Opinion
2014 CA 1835
02-01-2016
SANDRA HINTON BLAKE v. KEITH DANIEL HARRISON
Aidan C. Reynolds Baton Rouge, Louisiana and Albert I. Donovan, Jr. River Ridge, Louisiana Counsel for Plaintiff-Appellant Sandra Hinton Blake Thomas M. Lockwood Baton Rouge, Louisiana Counsel for Defendant-Appellee Keith Daniel Harrison
NOT DESIGNATED FOR PUBLICATION ON APPEAL FROM THE NINETEENTH JUDICIAL DISTRICT COURT
NUMBER 578,694, SECTION 24, PARISH OF EAST BATON ROUGE STATE OF LOUISIANA HONORABLE R. MICHAEL CALDWELL, JUDGE Aidan C. Reynolds
Baton Rouge, Louisiana
and
Albert I. Donovan, Jr.
River Ridge, Louisiana Counsel for Plaintiff-Appellant
Sandra Hinton Blake Thomas M. Lockwood
Baton Rouge, Louisiana Counsel for Defendant-Appellee
Keith Daniel Harrison BEFORE: WHIPPLE, C.J., GUIDRY, McDONALD, HOLDRIDGE, AND CHUTZ, JJ.
Disposition: REVERSED AND REMANDED.
CHUTZ, J.
Plaintiff-appellant, Sandra H. Blake, appeals from the district court's dismissal of her suit on a personal guaranty agreement pursuant to a motion for judgment on the pleadings. We reverse and remand this matter.
FACTUAL AND PROCEDURAL BACKGROUND
On May 26, 2009, Mrs. Blake filed suit against defendant-appellee, Keith D. Harrison, based on a guaranty agreement. Mrs. Blake sought recovery of the principal loan amount, additional interest and charges, and a loan payment made on Mr. Harrison's behalf. The petition contains the following allegations.
Pursuant to a guaranty agreement Mr. Harrison executed in January 2006, Mrs. Blake increased the existing line of credit on her home equity loan by $150,000.00 and loaned the proceeds to Mr. Harrison, who was her son-in-law at the time. The agreement obligated Mr. Harrison to make timely monthly payments to Chase Bank on the principal and interest due on the loan, which he did not do consistently. Due to the resulting late payment penalties and additional interest incurred, the actual payments Mr. Harrison made were insufficient to reduce the principal amount of the loan. Further, Mrs. Blake was obligated to make a monthly payment on Mr. Harrison's behalf in order to prevent a default on the loan. In 2008, Mrs. Blake sold the home that secured the equity loan and the entire amount of the Chase Bank loan was satisfied from the proceeds. A copy of the guaranty agreement was attached to Mrs. Blake's petition.
In response to the suit, Mr. Harrison filed an answer denying all the allegations of Mrs. Blake's petition, with the exception of the district court's jurisdiction and the parties' residency and status. Additionally, he raised several affirmative defenses and made a third-party demand against Christina Harrison, his ex-wife, claiming the alleged debt was a community obligation.
Following the denial of Mrs. Blake's motion for summary judgment, the matter was set for trial on July 3, 2014. When the matter was called for trial on that date, counsel for both parties appeared and identified themselves for the record. No motions were made at that time. The district court stated that it was familiar with the issues and then inquired whether counsel wished to make opening statements. Mrs. Blake's counsel waived the opportunity. At that point, defense counsel orally moved for judgment on the pleadings. The district court granted the defense motion on the grounds that the payment of the underlying debt (Chase Bank loan) extinguished Mr. Harrison's obligation under the express terms of the agreement. Subsequently, the district court signed a written judgment dismissing Mrs. Blake's suit. She now appeals.
DISCUSSION
In her third assignment of error, Mrs. Blake contends the district court erred in granting judgment on the pleadings because Mr. Harrison's motion was made orally after trial had started and without any prior notice to plaintiff.
