STATE OF LOUISIANA COURT OF APPEAL, THIRD CIRCUIT
18-154
TRACY ALEXANDER
VERSUS
STATE OF LOUISIANA, DEPARTMENT OF CHILDREN & FAMILY SERVICES
**********
APPEAL FROM THE FOURTEENTH JUDICIAL DISTRICT COURT PARISH OF CALCASIEU, NO. 2016-4882 HONORABLE W. MITCHELL REDD, DISTRICT JUDGE
MARC T. AMY JUDGE
Court composed of Ulysses Gene Thibodeaux, Chief Judge, Marc T. Amy, and Elizabeth A. Pickett, Judges.
AFFIRMED.
Nicholas Pizzolatto, Jr. Department of Children & Family Services 1919 Kirkman Street Lake Charles, LA 70601 (337) 491-2470 COUNSEL FOR APPELLEE: State of Louisiana, Department of Children & Family Services Richard D. Moreno Richard D. Moreno, LLC 125 W. School Street Lake Charles, LA 70601 (337) 433-9535 COUNSEL FOR PLAINTIFF/APPELLANT: Tracy Alexander AMY, Judge.
After proceedings related to the State’s filing of a “Petition for Termination of
Parental Rights and Certification for Adoption” concerning two minor children, the
trial court rendered judgment terminating the mother’s parental rights. The mother
ultimately filed a petition for nullity and corresponding motion for summary
judgment. However, the trial court denied her motion for summary judgment and
dismissed her petition for nullity, and the mother now appeals that judgment. For the
following reasons, we affirm.
Factual and Procedural Background
On July 1, 2015, the State, through the Louisiana Department of Children and
Family Services (DCFS), filed a “Petition for Termination of Parental Rights and
Certification for Adoption” concerning two of the minor children of Tracy Alexander.
A bench trial on the merits of the petition was held on December 1, 2015. The
children’s mother, Ms. Alexander, was not present at the trial, and neither Ms.
Alexander’s counsel, Richard P. Moreno, nor counsel for DCFS had an explanation
for her absence. Mr. Moreno explained to the trial court that he had recently “been
unable to contact [Ms. Alexander], despite repeated efforts” but that he had “her last
current address” and had “notified her twice by mail and once in conversation” about
the trial date. Citing Ms. Alexander’s absence, Mr. Moreno orally moved for a
continuance, which the trial court denied, and the matter proceeded in her absence.
The trial court ultimately granted DCFS’s petition, thus terminating Ms. Alexander’s
parental rights over the minor children.
On December 15, 2015, Ms. Alexander filed a motion for new trial based on
her absence at the trial. At a hearing on the motion, Lazetter West, the DCFS
caseworker handling Ms. Alexander’s case, testified that on November 5, 2015, she received a letter from Mr. Moreno requesting that Ms. West arrange transportation for
Ms. Alexander to attend the December 1, 2015 trial. Ms. West explained that, after
receiving the letter, she “tried to call Ms. Tracy on the number, but for some reason,
[she] couldn’t get through” because the “number kept being busy or something.” She
stated that she further tried to reach Ms. Alexander by calling the residence where Ms.
Alexander had reported to be living and the place where Ms. Alexander had reported
to be working but was informed that Ms. Alexander no longer lived nor worked there,
respectively, and had not provided forwarding information. Ms. West confirmed that
she did not alert Mr. Moreno of her inability to get in touch with Ms. Alexander to
schedule transportation prior to trial.
Ms. Alexander also testified at the hearing. When asked whether she was
aware of the trial date beforehand and whether she was aware that she needed to
attend the trial, Ms. Alexander answered: “I wasn’t aware I needed to be here, but I
was aware of it.” Regarding her efforts to attend the trial, she indicated that she called
Ms. West “two or three days before the court date” and left voicemail messages
asking Ms. West to return her calls. Ms. Alexander stated that she did not receive
return phone calls from Ms. West and had no other means to attend the trial. Ms.
