Royal Fiberglass Pools, Inc. v. Cedars
| Decision Date | 03 February 1993 |
| Docket Number | No. 91-1365,91-1365 |
| Citation | 614 So.2d 282 |
| Parties | ROYAL FIBERGLASS POOLS, INC., Plaintiff-Appellant, v. Chester R. CEDARS, et al., Defendants-Appellees. |
| Court | Court of Appeal of Louisiana — District of US |
Lisa Brener, Lafayette, for plaintiff-appellant.
Allen & Gooch, St. Paul Bourgeois, Lafayette, for defendants-appellees.
Before LABORDE, THIBODEAUX and WOODARD, JJ.
The sole issue of this appeal is whether prescription has run on plaintiff's legal malpractice suit.
Royal Fiberglass Pools, Inc. (hereinafter plaintiff), through their owners Clifford and Rebecca Hebert, filed a claim for legal malpractice against its attorney, Chester R. Cedars (hereinafter defendant). After answering the petition, defendant filed a peremptory exception of prescription. A hearing was held on the exception in which the trial court sustained the exception. It is from this ruling that plaintiff timely appeals.
After a thorough review of the record and the law, we affirm the judgment of the trial court. The trial court found that the running of prescription commenced in August of 1988 when plaintiff had notice that Mr. Cedars did not file a lawsuit on their behalf against Riberglass, Inc. An appellate court should not disturb the findings of the trier of the fact absent manifest error. Rosell v. Esco, 539 So.2d 937 (La.App. 4 Cir.1989).
Therefore, because we find the trial court was not manifestly erroneous in their finding of when prescription began to run, we affirm its decision and adopt in toto its well written reasons for judgment as our own and include it hereto.
Costs of this appeal are assessed against plaintiff.
AFFIRMED.
APPENDIX
Royal Fiberglass Pools, Inc.
vs.
Chester R. Cedars, et al.
16th Judicial District Court
Parish of St. Martin
State of Louisiana
This matter came before the Court on June 14, 1991 as a peremptory exception of prescription filed by defendant Chester Cedars. Present for the plaintiff was the attorney of record, Lisa Brener. Present for defendant was his attorney of record, St. Paul Bourgeois. Testimony was presented by Clifford and Rebecca Hebert, owners of the plaintiff company Royal Fiberglass. Testimony was also presented by attorney Kenneth W. DeJean.
This action arises out of a claim by Royal Fiberglass that their attorney, Chester Cedars, committed legal malpractice when he failed to file timely a lawsuit on their behalf.
The alleged facts are as follows. Royal Fiberglass is a corporation engaged in the business of manufacturing swimming pools. In late 1985 and the early part of 1986, Clifford and Rebecca Hebert, owners of Royal Fiberglass, noticed a yellowing in their pools which they assert was due to a defective gel coating distributed to them by Riberglass, Inc. In September of 1986, the Heberts met with their attorney Chester Cedars, seeking legal representation. Plaintiffs' petition claims that the Heberts requested that Mr. Cedars sue Riberglass. Mr. Cedars maintains that this request was not made.
Subsequent to the September 1986 meeting between Mr. Cedars and the Heberts, Mr. Hebert entered into discussions with Riberglass to settle their differences whereby Royal would not sue Riberglass if Riberglass would indemnify Royal for damages. On February 5, 1987, Royal executed a promissory note in favor of Riberglass in connection with monies it allegedly owed, based upon its understanding that Riberglass would indemnify Royal for all of the damages which it sustained as a result of the defective gel coat. Royal made two payments on the promissory note and subsequently stopped. On June 10, 1987 Riberglass filed a lawsuit against Royal on the promissory note.
Mr. Cedars informed the Heberts that the trial on the promissory note was scheduled for August 23, 1988. The Heberts believed that the two lawsuits--the one filed by Riberglass on the promissory note, and Royal's suit against Riberglass for the defective gel coat--were scheduled for trial together.
In August of 1988 the trial date was continued. Mr. Hebert testified that at this point he had a "gut feeling" that Mr. Cedars had never filed a lawsuit by Royal against Riberglass. He stated that he did not see the filing of the lawsuit in the newspaper as is customary and he expressed his concerns to his wife. This concern prompted Mrs. Hebert to call the Clerk of Court to determine if a lawsuit had been filed. In Mrs. Hebert's deposition, she unequivocally stated that the Clerk's office told her on that day that no suit had been filed. Mrs. Hebert testified at trial that she did not understand the term "filed"; she thought that when the clerk informed her that the suit had not been filed, the clerk meant that her suit was not coming up for trial. Under cross examination, however, her testimony was impeached by her prior deposition. On her deposition she stated four times, and in differing language, that she then knew that her suit was not filed.
A few days after Mrs. Hebert telephoned the Clerk's office, the Heberts fired Chester Cedars and hired attorney Ken DeJean to represent them.
Mr. DeJean testified at trial that the Heberts came to him because they were concerned that Mr. Cedars had not filed a lawsuit against Riberglass. Mr. DeJean instructed them that they could go to the Clerk of Court to determine if a suit had been filed. Later Mr. DeJean called Mr. Cedars to discuss the status of the Heberts' legal matters. Mr. DeJean stated on the stand that "Mr. Cedars told me that 'everything has been done' or 'everything is under control', something to that effect".
Finally, on October 26, 1988, a letter was sent to Mr. DeJean from Mr. Cedars which indicated that he had not filed a lawsuit in redhibition against Riberglass nor had he filed a reconventional demand to the suit on the promissory note brought by Riberglass against Royal. Subsequently, on February 3, 1989, Mr. DeJean filed a reconventional demand to the suit on the promissory note brought by Riberglass. On March 17, 1989, Riberglass filed an exception of prescription to the reconventional demand.
On October 25, 1989, Royal filed this lawsuit against Chester Cedars seeking damages for failure to file timely their suit against Riberglass. In addition to denying the allegations, Mr. Cedars contends that Royal's lawsuit against him has prescribed.
The applicable prescriptive period for tortious conduct is governed by Louisiana Civil Code Article 3492, which provides for a one year prescriptive period. This one year prescriptive period does not begin to run until damage is sustained. Rayne State Bank & Trust Co. v. National Union Fire Ins. Co., et al., 438 So.2d 987 (La.1986). As a basis for a damage claim, it is sufficient for the plaintiff to show that a loss is going to be suffered or is sure to result. Allain v. First Guaranty Bank, 491 So.2d 60 (La.App. 1st Cir.), writ denied, 494 So.2d 1179 (1986).
The Louisiana Supreme Court, in discussing when damage is sustained for legal malpractice cases, stated that the mere breach of a professional...
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