When defense counsel moved for judgment on the pleadings, Mrs. Blake's counsel responded immediately, protesting that it was "a new one" to him. Counsel was taken completely by surprise because no written motion was filed nor prior notice of the motion given.
In granting the motion, the district court stated that, although the motion was made orally, it was permissible under La. C.C. art. 961, because the motion was made in open court. Mrs. Blake's counsel objected to the court's ruling. In the written judgment subsequently signed by the district court, it stated that Mr. Harrison's motion was made "in advance of the commencement of trial."
A motion for judgment on the pleadings is a pretrial motion that must be filed in advance of trial. Seay v. Wilson , 536 So.2d 495, 497-98 (La. App. 1st Cir. 1988). In the instant case, the district court's conclusion that Mr. Harrison's motion was made prior to the commencement of trial is arguable, given that the court had already called for opening statements by the parties prior to the time that the motion was made. See La. C.C.P. art. 1632 (providing that the first stage of trial normally is opening statements). We need not reach this issue, however, because regardless of the timeliness of the motion, defense counsel failed to comply with the procedural requirements for seeking judgment on the pleadings.
On the date scheduled for trial, Mr. Harrison make an oral motion for judgment on the pleadings dismissing Mrs. Blake's suit. A motion for judgment on the pleadings is a contradictory motion. Dragon v. American Bank & Trust Company , 205 So.2d 473, 476 (La. App. 3d Cir. 1967). Generally, a contradictory motion must be served on the opposing party and a hearing held thereon. See La. C.C.P. arts. 963 and 2594. Uniform Rules of Louisiana District Courts, Rule 9.8 specifically provides that when a contradictory motion is filed, it shall be accompanied by a proposed order requesting that the motion be set for a hearing at least fifteen days after the filing of the motion, which logically presupposes that the motion is in writing. Rule 9.9(b) further provides that the mover shall serve a supporting memorandum upon all other parties at least fifteen days prior to the date set for the contradictory hearing. The purpose of this temporal requirement is to afford opposing counsel an opportunity to prepare a response to the contradictory motion.
In addition to these requirements, "procedural due process requires an opportunity to be heard, in addition to notice of the pendency of an action, and in conjunction therewith, adequate notice of the hearing is fundamental." Lassere v. State , Department of Health & Hospitals , Office of Public Health , 00-0306 (La. App. 1st Cir. 3/28/01), 808 So.2d 513, 516. Mr. Harrison's counsel not only failed to file a written motion, he also gave opposing counsel no prior notice of the motion for judgment on the pleadings. It is a fundamental principle of law that a final judgment may not be rendered against a party in the absence of proper notice. Roman v. LRASIF Claims Management , 11-393 (La. App. 5th Cir. 12/13/11), 81 So.3d 895, 898.
A judgment on the pleadings is a final judgment. La. C.C.P. art. 968.
Because Mr. Harrison failed to either file a written motion for judgment on the pleadings or provide any notice thereof to Mrs. Blake, her counsel had no opportunity to prepare a response to the motion and was caught by surprise when the oral motion was made on the scheduled trial date. A contradictory hearing, preceded by the required notice, was never held on the motion for judgment on the pleadings. The actions of defense counsel essentially amounted to trial by ambush. Under the circumstances, particularly the lack of notice to Mrs. Blake, which implicates a lack of procedural due process, the district court erred in considering Mr. Harrison's oral motion and granting judgment on the pleadings.
In view of this conclusion, we pretermit consideration of Mrs. Blake's remaining assignments of error.
CONCLUSION
For the reasons assigned, the judgment of the district court granting Mr. Harrison's motion for judgment on the pleadings and dismissing Mrs. Blake's suit is reversed. This matter is remanded to the district court for further proceedings consistent with this opinion. Mr. Harrison is to pay all costs of this appeal.
REVERSED AND REMANDED. Whipple, C.J., concurring.