Alexander also stated that she called her attorney in the days leading up to trial, and
the following colloquy occurred:
Q. Did you ever call your lawyer before the trial?
A. Yes.
Q. After you could not get hold of Ms. West?
A. I called him, and he’s the one who told me to call Ms. West to file for a ride.
Q. Okay. And then you called her and couldn’t get her?
2 A. Yes.
Q. That was the 25th. That was six days prior to trial?
Q. Yeah, six days prior to trial. Now, I do know that Thanksgiving, I believe, was the 26th.
A. Uh-huh (yes).
Q. Did you try on the 27th? Did you try on the 30th?
A. No, I didn’t try after those days. I tried - -
Q. You tried calling your lawyer on those days.
A. Yeah, I tried calling my lawyer on those days. And I called, and she said she was going to give him a message to call me back, and he didn’t call me back yet.
Q. Okay. So your lawyer didn’t call you back?
At the hearing on the motion for new trial, Ms. West also testified that although
her telephone number had changed around October 19, 2015 when she received a
promotion, she recorded a voicemail greeting that notified callers that her telephone
number had changed and provided her new telephone number. 1 Regarding the change
to Ms. West’s telephone number, Ms. Alexander stated that, prior to the trial, she had
called and left voicemail messages on the old telephone number and did not learn of
Ms. West’s new telephone number until after the trial. She testified that the voicemail
greeting on the old telephone number provided Ms. West’s name and stated that “she
couldn’t be reached at the time. Please leave a name and a message, and she’ll get
back to” the caller. Ms. West testified that she had checked her old voicemail every 1 A recording of the voicemail greeting associated with Ms. West’s old telephone number was played during the hearing and transcribed as follows: “AUDIO RECORDING: ‘You’ve reached the desk of Lazetter West with the Department of Children and Family Services. I am letting you know that my number has been changed, and the new number is [xxx-xxx-xxxx]. Again, my number has been changed to [xxx-xxx-xxxx]. Thank you. Please record after the beep.’”
3 day prior to the trial and had not received any messages from Ms. Alexander. She
stated that she “never heard from Ms. Tracy” and did not receive any voicemail
messages from Ms. Alexander until after the trial on approximately December 19,
2015.
Following the hearing, the trial court denied Ms. Alexander’s motion for new
trial. In oral reasons for ruling, the trial court stated:
It is clear that the DCFS worker did not call the lawyer for Ms. Alexander to tell him that she could not locate Ms. Alexander to pick her up from wherever she was to bring her to trial. However, the worker did attempt, and I’m satisfied that the worker did attempt to contact Ms. Alexander and was unable to do so and actually contacted the third person that was involved in the matter, who also did not know where Ms. Alexander was.
I am not going to expand the duties of the DCFS workers to call the lawyers to tell them that they can’t get in touch with the clients to pick them up to bring them to court. I think that goes above and beyond what should be expected of them.
Also, I find that the testimony of the DCFS worker, Ms. West, was more detailed and credible then [sic] that of Ms. Alexander when it comes to the issue of who was called when and what messages were left, et cetera.
Ms. Alexander appealed, and a panel of this court affirmed the trial court’s denial of
the motion for new trial, as well as the termination of parental rights. Ms. Alexander
then filed a writ application, which the supreme court denied. See State in the Interest
of G.M.A., 16-405 (La.App. 3 Cir. 9/28/16), 201 So.3d 1014, writ denied, 16-1945
(La. 11/18/16), 210 So.2d 290.
Thereafter, on December 1, 2016, Ms. Alexander filed a “Verified Petition for
Nullity of Judgment for Fraud and Ill Practices” in which she asserted:
The aforementioned failures of DCFS to arrange for transportation for TRACY to the December 1 Termination Trial, or to inform TRACY’s counsel of that failure before December 1, or to inform the trial court of that failure at the December 1, 2015 Termination Trial constitute fraud
4 and ill practices within the meaning of Article 2004B of the Louisiana Code of Civil Procedure.
In response, DCFS filed an exception of res judicata and a motion for summary
judgment, asserting that the issues raised by Ms. Alexander’s petition had been
considered in this court’s September 28, 2016 judgment and that “there does not exist
a genuine issue of material fact that has not been determined by the prior tribunals[.]”
