Tamba McIntire Wells v. Fruth, Jamison & Elsass, Pllc

• Court: Louisiana Court of Appeal
• Decided: February 4, 2015
• Docket: CA-0014-0826
• Status: Unknown

Opinion

STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT

CA 14-826

TAMBA MCINTIRE WELLS

VERSUS

FRUTH, JAMISON & ELSASS, PLLC, ET AL.

**********

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT PARISH OF VERMILION, NO. 97553-K HONORABLE PATRICK LOUIS MICHOT, DISTRICT JUDGE

DAVID KENT SAVOIE JUDGE

Court composed of Ulysses Gene Thibodeaux, Chief Judge, James T. Genovese, and David Kent Savoie, Judges.

REVERSED AND REMANDED. Anthony Jerome Fontana, Jr. A Professional Corporation 210 N. Washington St. Abbeville, LA 70510 (337) 898-8332 COUNSEL FOR PLAINTIFF/APPELLANT: Tamba McIntire Wells

Gustave Alexander Fritchie, III Irwin, Fritchie, Urquhart & Moore LLC 400 Poydras St., Suite 2700 New Orleans, LA 70130 (504) 310-2106 COUNSEL FOR DEFENDANT/APPELLEE: Fruth, Jamison & Elsass, PLLC

Sara Rodrigue NeunerPate 1001 W. Pinhook Road, Suite 200 Lafayette, LA 70503 (337) 237-7000 COUNSEL FOR DEFENDANT/APPELLEE: Katherine M. Loos, LLC SAVOIE, Judge.

Plaintiff, Tamba McIntire Wells, appeals the judgment of the trial court

granting summary judgment in favor of Defendants, Fruth, Jamison & Elsass,

PLLC (“Fruth, Jamison”) and Katherine Loos, LLC. For the following reasons, we

reverse and remand.

FACTS AND PROCEDURAL HISTORY

During Tamba Wells’s marriage to Dan Michael Wells, Mr. Wells incurred a

debt with Fruth, Jamison & Elsass, PLLC, a Minnesota law firm, in the amount of

$179,037.49 for attorney fees owed. Fruth, Jamison obtained a judgment in

Minnesota against Mr. Wells for this amount.

Fruth, Jamison retained Katherine Loos to make the Minnesota judgment

executory in Vermilion Parish. An ex-parte judgment was entered against Mr.

Wells on August 4, 2011 in accordance with La.R.S. 13:4241-4248. On August 29,

2011, Tamba Wells filed for divorce. She was granted a divorce from Dan Wells

on October 2, 2012.

Fruth, Jamison filed a supplemental and amending petition on July 30, 2012

in the Louisiana suit naming Tamba Wells as a defendant and alleging that the debt

of Dan Wells was a community obligation as he and Tamba were married at the

time the debt was incurred. A judgment of default was entered against Tamba

Wells declaring the debt a community debt and rendering judgment against her for

the full amount of the debt on September 24, 2012. Tamba Wells was personally

served with the Notice of Judgment on October 3, 2012. No appeal or other action

was taken to nullify this judgment.

On July 2, 2013, a Writ of Fieri Facias and Seizure was entered against

Tamba Wells commanding the sheriff to seize certain accounts and assets held by her to satisfy the judgment. Thereafter, on August 16, 2013, a Garnishment

Judgment was ordered by the trial court garnishing portions of her wages. Tamba

Wells then filed the instant lawsuit alleging wrongful seizure of her separate

property. She contends the debt is a community debt and cannot be satisfied by

garnishing her wages and separate property.

The defendants filed a joint motion for summary judgment seeking to

dismiss Ms. Wells’s petition as an impermissible collateral attack on a final money

judgment previously entered against her. The trial court granted the defendants’

motion and dismissed the plaintiff’s claim. Tamba Wells now appeals that

judgment.

LAW AND DISCUSSION

Standard of Review

The appellate standard of review for a motion for summary judgment is set

forth as follows in Berard v. Home State County Mut. Ins. Co., 11–1372, p. 2

(La.App. 3 Cir. 5/9/12), 89 So.3d 470, 471–72:

Courts of appeal review summary judgments de novo applying the same analysis as the trial court. Schroeder v. Bd. of Supervisors of La. State Univ., 591 So.2d 342 (La.1991). Summary judgment is governed by La.Code Civ.P. arts. 966 and 967. Article 966 provides that while the burden of proving entitlement to summary judgment rests with the mover, if the mover will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the mover’s burden does not require him to negate all essential elements of the adverse party’s claim, action or defense, but rather to point out that there is an absence of factual support for one or more elements essential to the adverse party’s claim, action or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. Hardy v. Bowie, 98–2821 (La.9/8/99), 744 So.2d 606.

