Lisette Schroth Morice Versus Yorkshire Court Condominium Association, Inc., Gary Klein, Alex A. Lauricella, and Didriksen, Saucier & Woods, Plc. ( 2023 )

LISETTE SCHROTH MORICE NO. 23-CA-118
VERSUS FIFTH CIRCUIT
YORKSHIRE COURT CONDOMINIUM COURT OF APPEAL
ASSOCIATION, INC., GARY KLEIN, ALEX A.
LAURICELLA, AND DIDRIKSEN, SAUCIER STATE OF LOUISIANA
& WOODS, PLC.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT
PARISH OF JEFFERSON, STATE OF LOUISIANA
NO. 829-142, DIVISION "L"
HONORABLE DONALD A. ROWAN, JR., JUDGE PRESIDING
November 29, 2023
SCOTT U. SCHLEGEL
JUDGE
Panel composed of Judges Jude G. Gravois,
Stephen J. Windhorst, and Scott U. Schlegel
AFFIRMED
SUS
JGG
SJW
COUNSEL FOR PLAINTIFF/APPELLANT,
LISETTE SCHROTH MORICE
Louis R. Koerner, Jr.
COUNSEL FOR DEFENDANT/APPELLEE,
YORKSHIRE CONDOMINIUM ASSOCIATION, INC. AND GARY KLEIN
Richard G. Duplantier, Jr.
Jennifer R. Buckingham
Madeline G. Smith
COUNSEL FOR DEFENDANT/APPELLEE,
ALEX A. LAURICELLA
Dane S. Ciolino
Clare S. Roubion
COUNSEL FOR DEFENDANT/APPELLEE,
DIDRIKSEN, SAUCIER & WOODS, PLC
Caleb H. Didriksen, III
Erin B. Saucier
Carl A. Woods, III
SCHLEGEL, J.
Plaintiff, Lisette Schroth Morice (“Morice”), appeals the trial court’s
October 17, 2022 judgment which granted the peremptory exceptions of
prescription filed by defendants, Didriksen, Saucier, and Woods, PLC (“DSW”),
and Alex Lauricella (“Lauricella”), and dismissed with prejudice plaintiff’s claims
against the remaining defendants, Yorkshire Court Condominium Association, Inc.
(“YCC”) and Gary Klein (“Klein”). Finding that Morice’s claims have prescribed,
we affirm the grant of the exceptions of prescription. We further affirm the trial
court’s denial of the motion for sanctions against Morice filed by DSW and
Lauricella.
Facts and Procedural History
A. Lawsuits in First Parish Court of Jefferson Parish
Morice has owned condominium Unit # 226 at YCC since April 2010. In
late April 2010, Morice had washer and dryer connections installed. Klein, who
was the property manager of YCC, sent Morice a letter dated April 27, 2010,
indicating that the condominium did not permit washer or dryer connections, and
requested that the connections be removed or Morice would be fined. On June 21,
2010, YCC and its board notified Morice in writing that washer and dryer
appliances were not allowed to be installed in Unit # 226 per the condominium
declaration. Morice installed a washer and dryer in the unit at some point
thereafter.
On or about December 19, 2017, YCC was notified that Morice had installed
washer and dryer appliances in the unit. On May 8, 2018, Lauricella, an attorney
with DSW law firm, sent Morice a letter demanding the removal of the washer and
dryer, indicating that the appliances were in violation of YCC’s bylaws and
condominium declaration, and itemizing penalties if the appliances were not
removed.
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Subsequently, YCC, represented by Lauricella and DSW, filed two lawsuits
in the First Parish Court of Jefferson Parish, consisting of an open account petition
in Yorkshire Court Condominium Association, Inc. v. Lisette Schroth Morice, No.
166-966, and a petition for injunctive relief in Yorkshire Court Condominium
Association, Inc. v. Lisette Schroth Morice, No. 166-944. The cases were
consolidated (“First Parish Court cases”).
In advance of the trial, Morice filed an exception of prescription alleging
that the appliances had long been installed with YCC’s knowledge. In opposition,
YCC filed an affidavit dated October 4, 2019 by Klein, which stated that “Mr.
