Wynnco Construction, LLC VS Claude Bergeron
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STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCLTIT 2013 CA 0250 WYNNCO CONSTRUCTION LLC VERSUS CLAUDE BERGERON Judgment Rendered V N 4 Z 3 On Appeal from the 19 Judicial District Court In and for the Parish of East Baton Rouge 1 State of Louisiana No 579 Sec 22 305 The Honorable Timothy E Kelley Judge Presiding Matthew W Pryor Barbara Lane Irwin Attorneys for Plaintiff Appellant Wynnco Construction L C Timothy E Pujol Gonzales Louisiana n Jol A Moore Attorneys for Elizabeth L Adams Appellee Defendant Garnishee Baton Level Construction Rouge Louisiana C L BEFORE PARRO GUIDRY AND DRAKE JJ Development DRAKE J Appellant Plaintiff Wynnco Construction L Wynnco appeals a C final judgment of the district court that denied its motion for judgment pro confesso Garnishee Level Construction and Development Appellee Defendant C L Level answers and appeals the portion of the judgment that awarded attorney fees to Wynnco For the following reasons we affirm BACKGROUND This dispute arises out of a garnishment proceeding instituted by the judgment creditor Wynnco against the debtor Jennifer Bergeron Ms Bergeron was cast in judgment in February 2012 in the amount of 18 plus accrued 24 261 interest and all costs of the proceeding Wynnco filed a petition for garnishment of Ms Bergeron swages to satisfy the debt naming Level garnishee as the employer ofMs Bergeron As a result of the filing the district court issued an order of gamishment and Leve1 was personally served with garnishment interrogatories on May 25 2012 Level provided answers to the garnishment interrogatories in a sworn letter which was delivered and received by Wynnco on June 12 2012 Also on June 12 2012 Wynnco fax filed a motion for judgment pro confesso seeking the entirety of Ms sdebt as well as attorney fees from Level Bergeron A contradictory hearing was held on Wynnco motion for judgment pro s confesso on September 11 2012 Following the hearing on October 5 2012 the trial court rendered judgment denying Wynncds motion for judgment pro confesso and awarding it 1 in attorney fees Wynnco now appeals In its 000 On June 18 2012 Jennifer Bergeron and her husband Claude Bergeron instituted a bankruptcy proceeding case number 12 in the United States Bankruptcy Court for the 10907 Middle District of Louisiana An automatic stay was effective June 18 2012 as to all actions seeking to enforce or collect judgments against Jennifer Bergeron estate See 11 U 362 s C S z Following rendition of judgment Level brought a motion for new trial which was heard and denied in open court on January 14 2013 2 answer Level requested a reversal of the portion of the judgment that awarded attorney fees to Wynnco LAW AND DISCUSSION Garnishment ProceedinQ Under Louisiana law a garnishment proceeding is nothing more than a streamlined legal process facilitating a judginent creditor seizing property of a s judgment debtor in the hands of a third party 2875 2001 La 9 02 4 825 So 2d 1125 Tower Credit Inc v Carpenter 1127 Garnishment proceedings generally are governed by Louisiana Code of Civil Procedure articles 2411 2417 Id Service upon the garnishee of the petition citation and interrogatories operates to seize any property of or credit due the judgment debtor held by the garnishee at the moment of service though the amount and kind of such property will not be known unril the garnishee answers Id at 1128 La C art 2411 It is the P B s garnishee duty to answer all proper interrogatories and to make all proper disclosures concerning property of the debtor in its possession The garnishee must file his sworn answers to the interrogatories within fifteen days from the date of service La C art 2412 Regarding the judgment debtor who is an P D employee from the moment of the seizure the garnishee becomes the legal custodian of future wages as well as unpaid current wages and is obliged to hold them as a custodian subject to the arder of the court Tower Credit 825 So 2d at 1128 The test of a garnishee liability to the judgment creditor is whether the s garnishee has in his hands the principal debtor property funds or credits for the s recovery of which the debtor has a present subsisting cause of action Id The gamishee failure to file a sworn answer to garnishment interrogatories s creates a prima facie case against the gamishee under Louisiana Code of Civil 3 Procedure article 2413 which is rebuttable if the gamishee presents evidence of its actual debt or lack thereof to the debtor Tower Credit 825 So 2d at 1128 If the garnishee fails to timely answer the garnishment interrogatories the seizing creditor may move for a judgment pro confesso i a judgment against the e garnishee for the amount of the judgment plus interest and costs See La C P art 2413 The judgment pro confesso is not self executing and until a contradictory motion is filed against the garnishee for the amount of the judgment the stage is not set for a default judgment against the garnishee Tower Credit 825 So 2d at 1128 see La C art 2413 A contradictory hearing must be P A conducted on the motion and the garnishee must be given an opportunity to present evidence of the actual indebtedness employment of the debtor character of the employment prior garnishments and oYher facts relevant to the garnishment proceeding After the hearing on the rule to show cause judgment must be rendered against the garnishee unless he proves that he either had no property of or was not indebted to the judgment debtor Tower Credit 825 So 2d at 1128 see La C art 2413 P B If the garnishee does not satisfy this burden he may still limit his liability by proving the amount of property or indebtedness owed to the debtor and the