T&T Investment Corp v. Watkins, APC CPA and Jacob Watkins

STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
T& T INVESTMENT CORP NO. 2021 CW 0322
VERSUS PAGE 1 OF 3
WATKINS, APC CPA AND JACOB DECEMBER 30, 2021
WATKINS
In Re: Watkins, APC CPA and Jacob Watkins, applying for
supervisory writs, 32nd Judicial District Court,
Parish of Terrebonne, No. 187922.
BEFORE: GUIDRY, McDONALD, WELCH, HOLDRIDGE, AND PENZATO, JJ.
WRIT GRANTED. The district court' s March 9, 2021 Amended
Judgment which denied the exception of peremption filed by
defendants, Watkins, APC Certified Public Accountant and Jacob
Watkins, is reversed.
Plaintiff, T& T Investment Corp., filed its claims against
defendants with the Society of Louisiana Certified Public
Accountants (" Society") pursuant to La. R. S. 37: 101, on
et seq.,
July 25, 2018, asserting claims against defendants for errors in
reporting the incorrect amount of canceled debt income and in
missing an installment payment to the Internal Revenue Service
pursuant to the resulting installment agreement. La. R. S.
9: 5604( A) provides that no action for damages against any
accountant duly licensed under the laws of this state, or
any
firm as defined in R. S. 37: 71, whether based upon tort, or
breach of contract, or otherwise, arising out of an engagement
to provide professional accounting service 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. The one year and three
year time limitations applicable to suits against an accountant
are peremptive. Ascension School Employees Credit Union v.
Provost, Salter, Harper & Alford, L. L. C., 2004- 1227 ( La. App.
1st Cir. 6/ 10/ 05), 916 So. 2d 252, 256. Pursuant to La. R. S.
37: 105, a claimant' s filing with the Society shall be deemed as
claimant' s exercise of his right to seek judicial cognizance of
such claim.
If evidence is introduced at the hearing on the peremptory
exception, the district court' s findings of fact are reviewed
under the manifest
error -clearly wrong standard of review.
Deloitte Tax LLP v. Amedisys, Inc., 2016- 1380 ( La. App, 1st Cir.
5/ 16/ 18), 2018 WL 2540437 ( unpublished), writ denied, 2018- 0993
La. 10/ 8/ 18), 253 So. 3d 794. While prescription and peremption
are different but similar legal concepts, the same rules govern
the burden of proof on exceptions
raising the objections of
prescription or peremption. The exceptor bears the burden of
proof at the trial of the exception. However, if peremption is
evident on the face of the pleadings ( or in this case, on the
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
No. 2021 CW 0322
Page 2 of 3
face of the claims submitted to the Society), the burden
shifts to the plaintiff to show the action is not perempted.
Id.With regard to plaintiff' s claim against defendants for
errors in reporting the incorrect amount of canceled debt
income, based on the evidence presented to the district court,
the claim arose from the income included by defendants in their
preparation of plaintiff' s 2014 income tax return, which was
filed on May 19, 2015. Accordingly, we find this claim was
perempted by the three year peremptive period. As a period of
peremption, if a claim is not filed within three years of the
alleged act, it is extinguished by peremption, regardless of
whether or not it was filed within one year from the date of
discovery. Bel v. State Farm Mutual Auto. Ins. Co., 2002- 1292
La. App. 1st Cir. 2/ 14/ 03), 845 So. 2d 377, 380, writ denied,
2003- 0733 ( La. 5/ 30/ 03), 845 So. 2d 1057 ( applying La. R. S.
9: 5606, applicable to insurance agents, which contains identical
peremption language to La. R. S. 9: 5604).
With regard to plaintiff' s claim against defendants for the
missed installment payment, the claim filed with the Society
states that an employee of defendants emailed Billy Coyle, a
principal of plaintiff, on June 13, 2017, and informed him that
she missed the February 2017 installment payment. This claim,
filed with the Society more than one year after that email,
appears to be perempted on its face. Plaintiff argued that
defendants did not inform it that late and missed payments would
result in additional penalties and interest. We note that the
evidence included a notice of intent to terminate installment
agreement from the Internal Revenue Service to plaintiff dated
June 5, 2017 which outlines the taxes, penalties and interest
due immediately" as a result of the overdue payment.
Nevertheless, in malpractice cases, courts have consistently
held that there is no requirement that the amount of damages be
certain before a plaintiff should be aware of a claim. See
Delahaye v. Plaisance, 2007- 1697 ( La. App. 1st Cir. 5/ 2/ 08),
2008 WL 2065927 ( unpublished), writ denied, 2008- 1177 ( La.
9/ 19/ 08), 992 So. 2d 945, which was decided in the realm of
prescription in a legal malpractice case
alleging the attorney
failed to advise of the tax consequences of acceptance of a
settlement, and the court held that the fact that an exact
amount of tax liability was not yet determined was irrelevant,
as there is no requirement that the quantum of damages be
certain or that they be fully incurred, or incurred in some
particular quantum, before the plaintiff has a right of action.
For the foregoing
reasons, we find that the district court
was manifestly erroneous in concluding that there were issues as
to discovery of the acts asserted by plaintiff which precluded
granting the exception of peremption. The exception of
peremption filed by defendants is granted, and the claims of
plaintiff, T& T Investment Corp., asserted against defendants,
Watkins, APC Certified Public Accountant and Jacob Watkins, are
dismissed.
STATE OF LOUISIANA
COURT OF APPEAL, FIRST CIRCUIT
No. 2021 CW 0322
Page 3 of 3
JMG
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AHP
Welch and Holdridge, JJ., dissent and would deny the writ
application on the showing made.
COURT OF APPEAL, FIRST CIRCUIT
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DEPUTY
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FOR THE COURT