Opinion
2023 CA 0279
11-03-2023
BRODDIE LACOSTE v. PETER DAVENPORT, WILLIE DAISY, ENID DAISY, AND W & E OYSTERS, INC.
Jerri G. Smitko, Houma, Louisiana, Counsel for Defendants/Appellants Willie Daisy, Enid Daisy, and W & E Oysters, Inc. Marcus J. Plaisance, Mark D. Plaisance, Prairieville, Louisiana, Counsel for Plaintiff/Appellee Broddie Lacoste
NOT DESIGNATED FOR PUBLICATION
Appealed from the 32nd Judicial District Court In and for the Parish of Terrebonne State of Louisiana Case No. 192008, Division E The Honorable Randall L. Bethancourt, Judge Presiding
Jerri G. Smitko, Houma, Louisiana, Counsel for Defendants/Appellants Willie Daisy, Enid Daisy, and W & E Oysters, Inc.
Marcus J. Plaisance, Mark D. Plaisance, Prairieville, Louisiana, Counsel for Plaintiff/Appellee Broddie Lacoste
BEFORE: THERIOT, PENZATO, AND GREENE, JJ.
THERIOT, J.
Defendant-Appellants, Willie Daisy, Enid Daisy, W & E Oysters Inc., appeal the 32nd Judicial District Court's November 28, 2022 default judgment wherein it rendered judgment in favor of Plaintiff-Appellee, Broddie Lacoste, and against Defendant-Appellants. For the reasons below, we dismiss the appeal.
FACTS AND PROCEDURAL HISTORY
On October 4, 2021, Broddie Lacoste filed a petition for damages wherein he named Peter Davenport, Willie Daisy, Enid Daisy, and W &E Oysters, Inc. ("W &E Oysters") as defendants. Lacoste's petition alleges that Willie and Enid Daisy (collectively, "the Daisys") own immovable property located at 3075 Bayou Dularge Road in Dularge, Louisiana. According to Lacoste, the Daisys also owned an abandoned house on the property, which was used to store items relating to the Daisys' business, W &E Oysters. During the time frame at issue, Peter Davenport resided in a mobile home on the property as a tenant.
Lacoste alleged that he owned a home next door to the Daisys' property. According to his petition, the abandoned house on the Daisys' property caught fire on or about January 28, 2021. Lacoste alleged that the fire spread to his property and damaged his home such that he and his family could no longer reside there.
Lacoste asserted that his home was a total loss, equaling $240,000.00 in damages. Lacoste further asserted that he lost the contents of his home, totaling $67,182.72 in damages. Lacoste also sought reimbursement for his family's living expenses while the home was being replaced. Lastly, he alleged that he endured mental stress, as well as pain and suffering, as a result of the fire. The petition alleges that the fire was due to the defendants' negligence.
The defendants did not respond to Lacoste's petition. Accordingly, on May 10, 2022, Lacoste filed a motion for default judgment. He sought a judgment of at least $321,800.00 for the damages to his home and the loss of the home's contents. A hearing on the motion was set for July 1, 2022.
Lacoste, his wife, and his mother testified at the July 1, 2022 hearing. At the conclusion of the hearing, the trial court ordered Lacoste to brief the issues of hearsay testimony, liability, and damages within sixty days. Lacoste submitted a "Post-Trial Memorandum in Support of Default Judgment" on October 3, 2022.
On November 28, 2022, the trial court signed a default judgment wherein it granted judgment in favor of Lacoste and against the Daisys and W &E Oysters. The court ordered those defendants to compensate Lacoste as follows: (1) $20,000.00 for mental pain and suffering, past and future; (2) $212,500.00 for the cost of replacing Lacoste's home; (3) $67,182.72 for the cost of replacing the contents of Lacoste's home; and (4) $10,000.00 for "Other." The November 28, 2022 judgment listed Peter Davenport as a "not present" party, but did not rule in favor of or against him.
On January 27, 2023, the Daisys and W &E Oysters filed a petition for appeal. On April 18, 2023, this court issued a rule to show cause order pointing out a defect in the November 28, 2022 judgment. Specifically, this court noted that the November 28, 2022 judgment lacked the appropriate decretal language as it found Willie Daisy, Enid Daisy, and W &E Oysters all to be liable, but failed to state with specificity the amount for which each of those defendants was liable. The November 28, 2022 judgment further failed to state whether all claims have been resolved as to defendant, Peter Davenport. Accordingly, this court ordered the parties to show cause whether the appeal should or should not be dismissed.
After the receipt of responsive briefs, this court remanded the matter on August 24, 2023 for the limited purpose of correcting the above-mentioned deficiencies. On August 31, 2023, the trial court signed an amended judgment wherein it rendered judgment in favor of Lacoste and against Willie Daisy, Enid Daisy, W &E Oysters, and Peter Davenport. The trial court further allocated 25% fault to each. As discussed in detail below, the trial court's August 31, 2023 amended judgment substantively changed the November 28, 2022 judgment.
ASSIGNMENTS OF ERROR
Appellants assign the following as error:
(1) The [trial court] erred when it allowed the Default Judgment to be entered absent sufficient, competent evidence being entered into the record that would support such a judgment.
(2) The [trial court] erred when it [signed a judgment] that was not in valid, final form.
STANDARD OF REVIEW
In reviewing default judgments, the appellate court is restricted to determining the sufficiency of the evidence offered in support of the judgment. Therefore, we review final default judgments under the manifest error standard. Snyder v. Ins. Co. of the State of Pennsylvania, 2022-0159 (La.App. 1 Cir. 11/30/22), 357 So.3d 374, 378; see also Arias v. Stolthaven New Orleans, L.L.C., 2008-1111 (La. 5/5/09), 9 So.3d 815, 818.
DISCUSSION
As a reviewing court, we are obligated to recognize our lack of jurisdiction if such jurisdiction does not exist. Duncan v. Gauthier, 2021-0220 (La.App. 1 Cir. 10/28/21), 332 So.3d 1191, 1196. We presently have two judgments before this court - the November 28, 2022 judgment and the August 31, 2023 amended judgment. There is a substantive difference between the two judgments. The original judgment was in favor of Lacoste and against the Daisys and W &E Oysters. The amended judgment rules against the same defendants as the original judgment, but further rules against Peter Davenport and assesses him 25% fault.
A final judgment in accordance with La. C.C.P. art. 1841 shall be identified as such by appropriate language; shall be signed and dated; and shall, in its decree, identify the name of the party in whose favor the relief is awarded, the name of the party against whom the relief is awarded, and the relief that is awarded. If appealed, a final judgment that does not contain the appropriate decretal language shall be remanded to the trial court, which shall amend the judgment in accordance with La. C.C.P. art. 1951 within the time set by the appellate court. La. C.C.P. Art. 1918(A).
It is well-settled under our jurisprudence that a judgment that has been signed cannot be altered, amended, or revised by the trial court, except in the manner provided by law. Mack v. Wiley, 2007-2344 (La.App. 1 Cir. 5/2/08), 991 So.2d 479, 485-86. The amendment of a judgment is governed by La. C.C.P. art. 1951, which provides:
On motion of the court or any party, a final judgment may be amended at any time to alter the phraseology of the judgment or to correct deficiencies in the decretal language or 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. A final judgment may not be amended under this Article to change its substance. (Emphasis added.)
The 2021 Comment to La. C.C.P. art. 1951 states, "The amendments to this Article . . . allow the trial court to retain jurisdiction to correct, on its own motion or after remand from the appellate court, the lack of proper decretal language in a final judgment. This Article does not allow the court to make a substantive change to a final judgment." (Citations omitted.)
A judgment may be amended by the trial court where the resulting judgment takes nothing from or adds nothing to the original judgment. However, an amendment to a judgment which adds to, subtracts from, or in any way affects the substance of the judgment is considered a substantive amendment. Duncan, 332 So.3d at 1196-97. Substantive amendments to judgments can be made only by consent of the parties or after a party has successfully litigated a timely application for new trial, an action for nullity, or a timely appeal. Otherwise, a trial court lacks authority to make substantive modifications to a final judgment. When the substance of a judgment has been improperly amended, the amending judgment is annulled and set aside, and the original judgment is reinstated. Sanderford v. Mason, 2012-1881 (La.App. 1 Cir. 11/1/13), 135 So.3d 745, 749.
The trial court's changing of the name of a party cast in judgment constitutes an impermissible substantive change in the judgment. Duncan, 332 So,3d at 1197; citing Tunstall v. Stierwald, 2001-1765 (La. 2/26/02), 809 So.2d 916, 920. Moreover, adding a party to a judgment is also considered a substantive change. Duncan, 332 So.3d at 1197.
When a trial court substantively amends a judgment without recourse to the proper procedure, the amended judgment is an absolute nullity. There is no valid basis for an appeal of an absolutely null judgment, and an appellate court lacks subject matter jurisdiction to review it. Duncan, 332 So.3d at 1197.
The trial court's amendment, though ordered by this court, substantively changed the original judgment by adding the name of a defendant not originally cast in judgment. Thus, the August 31, 2023 amended judgment is an absolutely null judgment and of no effect. Because there is no basis for an appeal of an absolutely null judgment, this court lacks jurisdiction to review the merits of the August 31, 2023 amended judgment. See La. C.C.P. art. 2002. As such, the trial court's August 31,2023 amended judgment is annulled and set aside. See Duncan, 332 So.3d at 1197.
Having set aside the August 31, 2023 amended judgment, we must look to the November 28, 2022 default judgment for the purposes of this appeal. However, as already provided by this court in the April 18, 2023 rule to show cause order, the November 28, 2022 judgment lacked the appropriate decretal language as it found Willie Daisy, Enid Daisy, and W &E Oysters all to be liable, but failed to state with specificity the amount for which each of those defendants was liable and awarded $10,000.00 in "other" damages. The November 28, 2022 judgment further failed to state whether judgment was being rendered against Peter Davenport. See La. C.C.P. art. 1918.
Having nullified the August 31, 2023 amended judgment and finding the November 28, 2022 default judgment is not a final, appealable judgment, this appeal must be dismissed.
DECREE
For the above and foregoing reasons, we dismiss the appeal. Defendant-Appellants, Willie Daisy, Enid Daisy, and W &E Oysters, Inc., are assessed with the costs of this appeal.
APPEAL DISMISSED.
PENZATO, J., concurring.
The types of deficiencies in the judgment on appeal have previously been characterized as defects in decretal language. See Jenkins v. Recovery Technology Investors, 2002-1788 (La.App. 1st Cir. 6/27/03), 858 So.2d 598 (judgment failed to specify whether the award to the plaintiff was cast against insurer or the entity named as employer in case caption, or any defendant at all); Urquhart v. Spencer, 20151354 (La.App. 4th Cir. 12/1/16), 204 So.3d 1074, 1078 (judgment failed to, among other things, express the degree of fault of each defendant as a percentage); Scott v. State, 525 So.2d 689,691 (La.App. 1st Cir. 1988), writ denied, 558 So.2d 1128 (La. 1990) (judgment failed to determine the rights of the parties because it did not cast any defendant in judgment and it did not express the degree of fault of each defendant as a percentage.)
Although the failure to allocate fault may constitute a legal error, which this court may address on appeal, I also note Louisiana jurisprudence finding that this failure results in a defect in the decretal language.
However, deficiencies of this nature are corrected by substantively amending the original judgment. See Duncan v. Gauthier, 2021-0220 (La.App. 1st Cir. 10/28/21), 332 So.3d 1191, 1196 (changing the name of a party cast in judgment constitutes an impermissible substantive amendment); Kenner Plumbing Supply, Inc. v. Rusich Detailing, Inc., 14-922 (La.App. 5 Cir. 9/23/15), 175 So.3d 479,497, writs denied, 2015-2110, 2015-2112, 2015-2115 (La. 2/5/16), 186 So.3d 1164, 1165 (allocating fault in an amended judgment, where the original judgment did not, constitutes a substantive amendment.)
The recent revisions to the Louisiana Code of Civil Procedure allow this court to remand a matter to the trial court to correct deficiencies in decretal language, but also make it clear that a final judgment may not be amended to change its substance. See La. C.C.P. arts. 1819, 1951, 2088, as amended by La. Acts. 2021, No. 259, § 2; and Revision Comment-2021 to La. C.C.P. art. 1951, stating in part, "This Article does not allow the court to make a substantive change to a final judgment." See also Revision Comment-2021(a) to La. C.C.P. art. 1918, recognizing that the issue of whether a judgment constitutes a final judgment should be determined in accordance with La. C.C.P. art. 1841. While these comments are not the law, they may be and, in this case, are helpful in discerning legislative intent. Carollo v. Department of Transportation &Development, 2021-01670 (La. 9/1/22), 346 So.3d 751, 762, setting forth the rules of statutory interpretation.
After reviewing Louisiana jurisprudence on these issues, as well as the 2021 amendments to La. C.C.P. arts. 1918, 1951, and 2088,1 conclude that the legislature did not intend to include deficiencies like the ones at issue here in the types of "decretal language" deficiencies that may be corrected on remand.
Nevertheless, the original judgment before us is not "precise, definite, and certain." Advanced Leveling &Concrete Solutions v. Lathan Co., Inc., 2017-1250 (La.App. 1st Cir. 12/20/18), 268 So.3d 1044,1046. The ambiguity in the judgment leaves this court unable to determine, from the face of the judgment, whether it is a final judgment pursuant to La. C.C.P. art. 1841. See also La. C.C.P. art. 1915. Therefore, I agree with the majority that proper resolution is to dismiss the appeal for lack of jurisdiction.
The trial court may amend a judgment substantively on its own motion and with consent of the parties. An assertion of amendment of a final judgment by consent must be supported by competent evidence. Locke v. Madcon Corp., 2021-0382 (La. App, 1st Cir. 12/30/21), 340 So.3d 946,949, citing Villaume v. Villaume, 363 So.2d448,451 (La. 1978) and LaBove v. Theriot, 597 So.2d 1007, 1010-11 (La. 1992).