BBI ARCHITECTURAL SERVICES INC v. JANNEY (2026)

In this suit on a promissory note, the defendant/appellant, Todd Janney, appeals a money judgment in favor of the plaintiff/appellee, BBI Architectural Services, Inc. (“BBI”). Janney also seeks review of the trial court's judgment overruling his peremptory exception raising the objection of prescription, which was rendered following remand from this Court while the instant appeal was held in abeyance. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Janney, a physical therapist, owned Physician's Choice Physical Therapy of Livingston Parish (“PCPT-LP”) and Physician's Choice Physical Therapy Incorporated (“PCPT”). PCPT-LP hired BBI to produce architectural plans for the renovation of a building in Denham Springs, Louisiana. PCPT-LP agreed to pay BBI $30,000.00 for its work and made several payments to BBI; however, it subsequently stopped making payments because BBI never produced final plans.

On November 24, 2009, BBI filed a suit on open account against PCPT-LP and PCPT in proceedings entitled “BBi Architectural Services v. Physician's Choice Physical Therapy, Inc. and Physician's Choice Physical Therapy of Livingston Parish, Inc.,” number 126,394 on the docket of the 21st Judicial District Court for the Parish of Livingston (“the Livingston suit”). Janney was not named as a defendant in the Livingston suit. In response, PCPT-LP and PCPT filed an answer and reconventional demand, and PCPT-LP subsequently filed a supplemental answer and reconventional demand. PCPT-LP and PCPT were initially represented by counsel in the Livingston suit, but counsel later withdrew. Later, Janney, pro se, attempted to represent PCPT-LP and PCPT on the basis that the entities could no longer afford an attorney. On February 4, 2013, Janney filed a motion seeking to narrow the scope of discovery requested by BBI, including limiting discovery of Janney's personal tax returns and excluding discovery of financial records for other entities owned by Janney. Janney's motion was not heard because the trial court granted BBI's motion to disqualify Janney as pro se counsel for PCPT-LP or PCPT as he was not a licensed attorney. On July 16, 2013, Michael E. Platte enrolled as counsel for PCPT-LP and PCPT in the Livingston suit.

On October 23, 2013, the parties entered into a “SETTLEMENT AGREEMENT” (“the settlement agreement”). The settlement agreement is between BBI and PCPT, PCPT-LP, and Janney (collectively referred to in the settlement agreement as “PCPT”). The settlement agreement states in pertinent part that “PCPT agrees to pay to the order of [BBI] the sum of․($22,500.00)․pursuant to and in accordance with the promissory note” (“the promissory note”), which is attached to the settlement agreement as “Exhibit ‘A.’ ” The settlement agreement further provides that in exchange for the settlement payment, and execution of the settlement agreement and the promissory note, BBI agreed to execute a joint motion to dismiss the Livingston suit with prejudice. The settlement agreement also states that BBI reserved its rights against PCPT, PCPT-LP, and Janney for breach of the settlement agreement and the promissory note.

In conjunction with the settlement agreement, the promissory note was executed on October 23, 2013. The promissory note lists the “Makers” as PCPT, appearing through its President, Janney; PCPT-LP, appearing through its President, Janney; and Janney, individually (collectively “the makers”). Janney signed the promissory note three times—on behalf of PCPT as its President, on behalf of PCPT-LP as its President, and personally. Janney also signed three different acknowledgements of the promissory note, once behalf of PCPT, as its President, once on behalf of PCPT-LP, as its President, and once himself, individually. The promissory note states that the makers promise to pay BBI, the “Holder,” the principal sum of $22,500.00, including 12% interest per annum from the date of the note until paid, with installment payments made according to a specific payment plan. The promissory note also provides for late fees, late charges, and attorney fees in the event that any payment was not received within five days of the due date. The promissory note makes no reference to the settlement agreement.

Pursuant to the terms of the settlement agreement, on November 6, 2013, BBI, PCPT, and PCPT-LP filed a joint motion to dismiss and for entry of judgment, wherein they requested that judgment be rendered in favor of BBI, and against PCPT and PCPT-LP, in solido, in the amount of $22,500.00, with interest continuing to accrue at the judicial rate of interest until paid. The parties also moved for dismissal, with prejudice, of the principal and reconventional demands in the Livingston suit. On November 21, 2013, the court signed a judgment (“the November 21, 2013 consent judgment”), which provides, in pertinent part:

IT IS ORDERED that judgment be entered on the principal demand in favor of [BBI] against [PCPT], [PCPT-LP], and Todd Janney, in solido, in the amount of $22,500.00, with interest continuing to accrue at the judicial rate of interest until paid; and

IT IS FURTHER ORDERED that all claims associated with the principal and reconventional demands are dismissed with prejudice.

