Fidelity National Bank of Baton Rouge VS Van B. Calhoun
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NO 2008 CA 1685 FIDELITY NATIONAL BANK OF BATON ROUGE VERSUS VAN B CALHOUN Judgment Rendered March Appealed from 27 2009 the 19th Judicial District Court In and for the Parish of East Baton Rouge Louisiana Case No 246 167 The Honorable R Michael Caldwell Mark C Landry Metairie Louisiana Judge Presiding Counsel for Plaintiff in Revival Action Appellee Company The Cadle DeVan Pardue Springfield Louisiana BEFORE Counsel for Defendant Appellant Van B Calhoun KUHN GUIDRY AND GAIDRY JJ GAIDRY J A him judgment appeal we a judgment reviving Converting note promissory on a appeals debtor his a judgment against to suspensive appeal devolutive a affirm the judgment FACTUAL AND PROCEDURAL HISTORY On April defendant was on entered on 3 1981 and February Fidelity filed in the The certified copy of the a confirmed and signed default on a petition entered 1992 on was September July 1992 and I a filed was or certified copy of the was ordered as confirmed and the sheriff to signed on to default October 22 filed on July appear for examination on August was never was petition preliminary judgment by judgment debtor examination However the defendant for examination On 1991 as successor The defendant original judgment A 1994 and the defendant residence revive the October I on A motion for 1994 to a revive the judgment was 1990 Hibernia National Bank Hibernia 8 served with citation and personally was 10 was note costs preliminary judgment by A 1981 promissory 1981 On to September on a served with citation and personally August 12 Calhoun with accrued interest and 17 646 58 of amount principal 11 Van B against the defendant filed suit petition Fidelity National Bank of Baton Rouge Fidelity 29 1981 was 5 served with notice of the order unable to locate him at his last known his last known place of employment September 18 2002 a by The Cadle Company National Bank in Baton docket number and petition Cadle Rouge defendant second This the plaintiff as s name personally served with citation and a 2 to revive judgment was petition listed Hibernia in the suit title with the unchanged The defendant certified copy of that was petition on October 7 A 2002 The default November 18 2002 May 29 2003 defendant until judgment notice of the However to signed by signed by also filed was the trial placed court bond on of judicial notice Fidelity on was motion for A II signed mailed not on on to the The suspensive appeal surety bond dated and 2008 18 The order of fixing the 2008 85 000 00 a February on June 6 2008 June on at required with its appeal amount was of the of the bond amount the bond On November 26 take entered confirmed and the judgment of May 29 2003 suspensive appeal was never a the defendant and his surety blank amount was 8 2008 May appeal was judgment On June 6 2008 the defendant filed seeking default preliminary judgment by 2008 Cadle filed relating of certain facts request in this a to the court that changes of name and we status and Hibernia ASSIGNMENTS OF ERROR We summarize the substance of the defendant s on the part of the trial I against The trial court court the defendant as the evidence did 2 and 2003 were I status to The trial judgment reviving the judgment not revival of the establish Cadle judgment and s its status as an attorney s seek such relief on behalf of any party court erred in rendering the default judgments of 1992 reviving the original judgment since the supporting affidavits defective and Curiously although certificate of service over to error follows erred in rendering interested party entitled authority and as assignments of three months contradictory the motion for the signed by prior to suspensive appeal the defendant the judgment s attorney being mailed 3 was was filed dated on June 6 2008 its February 25 2008 The trial 3 court rendering the default judgments of erred in reviving the original judgment since the defendant and 2003 with notice of judgment as CC P required by La art 1913 was 1992 served not C DISCUSSION The Nature furnishing of bond The or of the Appeal security is a step in the process of necessary suspensive appeal and certain definite requirements apply Guilliot City of Kenner v a suspensive appeal A sets bonds appeal Louisiana Code 362 La 1976 326 So 2d 359 of Civil Procedure article 2124 E to forth the substantive requirements of bond in substance suspensive appeal bond shall provide furnished as security that the appellant will prosecute his appeal that any judgment against him will be paid or satisfied from the proceeds of the sale of his property or that that it is otherwise the surety is liable for the See also La C C P An arts objections the form to complies otherwise 5121 and 5122 court appellate does have not substance and jurisdiction the with substantially 326 So 2d appellate 362 63 However an determine whether what purports the defects of the constitutes On no our defendant s 2 bond bond purported at all Id to 2088 5 art does have