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GRACE WONG VERSUS MITCHELL J. HOFFMAN, HILLARY HURST LANDRY, AND LOWE, STEIN, HOFFMAN, ALLWEISS & HAUVER, L.L.P.

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NO. 2005-CA-1483 COURT OF APPEAL FOURTH CIRCUIT STATE OF LOUISIANA

ARMSTRONG, C. J. DISSENTS WITH REASONS. Because I am convinced that the judgment of the trial court should be affirmed, I respectfully dissent from the majority opinion herein. This legal malpractice case arose out of Ms. Wong's representation by the defendant attorneys in a domestic relations proceeding, Curole v. Curole, bearing case number 554-553 on the docket of the 24th Judicial District Court. Mr. Curole initiated divorce proceedings against Ms. Wong on June 14, 2000, seeking a judgment of divorce, full custody of the two minor children of the marriage and a temporary restraining order preventing the children's removal from Louisiana. Ms. Wong engaged Mr. Hoffman in the summer of 2000 to represent her in connection with the aforementioned proceeding. Ms. Wong alleges that she told Mr. Hoffman at that time that she wished to relocate with her children to Ohio, and related incidents of her abuse at the hands of her husband. Mr. Hoffman took photographs of Ms. Wong's bruises, allegedly caused by Mr. Curole. On June 27, 2000, Mr. Hoffman filed an Answer and Reconventional Demand on behalf of Ms. Wong seeking, inter alia, a judgment of divorce, unconditional use of the family home, interim spousal support, child support, joint custody of the two minor children and a temporary restraining order against Mr. Curole's depletion of community assets.

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Ms. Wong claims that a Consent Judgment dated October 6, 2000 was obtained as a result of legal malpractice on the part of the attorney defendants, Mr. Hoffman and Ms. Landry, and their law firm. The judgment was made retroactive to June 27, 2000, when Ms. Wong's Answer and Reconventional Demand had been filed. At the time of that consent judgment, October 6, 2000, Ms. Wong knew or should have known that Mr. Hoffman had disregarded her stated desires both to relocate and to give her allegedly abusive husband custody of their minor children. On October 10, 2000, at Ms. Wong's request, Mr. Hoffman filed a La.R.S. 9:355.4(B)(5) notification of her intent to relocate the children to Ohio. Mr. Curole filed a timely objection, and the matter was heard by the trial court on June 29 and July 31, 2001. Mr. Curole called Dr. Lynn Parker, a clinical child psychologist, to testify generally concerning the effects of relocation in the context of custody proceedings. Dr. Parker had served previously as a court appointed mediator in the domestic relations proceedings; however, Mr. Hoffman did not object to the testimony on that ground. Mr. Hoffman did raise an objection to Dr. Parker's testimony pursuant to Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993). Based in part on Dr. Parker's testimony, the trial judge denied Ms. Wong's relocation request. Mr. Hoffman appealed, and the Louisiana Court of Appeal, Fifth Circuit, reversed, holding that the trial court's reliance upon Dr. Parker's testimony was manifestly erroneous and constituted an abuse of discretion. Curole v. Curole, 02-153 (La.App. 5 Cir. 6/26/02), 848 So.2d 591, 600, writ granted, 02-

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1891 (La.7/29/02), 821 So.2d 487, judgment reversed, 02-1891 (La.10/15/02), 828 So.2d 1094. In its opinion, the court of appeal noted that Ms. Wong's counsel "failed to object to Dr. Parker's testimony on the ground that she had served as mediator. Rather, counsel objected that Dr. Parker did not satisfy the Daubert standards to qualify as an expert in this matter." Curole v. Curole, supra at p. 16, 848 So.2d at 599-600. However, upon the Louisiana Supreme Court's grant of Mr. Curole's writ application, the trial court judgment was reinstated. Curole v.

Curole, 02-1891 (La. 10/15/02), 828 So.2d 1094. The Louisiana Supreme Court held that the trial court may give whatever weight it deems appropriate to the testimony of any and all witnesses, including experts, and that the record revealed that the trial court did not rely exclusively on Dr. Parker's testimony, but based its conclusion on the totality of the circumstances. The Supreme Court affirmed that conclusion. During the pendency of the foregoing appellate proceedings, Mr. Hoffman's associate, Ms. Landry, advised Ms. Wong that the trial judge had scheduled a hearing on custody, visitation and support issues for February 14, 2002. Ms. Wong claims that she told Ms. Landry she would not be able to attend that hearing, and Ms. Landry allegedly agreed to seek a continuance. Ms. Wong contends that she was not advised that the hearing, in fact, occurred on February 14, 2002, and that Ms. Landry entered into a consent judgment on her behalf concerning custody, support and visitation. Ms. Wong alleges that when she learned of the hearing and consent judgment on February 17, 2002, she immediately contacted Mr. Hoffman and instructed him to withdraw the consent motion. Mr. Hoffman filed a motion to withdraw the judgment on March 5, 2002. Ms. Wong claims that at that time a