As recognized in the jurisprudence, the critical inquiry in this matter is whether the defendant's motion for judgment on the pleadings was made prior to trial. The transcript of the trial shows that it was not. As the judgment itself notes, "This matter came before the [trial] [c]ourt pursuant to assignment for trial on the merits." Thus, the motion, regardless whether oral or written, was untimely, as trial had commenced before the motion was made. Accordingly, I concur in the majority's conclusion that the court erred as a matter of law in rendering judgment on the basis of the oral motion made after the court called the matter for trial. See Seay v. Wilson, 536 So. 2d 495 (La. App. 1st Cir. 1988). GUIDRY, J., dissents and assigns reasons. GUIDRY, J., dissenting.
I respectfully dissent from the majority's reversal of the judgment of the trial court and remand of this matter for further proceedings based on the erroneous finding that the defendant was procedurally prohibited from seeking judgment on the pleading pursuant to an oral motion made in open court.
Despite the fact that the trial judge recited in its signed judgment that the motion was made "in advance of the commencement of trial," the majority and the concurring judge treats the motion as if it was made during trial. They then rely on jurisprudence from this court to contend that a motion for judgment on the pleadings is a "pretrial" motion that must be filed in advance of trial. See Seay v. Wilson, 536 So. 2d 495, 497 (La. App. 1st Cir. 1988). In Seay, this court, rather construing the plain language of Article 965, found that Article 965 "shows a clear intent that the judgment on the pleadings be raised prior to trial." Seay, 536 So. 2d at. 497 (emphasis added). This court then went on to observe that Article 965 is based on Federal Rule of Civil Procedure 12(c) and cited that federal rule as providing that a judgment on the pleadings must be filed prior to trial.
Rule 12(c) actually states "[a]fter the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Subparagraph (i) of that same rule, however, does provide that "[i]f a party so moves, ... a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial."
While I acknowledge that this court has previously held that a motion pursuant to Article 965 must be filed prior to trial, it should be pointed out that there is no language in the article requiring or mandating that the motion be made or filed pretrial. Moreover, the language of Article 965 does not appear to be ambiguous nor has it been alleged to be ambiguous, and as such, it is improper for this court to look to intent to read such an interpretation into Article 965. As stated in La. C.C. art. 9, "[w]hen a law is clear and unambiguous and its application does not lead to absurd consequences, the law shall be applied as written and no further interpretation may be made in search of the intent of the legislature." Courts are not free to rewrite laws to effect a purpose that is not otherwise expressed. Cacamo v. Liberty Mutual Fire Insurance Company, 99-3479, p. 4 (La. 6/30/00), 764 So. 2d 41, 44. In default of some special provision of law, a court is without authority to extend by implication the rights granted by a statute, notwithstanding the fact that general propositions of right and equity might indicate in the highest degree the desirability for such extension. Goodwin v. El Dorado Baking Co., 3.1 So. 2d 230, 232 (La. App. 2d Cir. 1947).
Other than the fact that Article 965 is included in the chapter of the Code of Civil Procedure titled "WRITTEN MOTIONS," there is nothing in the actual article that requires that a request for judgment on the pleadings be presented as a written motion that must be filed or served in advance on the adverse party. Compare La. C.C.P. art. 966(B). Louisiana Code of Civil Procedure article 961, which is also included in the same "Written Motions" chapter as Article 965, provides an express exception to the requirement that a motion be in writing. That article provides that "[a]n application to the court for an order, if not presented in some other pleading, shall be by motion which, unless made during trial or hearing or in open court, shall be in writing." (Emphasis added.)
The majority and concurrence appear to simply ignore the requirement of Article 961 that in order to make a non-written motion, the motion must be presented during the trial or the hearing, and not prior to or in advance of trial as asserted. They further ignore the alternative condition that the motion be made in open court. And although the majority and concurrence contend, ironically consistent with Article 961, that the motion was made during trial, it is undisputed that the defendant made the oral motion in open court. Hence, in any event, the conditions mandated under Article 961 for allowing for an oral motion were clearly met.
