Recent Development by Michael Hickerson
A judgment of divorce was rendered between Robert Dean Hoover (Robert) and Anne Marie Olivier Hoover (Anne) on July 18th, 1995, following a divorce petition filed by Robert pursuant to Louisiana Civil Code article 103. The judgment addressed child and spousal support but did not divide the property of the former spouses. To execute the property division, the parties signed a “community property settlement,” which was never made a judgment by the court. At that time, Robert was representing Robert Lynn Mizell (Mizell) on a contingency fee basis in a tort action. The contingency contract was not specifically included in the settlement. On September 4, 1998, Anne filed a “Motion to Partition Discovered Community Asset or in the Alternative to Set Aside Community Property Partition Based on Fraud and/or Lesion.” Anne argued that the contingency fee should have been included in the settlement and consequently its value should have been divided between the parties. Alternatively, Anne argued that the partition should be rescinded because of fraud or the partition was lesionary.
Robert answered the petition and moved for summary judgment pursuant to Louisiana Code of Civil Procedure article 966, alleging that there was no genuine issue of material fact regarding Anne's claims. Robert also filed exceptions of prescription and no cause of action. The trial court granted Robert's summary judgment and dismissed the claims without reaching the exceptions.
Anne appealed the dismissal of her claims of fraud and lesion. The Louisiana First Circuit Court of Appeal affirmed the trial court's decision. The Louisiana Supreme Court granted certiorari. In reversing the appeals court, the Louisiana Supreme Court held that, although the community property settlement possessed some aspects of a transaction or compromise, the settlement was an extrajudicial partition for which lesion remained a remedy and, further, that Anne's claim of lesion was improperly dismissed because Robert's motion for summary judgment failed to place specifically the lesion issue before the court. Hoover v. Hoover, 813 So. 2d 329, 334 (La. 2002).
About the Author
Michael Hickerson.
Citation
77 Tul. L. Rev. 1441 (2003)