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conflict was created, and that Mr. Hoffman failed to notify her of the purported conflict and failed to advise her to seek independent counsel. On April 4, 2002, upon Mr. Curole's notice, his counsel took Ms. Wong's deposition, at which Mr. Hoffman appeared as her counsel. Ms. Wong contends that Mr. Hoffman failed to object to deposition questions that she alleges violated attorney-client privilege. Thereafter, Ms. Wong engaged new counsel to represent her in the domestic proceedings, and on May 10, 2002, Mr. Hoffman withdrew at Ms. Wong's request. New counsel advised Ms. Wong that, in his opinion, her representation by Mr. Hoffman and Ms. Landry fell below the standard of care for attorneys practicing in this community. On January 31, 2003, following a hearing, the trial court entered judgment upholding the consent judgment dictated into the record by Ms. Landry on February 14, 2002 allegedly without Ms. Wong's consent. On February 5, 2003, Ms. Wong filed a Petition for Damages, and on July 15, 2003, she filed an Amended Petition for Damages, alleging negligence on the part of the attorney defendants in the following non-exclusive particulars: (1) improperly advising Ms. Wong to enter into a joint custody agreement when there was a history of family violence and when Ms. Wong had expressed a desire to move her children to Ohio; (2) failing to object to the testimony of a court-appointed mediator at the hearing on the motion to relocate; (3) entering into the February 2002 consent judgment without Ms. Wong's authority; and

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(4) failing to object and to instruct Ms. Wong to refuse to answer deposition questions that sought privileged information. It is clear to me upon a careful reading of the record in its entirety that Ms. Wong had actual, constructive and imputed knowledge of all facts giving rise to the alleged legal malpractice when the district court entered its consent judgment of October 6, 2000 and at the latest when the court ruled on August 25, 2001 on her request to modify visitation. However, she did not file suit until February 5, 2003. The acts of malpractice alleged in Ms. Wong's petition all flowed from the engagement of counsel by Ms. Wong to represent her in the custody dispute and were part of counsel's continuing representation of Ms. Wong. Ms. Wong claims that the trial court erred in maintaining the defendants' Peremptory Exception of Peremption, contending that La.C.Civ.Pro. art. 927 does not provide for a peremptory exception of peremption in legal malpractice cases. The code article provides in pertinent part: A. The objections which may be raised through the peremptory exception include but are not limited to the following: (1) Prescription. (2) Res judicata. (3) Nonjoinder of a party under Articles 641 and 642. (4) No cause of action. (5) No right of action, or no interest in the plaintiff to institute the suit. [Emphasis added.] According to the Editor's Notes, "The list is illustrative, not restrictive." Ms. Wong relies on Coffey v. Block, 99-1221 (La.App. 1 Cir. 6/23/00), 762 So.2d 1181. In that case, while the court held that, as a general rule, the

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peremptory exception of no cause of action is the correct procedural device for raising the issue of peremption, the court declined to hold that every exception raising a peremption claim must be treated as an exception of no cause of action on which no evidence may be taken. The court remanded the case to the trial court for the taking of evidence on the plaintiff's fraud allegation, which could operate as an exception to the peremption rule pursuant to La.R.S. 9:5605 E. Coffey v. Block, supra at p. 9, 762 So.2d at 1187. I note that there are no allegations of fraud in the instant case. Ms. Wong also relies on International River Center v. Henry C. Beck Company, 95-1396, p. 2 (La.App. 4 Cir. 4/10/96), 672 So.2d 1160, 1161 where this Court held: At the outset, it should be noted that there is no exception of peremption. See La.C.C.P. art. 927. In Davis v. Sewerage and Water Bd., 469 So.2d 1144 (La.App. 4th Cir. 1985) this court held that the proper procedural device for raising the issue of peremption was the exception of no cause of action. Thus, the exception filed by Beck and its sureties should be considered an exception of no cause of action. Ms. Wong cites Azar-O'Bannon v. Azar, 00-0101 (La.App. 4 Cir. 9/27/00), 770 So.2d 458. In that paternity suit, the peremption provided by La.C.Civ.P. art. 2004 was at issue. This Court noted: Statutes of peremption do not merely bar the remedy, they destroy the cause of action itself. Thus, after the time limit expires the cause of action is lost and no longer exists. The proper procedural device for raising the issue of peremption is an exception of no cause of action rather than prescription [citing International River Center v. Beck, supra. Other citations omitted.] 00-0101, p. 4, 770 So.2d at 461.

