describing the Louisiana doctrine of “contra non valentem agere non currit praescriptio, which means prescription does not run against a person who could not bring suit”
How later courts described this case
- describing the Louisiana doctrine of “contra non valentem agere non currit praescriptio, which means prescription does not run against a person who could not bring suit”
- “[W]e find La. R.S. 9:5605 clearly provides three peremptive periods . . . .”
- identifying these three peremptive periods
Written by the judges who cited it.
Distinguished
Distinguished by Gibsland Bank & Trust Co. v. Kitchens, Benton, Kitchens & Black (APLC), 2013 La. App. LEXIS 938 (2013)
The trial court, however, focusing solely on the fact that the instant case is not one of continuous representation, found that Jenkins was inapplicable and that the bank’s claim was not per-empted as the first reasonable notice of the law firm’s malpractice was the Second Circuit’s August 11, 2010, adverse ruling, and suit was filed within one year of that date.
The opinion
JOHNSON, Justice,
dissents and assigns reasons.
hi respectfully dissent from the majority’s finding that the continuous representation rule does not apply in this case.
In my mind, the continuous representation rule should be applied similarly to the *629 “continuous treatment” rule in medical malpractice cases. The continuous treatment rule provides that prescription in a medical malpractice case is suspended as long as the defendant health care provider continuously treats the plaintiff in an effort to improve the plaintiffs condition allegedly caused by negligent treatment. See Carter v. Haygood, 04-0646 (La.1/19/05), 892 So.2d 1261 . This Court has found the time periods in the medical malpractice act to be prescriptive, rather than peremptive. However, failure to apply the continuous representation rule in legal malpractice cases leads to absurd results.
As I stated in my dissent in Reeder v. North, 97-0239 (La.10/21/97), 701 So.2d 1291 , “if a client is required to file suit against his attorney while the suit is being litigated and before a judgment is definitive, the client is placed in the untenable position of asserting that a judgment is both valid and invalid.” Reeder, 701 So.2d at 1300 . The failure to apply the continuous representation rule leads to absurd results ^because an “attorney need only litigate a claim past the three (3) year preemptive period to avoid all consequences of his malpractice.” Id.
In my mind, the earliest this cause of action ripened into a legal malpractice claim was on July 28, 2008, when the trial court dismissed the Petition to Annul. Until that time, Mr. Starns continued his representation of Ms. Jenkins, and was still attempting to remedy the negative results caused by the entry of a default judgment against his client.