Prior to the rendition of the November 21, 2013 consent judgment, counsel for PCPT and PCPT-LP, Platte, sent an email to counsel for BBI, which states, in pertinent part, as follows:

Everything looked ok to me except the Judgment and Entry of Judgment. The issue I am having is including [Janney] personally on the judgment itself. I understand your position, but the original action was filed against two entities controlled by Todd. I have no problem with him personally signing the [promissory] note and settlement agreement, but I would like to prevent an actual judgment filed against him. Let me know what you think and call me if you need to discuss.

On December 27, 2013, BBI, PCPT, and PCPT-LP filed a joint motion to amend the November 21, 2013 consent judgment, noting it contained “an inadvertent error” as it listed Janney, a non-party to the Livingston suit, as liable in solido, with PCPT. On January 9, 2014, the court signed an amended judgment (“the January 9, 2014 amended consent judgment”), which was identical to the November 21, 2013 consent judgment except Janney was removed as a party.

PCPT made two payments to BBI on the promissory note—the first payment was received by BBI on October 15, 2013, and the second payment was received on December 6, 2013. No payments were made to BBI by PCPT, PCPT-LP, or Janney after December 6, 2013.

On October 8, 2014, Janney and his wife filed for bankruptcy under Chapter 7 of the United States Bankruptcy Code, 11 U.S.C. § 701, et seq. BBI timely sued to have Janney's debt under the promissory note declared non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) and (B). On September 13, 2016, the bankruptcy judge declared Janney's debt to BBI to be non-dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A).¹ In doing so, the bankruptcy judge found that Janney committed a false representation and fraud when he induced BBI to settle with PCPT and PCPT-LP, when Janney knew the entities would be unable to pay their debt.

On June 14, 2017, BBI commenced the instant suit against Janney, individually, alleging he defaulted on the promissory note. BBI sought judgment against Janney in the amount of $22,500.00, plus interest at the rate of 12% per annum from the date until paid, plus late fees and charges, attorney fees, and all court costs, subject to a credit for payments received in the amount of $1,545.00. Thereafter, BBI filed a supplemental and amending petition to clarify the amount of late fees due under the promissory note ($35.00 five days from the passage of the installment due date and $3.00 per day thereafter until payment is received), and alleged that Janney was in default of the promissory note and BBI had exercised its option under the promissory note to accelerate the unpaid balance owed.

Janney answered, generally denying the allegations of the petition and asserting several affirmative defenses to the enforcement of the promissory note against him, including, but not limited to, usury (with regard to the late fees provided in the promissory note), lack of consideration, lack of cause, mistake, and error.

After a trial on the merits on October 19, 2023, the trial court rendered judgment in favor of BBI and against Janney in the amount of $21,000.00 for the unpaid balance of the promissory note. After an additional hearing on January 10, 2024, for the sole purpose of determining interest, attorney fees, late charges, and costs, the trial court rendered judgment in favor of BBI and against Janney for the accrued interest on the balance of the promissory note through January 10, 2024 in the amount of $15,820.43 and interest on the principal amount at the rate of 12% per annum from January 11, 2024 until paid, late charges in the amount of $315.00, late fees in the amount of $23 8,290.00, costs in the amount of $3,451.23, expert witness fees in the amount of $6,070.75, and attorney fees in the amount of $34,500.00. A written judgment in accordance with the trial court's ruling, with an award totaling $319,447.41, was signed on February 21, 2024.

Janney appealed the February 21, 2024 judgment, raising several assignments of error relating to his affirmative defenses to the promissory note and to the awards of unearned interest, late fees and charges, and attorney fees. Janney also raised, for the first time, a peremptory exception of prescription, arguing the November 21, 2013 consent judgment and the January 9, 2014 amended consent judgment (collectively “the consent judgments”), have prescribed, and therefore, the promissory note, which he argued is an accessory obligation to the consent judgments, is likewise prescribed and extinguished. On December 30, 2024, this Court issued an interim order remanding this matter to the trial court for the limited purpose of considering Janney's exception of prescription. This appeal was held in abeyance pending a ruling by the trial court on the exception of prescription.