2 Legal Analysis

The trial court found that Tamba Wells’s petition constituted an

impermissible collateral attack on a money judgment previously entered against

her.

“A collateral attack is defined as an attempt to impeach the decree in a

proceeding not instituted for the express purpose of annulling it.” Corcoran v.

Gauthier, 97–516, p. 6 (La.App. 4 Cir. 1/7/98), 705 So.2d 1233, 1236, writ

denied, 98–342 (La. 3/27/98), 716 So.2d 888 (citation omitted). “The only

judgments which may be collaterally attacked are those which are absolutely null

because of a vice of form as provided in La.Code Civ.P. art. 2002.” Succession of

Schulz, 622 So.2d 693, 696 (La.App. 4 Cir. 5/27/93), writ denied, 631 So.2d 1161

(La. 1994).

Louisiana Code of Civil Procedure Article 2002 provides that: A. A final judgment shall be annulled if it is rendered:

...

(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid judgment by default has not been taken.

(3) By a court which does not have jurisdiction over the subject matter of the suit.

B. Except as otherwise provided in Article 2003, an action to annul judgment on the grounds listed in this Article may be brought at any time.

The underlying petition does not pray for an annulment of the judgment;

rather, it alleges wrongful seizure as a result of the enforcement of the September

24, 2012 judgment rendered against Tamba Wells through a Writ of Fieri Facias

and Seizure and a Garnishment Judgment. The September 24, 2012 judgment

reads in pertinent part:

3 IT IS FURTHER ORDERED, ADJUDGED and DECREED that there be judgment herein in favor of plaintiff, FRUTH, JAMISON & ELSASS, PLLC, and against the defendant, TAMBA MCINTIRE WELLS, in the full sum of $179,037.49, together with legal interest from date of judicial demand until paid, reasonable attorney’s fees and all costs of these proceedings.

A judgment for the payment of money may be executed by

a writ of fieri facias directing the seizure and sale of property of the judgment

debtor. La.Code Civ.P. art. 2291. “A necessary prerequisite of a writ of fieri

facias is a money judgment.” Madere v. Madere, 95–88 (La.App. 5 Cir. 5/30/95),

656 So.2d 1108, 1109, rev’d on other grounds per curiam, 95–1635 (La.

10/16/95), 660 So.2d 1205.

Clearly, the September 24, 2012 judgment was a money judgment. It

follows that an attack on the enforcement of the judgment through a writ of fieri

facias is in fact an attempt to impeach the decree. As such, we agree that the

underlying petition is a collateral attack on the September 24, 2012 judgment. The

question then becomes whether it is an impermissible collateral attack.

Judgments may be collaterally attacked if they are absolutely null. As stated

in La.Code Civ.P. art. 2002, lack of subject matter jurisdiction renders a judgment

absolutely null. “The issue of subject matter jurisdiction addresses the court’s

authority to adjudicate the cause before it.” Boudreaux v. State, Dep’t of Transp.

& Dev., 01-1329, p.7 (La. 2/26/02), 815 So.2d 7, 13. If the court lacks the

authority to render judgment, said judgment has no legal existence. Taylor v.

Hixson Autoplex of Alexandria, Inc., 00-1096 (La.App. 3 Cir. 3/28/01), 781 So.2d

1282, writ not considered, 01-1539 (La. 9/14/01), 796 So.2d 670.

Lack of subject matter jurisdiction has not been raised by any party in this

suit. The Louisiana Supreme Court in Merrill v. Greyhound Lines, Inc., 10-2827,

4 p. 2 (La. 4/29/11), 60 So.3d 600, held that an appellate court has the authority to

consider an issue even when there is no assignment of error.

Pursuant to La.Code Civ.P. art. 2129, “an assignment of errors is not necessary in

any appeal.” Additionally, La.Code Civ.P. art. 2164 gives the appellate court

authority to “render any judgment which is just, legal, and proper upon the record

on appeal.” “Based on these codal authorities, [the Louisiana Supreme Court has]

held that an appellate court has the authority to consider an issue even when there

is no assignment of error.” Merrill, 60 So.3d 601.

