Christopher Benoit v. Audrey A. Nash

• Court: Louisiana Court of Appeal
• Decided: July 27, 2011
• Docket: CA-0011-0678
• Status: Unknown

Opinion

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

11-678

CHRISTOPHER J. BENOIT VERSUS AUDREY A. NASH, ET AL.

********** FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 93-3359 HONORABLE D. KENT SAVOIE, DISTRICT JUDGE

********** PHYLLIS M. KEATY JUDGE

**********

Court composed of Elizabeth A. Pickett, Shannon J. Gremillion, and Phyllis M. Keaty, Judges.

Pickett, J., dissents and would refer the motion to dismiss the appeal to the panel on the merits of the appeal.

APPEAL DISMISSED.

Thomas LeBlanc Loftin, Cain, & LeBlanc, L.L.C. 113 D. Michael Debakey Drive Lake Charles, LA 70601 (337) 310-4300 COUNSEL FOR PLAINTIFF/APPELLEE: Christopher J. Benoit

Barry Roach Attorney at Law 2917 Ryan Street Lake Charles, LA 70601 (337) 433-8504 COUNSEL FOR DEFENDANTS/APPELLANTS: Aubrey Nash and Andrew Waggoner Michael Schwartzberg Vamvoras, Schwartzberg & Hinch, L.L.C. 1111 Ryan Street Lake Charles, LA 70601 (337) 433-1621 COUNSEL FOR DEFENDANTS/APPELLANTS: Aubrey Nash and Andrew Waggoner

James Huey Gibson Allen & Gooch 2000 Kaliste Saloom Road, Suite 400 Lafayette, LA 70508 (337) 291-1300 COUNSEL FOR INTERVENORS/APPELLEES: Terrell Fowler and Terrell D. Fowler, APLC KEATY, Judge.

Defendants-Appellants, Audrey Nash and Andrew Waggoner, have appealed

the trial court’s ruling which revives a prior judgment. The Plaintiff-Appellee,

Christopher J. Benoit, and the Intervenors-Appellees, Terrell Fowler and Terrell D.

Fowler, APLC, have filed a motion to dismiss this appeal. For the reasons assigned

herein, we dismiss the appeal.

In 1993, Plaintiff, whose attorney of record was Terrell Fowler, filed a personal

injury suit against Defendants as a result of a physical attack on Mr. Benoit. On May

13, 1994, a default judgment was rendered against Defendants in the amount of

$279,030.33. The judgment was filed on May 18, 1994.

On May 11, 2004, Plaintiff filed a “Petition to Reinscribe the Judgment.”

Plaintiff did not take any other action in connection with the revival of the 1994

judgment until March 10, 2008, which is when he supplied the clerk of court’s office

with Defendants’ addresses and requested that they be served with the petition to

reinscribe. On April 22, 2008, Defendants filed an ex-parte motion to dismiss the

revival action on the ground of abandonment. The trial court signed an order of

dismissal on May 16, 2008.

On October 22, 2008, Plaintiff filed a motion to set aside the judgment of

dismissal. Because it was alleged in a separate malpractice action that Plaintiff’s

original counsel, Terrell Fowler, had committed legal malpractice by failing to revive

the judgment, Terrell Fowler and Terrell D. Fowler, APLC, intervened in the instant

revival action. Intervenors also filed a motion to set aside the judgment which had

dismissed the revival action as abandoned.

Following a hearing, the trial court granted the two motions to set aside the

dismissal judgment, finding that the abandonment provision found in La.Code Civ.P.

art. 561 did not apply to Plaintiff’s revival action. Defendants filed a writ application

seeking review of the trial court’s ruling setting aside the dismissal judgment; however, this court denied that writ application. Subsequently, Defendants filed an

application for writ of certiorari which was denied by the Louisiana Supreme Court.

Benoit v. Nash, 10-1008 (La. 6/25/10), 38 So.3d 356.