Following remand, on February 24, 2025, the trial court held a hearing on Janney's exception of prescription. At the hearing, Janney and BBI offered evidence, including the testimony of Janney and Charles Brent Bueche,² the owner of BBI. On April 7, 2025, the trial court overruled Janney's exception of prescription. In so doing, the trial court found that the consent judgments were not reinscribed, and therefore, any action against PCPT or PCPT-LP based on the consent judgments had prescribed. However, the trial court also found that Janney was a co-maker of the promissory note, and BBI's action against Janney for money owed on the promissory note was filed within the ten-year prescriptive period, and therefore, had not prescribed. A judgment in accordance with this ruling was signed on April 23, 2025.

DISCUSSION

Prescription

As noted, Janney raised the issue of prescription in his original appellate brief as his first assignment of error. After this matter was remanded and the trial court overruled Janney's exception, Janney filed a supplemental appellate brief in this appeal raising two assignments of error related to the trial court's judgment overruling his exception of prescription. As a determination that the trial court erred by overruling Janney's exception of prescription would resolve the merits of this appeal, we address these assignments or error first.

Liberative prescription is a mode of barring actions as a result of inaction for a period of time. La. C.C. art. 3447. Statutes regulating prescription are strictly construed against prescription and in favor of the obligation sought to be extinguished. Mallett v. McNeal, 2005-2289 (La. 10/17/06), 939 So. 2d 1254, 1258. Ordinarily, the party pleading the exception of prescription bears the burden of proving the claim has prescribed. However, when the face of the petition reveals that the plaintiff's claim has prescribed, the burden shifts to the plaintiff to show why the claim has not prescribed. Hogg v. Chevron USA, Inc., 2009-2632, 2009-2635 (La. 7/6/10), 45 So. 3d 991, 998. When prescription is raised with evidence being introduced at the hearing on the exception, the trial court's findings of fact on the issue of prescription are subject to the manifest error or clearly wrong standard of review. Calloway v. Lobrano, 2016-1170 (La. App. 1 Cir. 4/12/17), 218 So. 3d 644, 650. However, where the issue of prescription turns upon the proper application and interpretation of statutory law, the exception presents a question of law for appellate review. Id.

Actions on promissory notes, whether negotiable or not, are subject to a liberative prescription of five years, which commences to run from the day payment is exigible. La. C.C. art. 3498. When a promissory note is payable in installments, as opposed to on demand, the five-year prescriptive period commences separately for each installment on its due date. JP Morgan Chase Bank, N.A. v. Boohaker, 2014-0594 (La. App. 1 Cir. 11/20/14), 168 So. 3d 421, 428. However, if the installments are accelerated based upon a default, prescription for the entire accelerated amount commences on the day of acceleration. Id. Prescription on a promissory note is interrupted when the obligee commences action against the obligor in a court of competent jurisdiction and venue. La. C.C. art. 3462.

As noted, BBI filed the instant action against Janney on June 14, 2017. BBI's petition alleged it is the holder of the promissory note and Janney, who executed the promissory note on October 23, 2013, failed to pay the installments due under the promissory note. BBI attached to its petition a copy of the promissory note, which lists Janney as a maker of the promissory note and requires monthly installment payments, with a final installment payment due on or before August 8, 2016. The promissory note also contains an acceleration clause, which allows BBI to declare the entire principal amount of the promissory note, plus interest and fees, to be immediately due upon default based on a maker's failure to make installment payments. BBI's original, supplemental, and amending petitions do not mention the settlement agreement, or the consent judgments. Likewise, the promissory note does not reference the settlement agreement or the consent judgments. As BBI filed its suit on the promissory note within five years of the date the installment payments and/or final payment was due, BBI's petition is not prescribed on its face. Accordingly, Janney had the burden of proving BBI's claims against him prescribed. See Hogg, 45 So. 3d at 998.

