Richard J. Brien VS Terry Smith and American Plumbing

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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBER 2006 CA 1712 rlv cv RICHARD J BRIEN VERSUS w TERRY SMITH AMERICAN PLUMBING Judgment Rendered Appealed September 14 2007 from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge Louisiana Docket Number 539 560 Honorable Janice Clark Judge Presiding Counsel for James L Maughan Plaintiff Appellee Baton Rouge LA Richard J Brien Richard D Bankston Counsel for Defendants Baton Rouge LA Terry Appellants Smith and American Plumbing BEFORE WHIPPLE GUIDRY AND HUGHES JJ WHIPPLE J This is an appeal from Comi which affinned the Baton and a of the Nineteenth Judicial District judgment of the Small Claims Division of the judgment Rouge City Comi granting plaintiff s motion for dismissing defendant rendered by the following Baton reasons we to petition s annul judgment previous default judgment a Rouge City Court Small Claims Division vacate the August 2 2006 For the judgment of the Nineteenth Judicial District Court vacate the December 14 2005 Rouge City summary judgment of the Baton Court and remand FACTS AND PROCEDURAL HISTORY On June 25 bearing docket number 0306 05303 business owned plumbing services and that a tender of to compromise Brien Brien credit According to his him from to Brien July American Plumbing 18 Plumbing s to Smith did not in credit a dispute for exchange for Brien have the s disputed collection s in their credit report rating had been negatively affected rate on loans Accordingly 3 000 00 2003 in their uphold his agreement obtaining the best possible sought damages of On compromise have the collection removed from Brien alleged Plumbing report Brien further contended that despite his 40 00 check for a preventing s American misunderstanding regarding charges for payment of 40 00 Smith agreed in writing removed from Brien Rouge City Court In the claim Brien contended they had agreed payment of 40 00 by Brien Thus Statement of Claim and a against by Terry Smith and Smith had had plumbing a Richard J Brien filed in the Small Claims Division of the Baton Citation that he 2003 Brien the alleged failure obtained amount to file of default 3 000 00 an answer 2 a judgment against based Thereafter on on American February 3 2004 Smith American contending business doing Plumbing filed that he had filed April 21 s 21 motion to Plumbing filed City Court a on motion to However an 19 July the to motion the motion had been lost in the mail judgment that effect Smith 2004 transfer the return American orally granted on signed until October not 2004 minute Both reset and Thus atty agree matter was Thereafter judge on a judgments back 2004 apparently the was to August entered with the attorneys based on on 25 January the default judgment We note that the 2004 on an on an following regular civil docket agreement of the parties to the regular court 2005 the scheduled trial date minute entry worksheet to 2 apparently signed by entry judgment that had vacated the wrote that she was the city vacating all apparently vacating original July judgment The judge fmiher ordered that the 1 judge transferred from the Small Claims Division civil docket of the city comi send notice American Given the untimeliness of this properly denied by was behalf of on from the Small Claims Division case regular civil docket October 11 Please language 21 was was as judgment via the United States mail arbitrator of the Small Claims Division the herein to the default to vacate the default judgment referred Plumbing 2004 Meanwhile of a motion answer to vacate 2004 but a an answer receipt requested but that the Plumbing American as matter be 18 set the October 2003 for default hearing on subsequent judgment of December 14 2005 before us on appeal both contain the caption Baton Rouge City Court and bear the same docket number There is nothing in these judgments to allow this comi to determine that one was rendered by the Small Claims Division and the other by the city court on its regular civil docket Thus we rely on the above referenced minute entry and the fact that an judgment appeal for pmposes of Small Claims Division to the establishing was om ofdefault and the granted to the Nineteenth Judicial District Court review that the matter regular civil docket ofthe 3 was city as in fact transfened from the court 23 February 2005 determine if the default to noting that American Plumbing would have was filed before judgment the this effect to forth that all judgment was ever judgments back signed by the city appear for the denying his default court judge 23 February show to minute the default motion to vacate the hearing that the stating judgment April to Annul Default judgment should matter establish a judgment was Brien of Plumbing filed a Petition 18 2003 default 1 the court city lacked subject based claim 2 Brien had failed to support of the judgment in his favor who lost his evidence defenses petition to judgment prescription In was misleading and when it answer asserting his for summary objection federally in on the merits annul the default and a was or the file the 4 2 judgment Brien filed a suppOli of his motion for summary judgment was stamp false and peremptory exception raising the judgment and there assertion that the judgment 2Although 3 filed should not argued that the Small Claims Division had jurisdiction rendered the default the default by fraud and ill practices because Brien made false In response to the motion 9 2005 American petition and the him from preclude case obtained over this over was Plumbing failed to to vacate Judgment contending that the July prima facie statements