APPEAL FROM THE NINTH JUDICIAL DISTRICT COURT, PARISH OF RAPIDES, NO. 223,238. HONORABLE GEORGE C. METOYER, JR., DISTRICT JUDGE.
Rodney M. Rabalais, Attorney at Law, Marksville, Louisiana, Counsel for Plaintiff/Appellee: James Norman Thompson.
Koby D. Boyett, Attorney at Law, Alexandria, Louisiana, Counsel for Defendant/Appellant: Chrystal Landry Thompson.
Court composed of Sylvia R. Cooks, Billy Howard Ezell, and Phyllis M. Keaty, Judges. Cooks, J., dissents in part and assigns written reasons.
[14-963 La.App. 3 Cir. 1] KEATY, Judge.
Former wife appeals a judgment granting former husband's exception of prescription and dismissing her claims against him with prejudice, along with a judgment awarding former husband $25,744 in attorney fees. Former husband answers seeking additional attorney fees for work done on the two appeals relative to this matter. For the following reasons, we affirm and award former husband additional attorney fees.
FACTS AND PROCEDURAL HISTORY
Chrystal Landry Thompson and James Norman (Norm) Thompson were married in 1991. By judgment dated September 9, 2008, they were granted a divorce pursuant to La.Civ.Code art. 103. They later filed a joint petition to homologate their community property which the trial court signed on August 23, 2010.
Chrystal filed a petition to annul the judgment homologating their community property on August 19, 2011, alleging that Norm was guilty of " fraud, non-disclosure, and ill practices." Therein, she sought rescission of the judgment and an award of tort damages and attorney fees, along with the payment of the costs associated with her filing of the petition to annul. On May 20, 2013, Norm filed a peremptory exception of prescription and request for attorney fees, contending that Chrystal's petition to annul had prescribed because it had not been filed within one year of August 3, 2010, the date she discovered the alleged fraud and ill practice. Chrystal opposed the exception.
After conducting a contradictory hearing on July 29, 2013, the trial court granted Norm's exception of prescription in open court and dismissed all of Chrystal's claims against him with prejudice. Written judgment was signed on [14-963 La.App. 3 Cir. 2] August 12, 2013. In the interim, Norm filed a motion for attorney fees pursuant to La.Code Civ.P. art. 2004(C), which allows a court to award attorney fees to the party who prevails in an action for nullity of a judgment obtained by fraud or ill practices. Norm's motion was set for hearing on September 16, 2013. Before the hearing took place,
Chrystal filed a motion for devolutive appeal of the August 12, 2013 judgment, asserting therein that the judgment had been designated as final for purposes of appeal. The trial court signed an order granting Chrystal's request for appeal on August 26, 2013. Thereafter, Norm filed a motion to annul the order of appeal, requesting an award of fees and costs, alleging that Chrystal's statement that the judgment had been designated as final was false. He indicated that Chrystal was trying to deprive him of a hearing on his motion for attorney fees, despite his having reserved his claim for such fees at the close of the hearing on his exception of prescription. The order granting Chrystal an appeal of the judgment which granted Norm's exception of prescription was annulled by a judgment rendered on October 14, 2013, and signed on October 21, 2013. Nevertheless, Chrystal paid the estimated costs of appeal, and the record was lodged in this court on October 30, 2013. On that same date, this court ordered Chrystal to show cause by November 13, 2013, why the appeal " should not be dismissed as taken with an [14-963 La.App. 3 Cir. 3] order of appeal which was annulled October 14, 2013." Norm also filed a motion to dismiss the appeal in this court along with a request that he be awarded attorney fees. Chrystal filed a response in opposition to this court's show cause order and to Norm's motion.
In an opinion dated January 22, 2014, this court issued an opinion recalling the rule to show cause and denying Norm's motion to dismiss the appeal and request for attorney fees. See Thompson v. Thompson, 13-1237 (La.App. 3 Cir. 1/22/14), (unpublished opinion). Therein, we concluded that although Norm's exception of prescription was coupled with a request for attorney fees and although Norm asked at the hearing to reserve the attorney fees issue, the trial court had not responded to Norm's attempt to reserve the issue, and the August 12, 2013 judgment was silent regarding Norm's request for attorney fees. Id. Accordingly, we held that Norm's request for attorney fees was denied by the trial court and that the judgment was final. Citing La.Code Civ.P. art. 2088, we further held that because the issue of attorney fees was reviewable on appeal and the trial court was divested of jurisdiction when it signed the order of appeal, it has no jurisdiction to rescind or annul the perfected appeal. Id. Norm applied for, and this court granted, a rehearing concerning our original ruling. Several months later, however, we recalled and vacated our original opinion. See Thompson v. Thompson, 13-1237 (La.App. 3 Cir. 3/19/14), (unpublished opinion), writ denied, 14-391 (La. 5/16/14), 139 So.3d 1025. On rehearing, we determined that the trial court had inadvertently granted the order of appeal because it clearly indicated that it had not denied Norm's request for attorney fees, but rather had held a hearing on that issue after it granted the order of appeal, thus evidencing its belief that it retained jurisdiction of that issue. Id. Accordingly, we set aside the order of appeal as having been [14-963 La.App. 3 Cir. 4] inadvertently granted, and we remanded the matter for action consistent with our opinion and for the issuance of a new order of appeal. Id. In addition, we granted Norm's motion to dismiss the appeal but denied his accompanying request for attorney fees. Id.
Soon after the supreme court denied writs on May 16, 2014, the trial court held
a hearing and signed a judgment on May 22, 2014, awarding Norm $27,744 in attorney fees, with interest from the date of the judgment, and declaring that the case was ripe for appeal. The next day, the trial court signed a pleading entitled Suggested Findings of Fact and Reasons for Ruling Submitted by James Norman Thompson on Attorney Fees. Thereafter, Chrystal timely filed a motion for suspensive appeal of the judgment granting Norm's exception of prescription along with the May 22, 2014 judgment awarding Norm attorney fees.
Chrystal is now before this court asserting three assignments of error. She contends that the trial court erred: 1) in finding that her claim for nullity of the partition based on fraud had prescribed; 2) in dismissing her claim for coercion; and 3) in awarding Norm attorney fees under La.Code Civ.P. art. 2004 where there was no judicial determination of fraud or a lack thereof, or alternatively, in awarding Norm fees that are excessive under the circumstances. Norm has filed an answer to Chrystal's appeal, seeking additional attorney fees for the work done in this court to obtain the remand to the trial court and for the work he will incur in defending the present appeal.
[14-963 La.App. 3 Cir. 5] DISCUSSION
Was Chrystal's Petition for Nullity Prescribed?
Louisiana Code of Civil Procedure Article 2004 entitled " Annulment for vices of substance; peremption of ...