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In light of the language of Article 927 specifically providing that the listing of the five peremptory exceptions is inclusive but not limiting, and the accompanying Editor's Notes, it appears that peremption should be susceptible of being pled as a peremptory exception. To the same effect, this Court held in Transworld Drilling Co. v. Texas General Resources, Inc., 552 So.2d 454, 456-57 (La.App. 4th Cir. 1989): At the outset we note that Marmid's exception [of improper use of a demand against a third party] is not among those specifically listed in the Code of Civil Procedure. Our Code is clear that only three types of exceptions are permitted. La.C.C.Pro. Art. 922. The declinatory exception, which declines to the court's jurisdiction, the dilatory exception which retards the progress of the action, but may result in its dismissal, and the peremptory exception which will defeat the action. La.C.C.Pro. Art. 923. However, the specific grounds for exceptions listed under each type are not exclusive. See, La.C.C.Pro. Arts. 925, 926 & 927. Thus, we must determine if there are sufficient legal grounds to dismiss Strata's third party demand prior to trial. The Court then analyzed whether the third party petition was legally deficient for failure to comply with La.C.Civ.Pro. art. 1111 relative to third party practice. Similarly, the Louisiana Court of Appeal, Second Circuit, maintained lack of standing as a peremptory exception, finding article 927's listing to be nonexclusive in Commissioner of Agriculture v. Transylvania Flying Service, 493 So.2d 744, 749 (La.App. 2nd Cir. 1986): Among them [the exceptions filed by defendantsin-reconvention in the trial court] is an exception labeled as the peremptory exception of "Lack of Standing." Although that exception is not specifically listed as a peremptory exception, the listed peremptory exceptions are not exclusive. LSA-C.C.P. Art. 927. We may consider the peremptory exception filed in this court if the ground thereof appears of record. LSA-C.C.P. Art. 2163. Moreover, the captions of pleadings are to be liberally construed. LSA-C.C.P. Art. 865; Jackson v. Housing Authority of New Orleans, 478 So.2d 911 (La.App. 4th Cir. 1985). 7

The Louisiana Court of Appeal, Third Circuit, held in a legal malpractice case: An exception of prescription is a peremptory exception that is among those listed in La.Code Civ. P. art. 927. The list is nonexclusive. A peremptory exception may therefore rightfully include an exception of peremption, the effect of which would be to terminate the litigation. A peremptory exception may be raised at any stage of the proceeding in the trial court prior to the submission of the case for a decision. La.C.Civ.Pro. art. 928(B). Where, as here, a peremptory exception is pled prior to trial, the exception is tried and disposed of in advance of or on the trial of the case. La.C.Civ.Pro. art. 929. When evidence is introduced and evaluated at the trial of the exception, an appellate court must evaluate subject to the traditional rules governing appellate review of facts [citing the manifest error standard of review]. Dauterive Contractors, Inc. v. Landry and Watkins, 01-1112, pp. 7-8 (La.App. 3 Cir. 3/13/02), 811 So.2d 1242, 1248-49. In Perez v. Trahant, 00-2372 (La.App. 1 Cir. 12/28/01), 806 So.2d 110, a legal malpractice action, the defendant filed an Exception of Prescription, urging that the plaintiff's action was untimely under La.R.S. 9:5605. The trial court held a hearing on the exception at which evidence was taken, and maintained the exception, dismissing the plaintiff's petition. On appeal, the defendant moved to convert his Exception of Prescription to an Exception of No Cause of Action, raising the issue of accrual of the peremptive period. In that case, the court refused to make the conversion, holding: [O]n the face of Perez's artfully-drafted pleadings, the matter is not clearly untimely. It is only when evidence submitted in conjunction with the peremptory exception asserting the untimely filing of the legal malpractice action is considered that the date of the alleged malpractice is able to be determined. Because [defendant] cannot prevail in recovering the relief he seeks--an affirmance of the trial court's judgment dismissing Perez's legal malpractice claim--we decline,

