The opinion
NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
22-670
HUBERT ARVIE & ANGELA ARVIE
VERSUS
GEICO CASUALTY COMPANY, ET AL
oe Re RR RE
APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2021-3843
HONORABLE CLAYTON DAVIS, DISTRICT JUDGE
of 2 oe 2K ok og ok ok ok
VAN H. KYZAR
JUDGE
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Court composed of Van H. Kyzar, Candyce G. Perret, and Sharon Darville Wilson,
Judges.
AFFIRMED.
Hubert Arvie
1901 Knapp Street
Lake Charles, LA 70601
(337) 244-6776
In Proper Person
James H. Gibson
Anna Grand-Lege
Gibson Law Partners, LLC
P.O. Box 52124
Lafayette, LA 70505
(337) 761-6023
COUNSEL FOR DEFENDANT/APPELLEE:
Christian D. Chesson
Van C. Seneca
Plauché, Smith & Nieset, LLC
435 10th Street
Lake Charles, LA 70601
(337) 436-9637
COUNSEL FOR DEFENDANTS/APPELLEES:
Mark and Merric Dejean
KYZAR, Judge.
The plaintiff, Hubert Arvie, appeals from trial court judgments sustaining
peremptory exceptions of prescription and res judicata in favor of the defendants,
Mark and Merric DeJean, and peremptory exceptions of no cause of action and no
right of action in favor of the defendant, Christian D. Chesson. For the following
reasons, we affirm.
DISCUSSION OF THE RECORD
This matter stems from a September 6, 2019 accident, when a vehicle driven
by Angela Arvie, in which Mr. Arvie was a passenger, was rear-ended by a vehicle
driven by Mark DeJean and owned by his father, Merric DeJean. The Arvies’
vehicle was insured by GEICO Casualty Company (GEICO), while Mr. DeJean’s
vehicle was insured by Louisiana Farm Bureau Casualty Insurance Company (Farm
Bureau). Farm Bureau’s policy provided liability limits of $15,000.00 per person
and $30,000.00 per accident. A settlement with Farm Bureau for its policy limits
was negotiated on behalf of the Arvies by their then counsel, Mr. Chesson, on March
16, 2020, with the Arvies each receiving $15,000.00. Mr. Arvie acknowledged that
he received his settlement check on or before August 25, 2020. Thereafter, in
September 2020, Mr. Chesson made a demand against GEICO under the Arvies’
uninsured/underinsured motorist (UM) coverage. On August 26, 2021, the Arvies
notified Mr. Chesson that they were discharging him as their counsel.
On September 3, 2021, the Arvies filed suit against GEICO and its president,
O. M. Nicely, seeking damages as well as penalties based on GEICO’s handling of
their UM claim. A footnote in the petition noted that the Arvies were “not seeking
to bring this Petition for Damages against Attorney Christian Chesson and staff.”
On December 1, 2021, Mr. Arvie moved to proceed in forma pauperis, which the
trial court granted on December 3, 2021.' Thereafter, on December 6, 2021, Mr.
Arvie, acting alone, filed an amended petition, adding five additional defendants to
the suit, including Warren Buffet, the owner and CEO of Berkshire Hathaway Inc.,
GEICO’s parent company; Bill Roberts, GEICO’s vice chairman; Shane Wheeler,
GEICO’s vice president of claims operations; Connie Lynch, GEJCO’s former trial
attorney; and Todd Combs, GEICO’s CEO. Although Mr. Arvie raised allegations
against the DeJeans and Mr. Chesson, they were not named as defendants, and the
trial court denied his request for service of citation upon them.
Mr. Arvie, again acting alone, filed an amended and supplemental petition on
December 8, 2021, adding six additional defendants to the suit, including Mr.
Chesson, against whom Mr. Arvie raised allegations of legal malpractice, and Farm
Bureau.” Although they were not named as defendants, Mr. Arvie raised allegations
against the DeJeans. The trial court denied service of citation against all of the
named defendants except Mr. Chesson, Farm Bureau, and GEICO. It further
allowed service of citation on the DeJeans.
