Floyd P. Donley, Sr. VS Hudson's Salvage LLC & Employees (Lois Peltier, Jerry Hollifield, John Doe, Linda Cox, Velma Elaine Hingle and Alan Spallinger)
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NOT DESIGNATED FOR PUBLICATION STATE OF LOUISIANA JV COIIRT OF APPEAL i Y' FIRST CIl2CUIT NUMBER 2013 CA 1499 FLOYD P. DONLEY, SR. VERSUS HUDSON' S SALVAGE LLC & EMPLOYEES LOIS PELTIER, JERRY HOLLIFIELD, JOHN DOE, LINDA COX, VELMA ELAINE HINGLE AND ALA1 i SPALLINGER) Judgment Rendered: MAR 2 12014 Appealed from the Twenty-First Judicial District Court In and for the Parish of Tangipahoa State of Louisiana Docket Number 2009- 0004174 The Honorable Bruce C. Bennett, Judge Presiding X' ie k * Floyd P. k aF kxJk % In Proper Person/ Appellant Donley Amite, LA Sean A. Blondell Counsel for Defendant/Appellee, Metairie, LA Hudsods Salvage, LLC Thomas J. Miller Mandeville, LA Jeffery Paul Robert Counsel for Defendants/ Appellees, Baton Rouge, LA Lois Peltier, Jerry Hollifield, Linda Cox, Velma Elaine Hingle & Alan Spallinger BEFORE: WHIPPLE, C.J., WELCH, AND CRAIN, J.J. a«- T" . r,. T. o .- r, w.u WHIPPLE, C.J. This matter is before us on appeal by plaintiff, Floyd P. Danley, from a judgment of the trial court revokin plazntiff s nght to proceed in forma pauperis. For the reasons that follow, w amend, and as amended, affum. FACTS AND PROCEDURAL- HISTORY Plaintiff herein has filed seeeral actions arising from an incident that allegedly occurred on September 24, 2008, at the Dirt Cheap Store, which is owned and operated by Hudson Salvage, LLC, in Louisiana, nite, 1 This particular action, involves a suit against Ttludson Salvage, LI.. , Hudson' s C Insurance Carrier, and its employees, L, inda Cax, elma Elaine Hingle, Angie Carter, and Alan Spallinger, as we11 as Lois Peltier and Jerry Holifield, two of Hudson' s managerial employees izi its Hattisburg, Mississippi headquarters office, collectively referred to herein as " the defendants"). 2 On December 1, 2009, plaintiff filed a pro se petition for damages against the defendants. After submitting an income aaad expexise affidavit, on December 2, 2009, the trial courk signad an order allawirg plaintaf' Yhe right to proceed in forma pauperis 3 On March 11, 2013, the defendants in this to traverse motion plaintiff' s right to litigat as protracted an litig indigent. tion4 filed a Therein, the defendants contended that in July of 2Q09, plaintiff nd his wife created a trust See Donlev v. Acadian mbuYance Service, 2011- 1289 ( La. App. 1S` Cir. 3/ 23/ 12)( unpublished opinion) and Donlev v. Reid, 2010- 1217 (" La. App. lst Cix. 12/ 22/ 10)( unpublished opinion), writ denzed; 2011- Q208 ( La. 3/ 25/ 11), 61 So. 3d 669, cert. denied,_ U. S._, 132 S. Ct. 113, 181 L. Ed. 2d 38( 2011). ZThe extensive facts and protracted procedural lustory of tlus matter are more fully developed in the companion case to this appeal, Donlev v. Hudson' s Salvage, LLC, 2013- 1498 La. App. 1 Cir. / /( unpublished epinion), also handed down this date. 37n forma pauperis is defined as "[' tjn the manner of an indigent who is permitted to disregard filing fees and court costs." Black' s Law Dictionazy 783 ( 7' ed. 1999). 4See also Donlev v. Hudson' s Salvaee, LLC, 2010- 1315 ( La. App. lst Cir. 12/ 22/ 10)( unpublished opinion). 2 and donated their home, consistang of a 4 900 square foot house, and improvements located on over seven acres of land, to the trust, reserving a usufruct and homestead on the property. dJefendants further contended that plaintiff and his wife were the named settlors and soie benefrciaries of the trust. Defendants contended that s? af? er ortly- ih st was created, plairitiff began to file civil suits in state and federal court a? leging t a.at hr, is in'uigent, when in truth and in fact, he is n t. In support af the n.otion to tra Terse, defendants attached a copy of the trust agreement, which had been fzled and recorded in the public records registry- of Tangipahoa Parish, evideaciu g the abo e terms, and a copy of the 2012 tax assessment data on the property. The motion wras heard bef re ihe trial court on June 17, 2Q13. At the hearing, plaintiff testified that h had previously owned his owra business, that he and his wife were retired, that they received minimal