Thereafter, Ms. Alexander filed a motion for summary judgement concerning her
petition for nullity. The trial court ultimately denied Ms. Alexander’s motion for
summary judgment, dismissed her petition for nullity, and granted DCFS’s motion for
summary judgment, stating, in part:
In reviewing the Joint Stipulations of Fact, it is clear that ALEXANDER’S attorney had requested transportation for ALEXANDER to the termination hearing, and that in response, the DCFS case worker assigned to the case attempted prior to the trial to contact ALEXANDER to arrange transportation to the termination trial, but was unable to contact ALEXANDER. The Joint Stipulation further provides that ALEXANDER’S own counsel of record tried to contact her for some 3 weeks or so prior to the trial, and was likewise unable to do so.
The Court finds that the DCFS attempts to contact ALEXANDER to arrange for transportation were sufficient. The Court further finds that ALEXANDER was aware of the trial date, and that it was her duty to ensure that she attended such hearing if she desired to do so. There was no ill practice or fraud perpetuated by DCFS in this matter.
Ms. Alexander appeals that judgment,2 asserting the following assignments of
error:
I. The trial court erred by granting the State-DCFS’[s] Motion for Summary Judgment and dismissing the Petition for Nullity of Judgment for Fraud and Ill Practices filed by TRACY ALEXANDER.
Ms. Alexander’s motion for appeal, as well as the corresponding order of appeal, contained 2
the captions and the trial court docket numbers of both the termination of parental rights proceeding and the petition for nullity. The appellate record of each was lodged with this court. The latter is addressed herein. For disposition of the companion matter, see State in the Interest of G.M.A. & K.K.A., 18-153 (La.App. 3 Cir. _/_/18), _ So.3d _.
5 II. The trial court erred by denying the Motion for Summary Judgment filed by TRACY ALEXANDER on her Petition for Nullity of Judgment for Fraud and Ill Practices.
Discussion
In reviewing a trial court’s grant or denial of summary judgment, an appellate
court reviews the matter de novo using the same criteria that governed the trial court’s
consideration. Carriere v. State, 97-1305 (La.App. 3 Cir. 3/6/98), 708 So.2d 822, writ
denied, 98-0958 (La. 5/29/98), 720 So.2d 335. According to La.Code Civ.P. art. 966
(A)(3), “a motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show that there is no genuine issue as to
material fact and that the mover is entitled to judgment as a matter of law.” As the
second circuit has explained, “[b]ecause the applicable substantive law determines
materiality, whether a particular fact in dispute is material can be seen only in light of
the substantive law applicable to the case.” Payne v. Glass, 41,232, p. 5 (La.App. 2
Cir. 8/23/06), 939 So.2d 526, 529 (citing Lemann v. Essen Lane Daiquiris, Inc., 05-
1095 (La. 3/10/06), 923 So.2d 627).
Here, the parties’ motions for summary judgment concerned Ms. Alexander’s
petition for nullity. Accordingly, we turn to consideration of La.Code Civ.P. art.
2004(A), which provides that “[a] final judgment obtained by fraud or ill practices
may be annulled.” In discussing La.Code Civ.P. art. 2004, the supreme court has
explained:
In Johnson v. Jones–Journet, 320 So.2d 533 (La.1975), this Court reviewed the historical development of C.C.P. art. 2004 and noted that the jurisprudence under Art. 607 of the Code of Practice (the source of present C.C.P. art. 2004) established the following criteria for an action in nullity: (1) that the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) that the enforcement of the judgment would have been unconscionable and inequitable. Since that time, this Court has accepted those two requirements as the necessary elements in establishing a nullity
6 action under Art.2004. See Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219 (La.1982); Kem Search, [Inc. v. Sheffield, 434 So.2d 1067 (La.1983)]; Belle Pass Terminal, Inc. v. Jolin, Inc., 01–0149 (La.10/16/01), 800 So.2d 762.