Furthermore, “the court has a duty to examine subject matter jurisdiction sua

sponte, even where the litigants have not raised the issue.” Adkins v. City of

Natchitoches, 14-491, p.8 (La.App. 3 Cir. 11/5/14), 150 So.3d 646, 650 (citations

omitted). “[L]ack of subject matter jurisdiction can be raised at any time, even by

an appellate court on its own motion.” Gray v. Hosp. Servs. of Louisiana, Inc., 97-

1686, p.3 (La.App. 3 Cir. 6/10/98), 715 So.2d 563, 564.

In the present case, judgment was rendered, pursuant to La.R.S. 13:4241-

4248, on August 4, 2011, against Dan Wells making the Minnesota judgment

executory in Louisiana. Apparently, Fruth, Jamison was unable to collect on this

judgment. On July 30, 2012, nearly a year after judgment was rendered against

Dan Wells, Fruth, Jamison filed a Supplemental and Amending Petition which

added Tamba Wells as a defendant.

This same issue was discussed in Adkins wherein the plaintiff moved to

amend her claim to add a defendant after final judgment was rendered by the

OWC. The defendant filed an exception of subject matter jurisdiction and the trial

court granted the exception. The appellate court found that the Office of Worker’s

5 Compensation did not have continuing jurisdiction to allow an additional

defendant in the suit previously resolved by final judgment.

[T]he general rule [is] that once judgment is rendered, a party’s recourse is not to amend but to seek a new trial or appeal from an adverse judgment. Once final judgment has been rendered, there generally can be no amended petition as there is no longer a petition before the court to amend. Id. at 648.

Judgment against Dan Wells was obtained a year before Fruth, Jamison filed

its supplemental and amending petition adding Tamba Wells as a defendant.

Consequently, the trial court lacked the continuing jurisdiction to allow the

supplemental and amending petition to be filed against Tamba Wells. Without the

requisite subject matter jurisdiction, the September 24, 2012 judgment of default

rendered against Tamba Wells is absolutely null and has no legal effect. Because

absolutely null judgments may be collaterally attacked, the collateral attack on the

September 24, 2012 judgment is permissible.

We would note that, in addition to a lack of subject matter jurisdiction, there

are other deficiencies in the judgment. First, it grants relief over and above what

was prayed for in the supplemental and amending petition. A judgment of default

shall not be different in kind or exceed in amount that demanded in

the petition. La.Code Civ.P. art. 1703.

The prayer in the supplemental and amending petition reads in pertinent

part:

That judgment be rendered in its favor and against TAMBA MCINTIRE WELLS declaring the debt of DAN MICHAEL WELLS a community debt and enabling the judgment creditor, FRUTH, JAMISON & ELSASS, PLLC, to execute on the judgment against TAMBA MCINTRE WELLS pursuant to Louisiana law (emphasis added);

6 For additional costs and reasonable attorney’s fees, plus all costs of these proceedings; and

For such general and further legal and equitable relief as the Court may deem just and proper.

The default judgment taken against Tamba Wells expands the relief

requested by entering a money judgment against her for the entire amount of the

Minnesota judgment in addition to declaring the debt a community debt. “[I]f a

judgment by default exceeds the amount demanded in the petition, it [is] null to the

extent of the excess.” La.Code Civ.P. art. 1703, official revision comment.

Further, a final judgment shall be annulled if it is rendered against a

defendant whom a valid judgment by default has not been taken. La.Code Civ.P.

art. 2002. This vice of form is present in the current case because the judgment

exceeds the relief requested in the petition.

Finally, a judgment must be enforced as a whole. A party cannot parcel out

certain paragraphs which benefit their position and leave out others. A plain

reading of the Judgment of Default reveals that the court ordered the Minnesota

judgment be made executory and declared a community debt against Tamba Wells,

in addition to ordering a money judgment against her. When the judgment is read

as a whole, it is clear that declaring the Minnesota judgment a community debt is a

predicate to ordering the money judgment. A community debt may only be

satisfied by community property or the separate property of the spouse who

incurred the obligation, i.e. Dan Wells. La.Civ.Code art. 2345. Therefore,

executing the writ of fieri facias and garnishment judgment against Tamba Wells’s

separate property is in derogation of Louisiana law and was clearly not intended by

the judgment.

7 DECREE

Based upon the foregoing, the judgment of the trial granting the Motion for

Summary Judgment in favor of Fruth, Jamison & Elsass, PLLC and Katherine

Loos is reversed and remanded for further proceedings. Costs of this appeal are

assessed to Fruth, Jamison, & Elsass, PLLC and Katherine Loos.

REVERSED AND REMANDED.