Legal Malpractice Case Investigates Concept of Peremption

Larry Carriere was unable to bring a successful legal malpractice claim against his lawyer because he brought the claim in the wrong venue. Carriere filed suit in Lafayette Parish, where he lived when he hired his attorney, David Szwak. Instead, the suit should have been brought in Caddo, where his lawyer’s law office is because that is where the wrongful conduct occurred.

Filing improperly is a mistake than can be fixed, but such delays can be detrimental; The suit must be brought within a certain period of time. Here, the action was not filed in the proper venue, Caddo, until after the peremptive period had ended. Peremption is a period of time for the existence of a right. If the right is not exercised within that specified time period, the right expires when the peremptive period ends.

Carriere argued on appeal that he exercised his right in a timely manner by changing to the correct venue, and thus interrupted the peremptive period. However, the appellate court disagreed, stating that under Louisiana Law, peremption may not be renounced, interrupted, or suspended.

Carriere also argued the peremptive period should not apply because he brought a fraud case. While Louisiana law does specify that peremptive periods do not apply in cases of fraud, the fraudulent act must constitute the malpractice. The peremptive period will still apply if the fraudulent action occurs after the malpractice. In this case, Carriere asserted that Szwak settled without receiving authorization to do so, which was the act that constituted the malpractice, and subsequently Szwak engaged in a scheme to conceal the truth. The appellate court found that because the fraud came after the act that constituted the malpractice, the fraud exception did not apply in this case.

Moreover, the appellate court noted that with respect to the one-year and three-year peremptive periods, in Louisiana only the three-year peremptive period is inapplicable to claims of fraud. The right to bring a fraud case is still limited by the one-year peremptive period. An action for fraud must be brought within a year of discovering the alledgely fraudulent act, but Carriere brought this case years after.

This case was not a clear one, since the trial court had ruled in favor of Szwak. Here, the trial court and appellate court emphasized different things, and thus arrived at different conclusion. However, understanding the court’s reasoning and the issue of timing are important when bringing your case. It is essential to have the best legal team possible in order to avoid filing problems or delays.

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