Opinion
NO. 2016 CW 1138
04-12-2017
VELVINER CARPENTER DEAMER v. ALVIN GILBERT DEAMER
LILA TRITICO HOGAN HAMMOND, LA ATTORNEY FOR PLAINTIFF-APPELLEE VELVINER CARPENTER (DEAMER) PEGGY G. VALLEJO COVINGTON, LA ATTORNEY FOR DEFENDANT-APPELLANT ALVIN GILBERT DEAMER
NOT DESIGNATED FOR PUBLICATION Appealed from the 21st Judicial District Court in and for the Parish of Tangipahoa, Louisiana
Trial Court No. 2013-0001151
Honorable Jeffrey C. Cashe, Judge LILA TRITICO HOGAN
HAMMOND, LA ATTORNEY FOR
PLAINTIFF-APPELLEE
VELVINER CARPENTER (DEAMER) PEGGY G. VALLEJO
COVINGTON, LA ATTORNEY FOR
DEFENDANT-APPELLANT
ALVIN GILBERT DEAMER BEFORE: PETTIGREW AND McDONALD, JJ., AND CALLOWAY, J. Pro Tem. PETTIGREW, J.
Judge Curtis A. Calloway, retired, is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.
The underlying litigation arises out of efforts by former spouses to divorce and settle their community property issues.
The parties, Alvin and Velviner Deamer, were married in Louisiana on December 29, 2001, and domiciled in Louisiana. In 2009, Alvin Deamer began working in Texas. There are indications Alvin Deamer used community funds to purchase a domicile in Texas, which Velviner may or may not have been aware. On April 4, 2013, Alvin Deamer filed an Original Petition for Divorce in Harris County, Texas. Although served, Velviner Deamer did not respond or appear in the Texas proceedings. On April 15, 2013, Velviner Deamer filed her own Petition for Divorce under LSA-C.C. art. 102 and Incidental Matters, in the 21st Judicial District Court, Tangipahoa Parish (docket No. 2013-0001151).
On July 2, 2013, the Texas court entered a Final Decree of Divorce and partition of community property by default. The judgment stated it had personal jurisdiction over Velviner Deamer.
On September 27, 2013, Alvin Deamer filed a peremptory exception raising the objection of res judicata in the instant matter. Although all matters were set for hearing on January 27, 2014, the parties entered into a stipulation recognizing the divorce decree in Texas and holding all other issues "in abeyance." It appears the hearing was continued without date pending the parties' efforts to reach an agreement without the aid of the court.
The parties could not reach an agreement. On March 15, 2016, the Louisiana court entered judgment based on the memoranda of the parties without holding a hearing. The March 15, 2016 judgment found that because Velviner Deamer made no appearance in the Texas action, she was free to challenge that judgment on jurisdictional grounds in this collateral proceeding in Louisiana. The trial court further decreed that the judgment in the Texas action was rendered without personal jurisdiction and as such was not entitled to full faith and credit in the instant proceedings. The trial court decreed it had jurisdiction to partition the community assets and liabilities and ordered Alvin Deamer to sign a financial release enabling Velviner's counsel to obtain the information necessary to compile a list of assets and liabilities such that the trial court could partition the community property.
Notice of the judgment was mailed to the parties on March 23, 2016. Alvin Deamer filed a motion for suspensive appeal on April 22, 2016. The appeal order was signed on May 3, 2016. Velviner Deamer filed a motion addressing that Alvin Deamer's appeal was of an interlocutory ruling and should be denied, or in the alternative, that Alvin be required to post a $400,000.00 appeal bond. The trial court granted the appeal and ordered Alvin Deamer post a $400,000.00 appeal bond.
Alvin Deamer never posted the appeal bond. Further, on August 30, 2016, this court issued a Rule to Show Cause Order requesting that the parties show cause by briefs why this appeal should or should not be dismissed because the March 15, 2016 judgment on appeal appears to be a non-appealable judgment, a partial judgment, and did not contain a designation of finality as required by La. C.C.P. art. 1915(B).
