JOHNSON v. ARATA (1998)

Court of Appeal of Louisiana,Fourth Circuit.

Michael JOHNSON v. Blake ARATA, Jr. and Davis, Saunders, Arata & Rome, A Professional Law Corporation.

No. 97–CA–2352.

Decided: January 07, 1998

Before BYRNES, LOBRANO and JONES, JJ.

Stephen P. Schott, Montgomery, Barnett, Brown, Read, Hammond & Mintz, L.L.P. New Orleans, for Defendants–Appellees. Robert H. Matthews, Bezou & Matthews, New Orleans, for Plaintiff–Appellant.

Plaintiff filed suit for legal malpractice prior to the expiration of the three year peremptive period provided by LSA–R.S. 9:5605(A).

The trial court dismissed plaintiff's suit after three years had elapsed. Plaintiff appealed the dismissal devolutively. Defendant moved to dismiss plaintiff's appeal, arguing that in the absence of a suspensive appeal, the dismissal takes effect and the plaintiff's claim is perempted. LSA–C.C. art. 3461.

The plaintiff exercised his right in a timely manner by filing suit. LSA–C.C. art. 3458. The plaintiff's action remains effective until either no timely appeal is taken or the Court of Appeal affirms the trial court's decision and writs to the Supreme Court are denied or not applied for. Should either this Court or the Supreme Court reverse the trial court it is as though the case was never dismissed. The dismissal did not take effect.

For the foregoing reasons the defendant's motion to dismiss is denied.

MOTION TO DISMISS APPEAL DENIED

BYRNES, Judge.

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