Gegenheimer v. Galan

• Court: Court of Appeals for the Fifth Circuit
• Decided: June 8, 1999
• Docket: 98-31354
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 98-31354 Summary Calendar

LARRY GEGENHEIMER; SHEILA GEGENHEIMER,

Plaintiffs-Appellees,

VERSUS

RAOUL A. GALAN, JR.,

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of Louisiana (87-CV-1294)

June 3, 1999 Before DAVIS, DUHÉ, and PARKER, Circuit Judges. PER CURIAM:*

Appellant Raoul A. Galan, Jr. (“Galan”) appeals from the

district court’s order of November 4, 1998 reviving a judgment

originally entered against him on June 29, 1988. The 1988

judgment was entered after a jury found Galan liable for wrongfully

dismissing the plaintiffs. Galan initially filed an appeal from

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

1 the underlying judgment, but later abandoned it. This appeal is

limited to the district court’s order granting the revival.

I. Background

The district court revived the 1988 judgment after conducting

a bench trial. Our standard of review for bench trials is well

established: findings of fact are reviewed for clear error; legal

conclusions de novo. See Seal v. Knorpp, 957 F.2d 1230, 1233 (5th

Cir.1992).

Article 2031 of the Louisiana Code of Civil Procedure (“LSA-

C.C.P.”) provides that “[a] judgment shall be rendered in such a

proceeding reviving the original judgment, unless the defendant

shows good cause why it should not be revived.” LA. CODE CIV.

PROC. ANN. art. 2031 (West 1990). Therefore, the burden is on Mr.

Galan to show good cause why the 1988 judgment should not be

revived. Early case law establishes that the only acceptable

defense that qualifies as a “good cause” is an absolute nullity

of the original judgment. See McCutchen v. Askew, 1882, 34

La.Ann. 340. LSA-C.C.P.Article 2002 sets forth the exclusive

list of grounds to declare a judgment an absolute nullity, or in

other words, “annulled for vices of form.” See Hebert v. Hebert,

700 So.2d 958 (La.App. 1 Cir.1997). Article 2002 provides in

pertinent part:

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 be 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

2 over the subject matter of the suit.

LA. CODE CIV. PROC. ANN. art. 2002 (West 1990). That a judgment may

be an absolute nullity judgment may be attacked collaterally in any

court and at any time. See Estate of Bradford v. Thomas, 700 So.2d

1030 (La.App. 2 Cir.1997). However, in a proceeding to revive a

judgment, defenses that merely attack the merits of the underlying

cause of action will not be revisited. See Bruno v. Oviatt, 1896,

48 La.Ann. 471, 19 So. 464; McCutchen v. Askew, 1882, 34 La.Ann.

340; McStea v. Rotchford, 1877, 29 La.Ann. 69; Carondelet Canal

Nav. Co. v. De St. Romes, 1871, 23 La.Ann. 437.

II. Analysis

Construing Galan’s pro se brief liberally, he brings five

issues on appeal.

First, he attacks the original 1988 judgment on the grounds

that the district court lacked jurisdiction in bringing a judgment

against him when the plaintiffs were his “appointees,” and not his

employees. Because the Civil Rights Act of 1964 has provisions in

it defining the confines of an employer-employee relationship,

Galan contends that the plaintiffs’ alleged status of “appointees”

defeats the district court’s subject matter jurisdiction over the

wrongful termination suit. The fact that Galan characterized this

issue as a jurisdictional one is not determinative. While an

employer-employee relationship may be an element that needs to be

proved to prevail on a wrongful termination suit, this issue should

have been addressed either at trial or on appeal from the original

judgment. Because this issue does not properly raise one of the

3 exclusive grounds for attacking the underlying judgment, we must

pass on its merits.

Second, Galan alleges that the district court erred in

upholding the jury’s award of compensatory and punitive damages to

the plaintiffs. This again goes to the merits of the underlying

judgment and again does not fall within one of the three enumerated

grounds to attack it.

Third, Galan asserts that his procedural due process rights

were violated because he was improperly served with the 1988

judgment. Section two of LSA-C.C.P. Article 2002 provides that a

judgment may be declared an absolute nullity if the “defendant was

not properly served with process ... and [the defendant] has not

entered a general appearance...”. (Emphasis added) Regardless of

any perceived improprieties in the service of the judgment, Galan

has failed to show a defect in the service of process. Regardless,

Galan entered a general appearance in his defense of the suit.

Therefore, we must again pass on the merits of this issue on

appeal.

Fourth, Galan argues that the plaintiff has admitted by

stipulation that he was an assistant supervisor, and thus “he is

excluded and waives his right against debtor-defendant.” Whatever

merit this argument presents to us, Galan has failed to address it

in his briefs. Matters not raised or argued in the brief are

considered waived and will not be entertained by this Court on

appeal. See Melton v. Teachers Ins. & Annuity Assoc. of America,

114 F.3d 557, 561 (5th Cir.1997).

4 Finally, Galan again attacks the underlying judgment on the

basis that the “Fifth Circuit Court of Appeals for the State of

Louisiana has ruled that the Office of the Clerk of the Court is

responsible and liable for the actions of the elected individual

person.” Once again, on this appeal from the district court’s

order granting revival, we will not consider challenges to the

underlying judgment absent an absolute nullity. Whatever claim for

indemnification Galan may have is not properly before us at this

time.

III. Conclusion

Because Galan has failed to raise any issue directed at the

order from which he appeals, and because his challenges to the

underlying judgment do not persuade us that it should be declared

an absolute nullity, we AFFIRM.