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Burniac v. Costner

Court of Appeals of Louisiana, First Circuit

May 31, 2019

DONALD C. BURNIAC, LINDA A. BURNIAC, AND GEORGIA MANAGEMENT ENTERPRISES, INC.
v.
YETTIE COSTNER, ET AL

          On appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket Number 2018-10463 Honorable Richard A. Swartz, Judge Presiding.

          Stephen H. Myers Counsel for Lafayette, LA Plaintiffs/Appellants Donald C. Burniac, Linda A. Burniac, and Georgia Management Enterprises, Inc.

          Carey L. Menasco Counsel for A'Dair R. Flynt Defendants/Appellees New Orleans, LA Yettie and John Reis

          Margaret H. Kern Counsel for Covington, LA Defendant/Appellee Henry Costner

          BEFORE: GUIDRY, THERIOT, AND PENZATO, JJ.

          GUIDRY, J.

         This is an appeal of a judgment in an action seeking nullity and damages relative to proceedings and a judgment rendered by a court in Georgia. For the following reasons, we dismiss the appeal.

         FACTS AND PROCEDURAL HISTORY

         In 2008, Yettie S. Costner executed an asset purchase agreement wherein she sold a tax preparation and accounting business that she operated in Georgia to Georgia Management Enterprises, Inc. ("GME"). The business sold included the existing clients, goodwill, equipment, software license rights, and Mrs. Costner's agreement not to compete for a period of five years. The agreement provided for the purchase of the business by an initial payment of $1, 000, plus 119 additional payments of $1, 000 each, to be paid in monthly installments.[1] Shortly after selling the business, Mrs. Costner and her then-husband, Henry Costner, moved to Louisiana.

         In July 2009, Mrs. Costner filed suit in Georgia against GME, Donald Burniac (as the incorporator of GME), Linda A. Burniac (as the president of GME), and Kurt Hines (as an employee of GME), for breach of contract, tort damages, and injunctive relief. In the Georgia complaint, Mrs. Costner alleged that in addition to the aforementioned asset purchase agreement, there was an agreement wherein GME arranged to lease the real property in which Mrs. Costner formerly operated her business. She further alleged that she and Mr. Burniac entered into a verbal contract whereby Mrs. Costner agreed to perform tax and accounting work for GME as an independent contractor. Despite these agreements, Mrs. Costner claimed that she stopped receiving lease payments and payments for the purchase of the business in March 2009. She also alleged that GME, the Burniacs, and Mr. Hines were liable for misrepresentation and fraud for failing to perform services for which clients had paid and for failing to compensate her for work she performed. Hence, in addition to damages for breach of contract and tort, Mrs. Costner sought mandatory injunctive relief to regain access to the real property leased to GME and to the business assets sold, including her former clients' files, computer software, data, and equipment. She also requested to permission to perform tax and accounting services for her former clients as part of the injunctive relief requested.

         On October 31, 2013, a final judgment was rendered in the Georgia lawsuit in favor of Mrs. Costner and against GME, the Burniacs, and Mr. Hines, awarding her $582, 500.00, plus interest as provided by Georgia law. Mrs. Costner later filed an action to have the Georgia judgment enforced in Michigan; however, under Michigan law, enforcement of the Georgia judgment could not begin until 21 days after the date notice of the filing of the foreign judgment was mailed, which in the Michigan action was done on September 1, 2016. Prior to the Georgia judgment becoming enforceable in Michigan, the Burniacs executed a warranty deed on September 19, 2016, to transfer a piece of real property that they owned in Michigan to a Louisiana irrevocable trust. Nearly a year later, on September 14, 2017, Mrs. Costner filed an action in Michigan to void the warranty deed and recover the real property that the Burniacs had transferred to the Louisiana trust.

         Thereafter, the Buniacs and GME (collectively, "the Burniacs") filed the instant action in St. Tammany Parish against Yettie Reis, [2] John Reis, Mr. Costner, and Vickie Kendall, [3] alleging claims of breach of contract, defamation, fraud, conversion, and nullity of the October 31, 2013 Georgia judgment. In response, the Reises filed exceptions raising the peremptory objections of res judicata, prescription, no cause of action, no right of action, and the dilatory objections of vagueness and ambiguity. Mr. Costner likewise responded to the petition by filing the same exceptions. The trial court held a hearing on the exceptions on June 21, 2018. After taking the matter under advisement, the trial court signed a judgment on August 15, 2018, decreeing:

IT IS HEREBY ORDERED that the peremptory exception of prescription is GRANTED as to all claims for breach of contract and tort, including fraud and conversion, and all such claims are DISMISSED WITH PREJUDICE; and
IT IS FURTHER ORDERED that the peremptory exception of prescription is DENIED as to the claim for defamation and as to the claim for the alleged nullity of the judgment rendered in the proceeding entitled Yettie Schulthess Costner v. Georgia Management Enterprises, Inc., Donald C. Burniac, Linda A. Burniac, and Kurt ...

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