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on appeal, to convert his exception of prescription into a no cause of action exception. The court then analyzed the application of La. C.C. art. 3460 and La.C.Civ.Pro. art. 927 B and the jurisprudence thereunder and concluded: Although the no cause of action exception is generally the correct procedural vehicle to assert accrual of the peremptive period, in a case such as this where . . . a party objects to a claim on the basis of the accrual of the peremptive period, we believe precepts of judicial economy require the matter be treated similarly to an objection of prescription insofar as the receipt of evidence is concerned. Indeed, the jurisprudence has treated the accrual of peremptive periods as exceptions of prescription. [Citations omitted.] Mindful that in Louisiana every pleading shall be construed to do substantial justice, see La.C.C.P. arts. 852 and 865, this court is mandated to render a judgment which is just, legal and proper, see La.C.C.P. art. 2164, and the jurisprudence, in this appeal, we will treat [defendant's] peremptory exception asserting accrual of the peremptive period as an exception of prescription insofar as review of the evidence submitted by the parties is concerned. Perez v. Trahant at pp. 5-7, 806 So.2d at 115-16. Because the record reflects that no evidence was taken at the hearing on the Exceptions of Peremption and No Cause of Action, there is no need to rule on whether the trial court correctly denominated the Exception as one of Peremption rather than No Cause of Action. Ms. Wong also contends that the well-pleaded allegations of her petition do not reveal that her legal malpractice claim is perempted. The peremption statute, La.R.S. 9:5605, provides in pertinent part: 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 of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services, shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged 9

act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission or neglect. B. The provisions of this Section are remedial and apply to all causes of action without regard to the date when the alleged act, omission, or neglect occurred. . . . The one-year and three-year periods of limitation provided in Subsection A of this Section are peremptive periods within the meaning of Civil Code Article 3458 and, in accordance with Civil Code Article 3461, may not be renounced, interrupted, or suspended. C. Notwithstanding any other law to the contrary, in all actions brought in this state against any [person or association listed in La.R.S. 9:5605 A], the prescriptive and peremptive period shall be governed exclusively by this Section. D. The provisions of this Section shall apply to all persons whether or not infirm or under disability of any kind and including minors and interdicts. *** The Louisiana Supreme Court found that the wording of the statute was clear, and that the peremptive periods of one and three years begin to run at the time of the alleged act of malpractice, rejecting the theory that the time periods do not begin to run until the negligent act or omission "ripens into a viable cause of action sufficient to support a lawsuit." Reeder v. North, 97-0239, pp. 6-7

(La.10/21/97), 701 So.2d 1291, 1295-96. Furthermore, the peremptive periods cannot be suspended during the defendants' "continuing representation" of the plaintiff. Such suspension is prohibited by the language in La.R.S. 9:5605 B and that Section's reference to La.C.C. arts. 3458 and 3461. Id. at pp. 11-12, 701 So.2d at 1297-98. The petition on its face alleges that the first act of alleged malpractice occurred in the Summer of 2000, when Mr. Hoffman allegedly improperly advised

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Ms. Wong to enter into the joint custody agreement. Ms. Wong executed the joint custody agreement pursuant to that advice on October 6, 2000, at which time she clearly knew of its terms. She knew or should have known at that time that she was agreeing that her allegedly abusive husband would have joint custody of their children. Applying the statute, it is clear that Ms. Wong was required to file her suit by October 9, 2001. In Taussig v. Leithead, 96-0960 (La.App. 3 Cir. 2/19/97), 689 So.2d 680, a legal malpractice case, the client claimed twenty separate acts of negligence arising out of her representation in the separation and divorce from her husband. The court held that the limitation period began to run from the first act of negligence, because there was only one tort, that of negligent representation in the separation and divorce action. The court distinguished Bustamente v. Vezina, 95-556

(La.App. 5 Cir. 1/30/96), 668 So.2d 1286, where the attorney represented his client in a redhibition action, in which he failed to record the judgment, and in a later bankruptcy proceeding where he allegedly did not meet the standard of care. Since the underlying factual bases for the two actions differed from each other, and the two cases were separated by a period of 14 years between the end of the redhibition litigation and the commencement of the bankruptcy action, the court held that they constituted two separate torts with two separate limitation periods. In Taussig, as in the instant case, the underlying factual basis is the same, i.e. the alleged negligent representation in the domestic case, and all the alleged acts occurred during a continuous period of representation. A similar result obtained in Serrou v. DeLaup, 2006 WL 3759555 (E.D.La. 2006), affirmed, 2007 WL 2258801 (5th Cir. (La.) 8/20/2007), where claims of continuous acts of legal malpractice from July 2003 through August 2004 were held to constitute a single cause of action. See also Parish of Caddo v. Durham, 35,557 (La.App. 2 Cir. 5/8/02), 817 So.2d 1173, in which plaintiff alleged a series 11