judgment against him shall be limited to the delivery of the property or payment of 3 Article 2413 enritled e of gamishee failure to answer provides in pertinent ffect s part A If the gamishee fails to answer within the delay provided by Article 2412 the judgment creditor may proceed by contradictory motion against the gamishee for the amount of the unpaid judgment with interest and costs The failure of the garnishee to answer priox to the filing of such a contradictory motion is prima facie proof that he has property of ar is indebted to the judgment debtor to the extent of the judgment interest and costs B Judgment shall be rendered against the garnishee on trial of the motion unless he proves that he had no property of and was not indebted to the judgment debtor If on the trial of such motion the garnishee proves the amount of such property or indebtedness the judgment against the garnishee shall be limited to the delivery of the property or payment of the indebtedness as provided in Article 2415 4 the indebtedness Tower Credit 825 So 2d at 1128 see La C arts 2413 P B and 2415 Where the garnishee establishes that he did not have any funds in his possession or under his control belonging to the debtor at the time of service of garnishment the district court must deny judgment p confesso but must award o the creditor the costs and reasonable attorney fees associated with the motion for s judgment pro confessa Tower Credit 825 So 2d at ll30 see La C art P C 2413 In the instant case garnishment interrogatories were personally served upon Level on May 25 2012 Level provided Wynnco with answers to the garnishment interrogatories in a sworn letter which was received by counsel of record for Wynnco on 7une 12 2012 Wynnco argues that LevePs failure to timely file answers to the interrogataries constituted prima facie proof that it had property of or was indebted to Wynnco to the extent of the judgment See La C art P A 2413 A garnishee answers to interrogatories are effective so as to avoid a s judgment pro confesso so long as they are provided before the judgment creditor files a motion for judgment pro confesso VictoNia Lumber Co v Woodson 13 La App 30 33 127 So 95 97 La App 2nd Cir 1930 We liken this present situation to answering a petition before a confirmation of default This court has held that up until the time the rule is heard the court may permit the garnishee to file his answers in an attempt to rebut the judgment creditor prima facie case All s Star Floor Covering Inc v Stitt 2000 La App 1 Cir 11 804 So 2d 2049 O1 14 4 We note as did the district court a disparity in the language of the pertinent Louisiana Code of Civil Procedure articles regarding whether or not the answers to garnishment interrogatories must be filed Article 2412 provides that a gaznishee shall file his sworn D answers to the interrogatories however Article 2413 states if the garnishee fails to answer A but makes no mention of filing said answers s Comment b to Louisiana Code of Civil Procedure article 2413 states that t his also codifies the rule announced in Victoria Lumber Co v Woodson 13 La 30 127 App 1930 to the effect that the answers of the garnishee will be effective if filed at any time the seizing creditor has taken positive action against him though he has failed to answer the time prescribed by law 5 article So 95 before within 705 708 writ denied 2002 La 4813 So 2d 1085 and writ denied 0406 02 19 0421 2002 La 4 813 02 19 So 2d 1088 citing Houma Mortgage Loan Inc v Marshall 94 La App 1 Cir 11 664 So 2d 1199 1205 see also 0728 95 9 Commercial Sec Co Inc v Corsaro 417 So 2d 1346 1349 La App 3d Cir 1982 see also Sec Ins Co ofHartford u Holliday 363 So 2d 246 248 La App 4th Cir 19 writ denied 370 So 2d 577 La 1979 8 At the contradictory hearing Level introduced and filed into evidence the sworn answers to interrogatories that it had provided to Wynnco which were set forth in a letter dated June l 2012 signed and notarized on June 5 2012 Wynnco was in receipt of the letter on June 12 2012 Level also introduced a copy of a check stub in the amount of 905 which represented the garnished wages of 88 Ms Bergeron from the date of service of the motion for judgment pro confesso to the date ofthe institution ofbankruptcy proceedings by Ms Bergeron which Level had remitted to the Sheriff of East Baton Rouge Parish Following the contradictory hearing the district court determined that Level substantially complied with Louisiana Code of Civil Procedure article 2413 so as to preclude the granting of a judgment pro confesso The court stated Pm going to deny the judgment pro confesso not because there an s automatic stay but because they have in fact provided answers prior to the date of judgment and they have in fact made such payments that they would otherwise be liable to pay under the garnishment So that being said Pm going to deny the judgment pro confesso We therefore conclude that the garnishee upon contradictory hearing presented sufficient evidence that it had paid the full amount owed by it to the judgment debtor The district court did not err in denying Wynnco motion for s judgment pro confesso and awarding Wynnco reasonable attorney fees associated with Wynncds filing of the motion See La C art 2413 P C 6 Louisiana Code of Civil Procedure article 2413 states that r the C egardless of decision on the contradictory motion the court shall xender judgment against the garnishee for the costs and a reasonable attarney fee for the motion 6 DECREE Considering the foregoing the judgment of the district court that denied the motion for judgment pro confesso and awarded attorney fees is affirmed All costs ofthis appeal are equally cast to the parties AFFIRMED 7
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