Alfonso Haybeych v. Jpmorgan Chase Bank Na

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

16-800

ALFONSO HAYBEYCH

VERSUS

JPMORGAN CHASE BANK NA, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. C-20142345
HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and John E. Conery,
Judges.

AFFIRMED.

Joseph L. Lemoine, Jr.
1018 Harding Street, Suite 102 B
Lafayette, Louisiana 70503
(337) 232-5001
COUNSEL FOR PLAINTIFF/APPELLANT:
Alfonso Haybeych

Michael P. Bienvenu
Kinchen, Walker, Bienvenu, Bargas, Reed & Helm, L.L.C.
9456 Jefferson Highway, Building III, Suite F
Baton Rouge, Louisiana 70809
(225) 292-6704
COUNSEL FOR DEFENDANT/APPELLEE:
Asset Liquidators & Management, Inc. D/B/A ALM Realty

CONERY, Judge.

Plaintiff, Alfonso Haybeych (Mr. Haybeych) appeals the trial court’s ruling

granting a peremptory exception of prescription in favor of Defendant, Asset

Liquidators and Management, Inc. (ALM), thereby dismissing Mr. Haybeych’s

claims made in his amended petition with prejudice and at his cost. For the

following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

In its reasons for ruling dated June 13, 2016, the trial court succinctly stated

the basis of Mr. Haybeych’s case.

This action involves a claim for damages arising from an
alleged breach of contract entered into between Chase and Haybeych.
On April 30, 2012, Chase placed two real estate lots for sale in
Lafayette, through its real estate agent, ALM. Haybeych made an
offer to purchase the property, and Chase responded with a counter-
offer, which Haybeych alleges that he accepted. Thereafter, in May
2012, Chase allegedly cancelled the contract and sold the lots to a
third party.

In April 2013, Mr. Haybeych filed a petition to perpetuate testimony against

Chase. The trial court responded by granting Chase’s exception of no cause of

action and dismissing Mr. Haybeych’s petition with prejudice. On May 16, 2014,

Mr. Haybeych again filed suit against Chase and ALM, in solido, seeking damages

for the failure of the sale of the two real estate lots.

Chase responded by filed an exception of res judicata and ALM filed

peremptory exceptions of no cause of action and prescription. The trial court

granted all three exceptions, and the ruling was appealed in what will be hereafter

referred to as Haybeych I. See Haybeych v. JP Morgan Chase Bank, N.A., 15-90

(La.App. 3 Cir. 11/4/15), 180 So.3d 491. In Haybeych I, a panel of this court

found that res judicata did not bar Mr. Haybeych’s claim against Chase and

reversed the trial court on that issue.

However, the panel sustained ALM’s exception of no cause of action based

on a breach of contract claim, and pursuant to La.Code Civ.P. art. 934 allowed Mr.

Haybeych the opportunity to correct the deficiency in his petition within thirty

days. The panel also agreed with the trial court that if Mr. Haybeych’s claim

sounded in tort, his claim against ALM was prescribed, and stated:

Mr. Haybeych claims liability on the part of Defendants occurred in
May 2012. Specifically, within his Petition, he alleges that the
purported contract was cancelled on May 21, 2012. However, Mr.
Haybeych did not file his Petition until May 6, 2014, at which time
any claims in tort had prescribed. Therefore we affirm that portion of
the trial court’s judgment sustaining ALM’s exception of prescription
as to any tort claim asserted against it.

Haybeych I, 180 So. 3d at 499.

The panel in Haybeych I thus affirmed the trial court’s ruling granting

ALM’s exception of no cause of action “as it pertains to any contractual claims,”

but allowed Mr. Haybeych the opportunity to amend his petition to cure the

deficiency and state a “cause of action against ALM for breach of contract, which

has a ten-year prescriptive period.” Haybeych I, 180 So.3d at 499.1

This court in Haybeych I further addressed Mr. Haybeych’s argument that

the trial court failed to consider his argument on the application of La.Civ.Code art.

3019. The panel declined to consider the merits of Mr. Haybeych’s argument on

the application of La.Civ.Code art. 3019 and stated:

Insomuch as Mr. Haybeych argues that he has a claim against ALM
pursuant to La.Civ.Code art. 3019, any such claim would be tortious
in nature, subject to the one-year prescriptive period, and, therefore,
prescribed. Hence, we pretermit a discussion herein as to the

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“Unless otherwise provided by legislation, a personal action is subject to a liberative
prescription of ten years.” La.Civ.Code art. 3499.

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assertion of claims under this theory of liability since the trial court
did not consider same; and, even if it had been sufficiently alleged, it
was untimely brought.

Haybeych I, 180 So.3d at 500.