Louisiana Civil Code article 3501 provides that a money judgment is prescribed by the lapse of ten years from its signing if no appeal has been taken. Article 3501 further states that the judgment may be revived before it prescribes as provided for La. C.C.P. art. 2031. Louisiana Code of Civil Procedure article 2031 provides that a money judgment may be revived at any time before it prescribes by an interested party in an ordinary proceeding brought in the court in which the judgment was rendered. A consent judgment that is a money judgment is subject to the same prescriptive provisions as a money judgment. See Hartwig Moss Ins. Agency, Ltd. v. Kelly, 96-1423 (La. App. 4 Cir. 1/29/97), 688 So. 2d 196, 197-98. “Revival of the judgment in an action instituted within 10 years of its rendition remains the exclusive method by which the running of prescription on a money judgment may be prevented.” General Financial Services, Inc. v. Dean, 99-1798 (La. App. 4 Cir. 12/15/99), 761 So. 2d 569, 572 (citing Bahan v. Youngstown Sheet & Tube Co., 191 So. 2d 668, 670 (La. App. 2 Cir. 1966)). See also Brunston v. Hoover, 2006-970 (La. App. 3 Cir. 12/6/06), 945 So. 2d 852, 855; Seymour v. Jones, 93-658 (La. App. 3 Cir. 2/2/94), 631 So. 2d 666, 668, writ denied, 637 So. 2d 158 (La. 1994). However, La. C.C. art. 3464 provides that prescription is interrupted when one acknowledges the right of the person against whom he had commenced to prescribe.

At the hearing on Janney's exception, Bueche stated that, to the best of his knowledge, BBI had not filed paperwork to reinscribe either of the consent judgments. Bueche testified that after BBI received the December 6, 2013 payment from PCPT, BBI was never told by Janney or any other representative of PCPT or PCPT-LP that the remainder of the debt would be paid. Therefore, as the consent judgments were rendered more than ten years ago and were not reinscribed, those money judgments are prescribed on their face. See La. C.C. art. 3501. However, as noted, BBI's claims against Janney are based on the promissory note, not the consent judgments. Nevertheless, Janney argues that BBI's claims against him have prescribed because the promissory note is an accessory obligation to the consent judgments, both of which have prescribed.

A contract is an accessory obligation when it is made to provide security for the performance of an obligation. Suretyship, mortgage, pledge, and other types of security agreements are examples of such a contract. La. C.C. art. 1913. An accessory right or obligation may not exist without the coexistence of a primary obligation to which it lends support. Jefferson Financial Federal Credit Union v. New Orleans Libations and Distilling Company, LLC, 2022-0123 (La. App. 4 Cir. 10/31/22), 351 So. 3d 783, 786, writ denied, 2022-01676 (La. 2/24/23), 356 So. 3d 335. If a principal obligation has prescribed and is extinguished, any accessory obligation securing the principal obligation is also extinguished and unenforceable. Matherne v. Purdy, 576 So. 2d 621, 623 (La. App. 4 Cir. 1991).

The issue of whether the promissory note is an accessory obligation requires an interpretation of the promissory note. Contracts have the effect of law between the parties, and parties are obliged to perform contractual obligations in good faith. La. C.C. art. 1983; Zanders v. Davis, 2019-1057 (La. App. 1 Cir. 2/21/20), 298 So. 3d 739, 742. Under Louisiana law, where the words of a contract are clear and unambiguous, interpretation of the contract is a question of law and subject to the de novo standard of review on appeal. Zanders, 298 So. 3d at 742.

As discussed, the promissory note states that the makers, including Janney, individually, promise to pay BBI the principal sum of $22,500.00, including 12% interest per annum from the date of the note until paid, with installment payments made according to a specific payment plan. The promissory note also provides for late fees, late charges, and attorney fees in the event that any payment was not received within five days of the due date. The promissory note makes no reference to the consent judgments. The promissory note contains different payment terms than the consent judgments, and names Janney, individually, as an obligor. The promissory note contains all the terms required for enforcement of its obligations and there is no indication from the language of the promissory note that it exists to support, guarantee, or ensure the fulfillment of a primary obligation.

Janney points out that at the hearing on the exception, Bueche testified that the amount owed as stated in the promissory note, $22,500.00, represented the same amount owed as stated in the November 21, 2013 consent judgment; in other words, Bueche acknowledged that there were not two separate debts for $22,500.00 ($45,000.00 total). When asked why Janney was named as a maker on the promissory note, but was not a party to the Livingston suit, Bueche explained that at some point, he did not remember an exact date, BBI became aware that PCPT and PCPT-LP were “insolvent” and BBI wanted “options” for payment of the debt. However, the fact that the same debt is acknowledged in both the promissory note and the consent judgments does not, in and of itself, prove that the promissory note is an accessory obligation to the consent judgments.³ Based on our de novo review, including a review of the plain language of the promissory note, we find the promissory note is not an accessory obligation to the consent judgments. Therefore, we find Janney failed to meet his burden of proving BBI's claims against him have prescribed.⁴ Accordingly, these assignments of error are without merit.