social security benefits, and that he also received an airforce disabilaty check. Plair tiff conc ded that he had created the trust, to which he donated bis honne ar,d property, s, ortly befare he began filing state and federal lawsuiis arising from this nnderlving inci en±. After hearing the evidence, the trial cou-L re oked its previous order allowing plaintiff t to proceed in forma pauperis and ardered plairitiff to pay all accru d cost of these proceedings within thirty days. A written judgment was signed by the trial court on July 12, 2013, thereby: 1) granting the defendants' motion to traverse plaintiff' s right to litigate as indigent with prejudice, ( 2) revoking plainti+.'s right to proceed in forma pauperis, and ( 3) ordering plaintiff to pay any and all filing fees for any further filings submitted by plainriff in this matter. The judgment was designated as a final judgment for ptuposes of appeal with an express determination that there 3 were no just for reasons delay. 5 It is from this judgment that plaintiff now appeals. 6 DISCUS5ION At the outset, we recognize that in one instance, tkie July 12, 2013 judgment on appeal herein erroneously identifies the defendants as " Dixie RV Superstores, L.L. C.," name of after otherwise correctly identifyirig the defendants twice, as well as the the for the defendants. counsel In particular, the judgment correctly states that the matter is before the court on " defendants, Salvage, LLC, Hudson' s Insurance Carrier, Linda Cox, Elaine Hingle, Alan Spallinger, Lois Peltier, Angie Carter, and Jerry Holifield (collectively referred to as the `Hudsan' s Defendants'), Motion to Traverse Plaintiffls Right to Litigate correctly identifies " Counsel for the Hudson' s as Indigent." Defendants." The judgment then However, in granting the motion to traverse, the judgment states that the motion was filed on behalf of the defendant, " Dixie RV IT IS Superstores, L.L. C.," as follows: HEREBY ORDERED, ADJUDGED, AND DECREED that the Motion to Traverse PlaintifPs Right to Litigate as Indigent, filed on behalf of the Defendant, Dixie RV Superstores, L.L.C. is GRANTED, with prejudice. On appeal, the defendants contend that the reference to " Di e RV Superstores, L.L.C." is merely a typographical error, given that the judgment Although the judgment was certified as a far.al judgment by the trial court in accordance with LSA-C.C.P. art. 1915( B)( 1), we note that the July 12, 2013 judgment of the trial couit, maintaining defendants' exceprion of no cause of action and dismissing plaintifPs case in its entirety with prejudice, is also before us on appeal by plainUff, and is cleazly a final judgment. As such, plaintiff is entitled to seek review of all adverse interlocutory rulings rendered in this case that are prejudicial to him. See LSA-C. C.P. art. 1841; Ballard v. Waitz, 2006- 0307 ( La. Cir. 12/ 28/ 06), 951 So. 2d 335, 338, writ denied, 2007- 0846 ( La. 6/ 1510. App. As this ls` court has previously reeognized, when an unrestcieted appeal is taken from a final judgment, the appellant is entitled to seek review of all adverse interlocutory judgments prejudicial to him, in addition to the review of the final judgment. Welch v. East Baton Rouee Parish Metr000litan Council, 2010- 1531 ( La. App. 1` Cir. 3/ 25111), 64 So. 3d 244, 247, n.2. bAlthough plaintiffls brief does not set forth specific assignments of error in compliance with the requirements of Unifonm Rules Courts of Appeal, Rule 2- 12. 4, in light of his pro se status, this court will consider the merits, of his appeal, despite the improper form of his appellate 20ll- 0306 ( La. brie£ 15` App. See LSA-C. C.P. art. 2164; Putman v. Ouality Distribution Ine., Cir. 9/ 30/ 11), 77 So. 3d 318, 320; Jones v. International Maintenance Cornoration, 2010-2181 ( La. App. lst Cir. 5/ 6/ 11), 64 So. 3d 893, 895. 