Klein did not learn that a washer and dryer were installed in Ms. Morice’s unit
until December of 2017.” In addition, a Lien Affidavit and Statement of
Assessment (“lien affidavit”) dated October 9, 2020 was filed on YCC’s behalf,
signed by Lauricella, as agent in fact and attorney for YCC. In its lawsuit and at
trial, YCC highlighted the distinction between the installation of washer and dryer
connections versus the installation of washer and dryer appliances because the
amended condominium declaration prohibited the installation of “individual
automatic clothes washers and dryers.” The First Parish Court denied Morice’s
exception.
At the trial on March 29, 2022, the First Parish Court ruled from the bench
and dismissed YCC’s claims, with each party to bear their own costs. The
judgment was entered on April 11, 2022.
B. Lawsuit in the 24th Judicial District Court
On June 10, 2022, Morice filed her petition in the 24th Judicial District Court
naming as defendants, YCC and Klein, the plaintiffs in the First Parish Court
cases, and also adding as defendants, Lauricella and DSW, the attorney and law
firm representing YCC and Klein. The gravamen of Morice’s petition involves
allegations regarding two documents filed in the First Parish Court cases: (1) the
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October 4, 2019 affidavit by Klein and notarized by Lauricella (“Exhibit 1”) was
“perjured”, and (2) the October 9, 2020 lien affidavit by Lauricella (“Exhibit 2”)
was false. The petition alleged that these documents were falsely sworn under oath
in violation of La. R.S. 14:123 (perjury), and in violation of La. R.S. 14:133 (filing
of false public records). Morice further asserted she was entitled to civil damages
for racketeering activity under La. R.S. 15:1356[E], damages available under
general negligence, and reasonable attorney’s fees, expenses, and costs. DSW and
Lauricella filed exceptions to the petition and also motions for sanctions.
In response, Morice filed an amended petition on August 3, 2022, which
added statements and claims against the attorney defendants, stating, for example
that by filing the October 9, 2020 lien affidavit “Lauricella, on information and
belief, acted with malice and greed in order to receive continued payment of
attorney fees and also intended that petitioner suffer financial, physical, and
emotional harm on account of the falseness of Exhibit 2 and the continued
prosecution of knowingly false factual accusations and meritless litigation.” The
amended petition further claimed that the attorney defendants intentionally violated
their ethical obligations to the First Parish Court by intentionally violating the
Louisiana Rules of Professional Conduct, including Rule 1.2 – Scope of
Representation, and Rule 3.3(a) – Candor Toward the Tribunal. An additional
claim of abuse of process under La. C.C. art. 2315 was made against all
defendants.
The attorney defendants reset the previously filed exceptions of prescription,
res judicata, no cause of action, no right of action, prematurity, vagueness and
ambiguity, which were set on October 17, 2022. YCC and Klein also set their
exceptions of res judicata, no cause of action, and no right of action for the same
day. On October 14, 2022, Morice filed an “Opposed Motion to Continue” the
hearing.
23-CA-118 3
At the hearing on October 17, 2022, the trial court denied Morice’s motion
to continue the hearing as untimely filed; granted the exceptions of prescription
filed by DSW and Lauricella; and dismissed the plaintiff’s claims against all
defendants. The motions for sanctions filed by the attorney defendants were
denied.
Law and Analysis
A. Exception of Prescription
An exception of prescription is a type of peremptory exception. The function
of the peremptory exception is to have the plaintiff’s action declared legally
nonexistent, or barred by the effect of law, and hence this exception tends to
dismiss or defeat the action. Ruffins v. HAZA Foods of Louisiana, LLC, 21-619
(La. App. 5 Cir. 5/25/22), 341 So.3d 1259, 1262. Ordinarily, the exceptor bears
the burden of proof at the trial of the peremptory exception, including prescription.
However, if prescription is evident on the face of the pleadings, the burden shifts to
the plaintiff to show that the action has not prescribed. When a cause of action is
prescribed on its face, the burden is upon the plaintiff to show that the running of
prescription was suspended or interrupted in some manner. Id., citing, Woods v.
Cousins, 12-100 (La. App. 5 Cir. 10/16/12), 102 So.3d 977, 979, writ denied, 12-
2452 (La. 1/11/13), 107 So.3d 617.
