The Denicola plaintiffs appeal the dismissal of their malpractice action against their attorney and his law firm on an exception of prescription. We reverse and remand.
Plaintiffs seek recovery based on Robert S. Mellon's alleged negligent preparation of an act of sale by which they purchased immovable property in 1971. This malpractice suit was filed January 11, 1984. Thus at first blush the action appears to have prescribed, whether the applicable prescriptive period be the one year of tort, see LSA-C.C. art. 3492, or the ten years of contract, see id. art. 3499. However, despite the fact that the alleged negligence occurred in 1971, plaintiffs discovered it only after a suit for a TRO was filed against them on October 7, 1983. Until then, plaintiffs had no reason to question the act of sale. Consequently, whether plaintiffs' claim has prescribed depends upon when prescription began to run.
"Delictual actions are subject to a liberative prescription of one year. This prescription commences to run from the day injury or damage is sustained." LSA-C.C. art. 3492. "Mere notice of a wrongful act will not suffice to commence the running of the prescriptive period." Rayne State Bank & Trust Co. v. National Union Fire Insurance Co., 483 So.2d 987, 995 (La. 1986). In Rayne, the court held that prescription on a claim for legal malpractice against an attorney who prepared allegedly defective mortgages did not begin to run until the validity of the mortgages was attacked in court. Noting that prescription does not begin to run until a cause of action has accrued, the court reasoned that the element of damages was not present until the validity of the mortgages was attacked.
Plaintiffs did not sustain damages until suit was filed against them in October 1983. Until that time they would not have been able to state a cause of action, that is, both a wrongful act and resultant damages, see Rayne State Bank & Trust Co., at 995, and consequently prescription could not begin to run until then. Their malpractice suit, filed in January 1984, was clearly filed within one year thereafter, and is therefore timely.
REVERSED AND REMANDED.
LANIER, J., concurs in the results.