Want of Consideration

Janney argues in his second assignment of error that the trial court manifestly erred by finding he received personal consideration for the promissory note. Janney points out that he received no proceeds, property, or services justifying a separate indebtedness or obligation to BBI for $22,500.00.

In a suit on a promissory note by the payee against the maker, the payee is entitled to the presumption that the instrument was given for value received. However, the presumption is rebutted if the maker casts doubt upon the consideration. Once the maker casts doubt upon the issue of consideration, the burden shifts to the payee to prove consideration by a preponderance of the evidence. Gurney v. McCoy, 2021-0696 (La. App. 1 Cir. 4/4/22), 341 So. 3d 703, 708. There is a difference between the affirmative defense of failure of consideration and the defense of want of consideration. The former concedes that there was consideration for the instrument in its inception, but alleges that the consideration has wholly or partially ceased to exist. Sonnier v. Gordon, 50,513 (La. App. 2 Cir. 4/13/16), 194 So. 3d 47, 54. The latter defense asserts that consideration was not given for the promissory note. Id.

Here, Janney acknowledged that he signed the promissory note in his persona capacity as a maker. Thus, BBI is entitled to a presumption that the promissory note was given for value received. See Gurney, 341 So. 3d at 708. The promissory note states that the makers agree to pay $22,500.00 to BBI “FOR VALUE RECEIVED,” but does not describe the value received. To rebut the presumption that he received consideration for the promissory note, Janney testified that he received nothing of value for personally appearing on the promissory note and the settlement agreement. However, following a trial on the merits, the trial court found Janney received “consideration” for the promissory note “because the [Livingston suit] was going away and he's getting a discount from the amount of money that is owed.” The settlement agreement states that BBI agrees to settle the Livingston suit in exchange for the settlement payment, made pursuant to the terms of the promissory note. Janney agreed to the terms of the promissory note in order to settle BBI's claims against the companies he owned, PCPT and PCPT-LP, in the Livingston suit. At the time of settlement, BBI claimed it was owed $25,327.00, but agreed to settle the Livingston suit for $22,500.00. Additionally, the promissory note allowed the makers, including Janney, to pay BBI in installments. During the trial in the instant suit, Janney testified that he was represented by Platte during the settlement negotiations and Platte was “probably paid” with money coming from one of several other companies owned by Janney. The trial court's determination that Janney received consideration for the promissory note was based on the facts adduced at trial and an evaluation of Janney's credibility. Accordingly, we review that determination for manifest error. See S & S Cash Register & Computer Co., Inc. v. Caldarera, 627 So. 2d 255, 259 (La. App. 5 Cir. 1993) (citing Stobart v. State through Dept. of Transp. & Development, 617 So. 2d 880, 882 (La. 1993)). Reviewing the record in its entirety, we find the trial court was not manifestly erroneous and BBI met its burden of proving by a preponderance of evidence that Janney had consideration for the promissory note. Accordingly, this assignment of error is without merit.

Third Party Assumption of Liability

In his third assignment of error, Janney argues that the trial court legally erred by casting judgment against him in an amount greater than the liability owed to BBI under the November 21, 2013 consent judgment. Janney asserts that he “arguably assumed liability for PCPT-LP and PCPT's obligation arising under the [November 21,2013 consent judgment].” Janney argues that pursuant to La. C.C. art. 1822, BBI could not impose, and Janney could not assume, a greater liability than the actual liability owed by PCPT-LP and PCPT to BBI under the November 21, 2013 consent judgment.

Louisiana Civil Code article 1822 provides in pertinent part that “[a] person who, by agreement with the obligor, assumes the obligation of the latter is bound only to the extent of his assumption.” However, there is no indication from the record that Janney assumed PCPT's or PCPT-LP's liability under the November 21, 2013 consent judgment. Janney, individually, signed the promissory note and agreed to its terms. Therefore, the trial court did not legally err by casting judgment against Janney pursuant to the terms of the promissory note. Accordingly, this assignment of error is without merit.