On December 28, 2021, Mr. Arvie filed a motion to recuse the Fourteenth
Judicial District Court (14th JDC). The assertions in his motion centered on actions
taken by deputy clerks of the Calcasieu Parish Clerk of Court’s Office relative to his
ability to proceed in forma pauperis. The motion was denied by the trial court on
December 30, 2021.
In response to Mr. Arvie’s claims, Mr. Chesson filed peremptory exceptions
of no cause of action and no right of action, arguing that because the Arvies still had
' Although the trial court issued an amended order on January 12, 2021, denying Mr.
Arvie’s motion to proceed in forma pauperis, the order allowing him to proceed as such was
reinstated by judgment rendered on April 22, 2022.
2 Additional defendants added to the suit were Amanda Treadwell, GEICO adjuster; Dan
Dennis, Farm Bureau claims representative; Jimmy Doles, Farm Bureau claims adjuster; and
Patricia Fernandez, Mr. Chesson’s secretary.
a viable claim against GEICO’ after his August 26, 2021 discharge, they could not
bring a claim for legal malpractice against him. The DeJeans also filed peremptory
exceptions of prescription and res judicata, arguing that the one-year prescriptive
period applicable to the claims against them had prescribed prior to the filing of the
Arvies’ September 3, 2021 petition. They further argued that the Arvies’ claims
were barred by res judicata as a result of their April 16, 2020 settlement with Farm
Bureau.
On March 28, 2022, Mrs. Arvie filed a declinatory exception objecting to the
jurisdiction of the trial court over her. The exception, which is in a form identical to
the pleadings filed by Mr. Arvie, claimed that because she had not personally filed
a claim against the defendants, she had not submitted herself to the jurisdiction of
the court.”
On May 2, 2022, Mr. Arvie filed a second motion to recuse the entire 14th
JDC from hearing his suit. In addition to reasserting the grounds raised in his
December 28, 2021 motion, he asserted actions taken by Judge Clayton Davis, the
judge assigned to his suit, as well as the deputy clerks evinced such a bias against
him that he would not get a fair and impartial hearing. The trial court’s May 11,
2022 denial of the motion includes the following handwritten notation: “Denied.
Fails to set forth a ground for recusal under [La.Code Civ.P.] Art. 151.”
Following a hearing on the exceptions, the trial court orally sustained all of
the exceptions filed by Mr. Chesson and the DeJeans. A written judgment sustaining
the exceptions of no cause of action and no right of action in favor of Mr. Chesson
3 Pursuant to La.R.S. 9:5629, an action to recover damages under a UM policy prescribes
two years from the date of the accident.
* During the May 26, 2022 hearing on the exceptions, the trial court converted Mrs. Arvie’s
exception to a motion to dismiss and granted the motion.
3
was rendered by the trial court on May 26, 2022, dismissing all of Mr. Arvie’s claims
against him with prejudice. That same day, the trial court rendered a written
judgment in favor of the DeJeans, sustaining the exceptions of prescription and res
judicata and dismissing all of Mr. Arvie’s claims against them with prejudice. Both
judgments were designated as final judgments. Following the trial court’s June 27,
2022 denial of Mr. Arvie’s motion and supplemental motion for new trial, he
perfected the instant appeal.
On appeal, Mr. Arvie asserts thirteen assignments of error, as follows:
l. The trial court erred under the State and Federal Constitution by
failing to recuse itself, given the allegations, exhibits, and record
clearly show the court engaged in unlawful acts and ex parte
communications.
2. The [trial] court erred by failing to have the minute clerk
administer the oath required by law on examining a party-
appellant on hearing the peremptory exceptions.
3. The [trial] court erred by deciding the peremptory exception of
the cause of action along with the exception of accord and
satisfaction and res judicata.
4. The trial court erred on finding the 1-year statute of limitations
bars the case against several defendants and by failing to allow
an amendment to the pleading, given the doctrine of contra non
valentem agere non currit is applicable to delictual actions.