At the trial of a peremptory exception of prescription, “evidence may be
introduced to support or controvert any of the objections pleaded, when the
grounds thereof do not appear from the petition.” Ruffins v. HAZA Foods of
Louisiana, LLC, 341 So.3d at 1262, citing, La. C.C.P. art. 931. In the absence of
evidence, the exception of prescription must be decided on the facts alleged in the
petition, which are accepted as true. Ruffins v. HAZA Foods of Louisiana, LLC,
341 So.3d at 1262. But the latter principle applies only to properly-pleaded
23-CA-118 4
material allegations of fact, as opposed to allegations deficient in material detail,
conclusory factual allegations, or allegations of law. Id.
The standard of review of a trial court’s ruling on a peremptory exception of
prescription turns on whether evidence is introduced. Id. When no evidence is
introduced, appellate courts review judgments sustaining an exception of
prescription de novo, accepting the facts alleged in the petition as true. Id.
However, when evidence is introduced at a hearing on an exception of
prescription, the trial court’s findings of fact are reviewed under the manifest error
standard. Id.
No evidence was introduced at the trial court hearing. Thus, we review the
trial court’s judgment de novo, and accept the facts alleged in the amended petition
as true.
Morice’s first assignment of error is that the trial court was erroneously
induced to grant the exceptions of prescription under the one-year peremptive
period of La. R.S. 9:5605. Morice argues that the trial court erred in applying La.
R.S. 9:5605 to her claims against the defendants because she had no legal
relationship and did not receive any legal advice from any defendant.
La. R.S. § 9:5605, entitled “Actions for legal malpractice,” 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
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.
23-CA-118 5
The jurisprudence considering Section 5605 has held that in order for the
statute to apply, the action for damages must arise out of an engagement to provide
legal services. Broussard v. F.A. Richard & Assocs., Inc., 98-1167 (La. App. 3
Cir. 3/17/99), 732 So.2d 578, 583, writ denied, 99-1048 (La. 6/4/99), 744 So.2d
625; Raspanti v. Raspanti, 07-295 (La. App. 5 Cir. 12/11/07), 977 So.2d 95, 98,
writ denied, 2008-0096 (La. 3/7/08), 977 So.2d 906. The seminal case of
Broussard held that Section 5605 did not apply to the plaintiff’s claim against the
defendant-attorney because her claim arose from an alleged tort of concealment
and was not a claim for legal malpractice. The Broussard Court held that “[t]he
statute was not designed to protect every action of every attorney simply because
the attorney was practicing law at the time the act or omission was committed.
Such application would be unjust and would lead to unreasonable results.” 732
So.2d at 583.
As applied to the case at bar, Morice’s claims against the attorney
defendants do not arise from alleged legal malpractice, but are asserted based upon
negligence or intentional torts. As a result, the peremptive period for legal
malpractice claims set forth in La. R.S. 9:5606 does not apply to the pending case.
We next consider the attorney defendants’ alternative argument that the
prescriptive period applicable to delictual actions applies as set forth in La. C.C.
art. 3492. Delictual actions are subject to a liberative prescriptive period of one
year, which commences to run from the date the injury is sustained. La. C.C. art.
3492. Delictual liability includes intentional misconduct. Revision Comment –
1983, Comment (b), to La. C.C. art. 3492. Morice’s claims for abuse of process
raise delictual claims that are subject to a prescriptive period of one year. See
Foster v. Bias, 2022-0329 (La. App. 1 Cir. 12/22/22), 358 So.3d 520, 530, writ
denied, 2023-00090 (La. 3/28/23), 358 So.3d 503 (“Foster’s abuse of process claim
is a delictual action subject to a prescriptive period of one year.”)
23-CA-118 6
Morice asserts claims of negligence or intentional torts against defendants.
The actions complained of arise from the filing in the First Parish Court of the
October 4, 2019 affidavit by Klein and the October 9, 2020 lien affidavit signed by
Lauricella. The lawsuit in the 24th Judicial District Court was not filed until June
10, 2022, which was more than one year after the actions of which Morice
complains. Thus, the suit is barred by La. C.C. art. 3492. Counsel for Morice even
acknowledged during oral argument in the trial court that her claims based on the
allegedly false affidavit and lien statement were prescribed, stating “[y]es, there
may be prescription on that aspect. But malicious civil prosecution doesn’t accrue
until the date of the judgment.”
