Opinion
2022 CA 1202
12-11-2023
JASON CHRISTOPHER SHAFFETTE v. CITY OF SLIDELL AND ST. TAMMANY PARISH GOVERNMENT
Julie Quinn Justin E. Alsterberg Baton Rouge, Louisiana Counsel for Plaintiff/Appellant # 3/ Appellee Jason Christopher Shaffette Thomas S. Schneidau City Attorney Slidell, Louisiana Counsel for Defendant/Appellant # 1/ Appellee City of Slidell Warren Montgomery District Attorney and Ronald S. Hagan Neil C. Hall, III Terrence J. Hand Assistant District Attorneys Mandeville, Louisiana Counsel for Defendant/ Appellant # 2/ Appellee St. Tammany Parish Government
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Twenty-Second Judicial District Court In and for the Parish of St. Tammany State of Louisiana Docket No. 2016-11791 Honorable Vincent J. Lobello, Judge Presiding
Julie Quinn Justin E. Alsterberg Baton Rouge, Louisiana Counsel for Plaintiff/Appellant # 3/ Appellee Jason Christopher Shaffette
Thomas S. Schneidau City Attorney Slidell, Louisiana Counsel for Defendant/Appellant # 1/ Appellee City of Slidell
Warren Montgomery District Attorney and Ronald S. Hagan Neil C. Hall, III Terrence J. Hand Assistant District Attorneys Mandeville, Louisiana Counsel for Defendant/ Appellant # 2/ Appellee St. Tammany Parish Government
BEFORE: McCLENDON, HOLDRIDGE, LANIER, MILLER, AND GREENE, JJ.
MCCLENDON, J.
In this matter regarding a petition for nullity, the plaintiff and the two defendants each appeal the trial court's judgment that granted the plaintiff's petition for nullity in part and denied the petition for nullity in part. For the reasons that follow, we vacate the trial court's judgment regarding the petition for nullity, annul the underlying judgment, and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On May 2, 2016, the plaintiff, Jason Shaffette, filed a Petition for Damages against the defendants, the City of Slidell (the City) and the St. Tammany Parish Government (the Parish), alleging damages to the immovable property he acquired on May 17, 2010, in Slidell, Louisiana. Mr. Shaffette asserted that his property is bounded on one side by the W-14 drainage canal and that certain drainage improvements, between May of 2010 and September of 2011, have caused the continuing erosion of his property into the adjacent canal. Mr. Shaffette further averred that his family residence has sustained significant structural damages due to the considerable land shift and that it is at risk of falling into the canal. According to Mr. Shaffette, the City and the Parish approved the drainage improvements along or near his property and are responsible for the damages caused by their negligence.
Mr. Shaffette filed a First Supplemental and Amending Petition on October 21, 2016.
On June 7, 2016, the Parish filed its Answer, along with Exceptions and Affirmative Defenses, which included a peremptory exception raising the objection of prescription. Therein, the Parish specifically asserted the two-year prescriptive period set forth in LSA-R.S. 9:5624. On November 18,2016, the City answered the petition, and on September 17, 2018, filed its own peremptory exception asserting the one- and two-year prescriptive periods set out in LSA-C.C. art. 3493 and LSA-R.S. 9:5624, respectively. After several continuances, the trial court set the hearing on the City and the Parish's exceptions for June 12, 2019. On May 31, 2019, after the hearing was scheduled, but prior to the hearing date, Mr. Shaffette filed a Motion for Leave to File Second Supplemental and Amending Petition. Therein, Mr. Shaffette sought to supplement and amend his petition to add that he did not become aware of the damages until approximately February of 2016, and further adding a cause of action for inverse condemnation pursuant to LSA- R.S. 13:5111. The City and the Parish each opposed the motion for leave.
Louisiana Revised Statutes 9:5624 provides:
When private property is damaged for public purposes any and all actions for such damages are prescribed by the prescription of two years, which shall begin to run after the completion and acceptance of the public works.
Louisiana Civil Code art. 3493 provides:
When damage is caused to immovable property, the one year prescription commences to run from the day the owner of the immovable acquired, or should have acquired, knowledge of the damage.