5. The [trial] court erred on finding the case is barred against the
defendant attorney under the 1-year statute of limitation created
by [La.]R.S. 9:5605(A), considering allegations of fraud pleaded
under [La.R.S.] 9:5605(E) nullifies the peremptive period
created by Subsection A and makes provision for the application
of doctrine contra non valentem as an exception to the |-year
time clock created for delictual actions.
6. The [trial] court erred on finding the pleadings and more definite
statements articulated at the hearing illustrate the pleader made a
judicial confession where the pleader did not allege or continue
to allege an alternate position.
7. The [trial] court erred in considering evidence that was not
properly offered, introduced, and admitted into evidence.
8. The [trial] court erred concluding [sic] no cause or right of action
exist [sic] due to the doctrine of accord, satisfaction, and res
judicata considering the [trial] court did not examine the entire
record on the compromise.
9. The [trial] court erred by finding the case barred by ratification,
considering evidence was not introduced to show full knowledge
of all material facts on the payment and settlement of all claims.
10. The [trial] court erred by failing to order subpoenas be served on
six witnesses provided by statute to pauper litigants which does
not require a short summary of the expected testimony to be
offered, introduced, and admitted in evidence.
11. The [trial] court erred by (1) denying a continuance to complete
discovery and (2) denying subpoenas duces tecum of relevant
documents germane to the facts of the case.
12. The [trial] court erred on implicitly finding sua sponte that
citation is not required because a cause or right of action does not
exist against several of the party-defendants.
13. The trial court erred on prohibiting an Amended and
Supplemental Petition against the defendant attormey,
considering the facts surfaced on receiving partial discovery.
(Footnote omitted) (citations omitted).
OPINION
Assignment of Error Number One
In his first assignment of error, Mr. Arvie argues that the trial court erred in
denying his two motions to recuse the entire 14th JDC, arguing that “Louisiana does
not tolerate ex parte communications or unlawful acts that are engaged [sic] during
adversarial proceedings.” We will address each motion separately.
The exclusive grounds under which a judge will be recused from hearing a
matter are provided by La.Code Civ.P. art. 151, as follows:
A. A judge of any trial or appellate court shall be recused upon
any of the following grounds:
(1) The judge is a witness in the cause.
(2) The judge has been employed or consulted as an attorney in
the cause or has previously been associated with an attorney during the
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latter's employment in the cause, and the judge participated in
representation in the cause.
(3) The judge is the spouse of a party, or of an attorney employed
in the cause or the judge’s parent, child, or immediate family member
is a party or attorney employed in the cause.
(4) The judge is biased, prejudiced, or interested in the cause or
its outcome or biased or prejudiced toward or against the parties or the
parties’ attorneys or any witness to such an extent that the judge would
be unable to conduct fair and impartial proceedings.
B. A judge of any trial or appellate court shall also be recused
when there exists a substantial and objective basis that would
reasonably be expected to prevent the judge from conducting any aspect
of the cause in a fair and impartial manner.
C. In any cause in which the state or a political subdivision
thereof is interested, the fact that the judge is a citizen of the state or a
resident of the political subdivision, or pays taxes thereto, is not a
ground for recusal. In any cause in which a religious body or religious
corporation is interested, the fact that the judge is a member of the
religious body or religious corporation is not alone a ground for recusal.
The party seeking the recusal of a trial judge must file a motion “assigning the
ground for recusal under Article 151[]” within thirty days of discovering the facts
supporting the recusal prior to trial. La.Code Civ.P. art. 154(A). A motion that is
untimely “or fails to set forth a ground for recusal under Article 151,” may be denied
by the trial court “without the appointment of an ad hoc judge or a hearing but shall
provide written reasons for the denial.” La.Code Civ.P. art. 154(C).
The present legal standard for the recusal of a trial judge is found
in the per curium opinion of a panel of this circuit in Daurbigney v.
