Arabie Brothers Trucking Company and American Interstate Insurance Company VS Patrick Gautreaux, Graham Neil, Individually and As Owner of A & G Tree & Stump Removal and A & G Tree & Stump Removal
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT 2010 CA 1999 ARABIE BROTHERS TRUCKING CO AMERICAN INTERSTATE INSURANCE COMPANY VERSUS PATRICK GAUTREAUX DECEASED AND AS OWNER OF A GRAHAM NEILL INDIVIDUALLY G TREE AND STUMP REMOVAL AND A G TREE AND STUMP REMOVAL Judgment Rendered JUN i 0 2011 On Appeal from the Office of Workers Compensation I District 9 In and for the Parish of Terrebonne State of Louisiana Docket No 00 07938 Honorable Elizabeth C Lanier Judge Presiding Michael L Hebert Counsel for Defendant Appellant Baton Rouge Louisiana Patrick Gautreaux Lawrence B Frieman Counsel for PlaintiffsAppellees Arabie Brothers Trucking Co and Janna C Bergeron Metairie Louisiana American Interstate Insurance Co BEFORE WHIPPLE McDONALD AND McCLENDON JJ s C McCLENDON J In this workers compensation case a judgment was rendered in favor of the claimant awarding him medical and indemnity benefits but denying his request for penalties and attorney fees After a thorough review of the record we vacate the judgment and remand for further proceedings On January 27 2000 Patrick Gautreaux was seriously injured when a large tree which he was cutting fell crushing him to the ground Mr Gautreaux remained in a coma until his death in October 2007 At the time of the accident Arabie Brothers Trucking Company Arabie was clearing a commercial site for the construction of a video store in Houma Louisiana Arabie sub contracted with A G Tree and Stump Removal A G to grind and remove two stumps at the site Mr Gautreaux an employee of A G was sent to the construction site to grind the two stumps After grinding one of the stumps he began cutting the other tree which fell on him Following the accident Arabie through its workers compensation insurer American Interstate Insurance Company American began paying workers compensation benefits to and medical expenses on behalf of Mr Gautreaux On October 5 2000 Arabie and American filed a disputed claim for compensation and petition for declaratory judgment against Mr Gautreaux Graham Neill individually and as owner of A G and A G asserting that Mr Gautreaux was not in the course and scope of his employment with A G at the time of the accident and that the accident did not arise out of his employment Mr Gautreaux answered reconvened and filed a cross claim In his reconventional demand Mr Gautreaux contended that Arabie was his employer statutory employer or compensation benefits borrowing employer entitling him to workers After a trial of the matter the OWC judge determined that Mr Gautreaux injuries did not occur while in the course and scope of his s employment with A G and therefore he was not entitled to further workers compensation benefits On appeal this court reversed in part finding that Mr Gautreaux was a borrowed employee of Arabie and remanded the matter to the 2 OWC judge for a determination of the amount of workers compensation benefits andor medicals due and for a determination of the amount of penalties andor attorney fees due if any See Arabie Brothers Trucking Co v Gautreaux 030120 La 1 Cir 8 880 So 932 writ denied 042481 La App 04 4 2d 04 10 12 888 So 846 2d The matter was set for trial on July 15 2009 and submitted on briefs On July 29 2010 oral reasons for judgment were rendered awarding Mr Gautreaux medical and indemnity benefits but declining to award penalties and attorney fees On August 9 2010 a judgment was signed in accordance with the oral reasons of the OWC judge A timely appeal was filed on behalf of Mr Gautreaux through counsel in which it was asserted that the OWC judge erred in failing to award penalties and attorney fees in failing to give Mr Gautreaux the presumption of a forty work week and calculating indemnity benefits in hour accordance therewith and in failing to award Mr Gautreaux costs Counsel also asked for attorney fees for the preparation and work on the appeal Because we are vacating the judgment we decline to address these assignments of error Upon the death of a litigant a proper party plaintiff must be substituted to allow the action to continue LSA C art 801 P It is undisputed that Mr Gautreaux was deceased at the time of the trial However it does not appear from the record that his estate was substituted as a party plaintiff Nonetheless a judgment was rendered in his favor and is purportedly being appealed by him While LSAC art 801 permits the substitution of parties whenever a party P C dies during the pendency of an action a substitution in this matter cannot cure the judgment This court has consistently held that a judgment for or against a deceased person is an absolute nullity See Page v Page 981625 p 2 App La 1 Cir 9 762 So 18 19 n White v Givens 491 So 63 99 24 2d 1 2d 64 La 1 Cir 1986 Thus although the issue was not raised by the parties App the judgment in favor of Mr Gautreaux is null Accordingly the August 9 2010 1 At the July 15 2009 hearing on remand regarding the amount of contribution due by A Arabie and American the OWC judge recognized that Mr Gautreaux had died reiterated in the judge oral reasons for judgment on July 29 2010 s 3 G to This was judgment in favor of Patrick Gautreaux deceased is declared a nullity and vacated This matter is remanded to the Office of Workers Compensation for the substitution of the legal successor of the deceased party and the rendition and signing of a judgment in favor of the properly substituted party JUDGMENT VACATED CASE REMANDED a ARABIE BROTHERS TRUCKING CO STATE OF LOUISIANA AND AMERCIAN INTERSTATE INSURANCE VERSUS COURT OF APPEAL PATRICK GAUTREAUX DECEASED GRAHAM NEILL INDIVIDUALLY AND AS OWNER OF A AND A FIRST CIRCUIT G STUMP REMOVAL G TREE AND STUMP REMOVAL 2010 CA 1999 McDONALD J CONCURRING I agree with the majority but write separately to address the issue of absolute nullities There is no question that the judgment in this case is a nullity However I question what the term absolute adds to the discussion when used in the context of a judgment This term is normally used in reference to contracts Contracts may be relative or absolute nullities There are four effects that generally accompany the legal concept of absolute nullity It is void ab initio may not be confirmed is imprescriptible and the nullity may be noticed by the court on its own motion These principles derive from the Civil Code articles governing absolutely null contracts See La C art 2030 2032 and 2033 Judgments that may be annulled are governed by other principles not the least of which is the necessity for finality ofjudgments I do not believe the provisions applicable to absolutely null contracts should be grafted onto judgments creating absolutely null judgments The distinction between a null judgment and an absolutely null judgment is not apparent to me Among the reasons this is true is the fact that the essence of a contract and of a judgment are antithetical A contract is an agreement between parties that creates obligations A judgment is a judicially imposed order creating obligations on parties that are not in agreement A judgment found to have no legal effect may be designated as null without the use of the term absolutely which adds nothing 1 Stipulated judgments are an exception to this rule to its effect and I believe generates confusion For these reasons I concur in the result reached by the majority
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