Barnett Marine, Inc. v. Van Den Adel

694 So. 2d 453, 1997 WL 163623
CourtLouisiana Court of Appeal
DecidedApril 9, 1997
Docket96-CA-1029
StatusPublished
Cited by16 cases

This text of 694 So. 2d 453 (Barnett Marine, Inc. v. Van Den Adel) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Barnett Marine, Inc. v. Van Den Adel, 694 So. 2d 453, 1997 WL 163623 (La. Ct. App. 1997).

Opinion

694 So.2d 453 (1997)

BARNETT MARINE, INC.
v.
Ary VAN DEN ADEL and Wiggans International, et al.

No. 96-CA-1029.

Court of Appeal of Louisiana, Fifth Circuit.

April 9, 1997.

*455 W.L. West, S. Scott Bluestien, New Orleans, for Plaintiff/Appellant.

Cary A. Des Roches, Ladson, Odom, Des Roches, L.L.P., New Orleans, for Defendant/Appellee Ary Van Den Adel.

John H. Clegg, Douglas L. Grundmeyer, Daphne P. McNutt, Gina M. Venezia, New Orleans, for Defendant/Appellee Wiggans International.

Before BOWES, WICKER and DALEY, JJ.

DALEY, Judge.

Appellant, Barnett Marine, Inc. (Barnett Marine), suspensively appeals an August 27, 1996, judgment that denied a Motion to Set Motion for Dissolution of Writ of Attachment for Trial, Motion for New Trial or Reconsideration, Motion to Set Dilatory Exceptions for Trial and Motion for Stay of Judgment. On appeal, Barnett Marine argues that the defendants, Wiggans International (Wiggans) and Ary van den Adel, made a general appearance in the case proceedings after the default judgment was confirmed, and thus have waived any grounds for asserting the absolute nullity of the default judgment based upon lack of citation and service. Next, appellant argues that the trial court erred in dissolving the Writ of Attachment and awarding damages and attorney's fees to Wiggans. Last, appellant contends the trial court erred in refusing to order the issuance of a new Writ of Attachment immediately upon the filing of Barnett Marine's Amended Petition. For the reasons that follow, we affirm the trial court's judgment.

This case presents an involved procedural history. The record shows that Barnett Marine, doing business as Oil Field Barges, entered into Bareboat Charter Agreement with Glenway Americas for a certain cargo barge designated as OB 183. The original action was begun by appellant, Barnett Marine, in June, 1995, against nonresident defendants[1] by the filing of a Petition for Writ of Attachment and Money Judgment after Barnett failed to receive payment for the charter. In its petition, Barnett Marine alleges that the corporate defendants were all alter egos of one another and of the individual defendant, Ary van den Adel, although the record contains no proof of this allegation. Barnett Marine sued all of the "alter egos" and served all of the defendants via the Long Arm Statute by mailing the citation and service to a Mr. Nico Vandenworm in Houston, Texas, the representative of Glenway Americas. A Writ of Attachment against property owned by Wiggans located inside the state was issued pursuant to LSA-C.C.P. art. 3541(5). The Writ of Attachment was executed by the Sheriff on June 13, 1995, with Barnett Marine named custodian of the seized property, which was located on their barge inside their facility.

Appellant alleges that each defendant was properly served via the Louisiana Long Arm Statute, LSA-R.S. 13:3201 et seq. Proof of service was filed into the record on July 19, 1995. This proof of service shows that service for all the defendants was made on a Mr. Nico Vandenworm in Houston, Texas, by certified mail addressed personally to Mr. Nico Vandenworm. A preliminary default was entered *456 on August 23, 1995, and on August 30, 1995, a default judgment was entered against all defendants except Glenway Americas, Inc., who had answered and filed cross claims against the other defendants.

According to Barnett Marine's appellate brief, they were contacted via telephone by Wiggans' counsel on or about October 11, 1995. Barnett Marine requested the issuance of a Writ of Fieri Facias directing the Sheriff to sell the seized equipment. By letter dated October 30, 1995, Barnett Marine notified Wiggans' counsel of the Writ of Fieri Facias.

On November 3, 1995, Wiggans and van den Adel filed a Notice of Removal of the case to the United States District Court for the Eastern District of Louisiana. The Notice of Removal was filed into the record of this proceeding. (On January 29, 1996, the District Court ultimately ordered the case remanded to State Court for the failure to comply with removal procedures.)

