Jones v. Bethard

900 So. 2d 1081, 2005 WL 839906
CourtLouisiana Court of Appeal
DecidedApril 13, 2005
Docket39,575-CA
StatusPublished
Cited by16 cases

This text of 900 So. 2d 1081 (Jones v. Bethard) 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
Jones v. Bethard, 900 So. 2d 1081, 2005 WL 839906 (La. Ct. App. 2005).

Opinion

900 So.2d 1081 (2005)

Fred JONES, Plaintiff-Appellant
v.
Robert E. BETHARD, Rhonda F. Bethard, et ux., Defendants-Appellees.

No. 39,575-CA.

Court of Appeal of Louisiana, Second Circuit.

April 13, 2005.
Rehearing Denied May 5, 2005.

*1083 Harry E. Cantrell, Jr., Fred Jones, for Appellant.

Bethard & Bethard, L.L.P. by James Guenard Bethard, Coushatta, for Appellee.

Before STEWART, DREW and MOORE, JJ.

DREW, J.

In this extended dispute involving immovable property in DeSoto Parish, Fred Jones appeals a judgment sustaining defendants' peremptory exceptions and ordering him to pay sanctions. We affirm.

FACTS

This is the fourth in a series of lawsuits involving plaintiff, Fred Jones; defendants; and land in DeSoto Parish. Jones was one of the defendants in a July 1995 petition for partition by licitation brought by Robert and Rhoda Bethard in DeSoto Parish that was styled Robert E. Bethard, et ux v. Louella Jones Hill, et al. The Bethards were the majority owners of an undivided interest in property described as:

The West half Southeast Quarter of Section 24, Township 11 North, Range 11 West, DeSoto Parish, Louisiana.

LESS AND EXCEPT the following four (4) tracts:

* * *
TRACT 2: Commencing where the Parish road intersects with the north line of the Southwest Quarter of Southeast Quarter of Section 24, Township 11 North, Range 11 West, DeSoto Parish, Louisiana, thence run West to the North line of the Southwest Quarter of Southeast Quarter 315 feet, thence run South 140 feet, thence run East to the road, thence run North with the road to place of beginning, containing one acre, more or less.
* * *

After the trial court rendered judgment in the Bethards' favor, Jones filed under the same suit number a petition to annul the judgment and enjoin the sale, but was denied relief. Mr. Bethard acquired the property at the resulting sheriff's sale.

Jones was subsequently a plaintiff in a second suit, a petition to annul the judgment that was styled, Josie Jones Broughton, et al v. Robert E. Bethard and Rhoda F. Bethard. That suit was dismissed when the trial court granted the defendants' exception of no cause of action. Much of the background for the history between the parties can be gleaned from this court's unpublished opinion in the appeal of that dismissal, Broughton v. Bethard, 31,779 (La.App.2d Cir.5/5/99), 744 So.2d 234, footnotes omitted:

In July 1995, Robert and Rhoda Bethard filed a petition for partition by licitation of certain real property located in DeSoto Parish. The Bethards asserted a substantial majority ownership interest in the property. Named as defendants were a multitude of co-owners, the heirs of John and Mary Jane Reddick. Many of these defendants were alleged to be absentees; the Bethards petitioned for the appointment of an attorney to represent them. The Bethards *1084 requested service upon the defendants who were alleged to be residents of Louisiana.
Brian C. McRae was appointed to represent the absentee defendants. He accepted that appointment and thereafter mailed letters to the absentee defendants in which he stated that he was required to give them notice of the proceedings. He also instructed them that if they wished to be represented in this matter, it was their own responsibility to retain counsel. However, on the date of trial, McRae filed an answer on behalf of the absentee defendants only, in which he asserted "lack of information sufficient to justify a belief therein." The resident defendants filed no answer.
Judgment was rendered on March 28, 1996. The court ordered that the property be sold and that the proceeds be divided among the co-owners, less costs, including the fees for the sheriff's sale and the curator. The curator's fee was ordered paid from the proceeds of the absentee defendants. In addition to the Bethards, there were several other non-absentee parties included in the judgment.
In the original suit, two named defendants and a party with an alleged ownership interest, who was omitted from the partition suit, filed a petition to annul the judgment and enjoin the sheriff's sale of the property, a rule to show cause why purchases by the attorney (Mr. Bethard) should not be annulled, and a request for a temporary restraining order. Among other errors, they asserted that no preliminary default or default judgment was entered by the court. These motions were denied, and the sheriff's sale went forward. The property was sold at public auction to Mr. Bethard for $21,000. After deduction of costs, the proceeds amounted to $18,072.18.
In January 1997, the instant suit to annul the partition judgment was filed against the Bethards. The plaintiffs are the other parties affected by the partition judgment. In their petition, they primarily attacked the manner in which Mr. McRae carried out his duties as curator for the nonresident defendants. Although none of the resident defendants answered the petition, the plaintiffs complain that the resident defendants did not receive notice of trial.
The Bethards filed a peremptory exception of no cause of action in which they asserted that the petition to annul failed to assert any of the grounds for nullifying a judgment enumerated in La. C.C.P. arts. 2001-2006.
In written reasons issued December 17, 1997, Judge Elizabeth Pickett ruled that any failings of the curator in carrying out his duties had no effect on the validity of the partition proceedings, citing La. C.C.P. art. 5098. Accordingly, the court ruled that the partition judgment was valid. Thereafter, the judge signed a judgment granting the exception of no cause of action and dismissing the petition to annul judgment.
The plaintiffs in the suit to annul filed a motion for new trial. They asserted that the trial court lacked personal jurisdiction over the nonresident defendants; trial was scheduled before the resident defendants filed an answer or made a general appearance; the resident defendants did not receive written notice of trial; and a final judgment was entered against the resident defendants without a valid preliminary default.
The motion for new trial was denied. Judge Charles Adams found that the court had jurisdiction over the property and that the appointment of an attorney to represent the nonresident defendants *1085 was proper under La. C.C.P. art. 5091. As to the nonresident defendants, the court further found that the proper procedures were utilized in the instant case. As to the resident defendants, following "an independent verification of the record," the trial court found that a preliminary default was actually entered against them on October 30, 1995; however, it was omitted from the minutes. Consequently, the court ordered the minutes amended to so reflect. As a result, the alleged lack of preliminary default was found to not be a valid complaint. Finally, the trial judge noted that, since the same issues had actually been presented and rejected in the earlier partition suit, res judicata precluded their further consideration.

This court affirmed the dismissal of the second suit. The third suit was in federal court and was styled, Josie Jones Broughton, et al v. Robert Bethard, et al. It also was dismissed, apparently on the plaintiffs' motion.

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Bluebook (online)
900 So. 2d 1081, 2005 WL 839906, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jones-v-bethard-lactapp-2005.