Opinion
NO. 2012 CA 1789
2013-09-13
DAWN MICHELE WOOD v. GLOBAL INSURANCE AGENCIES OF AMERICA, INC., AND PATRICK SCALLAN, AND MARVIN S. COOPER, AKA SHAY COOPER
STEPHEN M. IRVING BATON ROUGE, LA ATTORNEY FOR PLAINTIFF-APPELLEE DAWN MICHELE WOOD E. TRENT MCCARTHY BATON ROUGE, LA ATTORNEY FOR DEFENDANT-APPELLANT MARVIN S. COOPER
NOT DESIGNATED FOR PUBLICATION
Appealed from the
19th Judicial District Court
in and for the Parish of East Baton Rouge Parish, Louisiana
Trial Court No. 389,263
Honorable Janice Clark, Judge
STEPHEN M. IRVING
BATON ROUGE, LA
ATTORNEY FOR
PLAINTIFF-APPELLEE
DAWN MICHELE WOOD
E. TRENT MCCARTHY
BATON ROUGE, LA
ATTORNEY FOR
DEFENDANT-APPELLANT
MARVIN S. COOPER
BEFORE: PETTIGREW, McDONALD, AND McCLENDON, JJ.
PETTIGREW, J.
The lawsuit underlying this appeal concerns payment for property damages (a totaled vehicle) arising out of an automobile accident that occurred in 1992. This appeal raises the issue of whether the trial court committed manifest error in denying the motions of defendant/appellant, Marvin ("Shay") Cooper, to (1) dismiss the matter as abandoned, (2) dismiss the garnishment, (3) quash the writ of fieri facias; and (4) for a new trial, when the record raises serious doubt as to whether the defendant received notice of the trial date of these proceedings prior to the garnishment of his wages following a writ of fieri facias action in 2012. Because the record reveals that the defendant in this matter was denied due process, we find the trial court's judgment erroneous. The defendant is entitled to his day in court. Therefore, for the reasons that foliow, we reverse the judgment of the trial court of August 16, 2012, dismissing defendant's motion for new trial; vacate the judgment of January 3, 1996, the writ of fieri facias, and the garnishment; and remand this matter for a trial on the merits of plaintiff's original claims against Mr. Cooper.
FACTUAL BACKGROUND
This matter arises out of an automobile accident which occurred on December 8, 1992, notably one month shy of twenty years before the filing of this appeal, and the underlying facts are essentially undisputed. As a resuit of this accident, the vehicle of plaintiff, Dawn Michele Wood, was declared a total loss. When her insurance company, Allstate Insurance Company (Allstate), denied her claim for collision coverage, claiming that she had only purchased liability coverage, she filed this lawsuit, on December 28, 1992, against Global Insurance Agencies of America, Inc. (Global), the company through which she intended to, and believed she had in fact secured collision and comprehensive coverage. She alleged that despite purchasing collision and comprehensive coverage, she was informed by Allstate that only liability coverage had been secured.
PROCEDURAL HISTORY
The defendant herein, Mr. Cooper, an employee of Global, was added to the lawsuit in February 1993, as was Patrick Scalian, the owner and operator of Global, by a first amending and supplemental petition, with allegations that although the plaintiff purchased comprehensive coverage for her vehicle from them, they never forwarded the premium to Allstate for the collision coverage. Personal service of this petition was requested and apparently affected on Scaliao and Cooper, at their home addresses.
Mr. Cooper filed an answer or November 10, 1993, represented by counsel, William C. Shockey, generally denying the plaintiff's allegations, and further asserting that Global quoted and collected a total premium for liability, collision, and comprehensive coverage from the plaintiff in the amount of $1,433.00, He further asserted that Global transmitted to Allstate an application for collision and comprehensive coverage, and $1,280.70 of the premium collected from the plaintiff, which amount represented the full amount of the coverage requested - liability, collision, and comprehensive -- less the commission due to Global for securing the coverage,
In a second amending and supplemental petition, plaintiff added as a defendant, Allstate, and alleged that "on information and belief, Global Insurance Agencies of America, Inc. did in fact collect and remit to Allstate Insurance Company a premium sufficient to pay for full coverage on Plaintiffs vehicle." (Emphasis added.) This petition further alleged that Allstate should have known, based on the amount of the premium received from Global that far exceeded the premiums required for mere liability coverage, that an error had been made in the application submitted to it by Global. Allstate filed a general denial and also cross claimed Global, Scalian, and Cooper, as well as the other persons involved in the accident. However, after settling the claims of the plaintiff against it, Allstate was dismissed from the lawsuit by judgment on January 10, 1996.