Liberty Personal Insurance Co., 18-929 (La.App. 3 Cir. 5/9/19), 272
So.3d 69. The panel in Daurbigney held that in order to recuse a judge
from a case, the moving party was required to prove that “objectively
speaking, ‘the probability of actual bias on the part of the judge or
decisionmaker is too high to be constitutionally tolerable.’ ” Jd. at 73
(quoting Rippo v. Baker, [580] U.S. [285], 137 S.Ct. 905, 907, 197
L.Ed.2d 167 (2017)). See also State v. Daigle, 18-634 (La. 4/30/18),
241 So.3d 999; [State v.] LaCaze, [16-234 (La. 3/13/18),] 239 So.3d
807.
Menard v. Menard, 19-580, pp. 19-20 (La.App. 3 Cir. 3/11/20), 297 So.3d 82, 95.
On appeal, a trial judge’s ruling denying a motion to recuse will not be
reversed absent an abuse of discretion. /d.
First Recusal Motion
Mr. Arvie’s first motion, filed on December 28, 2021, mainly raised
allegations pertaining to actions taken by deputy clerks in relation to his in forma
pauperis status. We have reviewed the motion in its entirety and find only the
following references to any judge of the 14th JDC:
On Sept 3, 2021, Arvie hand delivered a Petition for Damages to
the 14th JDC pursuant to La. R.S8.22:1295. The Petition named GEICO
Casualty and President O. M. Nicely as defendants. Arvie paid a $300
filing fee. Deputy Miller assigned the case to Judge Clayton Davis.
She sent the Petition to duty Judge Derrick [KJee for signing the
attached order.
On December 3, 2021, Judge Davis granted both the IFP Motion
and Motion for Citation in “his own distinct personal handwriting.”
On or before December 13, 2021, a deputy Clerk or Judge Davis
called Christian Chesson. Chesson was informed that Arvie had filed
an Amended and Supplemental Complaint naming his secretary and
himself as defendants. To be sure, Chesson and Patricia Fernandez (his
secretary) called and spoke to Arvie for 24-minutes on 12/14/2021.
Chesson asked Arvie to pursue only the claim against GEICO, Arvie’s
underinsured motorist carrier.
On December 23, 2021, deputy Cole provided Arvie a BAR
CODED copy of the Amended Petition. The ORDER bears the cursive
handwriting of Judge Davis on the signature line. Yet an unidentified
deputy crossed each paragraph seeking citation and then wrote the word
DENIED in his/her personal handwriting. The handwriting is not that
of Judge Clayton Davis.
On December 23, 2021, deputy Cole provided Arvie a BAR
CODED copy of the Amended and Supplemental Petition. It had not
been submitted to Judge Davis or the duty Judge for citation. Cole
refused to have the on-call duty Judge sign the pleading or allow Arvie
to obtain the signature of the on-call duty Judge. Cole advised he would
present the pleading to Judge Davis on December 28, 2021. Judge
Davis was out of the office.
(Footnote omitted) (paragraph numbers omitted) (citations omitted).
In summing up his recusal motion, Mr. Arvie alleged, “From all accounts,
Arvie cannot have his case heard impartially. Under State law and the 14"
Amendment of the Unites States Constitution, Arvie is entitled to an impartial
judiciary to process, hear, and settle the controversial disputed facts.” The trial court
denied the motion on December 30, 2021.
We note, initially, that rather than moving to recuse the trial judge assigned to
the matter, Judge Clayton Davis, Mr. Arvie sought to recuse the entire 14th JDC, as
well as the Calcasieu Parish Clerk of Court’s Office. However, we point out that the
grounds for recusal set out in La.Code Civ.P. art. 151 apply only to judges, and we
are not aware of any grounds by which a clerk of court or its deputy clerks may be
recused from a matter.
After reviewing Mr. Arvie’s motion, we find that it is devoid of any
allegations, either general or specific, that remotely suggest that either Judge Davis
or Judge Kee, the only two judges mentioned, were “biased, prejudiced, or interested
in the cause or its outcome or biased or prejudiced toward or against the parties or
the parties’ attorneys or any witness to such an extent that the judge would be unable
to conduct fair and impartial proceedings[]” as per La.Code Civ.P. art. 151(A)(4).
