Fin. Cas. & Sur., Inc. v. State

Full title: FINANCIAL CASUALTY & SURETY, INC. v. STATE OF LOUISIANA

Court: STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

Date published: Mar 12, 2018

NUMBER 2017 CA 0942 (La. Ct. App. Mar. 12, 2018)

Opinion

NUMBER 2017 CA 0942

03-12-2018

FINANCIAL CASUALTY & SURETY, INC. v. STATE OF LOUISIANA

Michael D. Singletary Austin, TX Counsel for Plaintiff/Appellant Financial Casualty & Surety, Inc. Perry M. Nicosia District Attorney David C. Jarrell Assistant District Attorney Chalmette, LA Counsel for Defendant/Appellee State of Louisiana

GUIDRY, J.

NOT DESIGNATED FOR PUBLICATION

Appealed from the Nineteenth Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana
Suit Number C651732 Honorable R. Michael Caldwell, Presiding Michael D. Singletary
Austin, TX Counsel for Plaintiff/Appellant
Financial Casualty & Surety, Inc. Perry M. Nicosia
District Attorney David C. Jarrell
Assistant District Attorney
Chalmette, LA Counsel for Defendant/Appellee
State of Louisiana BEFORE: GUIDRY, PETTIGREW, AND CRAIN, JJ. GUIDRY, J.

Plaintiff/Appellant, Financial Casualty & Surety, Inc. (Financial Casualty), appeals from a trial court judgment sustaining an exception raising the objection of lack of subject matter jurisdiction filed by defendant, State of Louisiana, and dismissing their suit without prejudice. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Financial Casualty posted commercial bonds to secure the release of four different individuals. However, when these individuals failed to appear for their respective court dates, the State requested judgments of bond forfeiture. Four separate judgments of bond forfeiture were subsequently rendered in the Thirty-Fourth Judicial District Court for the Parish of St. Bernard (34^th JDC). Thereafter, three of the four individuals filed ex parte motions to set aside the judgments of bond forfeiture under La. C.Cr.P. art. 345(D) in the 34^th JDC, with accompanying orders. The trial court signed the orders, ordering that the judgments of bond forfeiture as to these three individuals be set aside and vacated, and that the surety be removed from all obligations under the bond pursuant to La. C.Cr.P. art. 345.

Thereafter, the State filed petitions to annul the judgments setting aside the underlying judgments of bond forfeiture in the 34^th JDC, stating that the orders did not request service on the State through the District Attorney or upon any other party and that the orders in fact were not served upon the State through the District Attorney.

Following the filing of the State's petitions to annul, Financial Casualty filed a petition for declaratory judgment and nullity of judgment of bond forfeiture in the Nineteenth Judicial District Court for the Parish of East Baton Rouge (19^th JDC), naming the State as a defendant. The petition states that "[t]his is a civil nullity action brought pursuant to the authority granted by La. C.Cr.P. Art. 349.5 [formerly LSA R.S. 15:85(9)]." Financial Casualty asserted that venue was proper against the State in East Baton Rouge Parish pursuant to La. R.S. 13:5104. Financial Casualty alleged as a basis for its action that the State failed to introduce evidence at the bond forfeiture hearing and in some cases, notice of the signing of the judgment of bond forfeiture was not mailed in accordance with La. C.Cr.P. art. 349.3. Financial Casualty sought a judgment declaring that the judgments of bond forfeiture be nullified, discharged, set aside, and extinguished by operation of law.

The State filed exceptions to Financial Casualty's petition, raising the objections of lis pendens, improper venue, prematurity, lack of subject matter jurisdiction, no cause of action, and no right of action. Alternatively, Financial casualty filed a motion to transfer under La. C.C.P. art. 123. Following a hearing on the State's exceptions, the trial court signed a judgment granting the State's exception raising the objection of lack of subject matter jurisdiction and dismissing Financial Casualty's suit without prejudice.

DISCUSSION

Jurisdiction is the legal power and authority of a court to hear and determine an action of the parties and to grant the relief to which they are entitled. La. C.C.P. art. 1. Subject matter jurisdiction is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute or the value of the right asserted. La. C.C.P. art. 2. The issue of subject matter jurisdiction addresses the court's authority to adjudicate the cause before it. Dickens v. Louisiana Correctional Institute for Women, 11-0176, p. 4 (La. App. 1st Cir. 9/14/11), 77 So. 3d 70, 73. The determination of whether a district court has subject matter jurisdiction over a case is subject to de novo review on appeal. Beasley v. Nezi, LLC, 16-1080, p. 5 (La. App. 1st Cir. 9/8/17), 227 So. 3d 308, 312.

In State v. Norman, 94-2475, p. 3 (La. App. 1st Cir. 4/4/96), 672 So. 2d 407, 409, this court held that a bond forfeiture is a civil proceeding and La. C.C.P. art. 2001, et seq., provides the exclusive grounds for civil nullity actions. International Fidelity Insurance Company v. State, 17-0807 (La. App. 1st Cir. 9/15/17) (unpublished writ action). Louisiana Code of Civil Procedure article 2006 provides:

An action to annul a judgment must be brought in the trial court, even though the judgment sought to be annulled may have been affirmed on appeal, or even rendered by the appellate court.

The language of article 2006 has been interpreted as setting venue for an action to annul a judgment exclusively in the court that rendered the judgment to be annulled. See Corcoran v. Gauthier, 97-0516, p. 5 (La. App. 4th Cir. 1/7/98), 705 So. 2d 1233, 1236, writ denied, 98-0342 (La. 3/27/98), 716 So. 2d 888. The venue established in La. C.C.P. art. 2006 is nonwaivable and thus, is jurisdictional. See La. C.C.P. art. 44(C): Piper v. Olinde Hardware & Supply Company, Inc., 288 So. 2d 626, 629 (La. 1974).

In the instant case, Financial Casualty filed a petition for declaratory judgment and nullity of judgment of bond forfeiture in the 19^th JDC, which sought as its sole relief a judgment declaring that the judgments of bond forfeiture rendered and signed against it in the 34^th JDC be nullified, discharged, set aside, and extinguished by operation of law and that Financial Casualty be discharged and released from all obligations related to the alleged powers of attorney purportedly filed in each case. As such, this action is a direct action seeking to nullify the judgments of bond forfeiture rendered in the 34^th JDC. See Knight v. Sears, Roebuck & Company, 566 So. 2d 135, 137 (La. App. 1st Cir.), writ denied, 571 So. 2d 628 (La. 1990); Corcoran, 97-0516 at p. 6, 705 So. 2d at 1236. Therefore, subject matter jurisdiction and venue are proper only in the court that issued the judgments sought to be annulled, which in this case is the 34^th JDC, and as such, the trial court was correct in sustaining the State's exception raising the objection of lack of subject matter jurisdiction.¹

1 Financial Casualty asserted in its petition and on appeal that venue is proper in the 19

CONCLUSION

For the foregoing reasons, we affirm the judgment of the trial court. All costs of this appeal, in the amount of $974.00, are assessed to Financial Casualty & Surety, Inc.

AFFIRMED.

th JDC pursuant to La. R.S. 13:5104(A), being a suit against the State. Louisiana Revised Statute 13:5104(A) provides that all suits filed against the State shall be instituted in the district court of the judicial district where the state capitol is located or in the district court having jurisdiction in the parish in which the cause of action arose. In the instant case, while the exclusive venue provision relating to nullity actions contained in La. C.C.P. art. 2006 applies, it does not conflict with the mandatory venue provision of La. R.S. 13:5104(A), as the cause of action at issue arose in the 34th JDC.