Error Vitiating Consent

In his fourth assignment of error, Janney argues the trial court manifestly erred in rendering judgment in favor of BBI because he proved that his consent to the promissory note was vitiated by bilateral or unilateral error. At trial, Janney testified that he was never a party to the Livingston suit, and after the November 21, 2013 consent judgment was signed, Platte and counsel for BBI filed the joint motion to amend the November 21, 2013 consent judgment to remove Janney. Janney asserted that he told Platte after signing the promissory note that “I'm not supposed to be on here personally.” Janney claimed that Platte told him he would remove him from the promissory note, but failed to do so. However, Janney did not subpoena Platte to testify at trial. Additionally, Janney acknowledged that he signed the promissory note three times, along with the acknowledgements. Janney also testified that he has owned more than twelve companies and has signed promissory notes in the past. Janney testified he also signed the settlement agreement in his individual capacity.

A valid obligation requires, among other things, consent. La. C.C. art. 1927. Consent may be vitiated by error, fraud, or duress. La. C.C. art. 1948. Error vitiates consent only when it concerns a cause without which the obligation would not have been incurred and that cause was known or should have been known to the other party. La. C.C. art. 1949; see also Peironnet v. Matador Resources Co., 2012-2292 (La. 6/28/13), 144 So. 3d 791, 807. Whether error exists is a factual determination by the trial court, which is reviewed under the manifest error or clearly wrong standard. Melancon v. Memorial Hall Foundation, Inc., 2024-0182 (La. App. 1 Cir. 9/20/24), 405 So. 3d 637, 644, writ denied, 2024-01460 (La. 2/19/25), 400 So. 3d 929 (citing Rosell v. ESCO, 549 So. 2d 840, 844 (La. 1989)). An appellate court cannot set aside a trial court's finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed upon review, even where an appellate court may feel its own evaluations and inferences are reasonable. Rosell, 549 So. 2d at 844.

Janney's claim that error occurred is based solely on his testimony, which the trial court apparently found not to be credible. Furthermore, his self-serving testimony is contradicted by Platte's email to counsel for BBI, sent after Janney signed the promissory note and the settlement agreement, explaining Platte “ha[d] no problem with [Janney] personally signing the [promissory] note and the settlement agreement[.]” Janney, an admitted experienced business owner, signed both the promissory note and the settlement agreement in his individual capacity. Based on the aforementioned facts, we find the trial court did not manifestly err by finding there was no error vitiating Janney's consent to the promissory note. Accordingly, this assignment of error is without merit.

Interest, Late Fees, and Late Charges

In his fifth assignment of error, Janney argues the trial erred in its calculation of interest, late fees, and late charges owed by Janney on the promissory note. In particular, Janney points out that the promissory note contains language defining default under the promissory note as occurring when a maker files for bankruptcy. Janney asserts that additional language in the promissory note limits BBI's ability to collect interest, late fees, and late charges where a maker files for bankruptcy. Janney argues that since he filed for bankruptcy on October 8, 2014, BBI was not entitled to late fees, late charges, or unearned interest incurred after his filing.

As noted by BBI, this issue was not raised by Janney in the trial court proceedings below. In fact, at the January 10, 2024 hearing to determine interest, late fees, and late charges due under the promissory note, counsel for BBI stated that it would stipulate to the late fee as calculated in Janney's post-trial memorandum, which amounted to $238,290.00. As a general rule, appellate courts will not consider issues that were not raised in the pleadings, were not addressed by the trial court, or are raised for the first time on appeal. Burniac v. Costner, 2018-1709 (La. App. 1 Cir. 5/31/19), 277 So. 3d 1204, 1210. Under article 5, § 10 of the Louisiana Constitution, courts of appeal have broad supervisory jurisdiction; however, even with such broad power, this Court will not act on the merits of a claim not yet acted upon by the lower tribunal. Burniac, 277 So. 3d at 1210; see also Uniform Rules-Courts of Appeal, Rule 1-3. Accordingly, we decline to address the merits of this assignment of error.

Attorney Fees

In his sixth assignment of error, Janney argues the trial court erred in awarding attorney fees to BBI for work performed in the Livingston suit. Janney argues BBI had no contractual right under the promissory note for work performed by BBI in the Livingston suit.

At the January 10, 2024 hearing, BBI requested attorney fees pursuant to the promissory note, which provides that if the promissory note “is placed in the hands of an attorney for collection, or suit is filed hereon, or proceedings are had in bankruptcy․the [makers] agree to pay [BBI] a reasonable amount as attorneys’ fees.” At the hearing, BBI introduced into evidence the following documents supporting its request for attorney fees: (1) the promissory note; (2) a retainer contract between BBI and attorney Wayne M. Aufrecht, which provides for a contingency fee for attorney fees in the amount of twenty-five percent of all amounts collected; and (3) an affidavit of correctness by Bueche wherein he attested that BBI expended $20,670.97 on attorney fees “in connection with the collection efforts” on the promissory note, in addition to the contingency fee amount due to Aufrecht. Following the hearing, the trial court awarded attorney fees in the amount of $34,500.

