Michael David Leman VS Heather Cook Leman (2009CA2168 Consolidated With 2009CA2169 2009CA2170)

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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2009 CA 2168 MICHAEL DAVID LEMAN VERSUS HEATHER COOK LEMAN ze Consolidated with 2009 CA 2169 HEATHER COOK LEMAN VERSUS MICHAEL DAVID LEMAN and FRED G LAKE Consolidated with 2009 CA 2170 HEATHER COOK LEMAN VERSUS MICHAEL DAVID LEMAN ABC INSURANCE COMPANY MELVIN G RIPP JR DEF INSURANCE COMPANY FRED G LAKE and GHI INSURANCE COMPANY Judgment rendered MAY 72010 On Appeal from the 22 Judicial District Court Parish of St Tammany State of Louisiana Case Numbers 200615654 c 200715352 c 200814644 Division L w w The Honorable Dawn Amacker Judge Presiding Kenneth H Hooks III Counsel for Appellant H Price Mounger III Heather Cook Leman Baton Rouge La Frank G DeSalvo Robert P Blackburn New Orleans La Frank P Tranchina Jr Counsel for Appellee Tracy E Gold Covington La Michael David Leman ORE DOWNING GAIDRY AND McCLENDON JJ i DOWNING J Heather Cook Leman appeals a judgment sustaining her exhusband Michael David Leman peremptory exception of res judicata and dismissing Mrs s s Leman underlying lawsuit with prejudice s Leman motion to dismiss Mr The judgment also denied Mrs s Leman motion overruled her dilatory exception of prematurity to transfer her action and For the following reasons we affirm the judgment of the trial court PERTINENT FACTS AND PROCEDURAL HISTORY Heather Cook Leman and Michael David Leman were married in 2001 and s ended in divorce in July 2007 in the 22 Judicial District Court JDC St Tammany Parish In January 2007 in connection with their divorce proceedings Mr and Mrs Leman agreed to a consent judgment entitled Partition of Community Property and Confirmation of Separate Property Consent Judgment which was signed by the parties and the trial court Pertinently Mrs Leman filed a petition in the 24 JDC Jefferson Parish in September 2007 for damages to nullify Exhibit sequestration Exhibit A A and for a writ of is a document entitled Donation Making Community Property Separate Property Donation which was executed in March 2005 In this action Mrs Leman sued the attorney and the accountant who had formerly provided professional services to both spouses in addition to Mr Leman In October 2007 Mr Leman filed an exception to venue in the 24 JDC The trial court overruled the exception Mr Leman then sought writs with the Louisiana Fifth Circuit Court of Appeal In July 2008 the Fifth Circuit granted Mr s Leman writ reversing the trial court ruling on the exception of venue s The Fifth Circuit severed the claims against Mr Leman and transferred them to the 22d JDC for St Tammany Parish The Louisiana Supreme Court denied Mrs Leman s writ application seeking review of that ruling The record indicates that the clerk 2 of court for the 24 JDC prepared a true and correct copy of its proceedings which was subsequently filed in the 22 JDC In September 2008 in the 22 d JDC Mr Leman filed a motion to transfer and consolidate Mrs Leman claims into the existing divorce proceedings which s the trial court granted on October 20 2008 Also in September 2008 prior to consolidation Mr Leman filed an exception of res judicata in response to Mrs s Leman Petition for Damages and to Declare Exhibit A a Nullity and for Writ of Sequestration asserting that the January 2007 consent judgment settled their differences The trial court heard this exception on October 20 2008 but the presiding judge retired before issuing a ruling Mrs Leman had also filed a Motion to Dismiss and Exception of Prematurity asserting that the matter was not properly transferred to the 22 JDC because the proper procedures were not followed The trial court minutes reflect that these matters were also heard on October 20 2008 In February 2009 Mr Leman filed a Motion for Ruling on Pending Matters The trial court rendered judgment in May 2009 on Mr Leman s exception of res judicata and on Mrs Leman Motion to Dismiss and Exception s of Prematurity The trial court denied Mrs Leman motion and exception s It sustained Mr Leman exception of res judicata dismissing her suit for damages s nullity of Exhibit A and writ of sequestration with prejudice Mrs Leman now appeals asserting five assignments of error as follows 1 The trial court erred by denying a motion to dismiss a lawsuit which was transferred by a clerk of court without an order of any district court following the grant of an exception of venue by the 5 Circuit Court of Appeal 2 The trial court erred by granting an exception