in his confusion February vacated 2005 be annulled because jurisdiction were judgment signed on written 18 2003 default July judgment Meanwhile no judgment judgment denying the motion 11 answer court rendered city A written on an entry worksheet setting would stand was While However when American 2005 should be vacated proof that signed was signed the to judgment the 4 evidence to the time it support the through fraud or ill practices petition to annul petition was filed that on 2005 minute entry indicates that the obtained was no at is not date legible the February 9 In opposition to the motion American Plumbing argued that of fact existed as to whether Brien had compromise of their ever because dispute paid the agreed American It fmiher asserted that there negotiated that check an 40 00 in upon had Plumbing issue of fact was an whether Brien had actually bill his credit report and that if in fact Brien had lied being comi listed about practice answer on which had that it Following judgment but was filed entitled a American annul the default cross motion for summary disputed to the for Plumbing judgment exception denied the s petition court American to annul By judgment court after review of the city of August 2 comi by prescription dismissing judgment dismissing dated city the default Plumbing appealed Judicial District Court the exception this over 1681 et S judgment summary city 2005 Service judgment jurisdiction 15 U S C Reporting Act 2005 motion an judgment in its favor vacating the default the motions and on dated December 14 From the December 14 city result of the to as argued that it had timely filed federal court had exclusive hearing s a to the Fair Credit granted Brien prejudice as a apparently been lost by the United States Postal judgment because the matter pursuant to further Plumbing Plumbing then contending damages not being damaged these misrepresentations would constitute ill American American suffered any issue with judgment its petition to to the Nineteenth 2006 the district court record affirmed the December 14 2005 court judgment American Plumbing of the district court now appeals from the August 2 2006 judgment setting forth six assignments of error DISCUSSION Through the Small Claims Procedures each city court is authorized to establish 5 Act LSA R S by court rule 13 5200 a et seq small claims division LSA R S 13 5201 A A plaintiff the small claims division rather than the if the claim is within the jurisdictional LSA R S and the 13 5201 C regular civil docket of the city respective city and clerks of the small claims divisions not comis LSA R S court a speedy inexpensive LSA R S manner for short and strict time Specifically plaintiff art 13 5202 ten a may be rendered No of dispensing One of the provide justice Thus the statutory scheme must answer an in a provides the claim filed in the small days of service of citation LSA If the defendant fails case which establishes objective to judges delays 4903 proves his 13 5200 defendant a claims division within LSA C C P forum with the 3 of record the serve as stated purposes of the Small Claims Procedures Act is efficient and court of the small claims division amounts The small claims division is clerks of the judges and may choose to file his suit in prima prior to RS 13 5203 timely and the answer by producing relevant and competent evidence facie case final a judgment default is necessary in favor of LSA R S plaintiff 13 5203 LSA C C P art 4904 A three judgment in days after it is unless within that 13 5208 B a small claims division becomes final and signed period Notably or notice of judgment motion a there is small claims division of city no docket matter is court and LSA R S removed 13 5209 A or new appeal from small claims division shall be deemed unless the for a if necessary trial is a is mailed LSA R S judgment rendered by plaintiff who to filed executory files a have waived his complaint right to in a a appeal transfened from the small claims division Additionally a defendant shall be deemed 3The small claims division has subject matter jurisdiction in cases where the amount in dispute does not exceed 3 000 00 The small claims division ofthe city court also has authority to grant equitable relief LSA R S 13 5202 A B 6 to have waived his citation he files transfer to filed 4 the a to appeal unless within written motion seeking right ordinary civil docket of the LSA R S 13 5209 B LSA R S ten removal court in days of service of of the action which the 13 5203 A ie complaint is and LSA C C P art 4903 In the instant while case American Plumbing filed motion transfer this to one obtained was Rouge City Thus entertaining granting such or See LSA R S pmiies Inc 616 So 2d 879 the transfer procedure set 881 More jurisdiction default under its judgment 4 citation further review importantly to annul action statute to a we by shall be year after the default notwithstanding O Quin any ordinary seeming Kinder Paint v 1993 App 3rd Cir to gained the Specifically or Plumbing city on February court lacked forthwith its attendant 7 to annul the 9 2005 An court that issued the written motion within ten defendant the absolute govelTIS lost be instituted in the a more regular civil docket fuliher conclude that the granted than prohibited by law from LSA RS clearly grants right rights of review provided the request is timely made a more a are must regular a American judgment the a parties the timeliness of the request for If the defendant does file such the motion 2004 regular civil docket to consider the petition filed if than transfer from the Small Claims Division rights 19 to for transfer to the 13 5209 B La or that it did not file fOlih in the