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Lomont v. Myer-Bennett

Court of Appeal of Louisiana, Fifth Circuit

October 29, 2014

TRACY RAY LOMONT
v.
MICHELLE MYER-BENNETT AND XYZ INSURANCE COMPANY

Editorial Note:

This Decision is not final until expiration of the fourteen day rehearing period.

ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA. NO. 716-976, DIVISION " G" . HONORABLE ROBERT A. PITRE, JR., JUDGE PRESIDING.

FRANK W. LAGARDE, JR., ATTORNEY AT LAW, Metairie, Louisiana, COUNSEL FOR PLAINTIFF/APPELLANT.

ANDREW T. LILLY, ATTORNEY AT LAW, Gretna, Louisiana, COUNSEL FOR DEFENDANT/APPELLEE.

Panel composed of Judges Susan M. Chehardy, Fredericka Homberg Wicker, and Marc E. Johnson.

OPINION

MARC E. JOHNSON, J.

Page 844

[14-351 La.App. 5 Cir. 2] In this legal malpractice action, Plaintiff appeals the trial court's sustaining of Defendant's exception of peremption. For the reasons that follow, we affirm.

FACTS & PROCEDURAL HISTORY

Plaintiff, Tracy Lomont, filed a petition for damages against Defendant, Michelle Myer-Bennett, on July 12, 2012 alleging that Defendant committed legal malpractice in her representation of Ms. Lomont in a domestic matter. In particular, Ms.

Page 845

Lomont claimed that Defendant failed to record a community property settlement, which gave her the family home, in the mortgage and conveyance records. As a result, a third-party creditor, Citibank, was able to file a lien against the family home for a $26,052.17 judgment, plus interest and attorney's fees, which it obtained against Ms. Lomont's ex-husband, John Lomont.

Defendant subsequently filed an exception of peremption on the basis that more than three years had passed since the date of the alleged act, omission, or neglect upon which Ms. Lomont's claims were based and, thus, Ms. Lomont's claims were perempted under La. R.S. 9:5605. Specifically, Defendant asserted the malpractice occurred on or before February 20, 2009, when Citibank filed its lien against [14-351 La.App. 5 Cir. 3] the family home. Since Ms. Lomont's lawsuit was filed in July 2012, Defendant maintained it was filed outside the three-year peremptive period.

In response to Defendant's exception of peremption, Ms. Lomont filed a supplemental and amending petition and alleged that Defendant acted fraudulently in misrepresenting and/or suppressing the truth regarding the malpractice she committed in failing to timely record the community property settlement agreement in the mortgage and conveyance records. Ms. Lomont further alleged that because of Defendant's fraudulent acts, her claim fell under the exception set forth in La. R.S. 9:5605(E) and was not perempted. In a second supplemental and amending petition, Ms. Lomont listed specific fraudulent acts Defendant allegedly committed, including Defendant's failure to tell Ms. Lomont that she committed malpractice, assuring Ms. Lomont in December 2010 that she would file a lawsuit against Citibank and John Lomont to have the lien removed, repeatedly assuring Ms. Lomont that the lawsuit against Citibank and John Lomont was proceeding, and waiting until the peremptive period for legal malpractice had passed before disclosing an unwaivable conflict of interest she had in pursuing any case against Citibank and John Lomont. Ms. Lomont reiterated that Defendant's fraudulent acts rendered the peremptive period in La. R.S. 9:5605 inapplicable.

A hearing was subsequently held on the exception of peremption. During the hearing, both Defendant and Ms. Lomont testified. Defendant testified that she has been a licensed attorney since 1994. She stated that she and Ms. Lomont have known each other since they were children, having lived in the same neighborhood when they were younger. Defendant explained that she and Ms. Lomont developed a friendship at Defendant's dentist ...


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