Louisiana Revised Statutes 13:5111(A) provides:
A court of Louisiana rendering a judgment for the plaintiff, in a proceeding brought against the state of Louisiana, a parish, or municipality or other political subdivision or an agency of any of them, for compensation for the taking of property by the defendant, other than through an expropriation proceeding, shall determine and award to the plaintiff, as a part of the costs of court, such sum as will, in the opinion of the court, compensate for reasonable attorney fees actually incurred because of such proceeding. Any settlement of such claim, not reduced to judgment, shall include such reasonable attorney, engineering, and appraisal fees as are actually incurred because of such proceeding. Actions for compensation for property taken by the state, a parish, municipality, or other political subdivision or any one of their respective agencies shall prescribe three years from the date of such taking.
On June 12, 2019, before ruling on Mr. Shaffette's motion for leave, the trial court commenced the hearing on the City and the Parish's peremptory exceptions raising the objection of prescription, based on LSA-C.C. art. 3493 and LSA-R.S. 9:5624. The trial court began:
The City and the Parish had filed peremptory exceptions raising the objection of no cause of action, which were also set for that date, but were deferred.
We called the case and then we ... had a conference in the back and I think we have agreed we will be going forward today with the peremptory exception of prescription. The cause of action will be continued and also a hearing is not up regarding the amendment, the second amendment of the petition, that will be another day.
After completion of the hearing on June 14, 2019, the trial court took the matter under advisement. On July 17,2019, the trial court issued Reasons for Judgment, finding that Mr. Shaffette's action was clearly prescribed under the prescriptive periods set forth in LSA-C.C. art. 3493 and LSA-R.S. 9:5624 and dismissed the suit with prejudice. On September 10, 2019, the trial court signed a judgment in conformity with its written Reasons for Judgment.
On August 27, 2019, after the trial court's issuance of its Reasons for Judgment, but prior to the signing of the judgment, the trial court signed an order regarding the Motion for Leave to File Second Supplemental and Amending Petition, in which it handwrote: "Hearing set to show cause why should not be granted." Thereafter, on September 4, 2019, before the signing of the judgment on September 10, 2019, the clerk's office sent notice to all counsel setting the hearing on the Motion for Leave to File Second Supplemental and Amending Petition for November 13, 2019. At the hearing on November 13, 2019, the City and the Parish argued that the September 10, 2019 judgment was a final judgment that dismissed the suit. Nevertheless, the trial court orally granted the Motion for Leave to File Second Supplemental and Amending Petition.
The parties agree that shortly after the November 13, 2019 hearing, the trial court contacted counsel for the parties to attend a status conference set for November 19, 2019. It is also undisputed that at the conference, the trial court indicated that it had not intended to dismiss the suit in its entirety, but only the claims for damages under LSA-C.C. art. 3493 and LSA-R.S. 9:5624. However, the court stated that it was without jurisdiction to order the filing of the Second Supplemental and Amending Petition. The trial court asked counsel to "work something out" to allow Mr. Shaffette's claim for inverse condemnation under LSA-R.S. 13:5111, as set forth in his Second Supplemental and Amending Petition, to go forward.
On November 27, 2019, Mr. Shaffette filed a devolutive appeal from the September 10, 2019 judgment. Shortly after, on December 4, 2019, he filed a Petition to Nullify Judgment in the current suit, naming the City and the Parish as defendants. In his petition for nullity, Mr. Shaffette alleged that the trial court issued Reasons for Judgment finding that his action was prescribed under LSA- C. C. art. 3493 and LSA- R.S. 9: 5624; that the trial court did not rule on his claim for inverse condemnation, which claim remained pending; that the defendants prepared a proposed judgment that included language that Mr. Shaffette's suit would be dismissed, as opposed to only his claims under LSA-C. C. art. 3493 and LSA- R.S. 9: 5624; that prior to the signing of the proposed judgment, the trial court set for hearing Mr. Shaffette's Motion for Leave to File Second Supplemental and Amending Petition; that on September 10, 2019, the trial court signed its judgment that dismissed Mr. Shaffette's suit with prejudice; that on November 13,2019, the hearing on Mr. Shaffette's Motion for Leave to File Second Supplemental and Amending Petition was held, at which time the trial court granted the motion; that, at the status conference on November 19, 2019, the trial court stated that it did not intend to dismiss the suit, but rather only Mr. Shaffette's claims under LSA-C.C. art. 3493 and LSA-R.S. 9:5624; that the use of the word "suit" instead of "claims" was an "unfortunate oversight" not caught by the court or by Mr. Shaffette's counsel and that defense counsel likely "didn't care"; that the trial court further adamantly explained that it did not find that Mr. Shaffette's inverse condemnation claim was prescribed; and that the trial court did not intend to dismiss Mr. Shaffette's suit.