of res judicata to s Appellant suit which alleges fraud duress and coercion in the formation and contents of a document made a consent judgment signed by the trial court The nullity of a final judgment may be demanded for vices of either form or substance as provided in LSA P C articles 2001 through 2006 3 3 The trial court erred by granting an exception of res judicata without providing an opportunity to the appellant to remove any one of the alleged elements which formed the basis of the grant of the exception of resjudicata 4 The trial court erred by concluding without factual or legal support that a consent judgment partitioning community property is a compromise between the parties pursuant to Louisiana Code of Civil Procedure article 3071 and pursuant to LSA C article 3080 not subject to subsequent actions 5 The trial court erred without factual or legal support that the null act of donation was confirmed and ratified in a consent judgment when that consent judgment did not qualify as an authentic act DISCUSSION Venue Citing La C art 2251 Mrs Leman contends in her first assignment of P error that the proceedings in the 22 JDC are premature and should be dismissed Louisiana Code of Civil Procedure art 2251 provides as follows A judgment can be executed only by a trial court A party seeking to execute a judgment of an appellate court must first file a certified copy with the clerk of the trial court This filing may be made without prior notice to the adverse party Mrs Leman argues that since the 24 JDC trial court did not order the execution of the transfer the suit was not properly transferred Here at Mr Leman request s and upon payment of fees the 20 JDC clerk sent the record to the 22 JDC apparently on the authority of the Louisiana Fifth Circuit transfer order s Mrs Leman argues that consequently Mr Leman improperly filed a new lawsuit naming her as the plaintiff Therefore she suggests that this matter be dismissed so that it can be properly transferred from the 24 JDC We disagree While Mrs Leman arguments suggest a reasonable interpretation of La s P C art 2251 this court has held that w an action is brought in a court of hen improper venue an appellate court has the discretion to dismiss the action or in the interest of justice transfer it to a court of proper venue Emphasis added Daniels v Rachal 610 So 967 969 La 1 Cir 1992 The Daniels court 2d App 9 relied on La C art 121 in making its decision That article provides that P hen w an action is brought in a court of improper venue the court may dismiss the action or in the interest of justice transfer it to a court of proper venue Here the Fifth Circuit ordered the transfer of the matter to the 22 JDC as follows we transfer these claims to the 22d Judicial District Court for the Parish of St Tammany Accordingly we conclude the matter was properly transferred to the 22 JDC by the authority of the Fifth Circuit This assignment of error is without merit Res Judicata Mrs Leman next argues that the trial court erred in sustaining the exception of res judicata because no court has yet considered her claims of fraud duress and coercion in the formation of the Donation the provisions of which were made part of the Consent Judgment In her petition for damages to nullify Exhibit A and for a writ of sequestration however Mrs Leman does not directly challenge the Consent Judgment Rather she seeks to have the Donation annulled In brief she states that her strategy was to annul the Donation in the 24 JDC suit and thereafter attack the Consent Judgment in the 22d JDC action As such she attempts to collaterally attack the Consent Judgment A collateral attack is defined as an attempt to impeach the decree in a proceeding not instituted for the express purpose of annulling it Emphasis added Knight v Sears Roebuck Co 566 So 135 137 La 1 Cir 1990 A judgment 2d App that is an absolute nullity may be attacked collaterally See Id A final judgment obtained by fraud or ill practices however is not an absolute nullity Smith v LeBlanc 06 004 p 6 La 1 Cir 8 966 App 07 15 2d So 66 71 Accordingly such grounds must be asserted in a direct action and not raised collaterally Knight 566 So at 137 The nullity must be properly 2d In Daniels we followed technically proper procedure by ordering the clerk of court in one parish to transfer the case at issue to another Daniels 610 So at 969 2d 5 decreed within the time prescribed Smith 06004 at p 6 966 So at 71 See 2d La C arts 2001 P 06 Article 2004 provides that a final judgment obtained by fraud or ill practices may be annulled but requires