of misleading communications, which were held to give rise to a single cause of action as to which prescription ran from the first misleading communication. The Fifth Circuit reached the same result, citing Taussig, in Gettys v. Sessions and Fishman, L.L.P., 00-1077 (La.App. 5 Cir. 10/31/00), 772 So.2d 874. In that case, the court treated as a single cause of action two acts of malpractice: an error of inserting 490 shares into a voting trust document and the act of correcting the error without the client's knowledge. Since the underlying factual bases of the two acts were the same and the alleged acts arose out of a continuous period of representation, there was a single cause of action as to which the peremptive period began to run when the first allegedly negligent act was committed. According to the petition, Mr. Hoffman committed legal malpractice on June 29, 2001 and July 31, 2001, when he failed to object to the testimony of a courtappointed mediator on any other than Daubert grounds at the hearing on Ms. Wong's Motion to Relocate. Initially, I note that as a matter of public record, the Louisiana Supreme Court found that the trial court: [D]id not rely exclusively on Dr. Parker's testimony, but based its conclusion on the totality of the circumstances. Additionally, the trial court agreed with some of Dr. Van Beyer's recommendations and articulated specific reasons in those instances where he did not find her reasoning persuasive." Curole v. Curole, supra at p. 13, 828 So.2d at 1101. Thus, the Louisiana Supreme Court determined that the trial court's judgment denying Ms. Wong's Motion to Relocate was proper based upon the totality of the circumstances, the lack of the specific objection relied upon by Ms. Wong notwithstanding. That determination is the law of this case. In light of the Louisiana Supreme Court's decision, it is clear that Ms. Wong did not suffer damage as a result of Mr. Hoffman's having objected to Dr. Parker's expertise

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under Daubert but not based on the psychologist's former status as a courtappointed mediator. Ms. Wong contends that the trial court erred in striking the Washofsky and Miltenberger affidavits, limiting Mr. Washofsky's testimony to fact evidence, and quashing the notice of Judge Dennis R. Bagneris's deposition. Ms. Wong sought to introduce evidence at the hearing on the constitutionality of the peremption statute relating to motive(s) of the Louisiana Legislature in enacting La.R.S. 9:5605. The defendants have cited cases from the Louisiana Supreme Court, the United States Supreme Court and from each of the Louisiana Circuit Courts of Appeal in support of the proposition that the constitutional principle of separation of powers prohibits judicial inquiry into the motives of the legislature in enacting a particular statute, in the context of a constitutional attack on that statute. In State of Arizona v. State of California, 283 U.S. 423, 51 S.Ct. 522 (1931), the State of Arizona attacked an act of the Congress effectuating the Boulder Canyon Project, contending that the recital in the Act that its purpose is the improvement of navigation is "a subterfuge and false pretense". Justice Brandeis wrote for the Supreme Court's majority: Into the motives which induced members of Congress to enact the Boulder Canyon Project Act, this court may not inquire [citations omitted]. State of Arizona v. State of California, at p. 455, 51 S.Ct. at 526. At Footnote 7, the court notes: "Similarly, no inquiry may be made concerning the motives or wisdom of a state Legislature acting within its proper powers." [Citations omitted.] The basis for this result is the constitutional principle of separation of powers. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 559-60 , 112 S.Ct.

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2130, 2135-36 (1992), citing, inter alia, Madison's comments in The Federalist No. 48 (James Madison). In the instant case, Ms. Wong attacks the peremption statute on the ground that although the committee minutes indicate that there was an insurance premium crisis at the time the statute was adopted, in truth and in fact, no such crisis existed. The parties agree that the evidence the trial court excluded, consisting of the affidavits of Messrs. Washofsky and Miltenberger, the testimony of Mr. Washofsky and Judge Bagneris' deposition testimony, related to that issue, and to the motives impelling the Louisiana Legislature to adopt La.R.S. 9:5605. The United States Supreme Court's holding precluding inquiry into legislative motivation in this context requires me to conclude that the trial court correctly excluded this testimony. Ms. Wong also contends that the statute violates her due process rights by denying her access to the courts. Article I,

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