EZELL, Judge.
Larry and Michele Bize appeal the decision of the trial court granting an exception of peremption and a motion for summary judgment in favor of Malcolm and Edward Larvadain. For the following reasons, we affirm the judgment of the trial court.
The facts underlying this case were laid out by this court when it was previously before us in Bize v. Larvadain, 18-394 (La.App. 3 Cir. 12/28/18), 263 So.3d 584, writ denied, 19-419 (La. 5/6/19), 270 So.3d 577. There, we noted:
Larry Bize, Sr. was arrested following a March 2008 incident at a bar he owned in Avoyelles Parish. Mr. Bize and his wife, Michelle [sic] R. Bize, retained Malcom [sic] 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. 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, 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. 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.
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. 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. § 1983 claims. 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).
Id. (footnotes omitted) at 588-91.
At the time we heard the case, the Bizes had included in their amended petitions not only claims of inadequate settlement, but also that Mr. Bize was coerced into accepting the settlement agreement. We upheld the trial court's exception of peremption in part, but reversed in part, remanding for further proceedings "on th[e] final, non-fraud based allegation of malpractice, i.e., that related to the entry of settlement in light of the allegation of mental incapacity." Bize, 263 So.3d at 605. We remanded "for the trial court's further consideration of the exception of peremption on that single cause of action." Id.
After remand, the Bizes attempted to amend their petition again, filing a fourth amended petition on July 24, 2019, almost four years after the settlement agreement was reached. Asserted in that petition were claims that Mr. Larvadain reached an inadequate settlement and that he coerced Mr. Bize into accepting the settlement. The Larvadains answered with an exception of peremption, which was granted by the trial court. The Larvadains also filed a motion for summary judgment, alleging the Bizes could not prove malpractice in the case, as there was no evidence that Mr. Larvadain knew or should have known of any incapacity Mr. Bize had at the time of settlement, if one did indeed exist. The trial court granted that motion for summary judgment, dismissing the Bizes' claims. From those decisions, the Bizes appeal.
On appeal, the Bizes assert two assignments of error: they claim that the trial court erred in granting the exception of peremption on their claims surrounding the allegedly inadequate settlement and that the trial court erred in granting the motion for summary judgment, as Mr. Larvadain was aware of Mr. Bize's claims that he suffered from Post Traumatic Stress Disorder (PTSD) after the original incident with the Sherriff's Office. We can find no merit in either claim.
The Bizes first claim that the trial court erred in finding that the claims raised in their fourth amended petition were perempted. We disagree.
Peremption is a period of time fixed by law for the existence of a right, and unless timely exercised, the right is extinguished upon the expiration of the peremptive period. La. Civ.Code art. 3458. Thus, peremption is a period of time, fixed by law, within which a right must be exercised or be forever lost. Guillory v. Avoyelles Ry. Co., 104 La. 11, 15, 28 So. 899, 901 (1900). Consequently, peremption may not be renounced, interrupted, or suspended. La. Civ.Code art. 3461. It may, however, be pleaded or supplied by the court on its own motion at any time prior to final judgment. La. Civ.Code art. 3460.
Peremption differs from prescription in several respects. While liberative prescription merely prevents the enforcement of a right by action, it does not terminate the natural obligation; peremption, however, destroys or extinguishes the right itself. [State Bd. of Ethics v.] Ourso, 02-1978 at p. 4, 842 So.2d [346,] 349; Hebert [v. Doctors Memorial Hosp.], 486 So.2d [717,] 723; Pounds v. Schori, 377 So.2d 1195, 1198(La.1979). Public policy requires that rights to
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