the and a bond so matter disposition Guilliot authority or to whether numerous we suspensive appeal bond is seriously deficient has filed a note that it in motion in the trial of the surety a that the number of court to test At any rate the trial court s decision is not binding upon the issue of the purported appeal bond s status as such 4 the The record does not reflect the of that motion and the current status of the defendant bond on glaring such requirements bond is in fact are so consider 2 appellate brief Cadle states that it sufficiency ofthe bond and the solvency s a review of the record in this In its trial court be court or appeal bond if it an legal La C C P court review to sufficiency of jurisdiction is retained by the trial at of the judgment amount our s appeal independent review The surety bond respects 18 2008 February initially recites that the defendant has this day obtained for the Parish of East an order from the 19th Judicial District Court Rouge appointing him Baton suit entitled Hibernia National Bank H on the docket of that the undersigned principal presents firmly bind ourselves to damages as the sic any party may VAN B order CALHOUN describes the obligation and surety do be responsible recover by for these such against the said should be decided that the said obtained and for the payment of which in wrongfully was then following terms undertaken in the We and court administrator in the Calhoun No 246 167 Div Van B vs as case it we CALHOUN principal a resident of the Parish of Livingston VAN B as and TERRY O NEAL as a surety resident of the Parish of Livingston are by these presents held unto the clerk of of and his successors in office in the full sum lawful money of the United States of America court Beneath the Emphasis supplied O Neal appear their affidavits signatures of the defendant and providing TERRY O NEAL worth firmly bound as Mr follows being duly says that he sworn is and above all his debts and obligations valued in excess of the amount bonded over in assets V AN B being duly CALHOUN sworn says he is Surety on this bond is worth over and above his debts and obligations in assets valued in excess of the informed that the amount bonded the amount for which he has bound himself in this bond No order in the bond is appointing the defendant present in the record as Given the administrator wrongfully obtaining attorney seems to have an amount order of administration prepared the bond 5 described description ofthe obligation purportedly undertaken payment of an indeterminate for as using a of the form for damages defendant s a tutor s or curator bond s While the premature date of the bond and the absence of amount monetary in the blanks the substance of the appeal fatal are not the defendant to expressed obligation comply with the plain mandatory language of La C C bond is not Since the devolutive the of to appeals jurisdiction as appeal devolutive a App 1st Cir elimination of the procedural our required bond for devolutive substance it is merely deficient in form in a It is art 2124 E no appeal bond suspensive appeal does not deprive the as appellant has In such event the R G appeal 5 4 07 s Realty So 2d 458 961 the met an and 2088 but maintain the 06 2336 at p for La 07 1214 La writ denied Thus appeal as a The defendant obtained taking we a devolutive dismiss the devolutive appeal an appeal appeal a 06 2336 p 5 924 So 2d 196 requisite period file appellate court 9 28 05 200 to should be converted Rigell v 461 all requirements for suspensive appeal Claitor at requirement for bond for jurisprudence has recognized that the failure long not This P 964 So 2d 340 Clement v Graves 04 1831 p 6 La arts 2087 A suspensive simply does 9 21 07 within the s a as a 1st Cir App order of appeal See La C C P suspensive appeal See R G Claitor Realty s 5 961 So 2d at 461 62 Requestfor Judicial Notice Cadle has supported by Currency I requested that we take judicial notice of the attached certificates of the United States On July I 1986 Fidelity changed its following facts Comptroller name Effective January I to of the Hibernia 1987 Hibernia National Bank of Baton Rouge and National Bank of Baton Rouge merged into Hibernia with Hibernia being the 2 surviving entity Louisiana Code of Evidence article 201 governs adjudicative facts defined as facts judicial notice normally determined by the 6 of trier of La C E fact art 20 A court shall take judicial notice upon I A necessary for the court to determine that there supplied with the information is no reasonable dispute request judicial notice as La C E the fact to art 201 D Louisiana Code of Evidence article 202 B if court requested by so a to take party and decisions of boards commissions which have been and duly published judicial agencies promulgated of law within their be taken matters may 202 D These of the Comptroller authorize Currency Daigle 599 So 2d 503 judicial notice of the CE We and which have the effect CE La notice judicial of change s foregoing art of the name to merger of Rouge into Hibernia