Of great significance to the primary issue in this appeal, on January 13, 1995, Mr. Cooper's counsel, Mr. Shockey, fiied a Motion to Withdraw as Counsel, in light of an alleged lack of financial responsibility and refusal to cooperate in connection with the defense of this matter by Mr. Cooper. Mr. Shockey asserted that he had attempted to notify and obtain consent from Mr. Cooper in writing, but no such response had been forthcoming. Mr. Shockey provided for service the same address and telephone number for Mr. Cooper that had previously been used for service.
The minutes of court, made a part of this record on appeal, reveal that on March 27, 1995, a hearing was held on the motion to withdraw. Both counsel for plaintiff and Mr. Shockey were present. The minutes reflect that after arguments and submission, the motion was granted and "judgment, will be signed after Marvin Cooper is served with this rule and presents himself in open court to either substitute counsel or proceed pro se." (Emphasis added.)
Notwithstanding the foregoing condition on the granting of the motion to withdraw, and without any proof on the record that Mr. Cooper was ever served and made to appear in open court as ordered by the trial court, a trial in the matter was held on December 19, 1995, although no one appeared on. behalf of Mr. Cooper, and the only party present was counsel for plaintiff. The minutes of court indicate that evidence was introduced and the matter submitted, The trial court on that date rendered judgment in favor of the plaintiff and against Mr. Cooper in the amount of $7,500.00, together with court costs, judicial interest, as well as $750.00 for an expert witness fee. Although no one disputes the rendition of such judgment, or the signing thereof on January 3, 1996, a copy of that judgment is not contained in the record; thus request for and/or proof of service cannot be determined. (As explained more fully below, Mr. Cooper asserts he never received notice.)
Nothing occurred in this matter until almost ten years later when the plaintiff filed a Motion to Revive Judgment on December 12, 2005, containing the notation that service of said pleading was made on "all counsel of record." In that motion, plaintiff asserted that the January 3, 1996 judgment was still outstanding and that no payments had been received thereon to date. On December 15V 2005, the trial court issued an order reviving the judgment, which, with interest accruing to date, totaled $22,039.10, plus court costs, and awarded an additional $1,500.00 in attorney fees. There is no evidence in the record of any notice being sent out of that judgment.
On July 21, 2006, the plaintiff filed a judgment debtor rule, seeking to inspect all documents related to Mr. Cooper's finances, income, and property. The record reflects that service of that pleading was requested on Mr. Cooper at a different address for Mr. Cooper than previously appeared in the record, and it appears that personal service was made on Mr. Cooper on August 28, 2006; however, the revival judgment, on which the judgment debtor rule was based was not attached to that service. Moreover, although the trial court had set the judgment debtor hearing for April 29, 2006; reassigned it for September 12, 2006, and again for April 29, 2008, the minutes reflect that the matter was passed each time, and on April 29, 2008, it was passed without date. (The record contains no further indication of whether the rule was ever heard.)
The next pleading contained in the record is a Petition for Garnishment filed by the plaintiff on February 14, 2012, alleging the judgment against Mr. Cooper was executory, and further alleging that he had executed a demand promissory note in the amount of $50,000.00 pledged to Whitney Bank and secured by a mortgage. Service of that pleading, together with garnishment interrogatories, was requested on Whitney Bank.
On March 27, 2012, Mr. Cooper filed the first pleading since his original counseled answer that had been filed nineteen years earlier, which consisted of a motion to dismiss lawsuit and judgment, a motion to dismiss garnishment and quash writ of fieri facias, and a motion for new trial. In that pleading, Mr. Cooper asserted that he was unaware of any judgment rendered against him until the recent garnishment of his bank account at Whitney Bank, at which time he immediately retained his current counsel to seek relief from a judgment he had no idea existed and had no opportunity to contest.
In the aforementioned motions, Mr. Cooper requested a new trial based on his assertion that he never received notice of the trial or subsequent proceedings; therefore, he never had the opportunity to interpose his defenses to the plaintiff's actions. He additionally requested that the lawsuit and the judgment thereon be dismissed pursuant to the abandonment statute, La. C.C.P. art. 561, based on plaintiff's failure to take any action on that judgment for more than three years. He further asserted that the order reviving the judgment should be dismissed for the plaintiff's failure to comply with La. C.C.P. art. 2031 prior to the passage of ten years from the date the judgment was signed. Based thereon, Mr. Cooper alleged, the writ of fieri facias and the subsequent garnishment should also be dismissed.
