Mexic v. Mexic

808 So. 2d 685, 2000 La.App. 1 Cir. 1274, 2001 La. App. LEXIS 1627, 2001 WL 699932
CourtLouisiana Court of Appeal
DecidedJune 22, 2001
DocketNo. 2000 CA 1274
StatusPublished
Cited by5 cases

This text of 808 So. 2d 685 (Mexic v. Mexic) 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
Mexic v. Mexic, 808 So. 2d 685, 2000 La.App. 1 Cir. 1274, 2001 La. App. LEXIS 1627, 2001 WL 699932 (La. Ct. App. 2001).

Opinion

pFRED C. SEXTON, JR., Judge Pro Tern.

This is an appeal from a summary judgment decreeing a Roth individual retirement account exempt from seizure. We affirm the result reached by the trial court.

FACTS AND PROCEDURAL HISTORY

On November 16, 1998, plaintiff, Ann Mexic, filed a petition in the Nineteenth Judicial District Court to make executory a 1990 judgment in her favor and against defendant, Simon Mexic, in the amount of $323,054.80, rendered by the Civil District Court for the Parish of Orleans, in a suit partitioning community property following termination of the matrimonial regime.2 On that same date, plaintiff filed a petition for garnishment, naming as garnishee, A.G. Edwards & Sons, Inc. (A.G.Edwards), an investment brokerage firm. Plaintiff also requested the issuance of á writ of fieri facias in the amount of the judgment, subject to a credit of $240,365.34 for payment(s) previously received.

On November 18, 1998, the trial court issued an order making the 1990 judgment executory, and on November 24, 1998, issued an order naming A.G. Edwards as garnishee and ordering A.G. Edwards to answer plaintiffs garnishee interrogatories. Although not in the record, a writ of fieri facias was also apparently issued to A.G. Edwards seizing property in its possession that was owned by Mr. Mexic. On December 21, 1998, A.G. Edwards filed an answer, denying that it was in possession of sums sufficient to satisfy the writ, but acknowledging possession of one “Roth Rollover IRA Account” belonging to Simon Mexic, which was valued at approximately $74,773.00 on December 11, 1998.

IsOn December 22, 1998, Simon Mexic filed a pleading styled as a “Petition of Intervention” in the suit, alleging that the individual retirement account held by A.G. Edwards is exempt from seizure by law as an individual retirement account and seeking a court order declaring its exempt status.3 Thereafter, on January 5, 2000, Mr. Mexic filed a motion for summary [688]*688judgment seeking to have the seizure of his individual retirement account vacated, recalled, and annulled.

A summary judgment was signed in favor of Simon Mexic on April 11, 2000, “vacating, recalling, and annulling the writ of seizure and notice of seizure in garnishment seizing the individual retirement account and funds of Simon Mexic at A.G. Edwards & Sons, Inc.” No written or oral reasons for judgment appear in the district court record; however, the minutes of court for March 21, 2000, state that the court “carefully reviewed this matter and is firmly of the opinion that [mover’s Roth] IRA is exempt from seizure, in accordance with R.S. 13:3881(D)....” The evidence submitted to the court in support of the motion for summary judgment included: the answers to the garnishment interrogatories filed by A.G. Edwards & Sons, Inc.; the affidavit of Simon Mexic, defendant; the affidavit of David Marshall Charlton, a tax attorney; and the affidavit of Emile Bruneau, Speaker Pro Tem. of the Louisiana House of Representatives.

In his affidavit, Simon Mexic stated that, at the time of the garnishment, he had maintained an individual retirement account with A.G. Edwards for fifteen years. Mr. Mexic further stated that he had issued instructions to A.G. Edwards at the end of 1998 to “roll over” this account into a Roth IRA. Mr. Mexic stated that he never intended to convert his exempt individual retirement account into a nonexempt account.

|4In his affidavit, Emile Bruneau, Speaker Pro Tem. of the Louisiana House of Representatives, stated that he was lead author of 1999 La. Acts, No. 63, which was intended, among other things, to protect an individual’s Roth retirement account from seizure as a “tax-deferred arrangement.” David Marshall Charlton, in his affidavit, stated that in his opinion as a Board Certified Tax Specialist, under Act No. 63, in order for a “tax-deferred arrangement” to be exempt from seizure, it must be an arrangement “under which United States income tax on the tax-deferred arrangement is deferred.” 4

