Tracy Ray Lomont v. Michelle Myer-Bennett and Xyz Insurance Company
172 So. 3d 620
La.2015Background
- Lomont hired Myer-Bennett to handle a divorce and a partial partition that gave Lomont full title to the family home; Myer-Bennett drafted the partition agreement (9/8/2008) but failed to record it.
- A Citibank judgment was recorded as a lien against the home (2/20/2009); Lomont learned of the missing recording while refinancing (Sept. 2010). Myer-Bennett recorded the agreement the next day (9/30/2010).
- In December 2010 Lomont learned the Citibank lien blocked refinancing. Lomont and Myer-Bennett dispute whether Myer-Bennett admitted malpractice and whether she told Lomont she could sue or obtain new counsel. Myer-Bennett attempted negotiations and claimed she drafted—but did not file—lawsuits against John Lomont and Citibank.
- Myer-Bennett discontinued representation after discovering an asserted unwaivable conflict in March/April 2012 and sent a letter (4/12/2012) advising Lomont to obtain independent counsel.
- Lomont consulted another attorney (6/28/2012), learned no lawsuits had been filed and that her remedy was malpractice; she filed suit July 12, 2012. Trial court and court of appeal sustained the peremption exception; Louisiana Supreme Court granted review.
- Supreme Court found (1) post-malpractice concealment can constitute fraud under La. R.S. 9:5605(E), (2) Myer-Bennett’s post-act conduct amounted to fraud, and (3) once fraud is established the statutory peremptive periods are inapplicable and Lomont’s suit was timely under ordinary prescription.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-malpractice concealment can constitute "fraud" under La. R.S. 9:5605(E) | Fraud includes misrepresentation or suppression of truth; concealment of malpractice prevents peremption | Fraud exception applies only if the malpractice itself was fraudulent, not for later concealment | Post-malpractice concealment can constitute fraud under La. C.C. art.1953 and trigger 9:5605(E) |
| Whether the fraud exception removes only the three-year peremptive period or all peremptive periods in 9:5605(A) | Fraud should disable all peremptive periods so ordinary prescription governs | Fraud exception applies only to the original three-year peremptive period; one-year discovery period still controls | Once fraud is established, none of the statute’s peremptive periods apply; ordinary prescription (La. C.C. art. 3492) governs |
| Whether Lomont’s malpractice suit was timely after fraud was found | Lomont filed within one year of discovering the fraud (filed 7/12/2012 after discovery 6/28/2012) | Suit was perempted under 9:5605 because act occurred in 2009 and suit was filed more than three years later | Court held Lomont discovered fraud 6/28/2012; suit filed within one year of discovery and was timely under ordinary prescription; lower courts erred |
Key Cases Cited
- Rando v. Anco Insulations, Inc., 16 So. 3d 1065 (La. 2009) (standards for peremption and review of factual findings)
- Bunge Corp. v. GATX Corp., 557 So. 2d 1376 (La. 1990) (application of fraud exception and resort to ordinary prescription)
- Jenkins v. Starns, 85 So. 3d 612 (La. 2012) (interpretation of multiple time periods in La. R.S. 9:5605 and continuous representation rule)
- Stutts v. Melton, 130 So. 3d 808 (La. 2013) (fraud requires knowing misrepresentation and may be proven circumstantially)
- Braud v. New England Ins. Co., 576 So. 2d 466 (La. 1991) (legal malpractice generally governed by one-year prescription pre-9:5605)
- Garner v. Lizana, 131 So. 3d 1105 (La. App. 5th Cir.) (appellate decision addressing concealment as fraud; discussed by lower courts)