However, those cases also further defined the types of conduct required to establish those two elements depending on the type of fraud or ill practice alleged. This Court has held that “the article is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations where a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable.” Power Marketing [Direct, Inc. v. Foster, 05-2023 (La. 9/6/06), 938 So.2d 662,] 671; Kem Search, supra at 1070 (citing Chauvin v. Nelkin Ins. Agency, Inc., 345 So.2d 132 (La.App. 1 Cir.), writ denied, 347 So.2d 256 (La.1977)); see also, Schoen v. Burns, 321 So.2d 908 (La.App. 1 Cir.1975); St. Mary v. St. Mary, 175 So.2d 893 (La.App. 3 Cir.1965); Tapp v. Guaranty Finance Co., 158 So.2d 228 (La.App. 1 Cir.1963), writ denied, 245 La. 640, 160 So.2d 228 (1964).
The Court in Kem Search further defined the required “deprivation of legal rights” as “[c]onduct which prevents an opposing party from having an opportunity to appear or to assert a defense.” Id. This definition was further expanded in Belle Pass, which held that “a right to a fair and impartial trial is a legal right entitled to all participants in a legal proceeding.” 800 So.2d at 767.
Wright v. La. Power & Light, 06-1181, pp. 12-13 (La. 3/9/07), 951 So.2d 1058, 1067
(footnotes omitted).
In her petition for nullity, Ms. Alexander argued that the failure of DCFS to
arrange for her transportation to the trial constituted fraud and ill practices, which
deprived her of her right to testify. In interpreting La.Code Civ.P. art. 2004, the
second circuit has stated:
Our jurisprudence is equally clear, however, that an action for nullity is not . . . the solution to legal rights lost through one party’s negligence or failure to act. Design Associates, Inc. v. Charpentier, 537 So.2d 1233 (La.App. 4th Cir.1989), writ denied, 540 So.2d 340 (La.1989); Berwick Bay Oil Co. v. Sunrise Shipping, 525 So.2d 239 (La.App. 1st Cir.1988).
7 State, Dep’t of Soc. Servs., Office of Family Support in Interest of Glass v. Robinson,
31,025, p. 3 (La.App. 2 Cir. 9/23/98), 718 So.2d 609, 611. Additionally, the first
circuit has stated that “[w]hen a party fails to act on its own behalf and suffers a loss
as a result, an action for nullity is not the proper remedy.” Mike v. Bob’s Painting,
07-2190, p. 8 (La.App. 1 Cir. 9/26/08), 995 So.2d 43, 49-50 (citing McKinney Saw &
Cycle v. Barris, 626 So.2d 786, 789 (La.App. 2 Cir. 1993)).
For example, in State Through Dep’t of Soc. Servs. v. Jones, 94-2605 (La.App.
1 Cir. 10/6/95), 671 So.2d 404, Derek Jones was served with a copy of a petition to
establish paternity but did not answer the petition, and, after a confirmation hearing on
a preliminary default, the trial court rendered judgment finding that the minor child
was the natural child of Mr. Jones. Subsequently, Mr. Jones filed a petition to annul
the judgment of paternity, asserting that he had been told by counsel for the
Department of Social Services (“Department”) that blood tests would be performed.
Id. Counsel for the Department testified that, when a defendant in a paternity case
wishes to take a blood test, the typical procedure is to file a joint motion and order for
paternity testing, which was not done in the case. Id. In addition to finding that Mr.
Jones filed his petition for nullity more than one year after the judgment was rendered
contrary to La.Code Civ.P. art. 2004(B) and affirming the grant of the Department’s
exception of prescription, the first circuit affirmed the dismissal of Mr. Jones’ petition
for nullity, stating: “Moreover, while it may be argued that Jones may have believed
that blood tests would be taken, he was put on notice that such was not the case when
he did not receive any motion or order to appear for such blood tests subsequent to his
conversation with” counsel for the Department. Id. at 408.