Haybeych II

Mr. Haybeych amended his petition, as ordered by the panel in Haybeych I,

pursuant to La.Code Civ.P. art 934. Once again ALM filed a peremptory

exception of prescription which was granted by the trial court. In its May 10, 2016

judgment the trial court once again dismissed all of Mr. Haybeych’s claims against

ALM with prejudice and at his cost, from which he now appeals.

ASSIGNMENTS OF ERROR

Mr. Haybeych has submitted three assignments of error on appeal.

ASSIGNMENT OF ERROR #1

The district court committed legal error in misinterpreting
La.C.C. Art. 3019 which expressly states that “A mandatory who
exceeds his authority is personally bound to the third party which
whom he contracts…”

ASSIGNMENT OF ERROR #2

The district court granting ALM’s exception of prescription on
grounds that Haybeych had allegedly failed to show “that ALM
became bound to the alleged contract between Haybeych and Chase.”

ASSIGNMENT OF ERROR #3

To the extent that the district court was of the opinion that a
claim for breach of contract, to which a mandatory became
“personally bound” by virtue of having exceeded the authority
constitutes a tort claim, the district court committed legal error.

LAW AND DISCUSSION

Law of the Case Doctrine

Mr. Haybeych has made a valiant attempt to allege a breach of contract

claim against ALM primarily based on La.Civ.Code art. 3019. However, this court

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in Haybeych I, clearly stated that any claim made by Mr. Haybeych pursuant to

La.Civ.Code art. 3019 sounded in tort, and thus was subject to the one year

prescriptive period stated in La.Civ.Code art. 3492, “Delictual actions are subject

to a liberative prescription of one year.” Therefore, Mr. Haybeych’s claims against

ALM are prescribed, as his petition against ALM was filed after the one year

prescriptive period.

We are thus constrained by the law of the case doctrine and will not consider

Mr. Haybeych’s arguments on the application of La.Civ.Code art. 3019. In Spruell

v. Dudley, 06-15 (La.App. 1 Cir. 12/28/06), 951 So.2d 339, writ denied, 07-196

(La. 3/23/07), 951 So.2d 1106, our sister circuit stated:

Pursuant to the “law of the case” doctrine, an appellate court generally
will not, as part of a subsequent appeal, reconsider its earlier ruling in
the same case. H.R. 10 Profit Sharing Plan v. Mayeaux, 03-0691, p.2
(La.App. 1 Cir. 9/17/04), 893 So.2d 887, 893 (on rehearing), writ
denied, 05-0868 (La. 5/13/05), 902 So.2d 1031.

` In Louisiana Land and Exploration Company v. Verdin, 95-
2579 (La. App. 1 Cir. 9/27/96), 681 So. 2d 63, writ denied, 96-2629
(La. 12/13/96), 692 So.2d 1067, cert. denied, 520 U.S. 1212, 117 S.Ct.
1696, 137 L. Ed. 2d 822 (1997), this court discussed the “law of the
case doctrine” and its application as follows:

The law of the case principle is a discretionary
guide which relates to (a) the binding force of a trial
judge’s ruling during the later stages of a trial, (b) the
conclusive effects of appellate rulings at trial on remand,
and (c) the rule that an appellate court ordinarily will not
reconsider its own rulings of law on a subsequent appeal
in the same case. It applies to all prior rulings or
decisions of an appellate court or the supreme court in
the same case, not merely those arising from the full
appeal process. Re-argument in the same case of a
previously decided point will be barred where there is
simply a doubt as to the correctness of the earlier ruling.
However, the law of the case principle is not applied in
cases of palpable error or where, if the law of the case
were applied, manifest injustice would occur.

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The reasons for the “law of the case” doctrine is to
avoid relitigation of the same issue; to promote
consistency of result in the same litigation; and to
promote efficiency and fairness to both parties by
affording a single opportunity for the argument and
decision of the issue.

Spruell, 951 So.2d at 342.

Based on our review of the record and the trial court’s reasons for ruling

which specifically adopts the ruling of this court in Haybeych I, we find “no

palpable error,” nor do we find “manifest injustice would occur.” Spruell, 951

So.2d at 342. Mr. Haybeych was well aware of any potential claims he may have

had against defendants, as his attorney filed a petition to perpetuate testimony in

April of 2013 and thus had actual knowledge of the May 21, 2013 prescription date.

We find that the trial court correctly concluded that based on his amended petition,

Mr. Haybeych failed to state a cause of action in contract against ALM and his

claim was therefore prescribed.

CONCLUSION

Based on the foregoing, the trial court’s judgment of May 10, 2016 is

affirmed in its entirety, dismissing all claims made by Alfonso Haybeych as

against Asset Liquidators and Management, Inc. with prejudice at plaintiff’s cost.

All costs of this appeal are assed to Alfonso Haybeych.

AFFIRMED.

This opinion is NOT DESIGNATED FOR PUBLICATION. Uniform Rules—
Courts of Appeal, Rule 2-16.3.

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