See Premier Bank v App 3rd Cir the became legal effect of the grant Cadle effect of the s We may further take 1992 defendant effective of name change and See La merger request and further take judicial notice of the legal adjudicative owner La ules and of the United States take to us a 202 A art 504 r Rouge and the subsequent Hibernia National Bank in Baton Hibernia National Bank in Baton further directs e notice of the approval of Fidelity s art 20 I F stage of the proceedings at any provisions l party may Judicial notice of the respective jurisdictions legal A La C E stage of the proceeding at any request if facts noticed Fidelity January I s such effect being that Hibernia original default judgment against the See 12 U S C 1987 9 215 and La R S e 6 355 D Cadle s Status In his first status as judgment period an as an and its Interested Party assignment of interested party error Attorney the defendant entitled to signing 7 for a Status challenges Cadle s seek revival of the money Louisiana Civil Code article 3501 establishes of ten years from its s money a judgment prescriptive It further provides that a party having ny it revived before it prescribes petition to in ten interest in a money judgment may have and that the revived prescribes judgment and confirmed La C C P A money prescribes by 2031 art at an his was may be revived at any time before it interested party in an ordinary proceeding judgment rendered was defendant in the unless he is dead in which judgment legal representative or legal to proceeding judgment follows judgment debtor shall be made The turn judgment in the court in which the brought the time its default provided as in judgrnent At the time Cadle filed its years and may itself be revived revive the event an revive the a successor shall be made a defendant judgment shall be rendered in such a proceeding reviving the original judgment unless the defendant shows good cause why it should not be revived A This article has since been amended seek revival of same a judgment by filing including ccP La noticed Hibernia purposes the same party having petition an to revive Hibernia transfer the entity as a original judgment the owner judgment as See Acts 2003 No effective January 1 806 9 I As 3 at judgment and the we have as judicially practical unquestionably was a the time it filed its 4 property right and effective to The present of the money judgment had the a court in interest and for all Thus Hibernia money interested party interested party term judgment successor Fidelity interest in the as legally the of the Louisiana Civil Code article 2643 2642 3 was owner an rendered was 2031 clarifies the art the holder and permit parte motion in the original suit in which the judgment language of or an ex to provides August 15 2003 asset that t right See La he to assign C C art assignment of a and Acts 2005 No 205 9 I 2006 4 To the extent that the defendant may have attempted to challenge Hibernia s status as an interested party with regard to the 1992 judgment of revival we will further address that point in our discussion of the defendant s second 8 assignment of error only from the time right is effective against the debtor actual knowledge or has been of the given notice the debtor has No assignment particular form is required for the notice of assignment of the judgment La C C art 2643 Revision Comments 1993 It is a only See necessary that the debtor be informed that his former creditor has divested himself of all rights the to thing assigned 1294 Harper 370 So 2d 1291 v writ denied 371 So 2d App 3rd Cir La Natchitoches Trust Co La 1979 1330 Cadle was Peoples Bank petition s to revive the judgment filed filed in the suit record of Fidelity and bore the same described the rendered in Cadle original judgment s 2002 incorrectly the rather than in Hibernia favor revive petition to 18 the defendant The judgment reviving s September original action against s civil docket number 1992 on as being favor but otherwise accurately described the 1992 judgment by date of rendition docket number and amount plaintiff Although the plaintiff in National Bank in Baton Cadle s name entitled was on to as have this personally the suit title the Rouge plaintiff revived before it Such service was a So 5 See Robert 100 Insofar La as App Haynes Tarrant Inc Or ir 1932 C the defendant s first v name s as was to Hibernia brought that it certified copy of Cadle to as in was The defendant prescribes sufficient assignment of the judgment by Hibernia 2643 revive to affirmatively alleged served with citation and October 7 2002 designated was petition and Cadle judgment bearing Fidelity suit title original judgment s petition constitute notice of the Cadle pursuant Holden 19 La to La App 598 C c art 599 141 5 assignment of error might be construed to constitute a challenge to the adequacy of notice of assignment of the judgment it must also be rejected on procedural grounds One obvious purpose of the notice required by La C C art 2643 is protection ofthe assignee against payments made