Guillory v. City of New Orleans

• Decision Date: 02 August 2017
• Docket Number: No. 2016-CA-0638.,2016-CA-0638.
• Citation: 224 So.3d 1035
• Parties: Ben GUILLORY v. CITY OF NEW ORLEANS, et al
• Court: Court of Appeal of Louisiana — District of US

224 So.3d 1035

Ben GUILLORY

v.CITY OF NEW ORLEANS, et al

No. 2016-CA-0638.

Court of Appeal of Louisiana, Fourth Circuit.

AUGUST 2, 2017

Salvador I. Bivalacqua, GALANTE & BIVALACQUA LLC, 650 Poydras Street, Suite 2615, New Orleans, LA 70130, COUNSEL FOR PLAINTIFF/APPELLEE

Gregory Swafford, ATTORNEY AT LAW, 4734 Franklin Avenue, P. O. BOX 820416, New Orleans, LA 70182, COUNSEL FOR DEFENDANT/APPELLANT

(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Joy Cossich Lobrano )

Judge Edwin A. Lombard

The 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,¹ 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.

Facts

In 2009 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.

Mr. 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.²

Eventually the City requested the Clerk of Court to issue a Writ of Fieri Facias on February 4, 2011.³ 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 "Louisiana Weekly."

TLG was 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 July 2012.⁴

On May 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.

TLG 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 it.⁵ 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.

Mr. 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. Guillory's appeal.

On 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.

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; and,

3. the district court committed manifest error by awarding attorney fees to TLG.

Exception of Prescription

Prior to discussing Mr. Guillory's assignments of error, we shall address his exception of prescription.⁶ 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 Reconventional 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.

"When 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 amended pleadings technical prescriptive bars do not preclude raising the claims in the amended pleading:

‘ La. Code Civ. Proc. art. 1153 permits amendment despite technical prescriptive bars where the original pleading gives fair notice of the general fact situation out of which the amended claim arises.’ Gunter v. Plauche , 439 So.2d 437, 440 (La.1983), citing Baker v. Payne and Keller of Louisiana, Inc. , 390 So.2d 1272 (La.1980). ‘Where there is some factual connexity between the original and amended assertions, together with some identity of interest between the original and the supplemental party, amendment should be allowed.’ Baker , 390 So.2d at 1275 ; Gunter , 439 So.2d at 440.

De Atley v. Victoria's Secret Catalogue, LLC , 04-0661, p. 5 (La.App. 4 Cir. 5/14/04), 876 So.2d 112, 116. Moreover, "[w]here an original timely pleading provides a party with actual notice that a formal claim is being made based on a particular factual situation, permitting relation back of a post-prescriptive amendment based on the same factual situation does not violate any essential purpose of a prescriptive statute." Watson v. Woldenberg Vill., Inc. , 16-0159, p. 12 (La.App. 4 Cir. 10/5/16), 203 So.3d 317, 325, writ denied , 16-1964 (La. 12/16/16), 211 So.3d 1168 (citing Baker v. Payne and Keller of La., Inc. , 390 So.2d 1272, 1275 (La. 1980).

In the matter sub judice , the record reveals that TLG's assertions in its original and supplemental reconventional demand relate to Mr. Guillory's assertion of ownership over the Property. TLG's Reconventional Demand was filed on February 26, 2013. Therefore, we find that TLG's filing of its First Supplemental Reconventional Demand, on August 30, 2013—alleging claims of abuse of process, negligence, and malicious prosecution—related back to the date of the filing of the original Reconventional Demand, and, as such, were timely filed within the one-year liberative prescriptive period expiring on May 7, 2013. The exception of prescription is denied for the foregoing reasons.

Malicious Prosecution

In its first assignment of error, Mr. Guillory argues that TLG did not carry its burden of proof that a bona fide termination of Mr. Guillory's lawsuit in favor of TLG had occurred at the time it asserted the malicious prosecution claim. One of the requirements for prevailing on a malicious prosecution claim is that there be a bona fide termination of the previous proceeding in favor of the party asserting the malicious prosecution claim.⁷ Mr. Guillory maintains that at the time TLG filed its First Supplemental Reconventional Demand on August 29, 2013, wherein it raised its claim for malicious prosecution, the delay period for taking an appeal had not yet run. Therefore, it could not be said that there had been a bona fide termination of Mr. Guillory's action in favor of TLG, and TLG had no evidence of a bona fide...