Opinion
NO. 2018 CA 0909
02-25-2019
MICHAEL BREEN v. ALLEN MCMILLIN, RODNEY J STRAIN AS SHERIFF OF ST. TAMMANY PARISH, LOUISIANA AND HIS/ITS LIABILITY INSURER, XYZ INSURANCE COMPANY
Byard "Peck" Edwards, Jr. Hammond, LA Counsel for Plaintiff/Appellant, Michael Breen Scott H. Frugé, John M. Dubreuil, Charles M. Hughes, Jr. Baton Rouge, LA Counsel for Defendants/Appellees, Sarah McMillin, aka Sarah McMillian, as the Independent Administratrix of the Succession of Alan K. McMillin, aka Alan K. McMillian, aka Allen McMillin, aka Allen McMillian, Charles M. Hughes, Jr., John M. Dubreuil, and Scott M. Frugé
NOT DESIGNATED FOR PUBLICATION Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana
Docket No. 2009-0003444 The Honorable Charlotte H. Foster, III, Judge Presiding Byard "Peck" Edwards, Jr.
Hammond, LA Counsel for Plaintiff/Appellant,
Michael Breen Scott H. Frugé,
John M. Dubreuil,
Charles M. Hughes, Jr.
Baton Rouge, LA Counsel for Defendants/Appellees,
Sarah McMillin, aka Sarah
McMillian, as the Independent
Administratrix of the Succession of
Alan K. McMillin, aka Alan K.
McMillian, aka Allen McMillin, aka
Allen McMillian, Charles M.
Hughes, Jr., John M. Dubreuil, and
Scott M. Frugé BEFORE: WELCH, CHUTZ, AND LANIER, JJ. LANIER, J.
The plaintiff/appellant, Dr. Michael Breen, appeals the March 13, 2018 judgment of the 21st Judicial District Court, which sustained peremptory exceptions raising the objection of res judicata and prescription in favor of the defendants/appellees, Allen McMillin, Sara McMillin as the independent administratrix of the Succession of Alan K. McMillin, John M. Dubreuil, Charles M. Hughes, Jr., and Scott Frugé. The 21st Judicial District Court further declared the defendants/appellees' remaining exceptions moot, and dismissed all of the claims against the aforementioned defendants/appellees with prejudice. Dr. Breen has also filed a motion to consolidate the instant appeal with another pending appeal from the 22nd Judicial District Court. In this memorandum opinion, we affirm the judgment of the trial court and pretermit discussion of the motion to consolidate.
Allen K. McMillin, the original petitioner against Dr. Breen, is also known as Alan K. McMillin, Alan K. McMillian, and Allen McMillian. Allen McMillin is the decedent named in the Succession of Alan K. McMillin.
On October 10, 2017, Dr. Breen filed a petition to nullify a default judgment Mr. McMillin had obtained against him in Tangipahoa Parish on July 26, 2004. In the petition, Dr. Breen named Mr. McMillin, Randal Smith as Sheriff of St. Tammany Parish, and XYZ Insurance Company as defendants. Dr. Breen alleged that he was not properly served with the original lawsuit, using virtually identical language from another petition to nullify judgment he had filed on September 28, 2009 against Mr. McMillin, as well as Rodney J. Strain as Sheriff of St. Tammany Parish and XYZ Insurance agency. The 2009 petition was dismissed for abandonment by the district court.
On February 20, 2018, Dr. Breen filed yet another petition to nullify judgment in Tangipahoa Parish that is identical to the October 10, 2017 petition to nullify judgment in virtually every respect.
On January 29, 2018, the defendants/appellees filed various exceptions, which included declinatory exceptions raising the objection of insufficiency of citation, insufficiency of service of process, and lack of subject matter jurisdiction, and peremptory exceptions raising the objections of res judicata, no cause of action, and prescription, to Dr. Breen's 2017 petition to nullify judgment. On March 13, 2018, the district court signed a judgment sustaining the peremptory exceptions raising the objections of res judicata and prescription, declared all other exceptions moot, and dismissed the 2017 petition to nullify judgment with prejudice. Dr. Breen has appealed this judgment.
All named defendants were brought into the litigation by Dr. Breen's third amending and supplemental petition to the 2017 petition to nullify judgment, filed November 27, 2017.
Dr. Breen's sole assignment of error is that the trial court erred in ruling that Dr. Breen's claim was based on La. C.C.P. art. 2004 with a prescriptive period of one year. Dr. Breen avers that his 2017 petition to nullify judgment clearly sets out that the claim was based on the improper and unlawful failure of service, which arises under La. C.C.P. art. 2002(A)(2), and makes the judgment one of absolute nullity.
We pretermit discussion on the issue of prescription. --------
Dr. Breen has not briefed any error as to the trial court's ruling on the objection of res judicata. Pursuant to Uniform Rules—Courts of Appeal, Rule 2-12.4(B)(4), all assignments of error must be briefed, and this Court may consider as abandoned any assignment of error which has not been briefed. See Shropshire v. ANCO Installation, 2014-0902 (La. App. 1 Cir. 12/23/14), 168 So.3d 601, 607. Dr. Breen's failure to appeal the judgment's res judicata ruling results in that judgment becoming final, since the district court's dismissal of Dr. Breen's claims, with prejudice, is supported by the sustaining of the appellees' objection of res judicata.
Accordingly, we hereby affirm the district court's March 13, 2018 judgment, and since both issues are rendered moot by the district court's final judgment on the peremptory exception raising the objection of res judicata, we pretermit discussion on Dr. Breen's motion to consolidate and his assignment of error on the propriety of the trial court's ruling on the exception of prescription. See Tobin v. Jindal, 2011-0838 (La. App. 1 Cir. 2/10/12), 91 So.3d 317, 321 (an issue is moot when a judgment or decree on that issue has been 'deprived of practical significance or 'made abstract or purely academic'). We issue this memorandum opinion pursuant to Uniform Rules—Courts of Appeal, Rule 2-16.1(B). See Franklin v. AIG Cas. Co., 2012-1699 (La. App. 1 Cir. 6/7/13), 2013 WL 2487877, at *2 (unpublished). All costs of this appeal are assessed to the appellant, Dr. Michael Breen.
AFFIRMED.