Mr. Shaffette previously filed a Motion to Nullify Judgment on November 22, 2019. In response, the Parish filed a dilatory exception objecting to the unauthorized use of a summary proceeding.
Mr. Shaffette asserted that he was entitled to a nullification of the September 10, 2019 judgment on the grounds of ill practices pursuant to LSA-C.C.P. art. 2004. He further alleged that the dismissal of his suit constituted ill practices because it deprived him from being able to assert his legal right to an inverse condemnation claim and that enforcement of the judgment would be unconscionable and inequitable. Lastly, Mr. Shaffette contended that the judgment also constituted ill practices in that it failed to allow him to amend his petition to remove the grounds for the defendant's exception raising the objection of prescription, as required by LSA-C.C.P. art. 934.
Louisiana Code of Civil Procedure art. 2004 provides:
A. A final judgment obtained by fraud or ill practices may be annulled.
B. An action to annul a judgment on these grounds must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices.
C. The court may award reasonable attorney fees incurred by the prevailing party in an action to annul a judgment on these grounds.
Thereafter, the City and the Parish filed peremptory exceptions raising the objection of no cause of action regarding the Petition to Nullify Judgment, which were heard on October 21, 2020, and denied on November 2, 2020. The City and the Parish then each answered the Petition to Nullify Judgment, arguing that the trial court's judgment, as well as the reasons for judgment, dismissed Mr. Shaffette's suit. The Parish also set forth that Mr. Shaffette could assert any errors that the trial court allegedly committed in the appeal and that the relief sought by Mr. Shaffette should be properly brought in an appeal and not in an action for nullity. Additionally, on March 18, 2021, the City and the Parish filed a Joint Motion to Dismiss Appeal, asserting that the estimated appellate costs had not been paid by Mr. Shaffette.
The City and the Parish applied for supervisory writs with this court, which were denied. See Shaffette v. City of Slidell, 2020-1225 (La.App. 1 Cir. 3/15/21), 2021 WL 961660 (unpublished).
On May 10, 2021, Mr. Shaffette filed a Motion to Confirm November 13, 2019 Judgment, which was the ruling by the trial court that had granted his Motion for Leave to File Second Supplemental and Amending Petition. Mr. Shaffette alleged that because the September 10, 2019 judgment was not a final judgment and the trial court was not divested of jurisdiction, the trial court was entitled to amend the September 10, 2019 judgment at the November 13, 2019 hearing. On May 26, 2021, the trial court signed a judgment granting Mr. Shaffette's Motion for Leave to File Second Supplemental and Amending Petition. On June 29, 2021, the trial court also signed a judgment that granted, in part, Mr. Shaffette's Motion to Confirm November 13, 2019 Judgment.
On October 5,2021, this court granted in part the City and the Parish's application for supervisory writs. Therein, this court reversed the May 26, 2021 judgment that granted Mr. Shaffette's Motion for Leave to File Second Supplemental and Amending Petition and reversed that portion of the June 29, 2021 judgment that granted Mr. Shaffette's Motion to Confirm November 13, 2019 Judgment. This court stated:
The trial court signed a judgment on September 10, 2019[,] dismissing plaintiff's suit with prejudice. Therefore, the trial court lacked authority to subsequently allow the filing of a supplemental and amending petition. We also find the trial court was divested of jurisdiction to allow the filing of plaintiff's second supplemental and amending petition once the trial court signed an order granting plaintiff a devolutive appeal on October 21, 2020. Accordingly, plaintiff's Motion for Leave to File Second Supplemental and Amending Petition and Motion to Confirm November 13, 2019 Judgment are denied. (Citations omitted).
