Wells v. Fruth, Jamison & Elsass, PLLC

158 So. 3d 216, 14 La.App. 3 Cir. 826, 2015 La. App. LEXIS 174, 2015 WL 445221
CourtLouisiana Court of Appeal
DecidedFebruary 4, 2015
DocketNo. CA 14-826
StatusPublished
Cited by2 cases

This text of 158 So. 3d 216 (Wells v. Fruth, Jamison & Elsass, PLLC) 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
Wells v. Fruth, Jamison & Elsass, PLLC, 158 So. 3d 216, 14 La.App. 3 Cir. 826, 2015 La. App. LEXIS 174, 2015 WL 445221 (La. Ct. App. 2015).

Opinion

SAVOIE, Judge.

|! Plaintiff, Tamba Mclntire 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 executo-ry 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 [219]*219rendering 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 jjier to satisfy the judgment. Thereafter, on Au- • gust 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 plaintiffs 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.

_JjLegal 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, 97-0516, p. 6 (La.App. 4 Cir. 1/7/98), 705 So.2d 1233, 1236, writ denied, 98-0342 (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:
[[Image here]]
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to [220]*220jurisdiction, 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 Faci-as and Seizure and a Garnishment Judgment. The September 24, 2012 judgment reads in pertinent part:

|JT IS FURTHER ORDERED, ADJUDGED and DECREED that there be judgment herein in favor of plaintiff, FRUTH, JAMISON & ELSASS, PLLC, and against the defendant, TAM-BA 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.” Modere v. Modere, 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 riot been raised by any party in this suit. The Louisiana Supreme Court in Merrill v. Greyhound Lines, Inc., 10-2827, |6p.

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

Related

Cite This Page — Counsel Stack

Bluebook (online)
158 So. 3d 216, 14 La.App. 3 Cir. 826, 2015 La. App. LEXIS 174, 2015 WL 445221, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wells-v-fruth-jamison-elsass-pllc-lactapp-2015.