FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-04557,
DIVISION "C" Honorable Sidney H. Cates, Judge
Salvador I. Bivalacqua GALANTE & BIVALACQUA LLC COUNSEL
Gregory Swafford ATTORNEY AT LAW COUNSEL FOR
composed of Judge Edwin A. Lombard, Judge Roland L. Belsome,
Judge Joy Cossich Lobrano
A. Lombard Judge
Appellant and defendant-in-reconvention, Ben Guillory, seeks
review of the March 14, 2016 judgment of the district court
awarding the Appellee and plaintiff-in-reconvention, The
Laurel Group, LLC ("TLG") damages for abuse of
process and malicious prosecution in the amount of $68,
415.66, partially inclusive of attorneys,  plus interest.
Finding that the district court did not err, we affirm.
Furthermore, Mr. Guillory's exception of prescription is
denied. Lastly, the Answer to Appeal of TLG is also denied.
the City of New Orleans, Code Enforcement Bureau ("the
City") inspected Mr. Guillory's property located in
Orleans Parish at 2421 Peniston Street ("the
Property") for blight violations, which the City found.
The City, on July 1, 2009, notified Mr. Guillory that his
property had been inspected and was found to be in violation
of Chapter 28 of the City Code of New Orleans. The notice,
which was sent via certified mail and posted on the
door of the Property, further advised Mr. Guillory: 1.) of a
list of code violations existing on the Property; 2.) that a
hearing was scheduled in a little over 30 days, on August 10,
2009, with the time, date and location of the hearing listed;
3.) that he had the right to request an extension; and 4.)
that the hearing was being held to determine if the Property
is blighted for purposes of appropriation.
Guillory did not attend the hearing, where he was found
guilty of code violations and fined $500 plus $75 in court
costs as well as a daily fine of $500. Notice of the Judgment
was mailed to him via certified mail. The City later filed
its Judgment with the Recorder of Mortgages.
the City requested the Clerk of Court to issue a Writ of
Fieri Facias on February 4, 2011. However, Mr. Guillory took
no action to contest the City's seizure of the Property.
In September 2011, the impending sale of the Property was
advertised in the "Times-Picayune" and the
the highest bidder on the Property at the October 18, 2011
sale, placing a winning bid in the amount of $11, 000. On
January 3, 2012, an Act of Sale was executed between the City
and TLG, which was required to immediately begin renovations
as a condition of the sale. TLG complied with this
requirement completing the majority of the renovations by
7, 2012, Mr. Guillory filed a Petition in Suit to Annul Sale
against the City and TLG alleging that he never received
notice of the enforcement proceeding, nor of the notice of
the seizure and sale. Additionally, he recorded a notice of
lis pendens in the Orleans Parish conveyance records. TLG
avers that attempted to sell the Property after the
renovations were complete; however, it discovered there was a
notice of lis pendens on the Property precluding its sale.
answered the nullity action and later, on February 26, 2017,
filed an amended answer and a reconventional demand raising a
claim for unjust enrichment against Mr. Guillory. TLG and Mr.
Guillory later filed cross-motions for summary judgment. The
district court granted TLG's motion for summary judgment
dismissing Mr. Guillory's claims against
Thereafter, TLG was granted leave to file its First
Supplemental Reconventional Demand, which it filed on August
30, 2013. TLG raised claims of abuse of process, malicious
prosecution and negligence against Mr. Guillory in its First
Supplemental Reconventional Demand. Additionally, TLG filed a
motion for sanctions under La. Code Civ. Proc. art. 863
against Mr. Guillory, which was denied by the district court.
Guillory filed a notice of appeal from the district
court's grant of TLG's motion for summary judgment on
September 9, 2013. However, the parties later agreed to
settle their dispute resulting in Mr. Guillory receiving $40,
000 and TLG reserving the rights it asserted in its First
Supplemental Reconventional Demand. Thereafter, the district
court signed an order on February 5, 2014, dismissing Mr.
March 3, 2016, trial was held on TLG's First Supplemental
Reconventional Demand. Finding that TLG met its burden of
proving its causes of action and resulting damage, the
district court rendered judgment on March 14, 2016, awarding
TLG $40, 000.00 for its claims, and attorney's fees in
the amount of $28, 415.66 for its defense against Mr.
Guillory's suit. On May 31, 2016, the district court
awarded TLG an additional $5, 506.68 for attorney's fees
related to TLG's prosecution of its claims against Mr.
Guillory timely filed the instant appeal. In his appeal, he
raises three assignments of error:
1. the district court committed manifest error by granting
judgment in favor of plaintiff in reconvention on the claim
of malicious prosecution where TLG failed to prove a bona
fide termination in its favor of the prior litigation;
2. the district court committed manifest error when it
granted the judgment on the claim of abuse of process where
TLG failed to prove a willful act in the use of the process
not proper in the regular prosecution of the proceedings;
3. the district court committed manifest error by awarding
attorney fees to TLG.
to discussing Mr. Guillory's assignments of error, we
shall address his exception of prescription. Mr. Guillory
avers that TLG raised claims of abuse of process, malicious
prosecution and negligence for the first time in its First
Supplemental Reconventional Demand, which was filed on August
29, 2013. Mr. Guillory, the defendant-in reconvention
specifically contends that the abuse of process and
negligence claims raised had prescribed by the date of the
filing. He argues that the three causes of action raised by
TLG are tort-based; thus, they are subject to a liberative
one-year prescriptive period under La. Code Civ. Proc. art.
3492. He argues that said claims were based on alleged
tortious conduct that occurred on May 7, 2012, and therefore
had prescribed by the time TLG's First Supplemental
Recoventional Demand was filed. We disagree finding that the
assertions of both the original and First Supplemental
Reconventional Demand relate to Mr. Guillory's assertion
of ownership over the Property.
the action or defense asserted in the amended petition or
answer arises out of the conduct, transaction, or occurrence
set forth or attempted to be set forth in the original
pleading, the amendment relates back to the date of filing
the original pleading." La. Code Civ. Proc. art. 1153.
This court has explained that that where a sufficient factual
nexus exists between the original and ...