On May 24, 2012, the motions were heard, following which the trial court denied them all, by way of judgment signed August 16, 2012; notice of which was mailed on August 21, 2012. It is that judgment that Mr. Cooper appealed, by motion for devolutive appeal filed September 21, 2012.
RULE TO SHOW CAUSE RE: TIMELINESS
Upon receipt of the record on appeal, this Court, ex proprio motu, issued a rule to show cause, instructing the appellant, Mr. Cooper, to show cause why the appeal should not be dismissed as untimely, based on the following:
To the extent the Motion for New Trial and subsequent Motion for Devolutive Appeal seeks review of the December 19, 1995 ruling, IT APPEARS TO BE UNTIMELY. To the extent the Motion for Devolutive Appeal seeks review otherwise, the August 16, 2012 ruling appears to be a NONAPPEALABLE RULING.Both parties filed briefs in response to the rule to show cause.
Because, as explained fully below, we find a reversible due process violation in this case that requires a remand, it is unnecessary to decide whether the ruling dismissing Mr. Cooper's claim of abandonment is interlocutory or whether an appeal properly lies, as argued by Mr. Cooper, under a proper interpretation of La. C.C.P. art. 561. However, we do note that the principle of abandonment is inapplicable once a matter has been prosecuted to judgment, as was the case in this matter. Rodgers v. Rodgers, 34-188 and 34-189 (La. App. 2 Cir. 9/27/00), 768 So.2d 695, writ denied, 2000-2857 (La. 12/8/00), 776 So.2d 467; see also, Grodner v. Becnel, 2009-0960 (La. App. 1 Cir. 8/11/10)(unpublished opinion), writ denied, 2010-2340 (La. 12/10/10), 51 So.3d 731. Thus, the trial court's dismissal of the abandonment daim, albeit on the merits rather than on the proper basis that it is inapplicable herein, was nonetheless correct.
Moreover, on further and more careful scrutiny of this matter, we find that the rule to show cause, inasmuch as it incorrectly suggests that the devolutive appeal seeks review of the 1995 ruling, was improvidently issued, given that the record reveals several violations of the mailing of notice provisions, to which the defendant was entitled, giving rise to serious due process concerns. Accordingly, we now address the merits of the appeal of the matter that is properly before us.
NOTICE TO THE DEFENDANT
Notice of the signing of a final judgment is required in all contested cases, and shall be mailed by the clerk of court to the counsel of record for each party, and to each party not represented by counsel. La. C.CP. art. 1913. In this matter, it is undisputed that notice of the January 3, 1996 final judgment in favor of the plaintiff and against Mr. Cooper, was never sent to Mr. Cooper. In fact, the record reveals and the plaintiff does not dispute that notice of that judgment was mailed to Mr. William Shockey, ostensibly as counsel of record for Mr. Cooper. And while generally, notice sent to counsel of record for a party is presumed to constitute notice to the party client, this court has made clear that in order to meet due process requirements, notice to counsel of record must be effected under circumstances from which it can at least be reasonably presumed that notice resulting from such service will be communicated to the litigant. Rawley v. Rawley, 357 So.2d 286 (La. App. 1 Cir.), writ denied, 357 So.2d 1154 (La. 1978), cert. denied, 439 U.S. 968, 99 S.Ct 459, 58 LEd.2d 427 (1978) (where service of process of an order of dismissal was made on the attorney of record after, and even though, opposing counsel knew that said attorney had withdrawn from the case and had received a copy of the withdrawal letter. Under those circumstances, this court held it could not be reasonably presumed that the order of dismissal would be communicated to the party by his former counsel of record.)