Furthermore, the motion contains no allegations that remotely approach facts
showing that “there exists a substantial and objective basis that would reasonably be
expected to prevent the judge from conducting any aspect of the cause in a fair and
impartial manner.” La.Code Civ.P. art. 151(B). Nothing within the motion,
objectively speaking, leads to the conclusion that the probability of actual bias on
the part of Judge Davis, or any judge of the 14th JDC, is too high to be
constitutionally tolerable. Accordingly, as Mr. Arvie’s motion fails to set forth any
ground for recusal under Article 151, we find that Judge Davis did not abuse his
discretion in failing to recuse himself, nor did he err in denying the motion without
the appointment of an ad hoc judge or a hearing.”
Second Recusal Motion
Mr. Arvie filed his second motion to recuse the 14th JDC on May 2, 2022. In
addition to including the same slightly edited factual scenario contained in his
December 28, 2021 motion, Mr. Arvie’s factual assertions again centered on his in
forma pauperis status. The motion contains the following references made by Mr.
Arvie as to the judges on the 14th JDC:
On Dec. 28, 2021, subsequent to talking to deputy Thomas Cole,
Judge Davis reviewed the Supplemental Petition. He back dated the
accompanying order to make it appear he had adjudicated the order on
12/23/2022.
On December 30, 2021, Judge Davis reviewed the Motion for
Recusal. Though the Motion relied on grounds of an “extrajudicial
nature,” Judge Davis contrarily refused to recuse himself. He ruled on
the Motion without holding a hearing. He knew by doing so the
defendants would be protected.
On Jan. 5, 2022, at 8:30 AM, Arvie visited 14th JDC Judge [sic]
Chambers to have duty Judge Michael Canaday set a return date on a
Notice of Taking Writs from the orders signed on 12/08/21,
12/23/2021, 12/30/2021. The attended [sic] took the Notice, brought it
to Judge Canaday, and did not stamp the Notice as having been received
on 01/05/22. Arvie waited 25-minutes in the lobby. Judge Canaday
talked with Judge Davis in the interim. He left the Notice with Judge
Davis. The attended [sic] informed Arvie that Judge Canaday left the
Notice Judge Davis [sic].
On January 5, 2022, because Judge Davis did not return the
Notice to Arvie for having the Clerk record a filing date, Arvie
telephoned the Clerk at 4:15 PM. Arvie discovered Judge Davis had
> We note that while the record here shows no written reasons for the denial of the recusal
as per La.Code Civ.P. art. 154(B), Plaintiff fails to assign error or argue this issue, and we do not
consider it here. Uniform Rules—Courts of Appeal, Rule 1-3
9
not time stamped or filed the Notice with the Clerk at that point.
Positive State law required he do so.
On Jan. 6, 2021 [sic], after reviewing the facts alleged in a
footnote in the Notice (talks Judge Davis and Judge Canaday had on
January 5"), Judge Davis granted the January 5th Notice. He did not
address the Notice filed on January 6th.
On Jan. 12, 2021 [sic], as a byproduct of the trial Court and the
Clerk’s effort to stop Arvie from proceeding pauper, Judge Davis relied
on facts known to be false and then revoked Arvie’s pauper status. He
knew by doing so, Arvie would not be able to pursue the case, seek
review of his recusal, or likewise. The attorneys failed to report the
unethical conduct of Judge Davis to the appropriate authorities.
On Feb. 4, 2022, Arvie filed a Supervisory Writ with the Third
Circuit Court of Appeals seeking review of the orders of 12/08/21,
12/23/21, and 12/30/2021. In view of Kenner Reg’! Med. Ctr. vs.
Mensingh, 98-0186 (La. 1/22/98), 709 So.2d 684, the court did not
grant an extension of time to supplement the Writ to take up the recusal
issue. The court denied a timely pleading for a Stay Order.