Thereafter, Plaintiff filed with the trial court a Motion for Leave To

Supplement and Amend the Petition To Reinscribe Judgment. On January 4, 2011,

the trial court signed an order of revival with regards to the money judgment that had

been rendered in Plaintiff’s favor on May 13, 2004. On March 3, 2011, Defendants

filed an appeal from the trial court’s order of revival.

Plaintiff and Intervenors argue that the instant appeal should be dismissed

because the order of revival which Defendants seek to appeal constitutes an

interlocutory judgment under La.Code Civ.P. art. 1841. Also, Plaintiff and

Intervenors contend that Defendants’ appeal cannot be converted to a writ application

because Defendants’ motion for appeal was not filed within the thirty-day deadline

for writ applications as established by Uniform Rules—Courts of Appeal, Rule 4–3.

Additionally, Plaintiff and Intervenors argue that the law of the case doctrine bars this

appeal because the ruling at issue is the reinstatement of the revival action which was

previously reviewed by this court and the Louisiana Supreme Court.

In their memorandum in opposition to the motion to dismiss the appeal,

Defendants assert that the revival judgment rendered by the trial court is a final,

appealable judgment. Defendants point out that pursuant to La.Code Civ.P. art. 1841,

a final judgment is one that decides the merits of the case in whole or in part.

Defendants contend that Plaintiff initiated the instant revival proceedings in order to

extend the life of his 1994 judgment beyond ten years. Thus, Defendants maintain

that the trial court’s revival judgment granted Plaintiff the full relief sought by the

petition for revival which he filed in 2004. According to Defendants, the trial court’s

judgment of January 4, 2011, is final because it decides the merits of Plaintiff’s effort

2 to revive the 1994 money judgment. As such, Defendants argue that a devolutive

appeal was the appropriate means by which to seek review of the judgment of January

4, 2011.

Additionally, Defendants assert that no appellate opinion has been written

addressing the issue of whether the law of abandonment is applicable to revival

actions since the decision was rendered in Evans v. Hamner, 24 So.2d 814, 209 La.

442 (La.1946). Defendants contend that a written appellate opinion is warranted in

this case to clear up the issue of whether the law of abandonment can be applied to

invalidate Plaintiff’s attempt to revive the 2004 money judgement.

We note that Defendants had previously obtained a judgment from the trial

court dismissing Plaintiff’s petition for revival on the ground of abandonment under

La.Code Civ.P. art. 561. When Plaintiff and Intervenors filed motions to set aside the

judgment of dismissal, the trial court granted the motions to set aside the dismissal

judgment based on its finding that the concept of abandonment does not apply to

proceedings for revival of judgments. Thereafter, Defendants filed a writ application

with this court seeking review of the trial court’s holding that Plaintiff’s revival

proceedings should not be dismissed on the ground of abandonment. This court

denied the writ, finding no error in the trial court’s ruling. By this appeal, Defendants

seek to have this court revisit the issue of whether Plaintiff’s revival action should be

dismissed on the ground of abandonment. Since this court has already considered and

rendered a ruling on this issue in Defendants’ prior writ application, filed under this

court’s docket number 09-1467, we find merit in Plaintiff’s and Intervenors’

argument that the law of the case doctrine precludes further review of this issue.

Further, we disagree with Defendants’ assertion that the abandonment issue should

be revisited because one of the judges on the panel of this court which reviewed the

writ application number 09-1467 dissented from the majority’s decision.

3 Having concluded that the law of the case doctrine precludes this court from

giving further consideration as to whether La.Code Civ.P. art. 561 is applicable to the

instant case, we decline to permit Defendants to file a writ application seeking review

of the order of revival, especially since Defendants have indicated that their challenge

to the order of revival is based on their belief that the revival proceedings should have

been dismissed on the ground of abandonment. For the foregoing reasons, we hereby

grant the motion to dismiss the appeal. Costs of this appeal are assessed against the

Defendants.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal