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Williams v. Breeden

Court of Appeals of Louisiana, Fourth Circuit

March 27, 2019

KEVIN WILLIAMS
v.
P. MICHAEL BREEDEN, III, BREEDEN LAW FIRM, LLC, AND XYZ INSURANCE COMPANY BREEDEN LAW FIRM, L.L.C., AND P. MICHAEL BREEDEN
v.
KEVIN WILLIAMS

          Appeal From Civil District Court, Orleans Parish NO. 2013-04224, Division "L-6" Honorable Kern A. Reese, Judge.

          Dwayne 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 Defendant/Appellee

          Court composed of Chief Judge James F. McKay III, Judge Terri F. Love, Judge Edwin A. Lombard.

          JAMES F. MCKAY III CHIEF JUDGE.

         In this 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.

         FACTS AND PROCEDURAL HISTORY

         By way 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.

         On May 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 $536, 000.00.

         On 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. Williams.

         On 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.

         DISCUSSION

         On 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 frivolous appeal.

         In 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 ...


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