Here, Ms. Alexander asserted that DCFS committed fraud and ill practices by
failing to arrange transportation. However, based on the testimony adduced at the
8 hearing on the motion for new trial, the inability to arrange for transportation appears
to stem, at least in part, from Ms. Alexander’s failure to act on her own behalf in that
she had not provided DCFS with current contact information. See Mike, 995 So.2d
43. Based on Ms. West’s testimony, she did not have an accurate phone number,
home address, or workplace location to be able to contact Ms. Alexander. Moreover,
while it may be argued that Ms. Alexander believed that transportation would be
provided, Ms. Alexander was put on notice that transportation arrangements had not
been made when she neither spoke with anyone from DCFS nor received information
about any such arrangements. See Jones, 671 So.2d 404. Though Ms. Alexander
testified that she called her attorney, left messages for him, and did not receive a
return phone call, her testimony fails to indicate that her messages notified her
attorney of her inability to speak with Ms. West. Ms. Alexander testified that she was
aware of the trial date. However, there is no indication that, as the trial date
approached, Ms. Alexander notified anyone, including her attorney, that she had been
unable to arrange transportation with DCFS. Thus, the trial court did not have that
information available to it on the day of trial. As discussed above, a petition for
nullity is not “the solution to legal rights lost through one party’s negligence or failure
to act.” Robinson, 718 So.2d at 611.
In her petition for nullity, Ms. Alexander also stated that DCFS’s failure to
disclose to either her counsel or the trial court the inability to arrange transportation
constitutes fraud and ill practices that deprived her of her right to testify. The
supreme court has explained:
Regarding nullity actions such as this one where a party alleges the other party withheld information at trial, Gladstone [v. American Auto. Ass’n, Inc., 419 So.2d 1219, 1223 (La.1982)] held that “[d]iscovery of evidence which could have been presented at the original trial usually
9 cannot serve as the basis for an action for nullity.” [] As the Court explained:
... the mere failure to disclose information at a hearing does not necessarily constitute fraud or ill practice. That determination depends on the nature of the information and the circumstances surrounding the hearing. A party is not obliged to produce evidence favorable to the opponent or to present the opponent’s version of the case, and the failure to disclose all information on the issue is not ill practice unless concealment or deceit is involved. Moreover, a party may present only his version of the occurrence, as long as he does not use false or perjured testimony or forged documents.
Id. The Court found that the plaintiff “had every opportunity to support her defenses in the hearing before the appeals referee” and that she “simply did not exercise sufficient diligence in marshaling and presenting evidence of her version of the facts leading up to her termination.” Id. In reaching this holding, the Court in Gladstone relied on a nullity case dating back to 1932, which held that “an unsuccessful litigant may not attack a judgment as fraudulent because the other party failed to disclose certain facts within his knowledge, when the plaintiff with reasonable diligence could have ascertained those facts himself.” Id. at p. 1223, n. 6 (citing First Nat’l Life Ins. Co. v. Bell, 174 La. 692, 141 So. 379 (1932) (emphasis added)).
Wright, 951 So.2d at 1068. See also Andrus v. Chrysler Financial Corp., 99-105, p. 9
(La.App. 3 Cir. 6/2/99), 741 So.2d 780, 785 (wherein a panel of this court noted “that
the fact that a plaintiff presents only its own version of the controversy and fails to
disclose a contrary position or view held by the defendant does not constitute fraud or
ill practices, provided that the plaintiff does not present its contentions on false,
fabricated, or perjured testimony”), writ denied, 99-1968 (La. 10/15/99), 748 So.2d
1150.
Turning to the facts of this case, Ms. Alexander could have, with reasonable
diligence, ascertained both that she would not be present at the trial and the reasons
that she would not be present. Namely, she testified that she had no independent
means of transportation and had not spoken with Ms. West or anyone else at DCFS
10 prior to the trial to arrange for transportation. Thus, because her absence and the
reasons for said absence are information that Ms. Alexander could have ascertained
herself, we find that there was no fraud or ill practice relating to DCFS’s failure to
disclose its unsuccessful attempts to arrange transportation with Ms. Alexander. See
Wright, 951 So.2d 1058.
Above we have determined that DCFS’s inability to arrange for transportation
and failure to disclose this inability do not constitute fraud or ill practices pursuant to
La.Code Civ.P. art. 2004. We thus find that Ms. Alexander did not prove that she was
entitled to a judgment of nullity pursuant to La.Code Civ.P. art. 2004. Accordingly,
we conclude that the trial court properly dismissed Ms. Alexander’s petition for
nullity; denied Ms. Alexander’s motion for summary judgment; and granted DCFS’s
motion for summary judgment.
DECREE
For the foregoing reasons, the judgment of the trial court is affirmed. All costs
of this appeal are assessed against Tracy Alexander.