in error by the debtor to the OrApp assignor Hubbs v Gramm Bernstein Co 12 Orleans App 292 La App 9 The default of revival judgment in favor of Cadle recites that the trial court was introduced the affidavit of Vikki Dales for by assignment the was good owner favor the affidavit was not account due proof s in Cadle itself resolved that status as s as an judgment Cadle entered herein previously against due the to allegation favor rather than Hibernia s and constituted ambiguity interested party and its claim for either Hibernia party plaintiff in order judgment against the defendant in officer with Cadle who petition was ambiguous procedurally necessary to substitute motion s conclusively prima facie proof of Cadle It an of the judgment judgment was rendered that the 1992 with judgment and valuable consideration from Hibernia If Cadle the defendant presented the 1992 In support of the support of the plaintiffs demands stated that Cadle reviving Fidelity s or Cadle to was a original to revive the claim file reduced to an default executory money judgment by the confirmation of the original judgment is and the lapse of the delay for demand for the enforcement of a a a La legal right C CP judgment is the determination of the rights of the parties in C CP art 1841 Thus once executory judgment its litigation are at an 1976 See end writ denied to pending Sams La 342 So 2d 676 v 1977 an status as a La action civil 339 So 2d 1277 a A final action 1279 La Louisiana Code of Civil through 807 governing substitution of parties apply civil actions not actions reduced to judgment See La obvious purpose is protection of the debtor against erroneous or payment See La C C art 2644 Lack ofnotice under La C C art 2643 is Another 1915 duplicative thus the merits and Inc Mayfair Sales Procedure articles 801 only on 421 art adjudicated by action has been an A civil action suspensive appeal an atlirmative defense that must be specially pleaded by a defendant debtor it is not fundamental notice for purposes of due process Not having answered Cadle s petition or otherwise raised such a defense in the trial court the defendant may not urge that defense for the first time So 2d 129 142 on n appeal See Costello v Hardy 13 10 03 1146 p 16 n 13 La 1 04 21 864 ccP was arts 801 and 821 technically with the longer a The authority of Hibernia to s clients National Bank in Baton exception requirements C C P art requires a name other that signed by at those s attorney authority plaintiffs objections of comply with every to the name in to the file pleadings on support of his implied from Fidelity to its vagueness or very least on each side with an appropriate attorney of record in Emphasis supplied to were Additionally an sets forth the state indication of specifically attorney shall be his individual name Having failed to whose raise his the title of the action and the attorneys attorneys of record in the petition through objections See La La c cP arts 853 and 863 among other pleading of a party represented by one the with ambiguity Louisiana Code of Civil Procedure article 863 A e dilatory a nonconformity s If the revive he could have filed petition Hibernia to pleading bear the title of the action which shall procedural objections relating as Hibernia upon Louisiana Code of Civil Procedure article 891 5 address shall be stated status any art 891 and of the first party parties requires to to Louisiana Code of Civil Procedure article 853 requirement that the grounds 926 A 4 requirements becoming final and Rouge in the second petition of La C c P petition nor raise such to the on judgment creditor a authority in support of his challenge no in the change defendant wished upon its judgment attorney and Cadle respective the but judgment Fidelity reviving the original judgment The defendant has cited objection to conclusion is warranted with respect same rendition of the judgment behalf of their reduced was plaintiff in a civil action to execute upon the right definitive no Once its claim a dilatory exception waived to the extent that the defendant seeks legal validity of the default judgment based II upon the to challenge supposed the lack of the attorney enrolled s The defendant status incorrectly attorney of record enroll in that record is entitled to authority seems to or a motion we assume the only through capacity t and to receive the party on substitute 8th ed 2004 assumes enrolls as an the capacity of counsel after the 9 12 Tasch Inc v petition Horizon or must as an interested party need for either attorney to seek case petition to revive holder and or was The defendant first Law s pleading Dictionary on behalf of only when art an 863 attorney Comment La Dist Ct R both Hibernia or a to s App 4th Cir attorney and Cadle revive on There substitute himself for of the name judgment s behalf of each 2031 art 7 109 was no at was no Fidelity longer s an the time each See La C C P art 2031 filed s lawsuit and who is responsive pleading is filed that be filed owner attorney of with La C C P It is attorney since