Opinion
2023-C-0709
12-11-2023
CONVENTION KEY CARDS, LLC D/B/A KEY MARKETING v. LMT SERVICES, LLC D/B/A PAPA JOHNS PIZZA
JEROME J. PELLERIN COUNSEL FOR RELATOR/DEFENDANT MICHAEL B. ALKER JAMES C. RATHER, JR. ALKER &RATHER, LLCCOUNSEL FOR RESPONDENT/PLAINTIFF
APPLICATION FOR WRITS DIRECTED TO CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-10417, DIVISION "B" HONORABLE MARISSA HUTABARAT
JEROME J. PELLERIN COUNSEL FOR RELATOR/DEFENDANT
MICHAEL B. ALKER JAMES C. RATHER, JR. ALKER &RATHER, LLCCOUNSEL FOR RESPONDENT/PLAINTIFF
(Court composed of Judge Daniel L. Dysart, Judge Rachael D. Johnson, Judge Nakisha Ervin-Knott)
Nakisha Ervin-Knott, Judge
NEK
RDJ
LMT Services, LLC d/b/a Papa John's Pizza ("LMT") seeks supervisory review of the district court's October 6, 2023 judgment denying his Motion to Vacate, Set Aside, and Annul Judgment. For the following reasons, we grant LMT's writ application and deny relief.
RELEVANT FACTUAL AND PROCEDURAL HISTROY
In 2017, Convention Keycards, LLC d/b/a Key Marketing ("Convention") filed a Petition on Open Account, or Alternatively, Petition for Breach of Contract, and LMT filed an answer in response. In June 2019, the district court struck LMT's answer from the record. Convention moved for a preliminary default on February 12, 2020, and the presiding judge signed the preliminary default. On July 24, 2020, the default was confirmed without a hearing by the acting duty judge.
On April 9, 2021, LMT appeared for a judgment debtor examination. For reasons unclear from the record before this Court, the district court issued a judgment allowing LMT to submit a supplemental answer. LMT filed the supplemental answer into the record. Convention moved to strike the answer on the basis that an answer filed after the confirmation of a default judgment had no legal effect. After LMT failed to appear for the hearing, the district court struck the supplemental answer on November 4, 2022. LMT did not file a motion for new trial or seek supervisory review of that ruling.
On January 27, 2023, LMT submitted to another judgment debtor examination before the district court. That same day, LMT filed written responses to the judgment debtor examination into the record. In those responses, LMT objected to the disclosure of several materials. The district court overruled LMT's objection and ordered LMT to produce the requested materials. LMT sought supervisory writ with this Court, and this Court denied writ on April 24, 2023.
LMT failed to include the additional judgment debtor examination and judgment in this writ application, but we take judicial notice of the prior proceeding that came before us. It is well established that a court may take judicial notice of its own proceedings. E.g. Shields v. Ponsaa, 2001-1283, p. 5 (La.App. 5 Cir. 2/26/02), 811 So.2d 1058, 1061; KJMonte Investments, LLC v. Acadian Properties Austin, LLC, 2020-0204, p. 10 (La.App. 1 Cir. 12/30/20), 319 So.3d 354, 362.
On August 23, 2023, LMT filed a Motion to Vacate, Set Aside, and Annul Judgment. LMT sought to annul the July 2020 default judgment on the basis that Convention failed to comply with the procedural requirements of La. C.C.P. art. 1702.1. On October 6, 2023, the district court denied the motion, and LMT filed for supervisory review.
DISCUSSION
LMT asserts that the district court erred as a matter of law in denying its Motion to Vacate, Set Aside, and Annul. LMT seeks to annul the July 2020 default judgment under La. C.C.P. art. 2002(A)(2), asserting that the default judgment is an absolute nullity because Convention failed to follow the certification requirements under La. C.C.P. art. 1702.1. We review any factual findings of the district court under a manifest error standard. Libertas Tax Fund I, LLC v. Taylor, 2021-0550, p. 3 (La.App. 4 Cir. 6/16/22), 342 So.3d 1083, 1086 (citing Richard v. Richard, 2014-1365, p. 4 (La.App. 4 Cir. 6/03/15), 171 So.3d 1097, 1100). We review any questions of law de novo and merely determine whether the district court was legally correct. Id. (citations omitted).
In this instance, we do not need to address whether Convention failed to follow the certification requirements under La. C.C.P. art. 1702.1. La. C.C.P. art. 2002 (A)(2) provides that a final judgment shall be annulled if it is rendered against a defendant against whom a valid default judgment has not been taken. The article further provides that "[e]xcept as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time." Id. at (B) (emphasis added). La. C.C.P. art. 2003 sets forth, "A defendant who voluntarily acquiesced in the judgment . . . may not annul the judgment on any of the grounds enumerated in Article 2002." Continual participation in the litigation from which a null judgment was rendered constitutes voluntary acquiescence. See Flemming v. Flemming, 2013-22, pp. 9-10 (La.App. 3 Cir. 6/05/13), 114 So.3d 1285, 1291 (finding that a husband's continued participation in litigation constituted a voluntary acquiesce); Custom Acceptance Corp. v. Paul, 376 So.2d 510, 513 (La.App. 4th Cir. 1979) (finding that a debtor who protested nonliability on the merits at a court ordered examination did not voluntarily acquiesce in the judgment).
As noted earlier, LMT has been an active participant in this litigation since the default judgment was rendered against it. LMT made multiple appearances on the record by appearing for judgment debtor examinations, filing supplemental pleadings, and seeking supervisory review. LMT waited three years to protest the form of the default judgment rendered against it despite clearly being aware of its existence and acquiescing to multiple examinations under the judgment. None of the cases cited by LMT indicate that the defendants continued to participate in the underlying litigation after the default judgment had been rendered, even in cases where there was a delay between the rendition of the default judgment and the nullity action. E.g. Ernest N. Morial New Orleans Exhibition Hall Authority v. New Limits New Limits, LLC, 2016-0706 (La.App. 4 Cir. 4/05/17), 215 So.3d 974 ; National Collegiate Student Loan Trust 2007-2 v. Kuzma, 2015-0504 (La.App. 4 Cir. 2/17/16), 187 So.3d 91; Habitat, Inc. v. Commons Condominiums, LLC, 2011-1384 (La.App. 4 Cir. 7/11/12), 97 So.3d 1126.
DECREE
For the foregoing reasons, we find that the district court did not err in denying LMT's Motion to Vacate, Set Aside, and Annul Judgment. Therefore, we grant LMT's writ application and deny the requested relief.
WRIT GRANTED; RELIEF DENIED
DYSART, J., DISSENTS
I respectfully dissent. I would grant the writ and the relief requested by Relator, including vacating the default judgment. The respondent failed to comply with the statutory default provisions pursuant to La. C.C.P. art. 1702.1. This judgment is an "absolute" nullity as it was rendered against a defendant against whom a valid judgment by default had not been taken pursuant to La. C.C.P. art. 2002(A)(2).