Under the peculiar facts and circumstances of this matter, we find that notice of the January 3, 1996 judgment to Mr. Shockey as "counsel of record" for Mr. Cooper did not give rise to a reasonable presumption that such notice would be communicated to Mr. Cooper. Indeed, we find the circumstances of this case give rise to the opposite presumption; i.e., that such notice would not be communicated to Mr. Cooper by Mr. Shockey. First, during the hearing on Mr. Shockey's motion to withdraw, Mr. Shockey represented that his attempts to obtain Mr. Cooper's consent to the withdrawal by sending him a letter to his last known address had gone unanswered. Thus, it was reasonably presumable at that time that Mr. Cooper had not been notified or made aware that Mr. Shockey was attempting to terminate his representation. Moreover, the minute entry following the hearing on Mr. Shockey's motion to withdraw as counsel of record for Mr. Cooper reveals that the. motion was granted in open court. Although the minutes reflect that judgment to that effect would be signed only after Mr, Cooper was served and appeared in court to either continue the proceedings with substitute counsel or pro se, the record is devoid of any proof that Mr. Cooper was ever served, or ever appeared in court as ordered by the trial court. And although there had been no compliance with the trial court's order, the trial court nevertheless inexplicably held the trial, and rendered judgment against Mr, Cooper despite that neither he nor Mr. Shockey was present on that day. Thus, it can hardly be said that notice of that judgment sent to Mr. Shockey can be presumed to have been communicated with a client, for which a motion to withdraw had been orally granted. Thus, clearly, the dictates of La. C.C.P. art. 1913 were violated as to the January 3, 1996 judgment.
Additionally, the record reveals a violation with respect to. notice of the judgment of revival that was rendered on December 12, 2005, almost ten years following the original judgment. Louisiana Code of Civil Procedure Art. 2031, governing the revival of judgments, requires that notice of the signing of judgment of revival shall be mailed by the clerk of court to the judgment debtor at his last known address in the suit record. The record before us is completely devoid of any proof of notice of mailing of the revival judgment; thus it appears that Mr Cooper had no notice of this judgment either, in direct violation of La. C.C.P. art. 2031.
Although the record contains a return of service showing that Mr. Cooper was personally served, in August 2006, with the judgment debtor rule, our review of the record reveals that no such hearing was ever had, it having been passed and reassigned twice, before being passed without date. Additionally, although the judgment debtor rule indicated that judgment had been rendered against him, no notice of either judgment rendered against Mr. Cooper was included with the judgment debtor rule. Thus, we do not find that service of this pleading remediated the earlier violations and lack of notice to the defendant.
At the hearing on these motions to dismiss upon which this appeal is based, Mr. Cooper asserts that he was unaware that any judgment had been rendered against him until the garnishment of his bank account at Whitney Bank, as a result of the garnishment proceedings of which oniy Whitney Bank had notice. According to him, this was the first time he was aware that anything had continued after Mr. Shockey filed an answer on his behalf in 1993, and he was wholly surprised to find that there was a pending judgment against him from that original $7,000.00 claim in the lawsuit, which now, with accrued interest, totaled over $22,000.00. Upon notice of the garnishment, Mr. Cooper retained new counsel, who filed the motions to dismiss that are the subject of this appeal.
CONCLUSION
For all the foregoing reasons, we vacate all prior judgments in this matter, including the January 3, 1996 judgment on the merits of plaintiff's claims against Mr. Cooper, the writ of fieri facias, the garnishment, and the August 16, 2012 judgment dismissing Mr. Cooper's motion to dismiss garnishment and motion for a new trial, and remand this matter to the trial court for a trial on the merits of plaintiffs original claims against Marvin S. Cooper aka Shay Cooper in accordance herewith. All costs of this appeal are assessed to the plaintiff, Dawn Michele Wood.
JUDGMENT OF JANUARY 3, 1996 VACATED, JUDGMENT OF AUGUST 16, 2012 REVERSED. GARNISHMENT AND WRIT OF FIERI FACIAS VACATED. REMANDED TO TRIAL COURT FOR NEW TRIAL.
2012 CA 1789
DAWN MICHELLE WOOD
VERSUS
GLOBAL INSURANCE COMPANIES OF AMERICA, INC.,
AND PATRICK SCALLAN, AND MARVIN S. COOPER, AKA SHAY COOPER
McCLENDON, J., concurs and assigns reasons.
Although the March 27, 1995 minute entry reflects that a judgment on Mr. Shockey's motion to withdraw as counsel of record would be signed at a later date contingent upon certain conditions being met, the trial court orally granted the motion. Therefore, subsequent service of the January 3, 1996 judgment on Mr. Shockey, whose motion to withdraw as counsel of record had been granted by the trial court, may not have been sufficient to effectuate service on Mr. Cooper. Under the unusual facts presented in this case and based on due process requirements, I concur with the result reached in the opinion.