Marlin W. Sturm, plaintiff-appellant, appeals from a judgment of the trial court maintaining defendants' exceptions of prescription and no right or cause of action. The basis of plaintiff's lawsuit was an assertion that defendants failed to include an "as is" waiver of warranty clause in an act of sale that conveyed a piece of real property from Sturm to Mintz & Mintz Realty.
The facts in this matter are not disputed. Plaintiff-appellant Sturm was the vendor of certain real estate, which he sold on October 15, 1979 to Mintz & Mintz Realty, by an act of sale passed in the law offices of Zelden and Zelden, defendant-appellee.
Approximately six months later, on February 29, 1980, purchaser sued Sturm for reduction of the sales price, alleging a redhibitory vice. A trial of that suit resulted in a judgment for purchaser, Mintz & Mintz Realty. An appeal was taken by
On March 12, 1982, Sturm, while a defendant in the redhibition suit, filed this action against Zelden and Zelden, and their professional malpractice insurer, alleging that Sturm's exposure in the redhibition suit resulted solely from the notary's failure to include an "as is" clause in the 1979 act of sale, as provided in the purchase agreement. An exception of prescription was filed by defendants, as well as an exception of no right/cause of action.
The exceptions were taken under advisement by the court, and a judgment rendered on January 11, 1983 maintaining both the prescription and the no right/cause of action exceptions. Fifteen days were granted to amend the petition.
An amended petition was filed on January 26, 1983 by plaintiff, to which defendants renewed their exceptions. After argument, a judgment dismissing plaintiff's claims was rendered March 17, 1983, from which plaintiff appeals.
Plaintiff filed this devolutive appeal based primarily on two allegations: 1) that prescription did not begin to run until December 10, 1982 when the Louisiana Supreme Court refused writs on the quanti minoris suit or at the very earliest on March 13, 1981 when the trial court's judgment became executory, or alternatively that the ten year prescriptive period based on a breach of contract, should have been applied in this case instead of the one year prescriptive period for actions in tort, 2) that the failure to include the "as is" clause and plaintiff's resultant exposure did constitute a right or cause of action. We agree with the judgment of the trial court and affirm.
Actions based on legal malpractice can be either contractual or delictual (or both) in nature. Though the facts in the instant case do not preclude a contractual relationship existing between plaintiff and defendants, they do not support plaintiff's argument that a ten year prescriptive period should be invoked.
The Louisiana Supreme Court in Sciacca v. Polizzi, 403 So.2d 728 at 730 (La.1981) quoted the following passages from Judge Wisdom's opinion in Kozan v. Comstock, 270 F.2d 839 (5th Cir.1959) with approval:
In Cherokee Restaurant, Inc. v. Pierson, 428 So.2d 995 at 998 (La.App. 1st Cir.1983), this analysis was applied to legal malpractice action:
Plaintiff Sturm was not a client of Zelden & Zelden, in fact, Zelden and Zelden represented Mintz & Mintz in their quanti minoris suit against Sturm. Zelden & Zelden did act as notary for the October 15, 1979 Act of Sale; thus, the argument for the creation of an implied contract between Sturm and Zelden and Zelden can be made. Nonetheless, it stretches the point to suggest that an express warranty resulted.
Louisiana Civil Code, article 3536 provides in pertinent part:
Plaintiff argues that prescription should not begin to run until the trial court's judgment could become executory on March 13, 1981 and therefore his March 12, 1982 filing was timely.
Louisiana Civil Code, article 3537 reads in pertinent part:
In Cartwright v. Chrysler Corporation, 255 La. 597, 232 So.2d 285 at 287 (1970), the Louisiana Supreme Court held that:
Further, this circuit has recently held in Henderson v. Diamond Datsun, Inc., 413 So.2d 542 at 544 (La.App. 4th Cir.1982) that:
We conclude that plaintiff became aware of the omission of the "as is" language at least as early as January 29, 1981
The filing of the lawsuit for an action in quanti minoris and the trial court's subsequent judgment was certainly sufficient to put plaintiff on notice of the alleged tort and its resulting damages. Thus we conclude that the trial court's action in maintaining defendants' exception of prescription was correct. Having reached this conclusion we find it unnecessary to discuss plaintiff's other allegation of error.
Accordingly, for the reasons assigned the judgment of the trial court is affirmed. Costs to be paid by plaintiff-appellant.