata, the trial court ordered that "all claims of plaintiffs Larry Bize, Sr. and Michelle R. Bize concerning the alleged lack of mental capacity of Larry Bize, Sr. when the plaintiffs settled the underlying lawsuit are hereby dismissed with prejudice."

The plaintiffs appeal, asserting that the trial court erred in: 1) requiring them to post bond pursuant to La.R.S. 13:4522, as it violates La.Const. art. 1, § 22 and the Due Process Clause of the U.S. Constitution; 2) requiring them to post bond when there was insufficient evidence to support the amount imposed; 3) granting the exception of preemption, as the record indicates that acts of malpractice occurred within the one-year period before the filing of suit, and other acts occurred within one year of discovery and within three years of the filing of suit; 4) not applying prescription upon the demonstration of fraudulent concealment; and in 5) granting the exception of res judicata when the parties to the prior judgment and the case at issue are not the same.

Discussion

Louisiana Revised Statutes 13:4522

The plaintiffs first two assignments of error address the trial court's order that they post a bond for security and its determination "that the constitutionality of La.R.S. 13:4522 is hereby upheld." Titled "Defendant may demand security for costs[,]" the subject statute provides:

The defendant

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