This court also found that the trial court abused its discretion in granting Mr. Shaffette's request to continue the hearing on the Joint Motion to Dismiss Appeal filed by the City and the Parish and ordered that the trial court promptly hold a hearing on the motion.On October 21, 2021, following a hearing, the trial court granted the motion to dismiss the appeal as abandoned.
See Shaffette v. City of Slidell, 2021-0713 (La.App. 1 Cir. 10/5/21), 2021 WL 4551982 (unpublished).
Thereafter, Mr. Shaffette's Petition to Nullify Judgment was set for a bench trial on March 28, 2022, after which the trial court took the matter under advisement. Posttrial memoranda were filed, and on June 2, 2022, the trial court issued a Judgment, as well as Reasons for Judgment, granting Mr. Shaffette's Petition to Nullify Judgment in part and denying his Petition to Nullify Judgment in part. The judgment provided:
IT IS ORDERED, ADJUDGED AND DECREED that plaintiff's Petition to Nullify Judgment is hereby GRANTED to the extent that the [c]ourt's September 10, 2019 judgment dismissing plaintiff's suit "in its entirety, with prejudice" is hereby nullified.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that plaintiff's Petition to Nullify Judgment is hereby DENIED to the extent that it seeks to nullify the portion of the [c]ourt's September 10, 2019 judgment granting defendants' Exceptions of Prescription as to the claims subject to a one year prescriptive period under LSA-C.C. art. 3493 for claims for damages to immovable property, and the two year prescriptive period under LSA-R.S. 9:5624 for actions for damages to property damaged for public purposes. Those portions of the [c]ourt's September 10, 2019 judgment are not nullified and remain in effect.
IT IS FURTHER ORDERED, ADJUDGED AND DECREED that pursuant to LSA-C.C.P. art. 934, plaintiff is afforded the opportunity to amend the petition to remove the grounds for the exception of prescription, which the plaintiff may do so by resetting for hearing his Motion for Leave to File Second Supplemental and Amending Petition for Damages which was pending at the time of the hearing on these exceptions.
The City and the Parish each filed a suspensive appeal from the June 2, 2022 judgment, asserting that the trial court's partial nullification of the judgment was not warranted. Mr. Shaffette filed a devolutive appeal, arguing that the trial court was required to nullify the entire judgment and not only a portion thereof.
Thereafter, on November 30, 2022, the trial court signed an Amended Final Judgment. Mr. Shaffette, the City, and the Parish submitted and signed the amended judgment. The amended judgment was essentially the same as the original judgment, but it added a paragraph providing that in an abundance of caution, the June 2, 2022 judgment was amended to be designated as a final appealable judgment and was certified that there was no reason to delay the appeal of the judgment. The record was supplemented with the amended judgment on December 8, 2022.
After the record was lodged with this court, a Rule to Show Cause Order was issued, stating that it appeared that the June 2, 2022 judgment was not a final appealable judgment. In response, Mr. Shaffette, the City, and the Parish filed a joint brief, asserting that the judgment determined the merits in whole and was a final appealable judgment. Upon our considered review, we maintain the appeal.
DISCUSSION
Judgments are not infallible. However, even if an error is made, once a judgment becomes final, it is not reversible on grounds of mere error. Livingston Parish Sewer Dist. No. 2 V. Millers Mut. Fire Ins. Co. of Texas, 99-1728 (La.App. 1 Cir. 9/22/00), 767 So.2d 949, 953, writ denied. 2000-2887 (La. 12/8/00), 776 So.2d 1175. Nevertheless, pursuant to LSA-C.C.P. art. 2001, a final judgment may be annulled for vices of either form or substance, as provided in LSA-C.C.P. arts. 2002-2006.
A judgment may be either relatively or absolutely null. A vice of form renders a judgment absolutely null, while a vice of substance renders a judgment relatively null. Meadows v. Adams, 2018-1544 (La.App. 1 Cir. 11/9/20), 316 So.3d 5,11. Fraud or ill practices, the two vices of substance which render a judgment relatively null, are identified in LSA-C.C.P. art. 2004. Meadows , 316 So.3d at 12. Such an action must be brought within one year of the discovery by the plaintiff in the nullity action of the fraud or ill practices. LSA-C.C.P. art. 2004.
