“In this case there is no dispute the act of malpractice was Ms. Myer–Bennett’s failure to record the settlement agreement in the public records prior to February 20, 2009, the date the Citibank lien was recorded against Ms. Lomont’s property. Thus, under the clear wording of La. R.S. 9:5605(A) and (B), Ms. Lomont’s suit, filed on July 12, 2012, more than three years after the act of malpractice, would be perempted. Here, however, Ms. Lomont has asserted the peremptive period is not applicable based on the fraud exception set forth in La. R.S. 9:5605(E). …before we can make that specific determination, we must first consider whether post-malpractice fraudulent concealment can constitute fraud as contemplated by La. R.S. 9:5605(E), or whether the act of malpractice itself must be fraudulent to apply the exception in La. R.S. 9:5605(E). The language of La. R.S. 9:5605(E) excepts the peremptive period ‘in cases of fraud, as defined by La. C.C. art. 1953,’ with no additional restrictions or limitations. La. C.C. art 1953 defines fraud as ‘a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other.’ Thus, under the clear wording of the statute and the Code article, any action consisting of ‘a misrepresentation or a suppression of the truth made with the intention either to obtain an unjust advantage for one party or to cause a loss or inconvenience to the other’ will prohibit application of the peremptive period. ‘Louisiana law recognizes that the refusal to speak, in the face of an obligation to do so, is not merely unfair but is fraudulent.’ An attorney has an affirmative duty under Rule 1.4 of the Rules of Professional Conduct to ‘keep his client reasonably informed about the status of the matter’ and ‘give the client sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which there are to be pursued.’ Having determined prescription was suspended, we now consider when prescription began to run. This court has held that the ‘date of discovery’ from which prescription/peremption begins to run is the ‘date on which a reasonable man in the position of the plaintiff has, or should have, either actual or constructive knowledge of the damage, the delict, and the relationship between them sufficient to indicate to a reasonable person he is the victim of a tort and to state a cause of action against the defendant.’ Although Ms. Lomont became aware of the Citibank lien on December 9, 2010, the record establishes Ms. Myer–Bennett effectively hid her malpractice by convincing Ms. Lomont the problem could be fixed and she was working to remove the lien. Thus, although aware of an undesirable result arising out of Ms. Myer–Bennett’s representation, Ms. Lomont did not recognize the result was due to malpractice and could not be ‘fixed’ by Ms. Myer–Bennett. We also find it reasonable that Ms. Lomont, a lay person with a long personal relationship with Ms. Myer–Bennett, was lulled into trusting Ms. Myer–Bennett’s assertions. Ms. Lomont asserted she did not discover the fraud until she met with Ms. Kesler on June 28, 2012, when she first learned the lawsuits had not been filed and could not remove the lien, and that she had a claim against Ms. Myer–Bennett for malpractice.” Lomont v. Myer-Bennett, 2014-2483 (La. 6/30/2015), 2015 WL 3972411.
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