4 taken as a whole references " Hudson' s Defendants" as the party bringing the motion and that Dixie RV Superstores, L.L.C. is not a party in these proceedings or otherwise involved in this litigation. Contrariwise, plaintiff contends Yhat the error zn the judgment herein is substantive and " cannot be am nded except as provided in Art. 1951." Changing the name of a party cast in th judgment is a change of substance and not of phraseology, and such change requires a contradictory hearing before the trial Turnstall court. v. Stierwald, 2001- 1765 La. 2/ 26/ 02), 809 So. 2d 916, 920. However, the erroneously named defendant named herein was not cast in judgment, but was merely identified as the party bringing the motion to traverse. Nevertheless, LSA-C.C.P. art. 1951' only prodrdes the trial court power to correct judgment errors before an appeal has been taken, See LSA-C. C. P. art. 1951, Official Revision Comments, Comment (c). However, once the trial court is divested of jurisdiction and that of the appellate court attaches, the appellate courf is empowered to correct both clerical and substantive errors in judgments under the authority provided by LSA-C.C.P. art. 2164. See LSA-C.C.P. art. 1951, Official Revision Comments, Comment ( d); Gray v. Holiday Inns, Inc., 99- 1292 ( La. App. l` Cir. 6/ 23/ 00), 762 So. 2d 1172, 1174- 1175 ( where the trial c urt made an " obvious clerical error in casting Holiday Inns, Inc. in judgment rather than NIM Louisiana, Inc.," the appellate court amended the judgment under the authority granted it by LSA-C. C.P. art. 2164 to name the conect defendant); Harvev v. Travlor, 96- 1321 ( La. App. 4`n Louisiana Code of Civil Procedure article 1951, entitled, " Amendment ofjudgment," provides as follows: On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment, but not its substauce, or to correct errors of calculation. The judgment may be amended only after a hearing with notice to all parties, except that a hearing is not required if all parties consent or if the court or the party submitting the amended judgment certifies that it was provided to all parties at least five days before the amendment and that no opposition has been received. 5 Cir. 2/ 5/ 97), f88 So. 2d 1324, 1329, writ denied, 97- 0587 ( L. 4/ 18/ 97), 692 So. 2d 454 ( where, after fmding the trial court erred in amending a judgment after it was divested of jurisdiction and without a contradictory hearing as required for a substantive change, the appellate court amended the judgment under LSA-C.C.P. art. 2164, where it " was ob ious that the triai court' s intent was to cast the Sheriff' s Office in judgment"); see also Carter v. Brothers La alco, L.L.C., 13- 1 La. App. Cir. 5/ 16/ 13), 5' 118 So. 3d 1194, 1197 ( where the appellate court amended a judgment that erroneously named a nonpariy pursuant to LSA-C. C.P. art. 2164) and Turnstall v. Stierwald, 809 So. 2d at 920-921 ( where, after the district court the changed name of a paYt} cast in judgment without a contradictory hearing, the Supreme Court, pursuant to LSA-C.C.P. art. 2164, vacated the amended judgment, reiustated the original judgment, then revised the original judgment to delete a " non- enti'ty" and add in its place the proper party defendant). Thus, whether the error herein is clerical or substantive, this court has the authority to correct same on appeal. Clearly, the trial court°'s intent herein after stating, " filed on behalf of the Defendant," traverse, was to identity the de£endant who actually filed the motion to i. e., " Hudson' identifying " Dixie s Defendants." Thus, the trial court obviously erred in RV Superstores, L.L. C.," a non-party to this litigation, as the defendant who filed the motion to traverse. Louisiana Code of Civi1 Procedure article 2164 provides, in pertinent part that "[ t] he appellate court shall render any judgment which is just, legal, and proper upon the record on appeal." Pursuant to this authority, we amend the judgment to substitute " Hudson' s Defendants" for " Dixie RV Superstares, L.L. C." See Grav v. Holiday Inns. Inc., 762 So. 2d 6 at 1174- 1175. lotion to Trave se An individ aal who is unab e ta p y t,?? osts of caurt because of his e poverty and lack of ineans may prosecute or defend a judicial proceeding in any trial or appellate court witliout paying fhe cests in acivar ce oc as they accrue ar furnishing security there#or. LSA-C'. C.P. ark. 51& l. fhrs privi ege ts restricted to litigants who ar proceeding, the etearly courk ccssts epztitled whic? t at, v ith otherwise ciu s- egard , t ae nat re of the oald hawe to be p ad, and the ability of the litigant to pay them or to f'urni h s euri y therefor, so that