An action to annul based fraud or ill practices must be instituted by a direct action, as opposed to collaterally, by means of a petition with the adverse party cited to appear as in ordinary suits. Although the jurisprudence has indicated that an action to annul must be a separate suit, this court has held that it is permissible to file a pleading in the same proceeding as that in which the offending judgment is rendered. Livingston Parish Sewer Dist. No. 2 , 767 So.2d at 952.
According to LSA-C.C.P. art. 2004, any final judgment obtained by fraud or ill practices may be annulled. However, the annulment of a judgment pursuant to Article 2004 is not limited to cases of actual fraud or intentional wrongdoing, but is sufficiently broad to encompass all situations wherein a judgment is rendered through some improper practice or procedure which operates, even innocently, to deprive the party cast in judgment of some legal right, and where the enforcement of the judgment would be unconscionable and inequitable. Kem Search, Inc. v. Sheffield, 434 So.2d 1067,1070 (La. 1983).
Thus, the two criteria that have been set forth jurisprudentially to determine whether a judgment was obtained by actionable fraud or ill practices are: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief; and (2) enforcement of the judgment would be unconscionable and inequitable. Livingston Parish Sewer District No. 2, 767 So.2d at 953. If these criteria are met the judgment is subject to nullification. Expert Oil &Gas, L.L.C, v. Mack Energy Co., 2016-0068 (La.App. 1 Cir. 9/16/16), 203 So.3d 1080, 1084.
Ill practice includes any improper practice or procedure which operates, even innocently, to deprive a litigant of some legal right. Expert Oil &Gas, L.L.C ., 203 So.3d at 1084; Mike v. Bob's Painting, 2007-2190 (La.App. 1 Cir. 9/26/08), 995 So.2d 43, 47. The legal right of which a litigant must be deprived in order to have a judgment annulled includes the right to appear and assert a defense and the right to a fair and impartial trial. Expert Oil & Gas, L.L.C., 203 So.3d at 1084. When ill practices are alleged, the court must examine the case from an equitable viewpoint to determine whether the party seeking annulment has met the burden of showing how he was prevented or excused from asserting his claims or defenses. Centurion Capital Corp, v. Littlefield, 2019-1405 (La.App. 1 Cir. 9/21/20), 314 So.3d 45, 49-50.
Therefore, courts review a petition for nullity closely, as an action for nullity based on fraud or ill practices is not intended as a substitute for an appeal or as a second chance to prove a claim that was previously denied for failure of proof. The purpose of an action for nullity is to prevent injustice that cannot be corrected through new trials and appeals. Belle Pass Terminal, Inc. v. Jolin, Inc., 2001-0149 (La. 10/16/01), 800 So.2d 762, 766. Trial courts are permitted discretion in deciding when a judgment should be annulled because of fraud or ill practices, to which discretion reviewing courts will defer. Wright v. Louisiana Power & Light, 2006-1181 (La. 3/9/07), 951 So.2d 1058, 1067.
In this matter, the November 30, 2022 Amended Final Judgment partially granted the Petition to Nullify Judgment, essentially reinstating the inverse condemnation claim. However, the judgment also partially denied the Petition to Nullify Judgment, regarding the trial court's rulings granting the City and the Parish's exceptions raising the objection of prescription under LSA-C.C. art. 3493 and LSA-R.S. 9:5624. Thus, the trial court's November 30, 2022 judgment nullified only a portion of the September 10, 2019 judgment.
A judgment declared null is as though never rendered. LSA-C.C.P. arts. 20012006. See Matter of Succession of Brown, 2022-0765 (La.App. 1 Cir. 12/22/22), 357 So.3d 834, 838, citing Thibodaux v. Burns, 340 So.2d 335, 339 (La.App. 1 Cir. 1976). This distinguishes a judgment that is declared null from a judgment reversed on appeal, because a null judgment is as though it were never rendered. Whereas a judgment reversed on appeal is valid until reversed, a null judgment is never valid, and any proceedings conducted under the authority of a null judgment are absolutely void. Frisard v. Autin, 98-2637 (La.App. 1 Cir. 12/28/99), 747 So.2d 813, 820, writ denied, 2000-0126 (La. 3/17/00), 756 So.2d 1145. In Frisard, this court stated that an absolute nullity cannot be partially valid and partially null. Frisard, 747 So.2d at 820. While the matter before us involves a relative nullity, it is nevertheless a nullity.
