John Hymes and Cuzan Services, LLC v. Frederick Evans Schmidt and Koch and Schmidt, LLC

• Court: Louisiana Court of Appeal
• Decided: March 16, 2026
• Docket: 2025-CA-0518
• Status: Published
• Author: Judge Daniel L. Dysart

Opinion

JOHN HYMES AND CUZAN * NO. 2025-CA-0518 SERVICES, LLC * VERSUS COURT OF APPEAL * FREDERICK EVANS FOURTH CIRCUIT SCHMIDT AND KOCH AND * SCHMIDT, LLC STATE OF LOUISIANA *******

APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2024-07877, DIVISION “F-14” Honorable Jennifer M Medley, ****** Judge Daniel L. Dysart ****** (Court composed of Judge Daniel L. Dysart, Judge Sandra Cabrina Jenkins, Judge Paula A. Brown)

David Band, Jr. 422 South Broad Street New Orleans, LA 70119-0160

COUNSEL FOR PLAINTIFF/APPELLANT

William H. Africk Marta-Ann Schnabel Kevin C. O'Bryon McKenna Rae Giovingo Geoffrey Michel O'BRYON, SCHNABEL & AFRICK, PLC 935 Gravier St Suite 900 New Orleans, LA 70112

COUNSEL FOR DEFENDANT/APPELLEE

AFFIRMED

MARCH 16, 2026 DLD In this legal malpractice case, the appellants, John Hymes and Cuzan SCJ PAB Services, LLC (hereinafter sometimes referred to simply as “Mr. Hymes”), appeal

the trial court’s maintaining a peremptory exception of peremption in favor of the

appellees, Frederick Evans Schmidt and Koch and Schmidt, LLC (hereinafter

sometimes referred to simply as “Mr. Schmidt”), and the dismissal with prejudice

of the appellees’ claims. For the reasons that follow, we affirm the trial court’s

judgment.

FACTS AND PROCEDURAL HISTORY

On September 30, 2021, Mr. Hymes retained Mr. Schmidt and the law firm

of Koch and Schmidt, LLC to represent him in negotiations involving foreclosure

proceedings against Mr. Hymes’ personal residence property located at 203 Wilson

Street in Belle Chasse. Mr. Hymes contends that while Mr. Schmidt negotiated a

settlement, Mr. Schmidt failed to advise him of critical installment obligations,

resulting in the foreclosure, loss of his home’s equity, and substantial business

damages.

1 Mr. Hymes filed a petition for damages alleging legal malpractice against

Mr. Schmidt and his law firm on August 26, 2024. Mr. Schmidt filed an answer

and affirmative defenses on December 11, 2024. On June 9, 2025, Mr. Schmidt

filed a peremptory exception of peremption.

An evidentiary hearing took place on April 22, 2025, where not only

testimony, but several exhibits were introduced into evidence, including a copy of

a bar complaint filed by Mr. Hymes against Mr. Schmidt that was received by the

Office of Disciplinary Counsel on January 17, 2024. The complaint alleged that in

December of 2022, Mr. Hymes learned that his property had been foreclosed on

November 9, 2022, while he believed there was an agreement in place to forestall

foreclosure; however, the complaint goes on to state that Mr. Hymes learned that

“the agreement was sent to Mr. Schmidt” but “there was no signed agreement on

file.” On May 6, 2025, Mr. Hymes submitted a post-trial memorandum that

centered on fraudulent concealment of legal malpractice. The trial court rendered a

judgment on June 6, 2025, which maintained Mr. Schmidt’s peremptory exception

of peremption and dismissed Mr. Hymes’ lawsuit with prejudice. It is from this

judgment that Mr. Hymes now appeals.

DISCUSSION

On appeal, Mr. Hymes raises the following assignments of error: (1) the

district court erred in holding that appellants’ claims were perempted as of

December 2022, despite discovery of malpractice only on April 1, 2024; (2) the

district court failed to apply La. R.S. 9:5605(E)’s fraud exception, despite Mr.

2 Schmidt’s written admission that he did not send the settlement agreement; and (3)

the court committed legal error by conflating foreclosure with discovery of

malpractice, and by ruling without a full evidentiary hearing.