On April 6, 2020 [sic], Arvie filed an Emergency Writ with the
Louisiana Supreme Court, arguing that the Third Circuit ruling left
Arvie status quo before the district court without evidence to refute
defensive exceptions. The Writ otherwise asked the court to issue any
order deemed appropriate based on the factual circumstances.
On April 8, 2022, the State Supreme Court issued a PER
CURIAM opinion advising, in relevant part, that the court should grant
a reasonable continuance of the hearing on the exceptions in order to
allow relator to present his opposition to the exceptions, should the
court reinstate pauper status.
On April 13, 2022, as also instructed, Judge Davis conducted a
contradictory hearing and reluctantly reinstated the pauper status
unopposed.
On April 13, 2022, the court also advised that a pretrial hearing
date would be scheduled and sent by his office on the defendant’s
exceptions.
On April 13, 2022, Dusty Higgs (Judge Davis [sic] assistant)
issued Notice. Higgs indicated the exceptions would be heard on
05/26/22. The court knowingly omitted issuing pretrial order providing
a reasonable timeframe for the parties to conduct discovery, file
necessary motions to compel discovery, or likewise.
10
On April 29, 2022, at 11: 34 AM, Arvie received Notice from
Judge Davis by EMAIL stating the Motion for Continuance and
Subpoenas would be heard with the exceptions. He knowingly omitted
an Order directing the clerk to accept and file the Motion to Compel
Discovery. Judge Davis knew the omission would cause harm.
(Footnotes omitted) (paragraph numbers omitted) (citations omitted).
In requesting the recusal, Mr. Arvie alleged, “From all accounts, the
underlying ‘illegal acts’ and ‘ex parte talks’ described herein divulged that Judge
Davis and Clerk harbors an indwelling prejudice.” In its May 11, 2022 denial of the
motion, the trial court’s order included the following handwritten notation: “Fails
to set forth a ground for recusal under [La.Code Civ.P.] Art. 151.”
As we have already found no abuse of discretion on the part of Judge Davis
in denying the December 28, 2021 motion to recuse, we will not revisit those facts.
As to the remaining factual assertions, we do not find that any of the actions taken
by Judge Davis or Judge Canaday were illegal as alleged by Mr. Arvie. Nor do we
find that the alleged discussion that took place between Judges Davis and Canaday
on January 5, 2022, or between Judge Davis and the deputy clerks, qualified as an
ex parte communication, which is defined as “[a] communication between counsel
or a party and the court when opposing counsel or party is not present.” BLACK’S
LAW DICTIONARY (11th ed. 2019). Moreover, we note that the trial judge “is vested
with inherent power to maintain control of its docket and in case management.”
Elysian, Inc. v. Neal Auction Co., Inc., 20-674, 20-675, p. 17 (La.App. 4 Cir.
7/21/21), 325 So.3d 1075, 1087. A trial judge is further vested with “broad
discretion in regulating pre-trial discovery, which discretion will not be disturbed on
appeal absent a clear showing of abuse of that discretion.” Bell v. Treasure Chest
Casino, L.L.C., 06-1538, pp. 3-4 (La. 2/22/07), 950 So.2d 654, 656.
After reviewing the recusal motion, we find nothing in it, objectively
speaking, that would lead to the conclusion that the probability of actual bias on the
11
part of Judge Davis or Judge Canaday is too high to be constitutionally tolerable.
Accordingly, as Mr. Arvie’s motion fails to set forth any ground for recusal under
Article 151, we find that Judge Davis did not abuse his discretion in failing to recuse
himself, nor did he err in denying the motion without the appointment of an ad hoc
judge or ahearing. Thus, we dismiss this assignment as being without merit.
Assignment of Error Number Four
In his fourth assignment of error, Mr. Arvie argues that the trial court erred in
sustaining the peremptory exception of prescription in favor of the DeJeans based
on objections made by him raising the doctrine of contra non valentem. We disagree.