We note that the Frisard case has been superseded as stated in U.S. Bank National Association as Trustee for RFMSI 2005S7 v. Dumas, 2022-0604 (La.App. 1 Cir. 4/3/23), 363 So.3d 1232, 1236, writ denied, 2023-00733 (La. 9/26/23), 370 So.3d 478, on other grounds, specifically the amendments to LSA-C.C.P. art. 966 regarding what documents may be filed in support of or in opposition to a motion for summary judgment.
Black's Law Dictionary (11th ed. 2019) defines a nullity as "[s]omething that is legally void" and "[t]he fact of being legally void."
We find that the trial court legally erred in granting a partially null judgment. If in fact the judgment is null due to fraud or ill practices, it affects the entirety of the judgment. We also find that such error was clearly prejudicial. Thus, having found prejudicial legal error, we vacate the November 30, 2022 judgment. Further, because the record is otherwise complete, we will conduct a de novo review regarding the petition for nullity.
Our review of the record shows that on June 12, 2019, at the hearing on the City and the Parish's peremptory exceptions raising the objection of prescription, the trial court began by stating that the parties had a conference in chambers, at which time they agreed that they were going forward with the exceptions. Significantly, the trial court also stated that the hearing on whether to grant leave to file the second supplemental and amending petition, which set forth the inverse condemnation claim, would be set for another day.
Thus, when the trial court issued its written reasons on July 17, 2019, which contained language dismissing Mr. Shaffette's entire suit, the parties should have been aware that a mistake as to the dismissal of the suit may have been made. This was not called to the court's attention, and counsel for the Parish, who prepared the judgment, did not seek clarification from the court regarding the language in the court's written reasons dismissing the suit. After allowing five days for opposition or objection, the Parish presented the proposed judgment to the court.
Additionally, on September 4, 2019, six days before the September 10, 2019 judgment was signed, notice setting the hearing on Mr. Shaffette's Motion for Leave to File a Second Supplemental and Amending Petition was sent to the parties. At that point, counsel who submitted the judgment should have had some awareness that there was confusion regarding the judgment or, more likely, a mistake regarding the dismissal of the entire suit. At the very least, upon receiving notice of the hearing on Mr. Shaffette's Motion for Leave to File a Second Supplemental and Amending Petition, the attorney who prepared and submitted the judgment should have called the court's attention to the language of the judgment, even though said judgment was prepared in conformity with the trial court's written reasons. While we find no intentional misconduct, it is clear that this failure deprived Mr. Shaffette of his legal right to present his claim for inverse condemnation, which was still under consideration when the suit was dismissed. Additionally, the enforcement of the September 10, 2019 judgment would be unconscionable and inequitable.
An attorney at law is an officer of the court and shall conduct himself in a manner consistent with the role that he himself should play in the administration of justice. See LSA-C.C.P. art. 371. Moreover, our Supreme Court has stated that counsel has a continuing duty to inform the court of any development that may conceivably affect the outcome of litigation. Morton Bldg., Inc. v. Redeeming Word of Life Church, 20011836 (La.App. 1 Cir. 10/16/02), 835 So.2d 685, 690, writ denied, 2002-2733 (La. 1/24/03), 836 So.2d 46, citing St. Charles Parish School Bd. v. GAF Corp., 512 So.2d 1165, 1173 (La. 1987).
With these precepts in mind, and under the unique facts presented, we find that the September 10, 2019 judgment must be annulled. The presentation of the judgment for signature in this case, without calling to the trial court's attention that the reasons for judgment and the judgment both had language dismissing the entire suit, falls within the scope of Article 2004 and entitles Mr. Shaffette to have the underlying judgment annulled. Such a result is necessary in keeping with the jurisprudence and our notions of justice and fair play, and our decision puts the parties in the same legal positions they occupied prior to the original trial court judgment.
CONCLUSION
For the above and foregoing reasons, we vacate the November 30,2022 judgment of the trial court. Additionally, the September 10, 2019 judgment of the trial court is annulled, and we remand the matter for further proceedings in accordance with law and the views expressed herein. Costs of this appeal are assessed equally between Jason Shaffette, the City of Slidell, and the St. Tammany Parish Government.
