224 So. 3d 1035
La. Ct. App.2017Background
- In 2009 the City of New Orleans found Ben Guillory’s property blighted, fined him, and recorded a judicial lien; a sheriff’s seizure and advertised sale followed.
- The Laurel Group, LLC (TLG) purchased the property at sheriff’s sale in October 2011, completed renovations, then discovered Guillory recorded a lis pendens after he filed a petition to annul the sale (May 7, 2012).
- TLG sued in reconvention (original reconventional demand), later filed a First Supplemental Reconventional Demand (Aug. 30, 2013) adding claims for abuse of process, malicious prosecution, and negligence.
- District court granted summary judgment dismissing Guillory’s claims; parties later settled Guillory’s appeal for $40,000 while reserving TLG’s reconventional claims.
- After trial on the supplemental reconventional demand, the district court awarded TLG damages and attorney’s fees for abuse of process and malicious prosecution; the Fourth Circuit affirmed, denied Guillory’s prescription exception, and denied TLG’s answer-to-appeal challenge.
Issues
| Issue | Plaintiff's Argument (Guillory) | Defendant's Argument (TLG) | Held |
|---|---|---|---|
| Prescription of tort claims added in supplemental reconventional demand | Abuse of process, malicious prosecution, negligence claims prescribed (1-year liberative) because alleged tortious acts occurred May 7, 2012 | Supplemental reconventional demand relates back to original reconventional demand filed Feb 26, 2013, so claims timely | Court: Denied exception; claims relate back under La. C.C.P. art. 1153 and jurisprudence (Gunter/Baker) |
| Malicious prosecution proper via supplemental reconventional demand | No bona fide termination in TLG’s favor when claim filed; delay to appeal remained so claim premature; reconventional demand improper vehicle | Underlying suit was dismissed (summary judgment) before supplemental demand; bona fide termination requires litigation concluded on the merits, not mere expiration of appeal delay | Court: Rejects Guillory’s argument; malicious prosecution claim timely and properly asserted; assignment without merit |
| Abuse of process — element of willful improper use of process | Filing suit and lis pendens were regular prosecution steps; no proof of an improper, willful act beyond normal litigation; TLG’s evidence was insufficient/self-serving | TLG showed Guillory filed suit/recorded lis pendens knowing claim lacked merit and sought to cloud title to extract money (quitclaim/withdrawal for $40,000); that demonstrated ulterior purpose and willful misuse | Court: Finds no manifest error; evidence supports abuse of process finding |
| Award of attorney’s fees | No statutory or contractual basis to award fees for abuse of process/malicious prosecution/negligence | Abuse of process is an exception to the general rule against fee awards; attorney’s fees are recoverable as compensatory damages in malicious prosecution claims (fees incurred in underlying litigation) | Court: Affirms award of attorney’s fees and costs; exercise of discretion proper |
Key Cases Cited
- Savoie v. Rubin, 820 So.2d 486 (La. 2002) (explains bona fide termination requirement for malicious prosecution)
- Lemoine v. Wolfe, 168 So.3d 362 (La. 2015) (lists elements required for malicious prosecution claim)
- Gunter v. Plauche, 439 So.2d 437 (La. 1983) (relation-back doctrine permits amendments despite technical prescription if original gives fair notice)
- Baker v. Payne & Keller of La., 390 So.2d 1272 (La. 1980) (allowing amendment where factual connexity and identity of interest exist)
- Ortiz v. Barriffe, 523 So.2d 896 (La. App. 4th Cir. 1988) (discusses limits on asserting malicious prosecution via reconventional demand)
- Lees v. Smith, 363 So.2d 974 (La. App. 3rd Cir. 1978) (rejects reconventional assertion of malicious prosecution before bona fide termination)
- Maloney v. Oak Builders, Inc., 235 So.2d 386 (La. 1970) (general rule that attorney’s fees are not allowed except by statute or contract)