From Civil District Court, Orleans Parish NO. 2013-04224,
Division "L-6" Honorable Kern A. Reese, Judge.
P. Smith Edwin M. Shorty, Jr. Nathan Chiantella Edwin M.
Shorty, Jr. & Associates Counsel For Plaintiff/Appellant
Charles R. Jones Attorney At law Counsel For
composed of Chief Judge James F. McKay III, Judge Terri F.
Love, Judge Edwin A. Lombard.
F. MCKAY III CHIEF JUDGE.
nullity action, which arises out of a breach of
contract/legal malpractice case, the appellants, P. Michael
Breeden, the Breeden Law Firm LLC, and XYZ Insurance Company,
appeal the trial court's sustaining of a peremptory
exception of prescription filed by the appellee, Kevin
Williams, which dismissed with prejudice the appellants'
petition to annul. We affirm.
AND PROCEDURAL HISTORY
of background, Kevin Williams alleges that on December 22,
2011, he entered into an employment contract with P. Michael
Breeden and the Breeden Law Firm to represent him in a
bankruptcy filing. He further alleges that Mr. Breeden and
the Breeden Law Firm failed to timely institute a Chapter 13
bankruptcy on behalf of Mr. Williams, which resulted in two
pieces of immovable property owned by Mr. Williams being sold
at a sheriff's sale to Iberia Bank.
3, 2013, Mr. Williams filed a petition for damages based on
legal malpractice against P. Michael Breeden, the Breeden Law
Firm, and XYZ Insurance Company (from this point forward,
these parties will be referred to collectively as Mr.
Breeden). Following service on Mr. Breeden, Mr. Williams
filed a motion for preliminary default on July 21, 2014. On
July 24, 2014, Mr. Breeden filed a motion for extension of
time. On July 25, 2014, Mr. Williams sought to confirm the
preliminary default, but his confirmation was denied. Mr.
Williams filed a number of exhibits to support his motion for
default on July 28, 2014. Then, on August 12, 2014, the trial
court entered a default judgment against Mr. Breeden and in
favor of Mr. Williams, awarding him damages in the amount of
August 8, 2015, Mr. Breeden filed a petition to annul stating
that the judgment was an absolute nullity under La. C.C.P.
art. 2002 based on the failure to notify Mr. Breeden. This
petition to annul was dismissed without prejudice on February
2, 2016, for failure to issue citation and service to Mr.
February 20, 2018, in a separate proceeding, Mr. Breeden
filed a second petition to annul seeking to annul the August
12, 2014 default judgment. Mr. Breeden then filed a motion to
transfer and consolidate the new petition with the earlier
proceedings and the case was transferred and consolidated on
February 22, 2018. Mr. Williams then filed a peremptory
exception of prescription alleging that the new petition to
annul was prescribed pursuant to the provisions of La. C.C.P.
art. 2004 (B). A hearing on the exception took place on June
29, 2018, and a judgment was signed on July 5, 2018,
maintaining the exception of prescription and dismissing the
petition to annul the default judgment with prejudice at Mr.
Breeden's costs. It is from this judgment that Mr.
Breeden now appeals. Mr. Williams has also filed an answer to
the appeal, seeking attorney's fees and costs for the
filing of a frivolous appeal.
appeal, Mr. Breeden raises the following assignments of
error: 1) the trial court erred in granting the exception of
prescription as Mr. Breeden was not served with notice prior
to the hearing date; and 2) the trial court erred in granting
the exception of prescription because the petition to annul
clearly demonstrates on its face that the judgment is an
absolute nullity, which can be brought at any time. Mr.
Williams also seeks attorney's fees and costs for a
reviewing a peremptory exception of prescription, an
appellate court will review the entire record to determine
whether the trial court's finding of fact was manifestly
erroneous. Board of Com'rs v. Estate of Smith,
03-1949, 03-1950 (La.App. 4 Cir. 9/2/04), 881 So.2d 811. The
standard of review of a district court's finding of facts
supporting prescription is that an appellate court should not
disturb a finding of the ...