Regarding the standard of review for the peremptory exception of

peremption, the Louisiana Supreme Court has opined:

If evidence is introduced at the hearing on the peremptory exception of preemption, the district court’s findings of fact are reviewed under the manifest error-clearly wrong standard of review. If those findings are reasonable in light of the record reviewed in its entirety, an appellate court cannot reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently.

Lomont v. Bennet, 14-2483, p. 8 (La. 6/30/15), 172 So.3d 620, 627.

In his first assignment of error, Mr. Hymes alleges that he first learned of

Mr. Schmidt’s alleged malpractice “only on April 1, 2024.” However, in the

record, we have a copy of a bar complaint made by Mr. Hymes against Mr.

Schmidt that was received by the Office of Disciplinary Counsel on January 17,

2024. The complaint recounts:

[i]n December of 2022, [Hymes] received a call from [his] neighbor Victoria Taylor advising that a locksmith was at the house. [He] directly contacted Julie Turmia [sic], who advised, ‘the property was foreclosed on November 9, 2022.’ [He] asked ‘why would you proceed with such action when we had an agreement in place?’ Julie stated ‘the agreement was sent to Mr. Schmidt’ and further advised, ‘there was no signed agreement on file.’

The above excerpt from the bar complaint is indicative that Mr. Hymes

knew or should have known of any potential legal malpractice claim he had against

Mr. Schmidt by December of 2022. However, Mr. Hymes did not file his lawsuit

until August 26, 2024. According to La. R.S. 9:5605(A):

3 No action for damages against any attorney at law duly admitted to practice in this state, any partnership of such attorneys at law, or any professional corporation, organization, association, enterprise, or other commercial business or professional combination authorized by the laws of this state to engage in the practice of law, whether based upon tort, or breach of contract, or otherwise, arising out of an engagement to provide legal services shall be brought unless filed in a court of competent jurisdiction and proper venue within one year from the date of the alleged act, omission, or neglect, or within one year from the date that the alleged act, omission, or neglect is discovered or should have been discovered; however, even as to actions filed within one year from the date of such discovery, in all events such actions shall be filed at the latest within three years from the date of the alleged act, omission, or neglect.

Accordingly, based on the foregoing, we find no error in the trial court’s

finding that Mr. Hymes’s legal malpractice claim against Mr. Schmidt was

perempted.

In his second assignment of error, Mr. Hymes contends that the trial court

erred by failing to apply La. R.S. 9:5605(E)’s fraud exception. According to La.

R.S. 9:5605(E): “The peremptive period provided in Subsection A of this Section

shall not apply in cases of fraud, as defined in Civil Code Article 1953[1].”

Although Mr. Hymes submitted a post-trial brief that centered on fraudulent

concealment of legal malpractice, Mr. Hymes never actually pled fraud. “La.

C.C.P. art. 853 and the established jurisprudential authority require that fraud be

pled with particularity.” Commercial Brokers, Inc. v. John J. Hazard Drayage

Constr. Co., Inc., 19-0638, p. 7 (La. App. 4 Cir. 4/29/20), 299 So.3d 644, 649. It is

necessary for “the petition to assert with specificity allegations consistent with

fraudulent behavior. Id. As such, Mr. Hymes has failed to assert a claim for fraud.

1 La. C.C. art. 1953 states: “Fraud is 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. Fraud may also result from silence or inaction.”

4 See Mopsik v. Galjour, 24-0189, p. 20 (La. App. 4 Cir. 9/25/24), 399 So.3d 811,

825. Accordingly, Mr. Hymes’ second assignment of error is without merit.

In his final assignment of error, Mr. Hymes contends that the trial court

committed legal error by conflating foreclosure with discovery of legal malpractice

and by ruling without a full evidentiary hearing. However, there is no indication

that the trial court conflated foreclosure with discovery of legal malpractice.

Foreclosure was the very thing that Mr. Hymes retained Mr. Schmidt to stop. Its

occurrence was notice of the discovery of legal malpractice according to Mr.

Hymes’ own version of events. Furthermore, an evidentiary hearing did take

place. Accordingly, this assignment of error is without merit.

CONCLUSION

Based on the above and foregoing reasons, we find nothing manifestly

erroneous or clearly wrong in the trial court’s maintaining the defendants’

peremptory exception of peremption. Accordingly, we affirm the trial court’s