A delictual action, such as Mr. Arvie’s claim against the DeJeans, is subject
to a one-year liberative prescription, which “commences to run from the day the
injury or damage is sustained.” La.Civ.Code art. 3492.
The exception of prescription is governed by La.Code Civ.P. art.
927. The standard of review of a grant of an exception of prescription
is determined by whether evidence was adduced at the hearing of the
exception. If evidence was adduced, the standard of review is manifest
error; if no evidence was adduced, the judgment is reviewed simply to
determine whether the trial court’s decision was legally correct. Allain
v. Tripple B Holding, LLC, 13-673 (La.App. 3 Cir. 12/11/13), 128 So.3d
1278. The party pleading the exception of prescription bears the burden
of proof unless it is apparent on the face of the pleadings that the claim
is prescribed, in which case the plaintiff must prove that it is not. /d.
Arton v. Tedesco, 14-1281, p. 3 (La.App. 3 Cir. 4/29/15), 176 So.3d 1125, 1128, writ
denied, 15-1065 (La. 9/11/15), 176 So.3d 1043.
Upon review, we find it apparent on the face of the pleadings that Mr. Arvie’s
claim against the DeJeans has prescribed. The accident at issue occurred on
September 6, 2019. In light of the thirty-day emergency suspension of prescription
ordered by Governor John Bel Edwards between August 21—September 20, 2020,
Mr. Arvie’s claim against GEICO would have prescribed on October 7, 2020. Thus,
his claim against the DeJeans had already prescribed before his suit against GEICO
12
was instituted on September 3, 2021. Accordingly, the burden shifted to Mr. Arvie
to prove that his claim had not prescribed.
Although Mr. Arvie argues the doctrine of contra non valentem, he submitted
no evidence at the hearing on the exception in support of his claim. While exhibits
were attached to his opposition memorandum, Mr. Arvie did not file them into the
record at the hearing on the exception. Thus, they may not be considered on appeal.
Mr. Arvie further argues that the evidence contained in the record supports his claim
of contra non valentem. However, “[{e]vidence not properly and officially offered
and introduced cannot be considered, even if it is physically placed in the record.”
Denoux v. Vessel Mgmt. Servs., Inc., 07-2143, p. 6 (La. 5/21/08), 983 So.2d 84, 88.
Moreover, “[o]nce a cause of action is extinguished by prescription, a subsequent
timely suit against alleged solidary obligors will not revive the prescribed action.”
Id. at 89. Thus, we find that the trial court did not legally err in finding that Mr.
Arvie’s claim against the DeJeans had prescribed. Based on this finding, we need
not address the trial court’s grant of the exception of res judicata. Accordingly, the
judgment of the trial court sustaining the peremptory exception of prescription in
favor of the DeJeans is affirmed.
Assignment of Error Number Eight
In his eighth assignment of error, Mr. Arvie argues that the trial court erred in
sustaining the DeJeans’ and Mr. Chesson’s “exception of no cause or no right of
action based on res judicata and accord and satisfaction.” However, as the exception
of no cause of action was filed by Mr. Chesson, the judgment sustaining the
exception was rendered in his favor alone.
The law pertaining to the exception of no cause of action was set forth in
Ramey v. DeCaire, 03-1299, pp. 7-8 (La. 3/19/04), 869 So.2d 114, 118-19, as
follows:
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A cause of action, when used in the context of the peremptory
exception, is defined as the operative facts that give rise to the
plaintiff's right to judicially assert the action against the defendant.
Everything on Wheels Subaru, Inc. v. Subaru South, Inc., 616 So.2d
1234, 1238 (La.1993). The function of the peremptory exception of no
cause of action is to test the legal sufficiency of the petition, which is
done by determining whether the law affords a remedy on the facts
alleged in the pleading. /d. at 1235. No evidence may be introduced to
support or controvert an exception of no cause of action. La. C.C.P.
art. 931. Consequently, the court reviews the petition and accepts well-
pleaded allegations of fact as true. Jackson v. State ex rel. Dept. of
Corrections, 00-2882, p. 3 (La. 5/15/01), 785 So.2d 803, 806;
Everything on Wheels Subaru, 616 So.2d at 1235. The issue at the trial
of the exception is whether, on the face of the petition, the plaintiff is
legally entitled to the relief sought. Montalvo v. Sondes, 93-2813, p. 6
(La. 5/23/94), 637 So.2d 127, 131.
