Malik A. Ishan VS Blue Ribbon Food Store of Baton Rouge, Inc. and Commercial Union Insurance Companies
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2010 CA 0519 MALIK A IHSAAN VERSUS BLUE RIBBON FOOD STORE OF BATON ROUGE INC ET AL Judgment rendered October 29 2010 Appealed from the 19th Judicial District Court in and for the Parish of East Baton Rouge Louisiana Trial Court No 446 248 Honorable R Michael Caldwell Judge MALIK ALQADR IHSAAN WINNFIELD LA IN PROPER PERSON DANIEL R ATKINSON JR BATON ROUGE LA ATTORNEY FOR PLAINTIFF APPELLANT DEFENDANTSAPPELLEES BLUE RIBBON FOOD STORE OF BATON ROUGE INC AMERICAN CENTRAL INS CO BEFORE KUHN PETTIGREW 71 and KLINE J pro tempore Although plaintiff is referred to as Malik A Ishan in the petition for damages it appears from his appellate brief that the correct spelling of his name is Ihsaan z Judge William F Kline Jr retired is serving as judge pro tempore by special appointment of the Louisiana Supreme Court PETTIGREW J In this case plaintiff Malik A Ihsaan filed suit against defendants Blue Ribbon Store of Baton Rouge Inc and its insurer for personal injuries he sustained following an alleged slip and fall accident Defendants filed a motion for summary judgment which the trial court granted The trial court found that Mr Ihsaan had not shown that he would be able to carry his burden of proof at trial The judgment granting summary judgment in favor of defendants and dismissing with prejudice Mr Ihsaan claims was s signed by the trial court on November 10 1998 According to the record Mr Ihsaan filed a motion and order for appeal from this judgment which was granted on December 10 1998 However there is no indication that Mr Ihsaan pursued this appeal Also signed on December 10 1998 was an order allowing S Jay Thomas and Greg Rozas to withdraw as counsel of record for Mr Ihsaan because of irreconcilable differences in the nature and legal strategy to be used in the suit3 It appears from this motion that another counsel of record for Mr Ihsaan John B Cornish was to remain on the case On December 7 1998 Mr Ihsaan filed a complaint with the Office of the Disciplinary Counsel ODC against Mr Cornish concerning his handling of the case namely allowing a non lawyer to negotiate settlements directly with the insurance adjuster regarding Mr Ihsaan claim In a letter to the ODC acknowledging Mr Ihsaan s s complaint Mr Cornish indicated that he had advised Mr Ihsaan to seek new counsel as this office no longer wished to represent him The ODC matter proceeded to the Louisiana Supreme Court and in a December 13 2004 per curiam decision the court ordered that Mr Cornish be suspended from the practice of law for a period of three years with all but one year and one day of the suspension deferred subject to the condition that any further misconduct would be grounds for making the deferred portion of the suspension executory or imposing additional discipline 3 We note from the record that Mr Thomas was present on behalf of Mr Ihsaan at the hearing on the motion for summary judgment and was also the attorney who filed the motion and order for appeal from the November 10 1998 judgment on Mr Ihsaan behalf s 4 Mr Ihsaan complaint was one of three filed with the ODC against Mr Cornish The other two complaints s are not relevant to the case before us and warrant no further discussion 2 No further action was taken in this case by Mr Ihsaan until December 28 2009 when he filed a motion to annul the November 10 1998 judgment based on La Code Civ P arts 2002 and 2004 annulled because it Mr Ihsaan argued that the summary judgment should be 1 was rendered while he was incarcerated and the case was settled without his knowledge or consent and 2 was obtained by fraud or ill practices The matter proceeded to hearing on February 8 2010 The trial court pointed out to Mr Ihsaan who appeared in proper person that Article 2004 allows one year from the date of discovery of the fraud within which to file the action to annul The trial court also noted that although Article 2002 allows an action to annul to be filed at any time for the reasons stated therein because Mr Ihsaan had not alleged any grounds specified in Article 2002 he was relegated to the one year restriction found in Article 2004 for his motion to annul based on fraud allegations Thus the trial court dismissed the motion to annul in a judgment signed March 5 2010 An appeal by Mr Ihsaan followed After a thorough review of the record and exhibits we find the trial court acted within its discretion in dismissing Mr Ihsaan motion to annul s See Johnson v Cain 20080936 p 3 La App 1 Cir 11 999 So 51 53 writ 08 14 2d denied 20090295 La 4 6 So3d 773 Thus in accordance with Uniform Rules 09 3 Courts of Appeal Rule 2 16 and 7 we affirm the judgment below and assess all 2 2A costs associated with this appeal against plaintiffappellant Malik A Ihsaan AFFIRMED s Louisiana Code of Civil Procedure article 2002 provides in pertinent part as follows A A final judgment shall be annulled if it is rendered 1 Against an incompetent person not represented as required by law B Except as otherwise provided in Article 2003 an action to annul a judgment on the grounds listed in this Article may be brought at any time Louisiana Code of Civil Procedure article 2004 provides in pertinent part as follows A A final judgment obtained by fraud or ill practices may be annulled B An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices 3
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