Fidelity in its original capacity and interested party a Black compliance enroll An attorney initial under La C C P to to a pleadings and other formal an attorney filed initial pleadings the petitions client motion vehicle of parties first his argument an 08 0635 p 2 La Group In this So 2d in to attorney may become party in attorney of record notice of enrollment separate a attorney files listing himself as attorney his client he When an an behalf all s documents from the court and from other 138 that merit no procedural lawyer who appears for he find assignment of error has no merit whatsoever Sufficiency of the Supporting Affidavits The defendant contends that the 1992 2003 judgment of revival affidavits were were defective and self both erroneous in that the and the supporting contradictory We will first address the defendant judgment judgment of revival of revival The defendant s argument concerning the 1992 emphasizes that the supporting affidavit 12 of Hibernia original officer Calvin Talbot s judgment 1981 was incorrectly rendered rather than the actual defendant This obviously title Van B listing Calhoun affidavit is described paragraph as of the affidavit refers The nullity same the defendant VAN B judgment October 7 to the affidavit s conclusion is warranted argument challenging Hibernia defendant did subject not within a bring an status s an as action in the trial year of the matter he could revive See La C C P defendant may not not now even only a defendant s interested party court to collaterally attack the 1992 La As the annul the 1992 errors presumably in defense of the second As Cadle has Pearson 478 So 2d 937 939 40 somehow at most regarding the B art 2004 the last would error discovery of the claimed raise that issue of the only that defendant 2002 at the latest the date of service of the second revive not CALHOUN judgment null such nullity would constitute render the 1992 relative that assuming even would the affidavit itself bears the suit and all other documents in the suit record refer Additionally error of V AN B CALHOUN account to point that the Calvin Talbot inadvertent the sole defendant the the loan as as at one Defendant against render the affidavit insufficient however stated petition to petition to correctly pointed judgment out the See Gilbert v writ denied 482 App 3rd Cir 1985 So 2d 629 La 1986 Although the defendant expressly contends that Vikki Dales affidavit filed by Cadle in support of the 2003 judgment contradictory his brief does not contradiction in the affidavit and challenges only judgment as the technical address we can error find in Cadle being rendered in its favor rejected that challenge 13 s or was identify none defective and any defect or The defendant instead petition describing the We have s 1992 previously addressed and The defendant s second assignment of error has Notice of Judgment The defendant contends that the trial of the 1992 judgment of revival pursuant to court 1992 Cadle the defendant of Hibernia s requires the clerk of petition to personally served judgment was revive with the Although petition it did La C C P art not so S effective I judgment of revival suspensive appeal filed record does judgment was personally mailed I to a effective court defendant August 15 1 2000 did not January serve t he June 6 2008 the defendant also stated that the defendant served with Cadle s On May 8 at the petition to same address revive him In his motion for contain any notice of mailing of the to C presently the time the 1992 in favor of Cadle The record reflects otherwise defendant 1913 not certified copy a 1913 at require S C and that emphasized by As mail notice of a default judgment notice of the 2003 s 1913 him notice invalidated the 2003 disagree Finally the defendant contends that the trial clerk serve served with citation and 2001 See also Acts 1999 No 1263 on to art turn See Acts 2001 No 512 rendered was personally court to We judgment failed La C C P such failure rendered it unenforceable and in judgment reviving the merit no judgment 2008 at to notice of which he See La the C C P was art C The defendant s third assignment of elTor has no merit whatsoever CONCLUSION In summary proved its judgment court status the record supports the as an interested party The defendant did seeking to have the not file judgment the judgment had been satisfied finding that Cadle adequately and the a holder and contradictory of revival annulled prior to 14 the filing owner of the motion in the trial on the grounds that of the motion to revive it as authorized by La CC P merit and Cadle is entitled the patent The art to its 2031 B judgment which is now s appeal has executory due no to nullity of the purported appeal bond judgment of the trial court Company and against the defendant of this The defendant appeal are assessed SUSPENSIVE to in favor of the plaintiff Van B Calhoun is affirmed The Cadle All costs the defendant APPEAL CONVERTED APPEAL JUDGMENT AFFIRMED 15 TO DEVOLUTIVE
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