It is well-settled that attorney fees are not allowed except where they are authorized by a particular statute or provided for by contract. Smith v. State, Dept. of Transp. & Development, 2004-1317 (La. 3/11/05), 899 So. 2d 516, 527. The Louisiana Supreme Court has set forth ten factors to be considered in determining the reasonableness of attorney fees: (1) the ultimate result obtained; (2) the responsibility incurred; (3) the importance of the litigation; (4) the amount of money involved; (5) the extent and character of the work performed; (6) the legal knowledge, attainment, and skill of the attorneys; (7) the number of appearances made; (8) the intricacies of the facts involved; (9) the diligence and skill of counsel; and (10) the court's own knowledge. State, Dept. of Transp. & Development v. Williamson, 597 So. 2d 439, 442 (La. 1992). The trial court has much discretion in fixing an award of attorney fees, and its award will not be modified on appeal absent a showing of an abuse of discretion. Miss Bee's Snoworld, LLC v. Guidry, 2020-0946 (La. App. 1 Cir. 6/18/21), 328 So. 3d 477, 486.

As noted, the promissory note authorizes reasonable attorney fees in the event BBI utilizes the services of an attorney to collect on the promissory note. Although the Livingston suit was discussed during the January 10, 2024 hearing, there is no indication that the trial court awarded attorney fees for work performed in the Livingston suit. The evidence submitted by BBI in support of its request for attorney fees does not appear to include work performed in the Livingston suit. Considering the facts and circumstances of this case along with the factors set forth in Williamson, we find the trial court did not abuse its discretion by awarding BBI $34,500.00 in attorney fees. Accordingly, this assignment of error is without merit.

CONCLUSION

For the foregoing reasons, the trial court's February 21, 2024 judgment is affirmed. Costs of this appeal are assessed to Todd Janney.

AFFIRMED.

I respectfully dissent. I find the trial court erred in denying Todd Janney's exception raising the objection of prescription.

BBI Architectural Services, Inc. contracted with Physician's Choice Physical Therapy of Livingston Parish, Inc. (“PCPT-LP”) to produce architectural plans for the renovation of a building in Denham Springs, Louisiana. BBI did not contract with Mr. Janney in his individual capacity. After PCTP-LP failed to make the requisite payments, BBI filed suit against PCPT-LP and Physician's Choice Physical Therapy, Inc. (“the corporate entities”) in Livingston Parish. BBI did not file suit or ever amend its petition to name Mr. Janney individually in the Livingston Parish suit, nor was Mr. Janney a party to the January 9, 2014 amended consent judgment that terminated the Livingston Parish suit. Rather, the consent judgment recognized only the two corporate entities as the principal obligors. Said judgment held them liable, in solido, in the amount of $22,500.00, with interest to accrue at the judicial rate of interest until paid. As noted by the majority, the underlying consent judgment BBI obtained against the corporate entities in the Livingston Parish suit subsequently prescribed because it was not revived within 10 years of its signing. See LSA-C.C. art. 3501 and LSA-C.C.P. art. 2031. Mr. Janney asserts that the claim is also prescribed as to him as an accommodation endorser.

Where a party never received proceeds of a loan for which a promissory note was given, the party who signed the note as a co-maker, would be recognized as an accommodation endorser. Dugas v. Modular Quarters, Inc., 561 So.2d 192, 197 (La.App. 3 Cir. 1990). Moreover, co-makers who serve as accommodation endorsers for another party become solidary sureties for the principal debtor. Id. (citing Godeaux v. Godeaux, 488 So.2d 434 (La.App. 3rd Cir. 1986), writ denied, 493 So.2d 636 (La. 1986)). If an accommodation endorser of a note is sued by one not a holder in due course, the endorser may raise any defense the maker may have raised. Dugas, 561 So.2d at 197-98 (citing Bush Const. Co., Inc. v. Carr, 486 So.2d 183 (La.App. 1 Cir.), writ denied, 489 So.2d 1273 (La. 1986); and City Bank & Trust Co. v. White, 434 So.2d 1299 (La.App. 3 Cir. 1983)). The only exception to the rule enunciated in Bush and City Bank is that the surety (accommodation endorser) cannot assert the defenses of lack of capacity or discharge in bankruptcy of the principal obligor. LSA-C.C. Art. 3046.¹