In response to the Rule to Show Cause, on September 27, 2016, the trial court signed an amended judgment identical to the March 15, 2016 ruling, with the following additional language:
This Judgment is a Final Judgment for purposes of the determination of Jurisdiction of this Court with no just reason for delay. There does not appear to be any possibility of the need for review at this point being mooted, given the nature, procedural significance, and relative finality of the ruling. Any practical possibility of another Court being obliged to consider this issue again is clearly outweighed by the importance to the parties of resolution of the issue at this stage of the litigation.
The addition of certification language in a judgment cannot serve to transform an interlocutory judgment into an appealable judgment. See Stewart v. City of Bogalusa, 15-1877 (La. App. 1 Cir. 8/5/16), 199 So.3d 651, 653-54. The denial of the exception raising the objection of res judicata is interlocutory. Louisiana Local Government Environmental Facilities v. All Taxpayers, 11-0027 (La. App. 1 Cir. 2/2/11), 56 So.3d 1194, 1200; writ denied, 11-0467 (La. 4/25/11), 62 So.3d 93. A party may appeal from a interlocutory judgment only when expressly provided by law. La. Code Civ. P. art. 2083. Moreover, La. Code Civ. P. art. 1915 does not authorize a trial court to designate a judgment denying an exception of res judicata as final. Id., at 1200.
The court of appeal has discretion to convert an appeal from an order denying an exception of res judicata to an application for supervisory writ. LSA-Const. art. 5, Sect. 10(A); La. Code Civ. P. arts. 2081 & 2201. We note in the present matter, the motion and order for appeal was filed within the 30-day delay for seeking supervisory writs from the ruling of the trial court. Uniform Rules, Courts of Appeal, Rule 4-3; see also KAS Properties, LLC v. Louisiana Board of Supervisors for LSU, 14-0566 (La. App. 1 Cir. 4/21/15), 167 So.3d 1007, 1010. Accordingly, we convert this matter to an application for supervisory writs and exercise our discretionary jurisdiction.
Due to the conversion of this matter to an application for supervisory writs, the Motion to Dismiss the Appeal filed by Velviner Deamer and the Rule to Show Cause issued by this court are moot. --------
We note at the outset, the record in this matter, which was originally filed as an appeal, does not contain the minute entries. Although we have converted this matter to a supervisory writ, the lack of minute entries in this matter puts this court at a disadvantage in conducting our review. From what this court has been presented, we can determine that Alvin Deamer filed a peremptory exception raising the objection of res judicata on September 27, 2013 (before Judge Zorraine Waguespack). At the January 27, 2014 hearing on the exception of res judicata, the parties entered into a stipulation that "the divorce is recognized from Texas"; however all other issues were going to be held in abeyance pending the parties' attempts to solve the remainder of the community property issues without intervention by the court. This court notes that the trial court commented on the parties' stipulation that "[t]he res judicata would have been correct."
There is no indication in the record what precipitated the March 15, 2016 judgment by the trial court other than the trial court's noting "This matter was submitted to the Court via memorandum ...." The judgment goes on to find the judgment issued in the Texas action was without personal jurisdiction and not entitled to full faith and credit by Louisiana courts. The judgment then went on to find it had jurisdiction to partition the parties' community assets and liabilities. While the record contains the memorandum filed by Velviner Deamer on November 30, 2015, and a reply memorandum by her on February 22, 2016, any memorandum submitted by Alvin Deamer is not contained in the record.
Considering the procedural posture in which this matter appears before us, it appears that the trial court effectively denied Alvin Deamer's peremptory exception of res judicata in the March 15, 2016 judgment. However, what is troubling is that such a ruling finding whether a Texas court has personal jurisdiction over Velviner Deamer is a fact-intensive analysis. The lack of a hearing on this matter, along with the absence of minute entries, does not provide an adequate record of the proceedings in the lower court. Accordingly, we hereby grant the writ application of Alvin Deamer and vacate the March 15, 2016 judgment, and the September 27, 2016 amended judgment, and order this matter remanded back to the trial court so that a full hearing may be conducted on the issue raised in Alvin Deamer's peremptory exception raising the objection of res judicata. MOTION TO DISMISS AND RULE TO SHOW CAUSE MOOT; APPEAL CONVERTED TO WRIT APPLICATION; WRIT GRANTED, JUDGMENTS VACATED; REMANDED FOR FURTHER PROCEEDINGS