Plaintiff appeals the summary judgment, urging the following assignments of error:

1) The trial court erred in determining that Simon Mexic’s Roth IRA was exempt from seizure pursuant to the provisions of La. R.S. 13:3881 and La. R.S. 20:33 as said statutes were worded on the date of seizure, December 11, 1998 and/or as said statutes were amended by virtue of Act 63 of 1999.
2) The trial court erred in determining that Act 63 of Í999, if it indeed amended La. R.S. 13:3881 and La. R.S. 20:33 by exempting Roth IRA’s [sic] from seizure, retroactively applied such seizure exemption to the seizure of Simon Mexic’s Roth IRA that occurred prior to the introduction or enactment of the amending legislation.
3) The trial court erred in determining that Act 63 of 1999, insofar as it may have created a seizure exemption for Roth IRA’s [sic], was interpretive and should therefore be applied retroactively.
4) The trial court erred in failing to find that Simon Mexic had indeed completed the “roll-over” of his traditional IRA into a Roth IRA.
[689]*6895) The trial court erred in failing to find that, if the rollover from the traditional IRA to the Roth [IRA] did occur, then all of the assets so transferred would also not be exempted from seizure because such transfer had to have occurred less than one year prior to seizure.
6) The trial court erred in failing to find that, if the rollover from the traditional to the Roth IRA had not actually occurred, there was a material issue of fact as to whether some or all of the assets in said IRA did not constitute capital gains or interest thereon and, therefore, were not exempt from seizure.

| ¡¿PROCEDURAL POSTURE

At the outset we note that the filing by Mr. Mexic of a petition of intervention was procedurally incorrect. A third person having an interest in a pending action may intervene in the action to enforce a right related to or connected with the object of the pending action against one or more of the parties thereto. LSA-C.C.P. art. 1091. As Mr. Mexic is the party defendant in the suit, it was unnecessary for him to intervene in the proceeding. In order to contest the validity of the issuance of a writ of seizure, a defendant ordinarily files a motion to dissolve the writ. See, e.g., Louisiana Savings Association, Inc. v. Bluebonnet Holding Partnership, 546 So.2d 869, 871 (La.App. 1st Cir. 1989), writ denied, 550 So.2d 655 (La.1989); Higley v. Higley, 95-0965 (La.App. 4th Cir.6/29/95), 658 So.2d 42, 44, writ denied, 95-2266 (La.11/27/95), 668 So.2d 732. See also Lor, Inc. v. Martin Exploration Company, 489 So.2d 1326, 1328 (La.App. 1st Cir.1986), writ denied, 493 So.2d 1217 (La.1986), appeal dismissed, 480 U.S. 912, 107 S.Ct. 1363, 94 L.Ed.2d 680 (1987); Smith v. Utility & Maintenance Contractors of America, Inc., 301 So.2d 906, 913 (La.App. 2d Cir.1974), writ refused, 305 So.2d 539 (La.1975); Daniels v. Chandler, 502 So.2d 617, 618 (La.App. 3rd Cir.1987); Carrier Leasing Corporation v. Ready-Mix Companies, Inc., 372 So.2d 601, 603 (La.App. 4th Cir.1979), writ denied, 375 So.2d 943 (La.1979); Sarpy Properties, Inc. v. Diamond Shoe Stores of Louisiana, Inc., 99-1304 (La.App. 5th Cir.5/17/00), 761 So.2d 769, 772, writ denied, 2000-1760 (La.9/22/00), 768 So.2d 604.

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

Related

Rain Cii Carbon, L. L.C. v. Recon Eng'g, Inc.
270 So. 3d 785 (Louisiana Court of Appeal, 2019)
In re Everett
520 B.R. 498 (E.D. Louisiana, 2014)
St. Pierre v. Northrop Grumman Shipbuilding, Inc.
102 So. 3d 1003 (Louisiana Court of Appeal, 2012)
Bridges v. Smith
832 So. 2d 307 (Louisiana Court of Appeal, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
808 So. 2d 685, 2000 La.App. 1 Cir. 1274, 2001 La. App. LEXIS 1627, 2001 WL 699932, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mexic-v-mexic-lactapp-2001.