the fomentation of litigation by n , AC di crzr iaa pe . res4 t t1- eretc may be discouraged, without depri° ing a litigarit c f its b nzfits i; he. is entitled thereto. LSA-C. C. P art. 51$ 2. Louisiana Code of Civil Procedure article 5184 authorizes an adverse party to traverse the facts alleged in an opponent' s affidavits of poverty and states that the court rcall resiind its order zf..on th tria of the rule ta traverse, it finds that the Litigant is xiat en tied o e rcase the pri% lege. Perrv v ¢ Monistere, 2 08- 1629, 2008- 163Q ( La. Atap. 1`` Cir. I2/ 23/ 08j, 4 So. 3d 850, 853- 854, courts do Th general not zle is that, i: r ' the di turb the tri.ai c urt' s a+ s di nce of clear abus, cretio tk e appellate ri gr rxta. g, der ying, or rescinding the privilege to liti.gate ira ferm a apu eris, b sed upon the trial court's factual deterniination f he Iltigant' s bility ar inability to pay the court costs or to make bond therefar. Bery min v. 1Vata, na1 Su er.i tarkets, Inc., 351 So. 2d 138, 142 ( La. 19771; Perry v" 1Vlonistere; 4 So. 3d at 854. In tihe absence of a clear abuse of that discretion, an appellate court will not disturb the trial court' s finding. Starks v. Universal Life Insu. ance Compan, 95- 1003 ( La. r App. 1' Cir. 12/ 15195), 666 So. 2d 3 7, 39, writ denied, 96- 0113 ( La. 3l 3/ 96), 669 So. 2d 400. On appeal, plaintiff contiends that the tria? court 2rred in revoking his pauper status where his " property is encurnber ci" and where h paid fees to the Louisiana Supreme Cour " when funds wea e av a2l ble" e espite his pauper status. In suppart s f ttzeir motic n to traver e, c efenda*+ att ck±eci a copy° of the w Donley Living Tnast" e ec ated on JT. ly 7, 2QO4, a,- d su se n nti; filed for registry and recorded in ihe Llerk of Coaz2' s Jffice fUr ' Tangipaliraa Parish, as well as a tax assessment data sheet fcar the year ? 012 on the Yaonne and prope?-y t conveyed to the trust in auppart oi thei motion tc traverse. ' To the e; tent that plaintiff contends on appeal i 4at he has paid s m fees, the record shows he made no mention of it at ihe hearing and offeYed n ez-idenct of it in support of this claim. At the hearing on the m tion to traverse, p7aint% testified to his income ff at the time, consisting ef air farce disability benasiis and social security benefits that he and his wife received. Flaintif candidly admitted t creatixig a trust to which he and his wife doziated all of tr eir asset, including their 4, 900- se}uare- foot home and improvem:,nxs locaYsd c n E.? 6 acres r f lan.d, and to naming themselves as sole beneficiarres to the trust ther in. T' he record shcaws that after creating the trust in 3u1y of 20C 9, the instant litigation ensued on December 1, 2009, and the trial court granted plaintiff pauper status on Decenaber 2, 2009. After hearing the laintiff' testimony, eviewing the evidence, and weighing the credibility of plaintifi, the trial court revoked plaintif s right to litigate without payment af costs, n ting: The defendant [ in rul] has alienated ail or substantially all of his assets as a donatio n omnium bonarum to, in essence, hiznself as a beneficiary f a trust. I consider that to be an action, zn es ence; to defraud the rights of the court in terms of the litigation expenses. 8 On review, we find the evidence amply supports the trial court' s finding that plaintiff was not indigent. Accordingly, in the absence of a clear abuse of the trial court' s discretion, _ we decline to disturb the trial court' s decision to revoke plaintiff' s right to proceed an forma pauperis. Thus, we find no me. it to plaintiff' s appeaL r CONCLiJSION For the above and foregoing reasons, the July 12, 2013 judgment of the trial court, granting defendants' motion to trau rse, revoking plaintiff's right to proceed in forma pauperis, and ordering plaintiff to pay any and all filing fees for any further filings submitted by plaintiff in this matter, is amended to delete the name of" DIXIE RV Superstores, L.L.C." and to insert in its place, " the Hudson' s Defendants," and as amended, is hereby affirmed. Costs of this appeal are assessed to the plaintiff/appellant, Floyd P: Donley, Sr. AMENDED, AND AS AMENDED, AFFIltMED. 9
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