In Gleason v. Barrilleaux, 292 So.2d 804 (La.App. 1 Cir. 1974), this court examined whether a party to a note should be recognized as a maker or an accommodation party. The plaintiff alleged that “he received no consideration for signing the note,” but defendant urged that there was consideration for the loan. Id. at 805. This court explained that “[a]n accommodation maker is one who signs an instrument without receiving value therefor. The reasons for his signing the instrument is to lend his name to some other person.” Id. citing LSA-R.S. 7:29. “In order for a party not to be an accommodation party, he must be paid or rewarded in some manner for the particular and specific act of signing the instrument.” Gleason, 292 So.2d at 805 (citing Walker v. Delahoussaye, 116 So.2d 884 (La.App. 1 Cir. 1959) and Gaspard v. Lachney, 92 So.2d 277 (La.App. 2 Cir. 1957)).

The trial court, in concluding that Mr. Janney was liable herein, found he received “consideration” for the promissory note “because the [Livingston suit] is going away and he's getting a discount from the amount of money owed.” However, as set forth previously, BBI did not individually contract with Mr. Janney nor did it file suit or ever amend its petition to name Mr. Janney individually in the Livingston Parish suit. Moreover, Mr. Janney was not a party to the January 9, 2014 amended consent judgment that terminated the Livingston Parish suit.

Rather, it was the two corporate entities that were liable, in solido, in the amount of $22,500.00 as reflected in the consent judgment. Additionally, the promissory note signed by the parties and outlining a series of regular installment payments, reflected the same sum due in the consent judgment—$22,500.00. No one disputes that this note secured the same corporate debt referenced in the consent judgment.

Mr. Janney, in signing the promissory note, received no consideration beyond that already provided to the corporate entities. As such, Mr. Janney is deemed an accommodation maker (surety). See Gleason, 292 So.2d at 805, and Dugas, 561 So.2d at 197-98. Accordingly, Mr. Janney could raise prescription as a defense given the action had prescribed against the principal obligors. See LSA-C.C. art. 3046. Based on the record before us, I would grant Mr. Janney's exception raising the objection of prescription.

FOOTNOTES

1.   11 U.S.C. § 523(a)(2)(A) excepts from discharge a debt obtained by “[f]alse pretenses, a false representation, or actual fraud, other than a statement respecting the debtor's or an insider's financial condition[.]”

2.   Bueche's last name is sometimes spelled “Bush” in the record. We use the spelling “Bueche” as stated on the settlement agreement.

3.   Janney cites two cases, Collins v. Collins, 2021-572 (La. App. 3 Cir. 2/16/22), 335 So. 3d 898, and Brunston v. Hoover, 2006-970 (La. App. 3 Cir. 12/6/06), 945 So. 2d 852, in support of his argument that the promissory note is an accessory obligation to the consent judgments. We find these cases distinguishable. In Brunston, the plaintiff argued that prescription of a money judgment was interrupted based on the ongoing garnishment of the defendant's wages because the garnishment was an acknowledgment of the debt owed under the money judgment. Id. at 856. The appellate court rejected the argument, explaining that a garnishment judgment is directed to the debtor's employer, not the debtor, and is not voluntary. Therefore, the court explained that the garnishment could not be considered an acknowledgment of the debt by the defendant. Id. The court further noted that the garnishment judgment in Brunston expressly stated that it was based on the money judgment and withholding of the defendant's wages should continue until the money judgment was paid. Id. In Collins, the appellate court, relying on Brunston, found a garnishment judgment was indistinguishable from the underlying money judgment, which had prescribed. Collins, 335 So. 3d at 901-02.

4.   Janney also argues that he is entitled to raise any defense available to the principal obligors, PCPT and PCPT-LP, including prescription of the consent judgments because he signed the promissory note as an accommodation endorser. However, as we find the promissory note is not an accessory obligation to the consent judgments, and therefore, not prescribed, we pretermit discussion of this issue.

1.   Louisiana Code of Civil Procedure article 3046 provides:The surety may assert against the creditor any defense to the principal obligation that the principal obligor could assert except lack of capacity or discharge in bankruptcy of the principal obligor.

BALFOUR, J.

McClendon, C.J., dissents with reasons.