statutory scheme envisions transfer for the convenience of the whether was request a one when clear mandates set forth for small timely request a July perfected and the Small Claims Division consent of the Company was Court until given the claims actions in the absence of civil docket undisputed to as from the Small Claims Division year after service of citation judgment may have existed it is an answer matter civil docket of the Baton question a days of service of 13 5209 B to transfer to the regular Thus the docket and judgment O Quin 616 So 2d subject of American Plumbing Claims Division of the Baton was the to required city file its lacked comi Brien Plumbing Quin 616 So 2d Accordingly granted Brien Plumbing petition s s to annul to annul is an to by the Thus American annul judgment absolute its s and the Small Plumbing and regular civil docket Hence the judgment dismissing American nullity as matter a of law 6 at 881 we must vacate the December 14 2005 motion for summary judgment petition to annul the default judgment to annul be transferred to Rouge City rendered annul in the Small Claims Division petition s judgment forming was matter jurisdiction under Plumbing to The default Rouge City Court motion for summary s petition s petition s petition subject consider American granting O to at 881 Court for further judgment which and dismissed American We further order that the the Small Claims Division of the Baton proceedings 7 Because of our holding herein 5We recognize that the absolute nullity of a judgment may be asselied in a collateral proceeding at any time and before any court without resort to an action in nullity LSA C C P mi 2002 B However this court has held that where a pmiy brings a direct action for the sole purpose of annulling an alleged absolutely null judgment the direct action for nullity must be filed in the court where the original judgment was rendered Cir Knight writ denied v Sears Roebuck 571 So 2d 628 CompmlY 566 So 2d 135 La 1990 137 138 La App 1st Additionally Plumbing alleged in its petition to annul one ground of absolute nullity i e that the rendering comi lacked subject matter jurisdiction albeit on a different basis i e that federal law governed it also alleged several additional grounds of purpOlied fraud or ill practices LSA C C P arts 2002 A 3 grounds could only be asselied in a direct we 2004 note that while American An action for action in the rendering nullity court based O Quin on those 616 So 2d at 881 6 parties herein have not raised the issue of the absolute nullity ofthe December 14 2005 judgment of the city comi we are compelled to raise this issue insofar as it may affect this court s jurisdiction See Whittenberg v Whittenberg 97 1424 La App 1st Cir 4 8 98 710 So 2d 1157 1158 Moreover we are empowered to render any judgment which is just legal and proper upon the record on appeal LSA C C P mi 2164 see generally Francis v Lafon Nursing Home of Holv Familv 2002 Although 1863 19 9 La 03 App the 4th Cir 3 19 03 840 So 2d 1281 1290 writ denied 2003 1373 La 853 So 2d 643 71n doing so we note that even if we were to conclude that the pmiies could jurisdiction by agreement to an untimely transfer from the Small Claims Division to the regular city comi docket the motion for summary judgment was nonetheless improvidently granted Specifically we note that the record before us contains a July 1 2003 minute entry stating that an answer was filed that date on behalf of defendant American Plmnbing Also while the answer contained in the record does not contain a legible file stamp date we further note that a reconventional demand somehow confer 8 we pretermit consideration of American Plumbing s other assignments of error CONCLUSION For the above and foregoing the Nineteenth Judicial District Court December 14 2005 The December 14 Brien s judgment 2005 the reasons August 2 2006 judgment which reviewed and affinned the of the Baton Rouge City judgment of the city Court which court likewise vacated The 18 2003 matter Plumbing s judgment of the Small Claims Division is is remanded with instructions to transfer American the Baton to Plumbing s expressed herein Costs are Rouge City petition Small Claims Division of the court and for further with the views is vacated granted Richard motion for summary judgment and dismissed American petition to annul the July of Court to annul to the proceedings consistent assessed one half each to the parties VACATED apparently date filed REMANDED WITH INSTRUCTIONS filed as by American Plumbing contains a faint file stamp that appears to list the July 1 2003 which of course would cOlTespond with the July 1 2003 minute entry Regarding nullity art 2004 of a judgment for fraud this aliicle is not limited to cases practices pursuant to LSA C C P or ill practices but is wherein a judgment is rendered through or ill of actual fraud sufficiently broad to encompass all situations some improper practice or procedure Belle Pass Terminal La 16 10 01 800 So 2d 762 1 2003 and the 766 If in fact American Inc v Jolin Inc did 2001 0149 Plumbing timely file its was then rendered on the July July judgment basis that American Plumbing had not filed an answer the judgment could be subject to annulment on the basis of fraud or ill practices as having been rendered through an improper procedure Certainly the above referenced July 1 2003 minute entry and file stamped reconventional demand of record raise a genuine issue of material fact that should have defeated the grant of summary judgment to Brien herein This issue would cleal ly have to be resolved by the Small Claims Divisiom on remand answer on 18 2003 default 9

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