On February 1, 1996, Wiggans filed a Motion to Annul Default Judgment and Dissolve Writ of Fieri Facias, Motion for Dissolution of Writ of Attachment and to Assess Statutory Damages and Attorney's Fees. On February 21, 1996, van den Adel filed a Motion to Annul Default Judgment. After receiving extensive memoranda for and against the motions, the trial court conducted a hearing on March 5, 1996, and rendered judgment on June 18, 1996, in favor of Wiggans and van den Adel, nullifying the default judgment against both defendants, dissolving the Writ of Attachment and the Writ of Fieri Facias and awarding Wiggans statutory penalties and attorney's fees.

Barnett filed various post-trial motions, which were denied by the trial court on August 27, 1996. Thereafter, Barnett perfected this suspensive appeal.

Analysis

First, we note that the July 18, 1996 judgment nullifying the default judgment and dissolving the Writ of Attachment and awarding Wiggans damages and attorney's fees was never appealed itself. Barnett Marine applied for and received an ex parte stay of that part of the judgment nullifying the default judgment against Wiggans, pending the determination of other matters. This stay was lifted by the judgment appealed from, rendered August 27, 1996. Therefore, the merits of the nullity are not properly before us, nor of the dissolution of the writ of attachment and damages, since that judgment was never appealed, but in an abundance of caution this error is addressed.

LSA-C.C.P. arts. 2002-2004 set forth the grounds for the nullity of a judgment.

Art. 2002. Annulment for vices of form; time for action
A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law;
(2) Against a defendant who has not been served with process as required by law and who has not entered a general appearance, or against whom a valid judgment by default has not been taken; or
(3) By a court which does not have jurisdiction over the subject matter of the suit.

Except as otherwise provided in Article 2003, an action to annul a judgment on these grounds may be brought at any time.

Art. 2003. Same; action lost through acquiescence
A defendant who voluntarily acquiesced in the judgment, or who was present in the parish at the time of its execution and did not attempt to enjoin its enforcement, may not annul the judgment on any of the grounds enumerated in Article 2002.
Art. 2004. Annulment for vices of substance; peremption of action
A final judgment obtained by fraud or ill practices may be annulled.
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.

Wiggans contends that the default judgment is absolutely null because valid citation and service of process were never made as to them. A judgment that is rendered when there exists a vice of form is an *457 absolute nullity. Roach v. Pearl, 95-1573 (La.App. 1 Cir. 5/10/96), 673 So.2d 691. An absolutely null judgment may be attacked in direct or collateral proceedings at any time and before any court, and is not subject to the requirements of an action for nullity for fraud or ill practices under C.C.P. art. 2004-2006.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Succession of Milton E. Cotaya, Jr
Louisiana Court of Appeal, 2024
Succession of Mary Grace Green Burley
Louisiana Court of Appeal, 2024
Miller v. Hernandez
E.D. Louisiana, 2023
Irrael Garcia Versus Jaidy Hernandez
Louisiana Court of Appeal, 2022
Stemcor USA Inc. v. CIA Siderurgica Do Para Cosipar
895 F.3d 375 (Fifth Circuit, 2018)
Jefferson Community Health Care Center, Inc. v. Roby
180 So. 3d 585 (Louisiana Court of Appeal, 2015)
G R Construction & Renovation, LLC v. White
142 So. 3d 207 (Louisiana Court of Appeal, 2014)
Succession of Linder
994 So. 2d 148 (Louisiana Court of Appeal, 2008)
Hawthorne v. Couch
946 So. 2d 288 (Louisiana Court of Appeal, 2006)
Littleton v. Moss
914 So. 2d 59 (Louisiana Court of Appeal, 2005)
Stranco, Inc. v. Greater New Orleans Landfill, Inc.
822 So. 2d 791 (Louisiana Court of Appeal, 2002)
Taylor v. Hixson Autoplex of Alexandria, Inc.
781 So. 2d 1282 (Louisiana Court of Appeal, 2001)
Schaff v. Cardinal Services, Inc.
778 So. 2d 1278 (Louisiana Court of Appeal, 2001)
Sarpy Properties, Inc. v. Diamond Shoe Stores of Louisiana, Inc.
761 So. 2d 769 (Louisiana Court of Appeal, 2000)
McFarland v. Dippel
756 So. 2d 618 (Louisiana Court of Appeal, 2000)
Hargett v. Hargett
732 So. 2d 666 (Louisiana Court of Appeal, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
694 So. 2d 453, 1997 WL 163623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnett-marine-inc-v-van-den-adel-lactapp-1997.