APPEAL MAINTAINED; NOVEMBER 30, 2022 JUDGMENT VACATED; SEPTEMBER LO, 2019 JUDGMENT ANNULLED; AND CASE REMANDED.
MILLER, J., dissenting.
The judgment signed on November 30, 2022 nullified, in part, the September 10, 2019 judgment. Today this court vacates the November 30, 2022 judgment yet nullifies the September 10, 2019 judgment, this time in toto. In doing so, the September 10, 2019 ruling on the exception of prescription is set aside. Since the ruling on the exception of prescription was not tainted by ill practice, and was appealed (and dismissed), this ruling should stand. In this regard, I agree with the dissenting, in part, opinion of Judge Holdridge and judgment of the trial court. However, the November 30, 2022 judgment also "afforded the [plaintiff] the opportunity to amend the petition to remove the grounds for the exception of prescription[.]" If we were to otherwise let the November 30,2022 judgment stand, I would not allow plaintiff the opportunity to remove the grounds for the exception of prescription as this opportunity was lost with the dismissal of the appeal.
For these reasons, I dissent with the majority opinion herein.
Holdridge, J., agreeing in part and dissenting in part.
I respectfully dissent in part from the majority's opinion and would affirm the trial court's judgment in its entirety. I believe the majority opinion errs in vacating the part of the trial court's November 30, 2022 judgment denying the plaintiffs petition for nullity as to the granting of the City and the Parish's peremptory exceptions raising the objection of prescription in accordance with La. C.C. art. 3493 and La. R.S. 9:5624. Clearly, the trial court heard the arguments on the defendants' prescription objections and ruled that those claims were prescribed. What the trial court did not intend to do was dismiss the plaintiffs suit as to any potential inverse condemnation claims.
As to the prescription claims, the court properly dismissed those claims but then erroneously signed a judgment dismissing all of the plaintiffs claims. The plaintiff correctly filed an appeal as to the dismissal of those claims as well as to the dismissal of the inverse condemnation claims. The only remedy that the plaintiff had regarding the trial court's judgment dismissing his suit as prescribed in accordance with La. C.C. art. 3493 and La. R. S. 9:5624 was to appeal it. As to those claims, no evidence of fraud or ill practices was presented to the court. Since the plaintiffs appeal as to that judgment was dismissed, that judgment is a final judgment, and there is no basis to annul it. Our court has consistently held that an action for nullity is not intended as a substitute for an appeal. See Expert Oil & Gas, L.L.C, v. Mack Energy Co., 2016-0068 (La.App. 1 Cir. 9/16/16), 203 So.3d 1080, 1083-84.
Recognizing the fundamental difference between an absolutely null judgment (a judgment that does not exist and is annulled in an action under La. C.C.P. art. 2002) and a relatively null judgment (a judgment that is annulled for fraud or ill practices under La. C.C.P. art. 2004), I would affirm the trial court's judgment denying the plaintiffs petition for nullity as to those claims that are prescribed. See Succession of Crute v. Crute, 2016-0836 (La.App. 1 Cir. 8/30/17), 226 So.3d 1161, 1177-78 ("an absolutely null judgment is never valid"). I agree with the majority that the trial court's judgment dismissing the inverse condemnation claims was obtained through ill practices since it was clear that the trial court did not intend to dismiss those claims. To establish a rule that in any case where a part of the judgment was obtained by ill practices mandates that the entire judgment be vacated would not be in conformity with the difference established by Louisiana Civil Code articles 2030 and 2031 between absolute and relatively nullities. The parties argued the objection of prescription, the trial court granted the exception, and the plaintiff appealed the granting and dismissed their appeal. There is nothing to nullify as to that portion of the judgment. As correctly explained by the majority opinion, the only ill practice presented in this case was the submission to the court of a judgment not in accordance with the court's ruling that dismissed the entire action, including any claim under inverse condemnation, and the attorneys' failure to correct the error after it was called to their attention by the trial judge.
For these reasons, I agree in part and dissent in part from the majority's opinion and would affirm the trial court's judgment on the action of nullity.