that the action be brought within one year of the discovery of the fraud or ill practices The one year period is peremptive not prescriptive Knox v West Baton Rouge Credit Inc 08 1818 p 7 La 1 Cir 3 9 So 1020 1025 App 09 27 3d See also Naghi v Brener 08 2527 pp 1011 La 6 17 So 919 925 26 where the 09 26 3d supreme court explains why a perempted claim cannot be added to a petition and relate back to the date of filing Article 2006 requires that an action to annul be brought in the trial court Here Mrs Leman has not instituted any action for the express purpose of annulling the Consent Judgment which was rendered in the 22 JDC Rather her action was filed in the 24 JDC in September 2007 to specifically challenge the Donation Mrs Leman made her allegations of fraud and ill practices in that lawsuit in connection with the Donation Therefore the grounds for fraud and ill practices were discovered by her at the latest in September 2007 Further appeal delays have run on the Declaratory Judgment which was rendered in January 2007 Accordingly the Consent Judgment is final and its provisions are res judicata regardless of the validity of the underlying actions on which it is based Cf Ortiz v Ortiz 01 1252 La 5 Cir 5 821 So 35 particularly App 02 15 2d 2 n Further while La C art 934 provides that if the grounds of the P objection of res judicata may be removed by amendment of the petition such amendment should be allowed Mrs Leman has argued no permissible amendment that would cure the objection and we can conceive of none Article 934 further states that if the grounds of the objection cannot be so removed the action shall be dismissed Therefore Mrs Leman second and third assignments of error are s without merit 2 Remaining Assignments ofError In her fourth assignment of error Mrs Leman challenges the trial court s determination that the Consent Judgment had res judicata effect because the Consent Judgment constituted a compromise pursuant to La C art 3071 that cannot be contested pursuant to La C art 3080 Article 3080 provides that a compromise precludes the parties from bringing a subsequent action based upon the matter that was compromised Because of our conclusions above we need not determine whether the Consent Judgment res judicata effect also arises from a s binding compromise We therefore pretermit discussion of this assignment of error In her fifth assignment of error Mrs Leman challenges whether the Donation could be confirmed in the Consent Judgment which was not confected by an authentic act As discussed above however this argument is a collateral attack on the Consent Judgment and as such cannot be maintained without Mrs Leman having filed a petition for nullity Accordingly we pretermit discussion of the merits of this assignment of error as well Even so we observe that Mrs Leman sarguments challenging the Donation on contract principles have a basis in Louisiana jurisprudence Mrs Leman cites Stroscher v Stroscher 01 2769 p 5 La 1 Cir 2 845 So 518 App 03 14 2d 524 among other cases for the proposition that a consent judgment is a bilateral contract between the parties that must be based on consent Stroscher states Thus a consent judgment as opposed to other final judgments rendered against a party without their consent may be annulled for an error of fact or of the principal cause of the agreement Id See also Richardson v Richardson 02 2415 p 4 App La 1 Cir 7 859 So 81 84 where this court observed A consent 03 9 2d judgment is in effect a bilateral contract between the parties which gets its binding force from the consent the parties gave rather than from adjudication by the courts It is not unreasonable to construe these and similar true statements to 7 conclude that the law may allow consent decrees to be attacked on contractual grounds These and similar statements however need context that may not be readily apparent a consent judgment binding force also arises from the fact that it is a s valid enforceable judgment that must be obeyed See Black v Comfort 08 239 996 So 1187 1190 La 5 Cir 10 2d App 08 28 Accordingly as discussed above the Consent Judgment before us can only be challenged in a direct action instituted for the express purpose of annulling it DECREE For the foregoing reasons we affirm in all respects the trial court judgment sustaining Mr Leman exception of res judicata and dismissing with prejudice s Mrs Leman suit for damages nullity of Exhibit A and writ of sequestration s Costs of this appeal are assessed to Mrs Heather Cook Leman AFFIRMED N

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