Still, as additional support for its ruling, the majority refers to a judgment on the pleadings as being a contradictory motion and cites La. C.C.P. art. 963 as authority for holding that as such, the motion should have been in writing and served on the plaintiff. It is observed that Article 963 contains the qualification that the order applied for be "by written motion" for invocation of its provisions. As the defendant in this case did not apply for an order for judgment on the pleadings by written motion, then the requirements of Article 963 that the motion "be served and tried contradictorily with the adverse party" do not apply. Likewise, the provisions of Louisiana District Court Rules are equally inapplicable, because cited rules expressly refer to a motion that is filed with court in regards to application of the provisions of the' cited rules. See La. Dist. Court Rules Rule 9.8 and 9.9. As the defendant did not "file" a motion with the trial court, but rather made an oral motion in open court, the provisions of the cited rules do not apply.
The majority also cites to La. C.C.P. art. 2594 in support of its position; however, it is observed that the article states that "[a] copy of the contradictory motion ... filed by the plaintiff in the proceeding ... shall be served upon the defendant." In this case, the oral contradictory motion was made the defendant, which would make that article equally inapplicable. --------
And finally, while the majority asserts that the plaintiff was not prepared to be heard on the issues presented in the oral motion, it should be pointed out that the plaintiff at no time objected to the defendant seeking judgment on the pleadings by oral motion. Further, it should be pointed out that the plaintiff had full notice of the grounds on which the defendant sought judgment on the pleadings. In his answer, the defendant raised the affirmative defense of "extinguishment of the obligation." And in opposition to the motion for summary judgment filed by the plaintiff, the defendant expressly pointed out that the personal guarantee sued upon was attached to the plaintiff's petition arid argued that any obligation he owed pursuant to the personal guarantee agreement had been extinguished in accordance with the express provisions of the agreement. As observed by the trial court, the arguments raised in the oral motion were the same as were raised, briefed, and argued in the prior summary judgment proceedings. Additionally, the trial court stated:
[M]y notes indicate that I was thinking there were genuine issues of material fact, which precluded the granting of the summary judgment. Now, Mr. Lockwood [counsel for the defendant] did not file a counter-motion for summary judgment at that time. It was merely the plaintiff's motion. And the plaintiff's motion, I think was defeated by the very terms of the agreement.Considering that the contested proceedings were primarily based on the plaintiff's own pleadings, of which she cannot disclaim prior knowledge, and that the proceedings essentially mirrored the same contentions as were raised in the defendant's opposition to the plaintiff's motion for summary judgment, I believe the majority's finding that the trial court's consideration of the defendant's oral motion amounted to "trial by ambush" to be a gross mischaracterization of what occurred in this case.
Instead, the personal guarantee on which this lawsuit is premised was presented to the plaintiff by the defendant, and as the trial court observed, it is unfortunate that the plaintiff did not understand the import of the agreement and simply acted in good faith that her son-in-law would "treat her right and do what was right." A simple perusal of the agreement reveals that it was an agreement wherein the defendant agreed to pay the indebtedness owed to Chase Bank in the event the plaintiff did not pay the debt. The agreement recites no language whereby the defendant was principally obligated to pay the debt owed to Chase Bank nor obligated to pay the plaintiff the sum owed. According to the agreement, the only party that had a right to demand payment from the defendant was Chase Bank, and then only in the event the plaintiff failed in her principle obligation to pay the debt owed. However, in. accordance with the plain language of the agreement, upon the plaintiff's extinguishment of the debt owed to Chase Bank, the defendant's liability for payment of the debt was likewise extinguished.
Accordingly, I find no error in the trial court's judgment and would affirm, but as majority's opinion is rendered in derogation of the foregoing principles, I respectfully dissent.