Louisiana has chosen a system of fact pleading. La. C.C.P. art.
854 cmt. (a); Montalvo at p. 6, 637 So.2d at 131. Therefore, it is not
necessary for a plaintiff to plead the theory of his case in the petition.
Kizer v. Lilly, 471 So.2d 716, 719 (La.1985). However, the mere
conclusions of the plaintiff unsupported by facts does not set forth a
cause of action. Montalvo at p. 6, 637 So.2d at 131.
The burden of demonstrating that the petition states no cause of
action is upon the mover. City of New Orleans v. Board of Com’rs of
Orleans Levee Dist., 93-0690, p. 28 (La. 7/5/94), 640 So.2d 237, 253.
In reviewing the judgment of the district court relating to an exception
of no cause of action, appellate courts should conduct a de novo review
because the exception raises a question of law and the lower court’s
decision is based solely on the sufficiency of the petition. Fink v.
Bryant, 01-0987, p. 4 (La. 11/28/01), 801 So.2d 346, 349; City of New
Orleans at p. 28, 640 So.2d at 253. The pertinent question is whether,
in the light most favorable to plaintiff and with every doubt resolved in
plaintiff's behalf, the petition states any valid cause of action for relief.
City of New Orleans at p. 29, 640 So.2d at 253.
In order to allege a cause of action for legal malpractice, a plaintiff must allege
facts establishing that “(1) there was an attorney-client relationship, (2) the attorney
was negligent in the representation of the client, and (3) the negligence caused the
plaintiff some loss.” Stelly v. Morrow, Morrow Ryan & Basset, 10-1353, p. 5
(La.App. 3 Cir. 4/13/11), 62 So.3d 336, 339, writ denied, 11-1222 (La. 9/23/11), 69
So.3d 1160. A plaintiff, whose petition establishes that they were “in the same legal
position before and after the attorney is removed from the representation,” fails to
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state a cause of action for legal malpractice as they will not be able to prove they
suffered a loss as a result of the attorney’s negligence. /d.
In its May 27, 2022 written reasons, the trial court stated:
The plaintiff has not stated a valid cause of action against
Christian Chesson. The attorney-client relationship between Arvie and
Chesson ended on August 26, 2021. Prior to his discharge, Chesson
had settled the plaintiffs liability claim with Louisiana Farm Bureau
Casualty Insurance Company. The prescriptive period on the plaintiff's
potential UM claim against Geico [sic] Casualty Company had not yet
expired. The plaintiff suffered no damages due to Chesson’s
actions/inactions because the plaintiff filed his UM claim before the
claim was prescribed.
Mr. Arvie’s petitions establish that his UM claim against GEICO was still
viable when he discharged Mr. Chesson on August 26, 2021, and that he did, in fact,
file his UM claim against GEICO within the two-year prescriptive period. As Mr.
Arvie was in the same legal position before and after Mr. Chesson’s discharge, the
judgment of the trial court finding that he failed to state a cause of action for legal
malpractice is affirmed. Based on this finding, we need not address the exception
of no right of action. As these findings as a whole render the remaining assignments
of error moot, we will not address them.
DECREE
For the foregoing reasons, the judgments of the trial court sustaining the
peremptory exception of prescription in favor of Mark and Merric DeJean and the
peremptory exception of no cause of action in favor of Christian D. Chesson are
affirmed. Costs of this appeal are assessed against Hubert Arvie.
AFFIRMED.
This opinion is NOT DESIGNATED FOR PUBLICATION.
Uniform Rules—Courts of Appeal, Rule 2-16.3.
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