Morice argues that her abuse of process claim was a continuing tort. This
argument is unavailing. Her amended petition made no reference to continuing
torts. Even if it had, the continuing tort theory would not apply. See No Drama,
LLC v. Caluda, 15-211 (La. App. 5 Cir. 10/14/15), 177 So. 3d 747, 752 (“For the
continuing tort doctrine to apply, both the tortious conduct and the resulting
damages must be continuous. . . . Although plaintiff alleges to have continuously
sustained damages to its reputation and its finances until the dismissal of the
underlying suit, the operating cause, the filing of the lawsuit, is not a continuous
tort.”) As in No Drama LLC v Caluda, the filing of the allegedly false affidavit
and lien affidavit are not continuous actions.
Morice further asserts that her claim for malicious civil prosecution is timely
because the liberative prescriptive period for a malicious prosecution claim does
not begin to run until the underlying prosecution claim is dismissed. She therefore
argues that prescription on this claim began to run on April 11, 2022, the day the
judgment was entered in First Parish Court. But this argument is without merit
because her amended petition did not include a claim for malicious civil
prosecution.
23-CA-118 7
At the hearing on October 17, 2022, the trial court granted the exceptions of
prescription, and did not rule upon the defendants’ remaining exceptions, which
were withdrawn by the defendants. Thus, although some of the remaining
exceptions may have merit, we need not consider them.
Morice further argues that the trial court erroneously denied her motion for
new trial as being untimely filed. Irrespective of the timeliness of the motion for
new trial, we find that plaintiff’s claims are prescribed for the reasons discussed
above.
B. Motion for Sanctions
DSW and Lauricella appeal the trial court’s denial of their motions for
sanctions under La. C.C.P. art. 863, asserting that Morice never had any
evidentiary support for the factual allegations made against them in the trial court.
On appeal, a trial court's imposition of sanctions pursuant to La. C.C.P. art.
863 will not be reversed unless clearly wrong or manifestly erroneous. Teal v.
Zeagler, 21-586 (La. App. 5 Cir. 7/6/22), 345 So.3d 1092, 1099; Martin v. Martin,
14-749 (La. App. 5 Cir. 2/25/15), 168 So.3d 829, 834. We find no abuse of the
trial court’s broad discretion in denying DSW and Lauricella’s motions for
sanctions.
AFFIRMED
23-CA-118 8
SUSAN M. CHEHARDY CURTIS B. PURSELL
CHIEF JUDGE CLERK OF COURT
SUSAN S. BUCHHOLZ
FREDERICKA H. WICKER
CHIEF DEPUTY CLERK
JUDE G. GRAVOIS
MARC E. JOHNSON
ROBERT A. CHAISSON LINDA M. WISEMAN
STEPHEN J. WINDHORST
FIRST DEPUTY CLERK
JOHN J. MOLAISON, JR.
SCOTT U. SCHLEGEL FIFTH CIRCUIT
MELISSA C. LEDET
JUDGES 101 DERBIGNY STREET (70053)
DIRECTOR OF CENTRAL STAFF
POST OFFICE BOX 489
GRETNA, LOUISIANA 70054 (504) 376-1400
(504) 376-1498 FAX
www.fifthcircuit.org
NOTICE OF JUDGMENT AND CERTIFICATE OF DELIVERY
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN DELIVERED
IN ACCORDANCE WITH UNIFORM RULES - COURT OF APPEAL, RULE 2-16.4 AND 2-16.5 THIS DAY
NOVEMBER 29, 2023 TO THE TRIAL JUDGE, CLERK OF COURT, COUNSEL OF RECORD AND ALL
PARTIES NOT REPRESENTED BY COUNSEL, AS LISTED BELOW:
23-CA-118
E-NOTIFIED
24TH JUDICIAL DISTRICT COURT (CLERK)
HONORABLE DONALD A. ROWAN, JR. (DISTRICT JUDGE)
LOUIS R. KOERNER, JR. (APPELLANT) JENNIFER R. BUCKINGHAM (APPELLEE) MADELINE G. SMITH (APPELLEE)
RICHARD G. DUPLANTIER, JR. CLARE S. ROUBION (APPELLEE) DANE S. CIOLINO (APPELLEE)
(APPELLEE) CARL A. WOODS, III (APPELLEE) ERIN B. SAUCIER (APPELLEE)
CALEB H. DIDRIKSEN, III (APPELLEE)
MAILED
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