Opinion
NO. 2018CA1216
04-12-2019
SUCCESSION OF MAGGIE MCCLENDON ARD v. HAMMOND MOBILE HOMES, LLC
Robert J. Carter Greensburg, Louisiana Attorneys for Plaintiff-Appellant Martha Hamler, Administratrix of the Succession of Maggie McClendon Ard Troy Davis Hammond, Louisiana Counsel for Defendant-Appellee Hammond Mobile Homes, LLC
NOT DESIGNATED FOR PUBLICATION Appealed from the 21st Judicial District Court In and for the Parish of St. Helena State of Louisiana
Docket No. 23445 The Honorable Elizabeth P. Wolfe , Judge Presiding Robert J. Carter
Greensburg, Louisiana Attorneys for Plaintiff-Appellant
Martha Hamler, Administratrix of the
Succession of Maggie McClendon Ard Troy Davis
Hammond, Louisiana Counsel for Defendant-Appellee
Hammond Mobile Homes, LLC BEFORE: WELCH, CHUTZ, AND LANIER, JJ. DISPOSITION: JUDGMENT VACATED, REMANDED. LANIER, J.
Martha Ard Hamler, as the administratrix of the Succession of Maggie McClendon Ard, appeals the judgment of the Twenty-First Judicial District Court, which annulled a previous judgment ordering the appellee, Hammond Mobile Homes, LLC, to remove a mobile home from the disputed succession property. For the following reasons, the judgment signed on April 4, 2018 is vacated, and we remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On July 21, 2017, the appellant, Martha Ard Hamler, was appointed as administratrix of the Succession of Maggie McClendon Ard. On August 4, 2017, the appellant filed a petition for damages and injunction, in which she claimed the appellee, under the authority of her brother Leroy Ard, trespassed onto the succession property and set up a mobile home without the appellant's permission and without legal permits. The appellant requested in her petition that an injunction be ordered to force the appellee to remove the mobile home from the succession property. On October 20, 2017, the district court ordered a permanent injunction, requiring the appellee to remove the mobile home from the succession property by December 16, 2017.
A judgment ordering a preliminary injunction to remove the mobile home by December 16, 2017, was rendered by the trial court on October 16, 2017, and was signed by the trial court on October 27, 2017.
On December 21, 2017, the appellant filed a motion for contempt, damages, and attorney fees, in which she alleged that the appellee had not removed the mobile home from the succession property by December 16, 2017 as ordered, and that she had suffered additional damages and incurred attorney fees as a result. Prior to ruling on the contempt, the district court granted a motion to place the heirs into possession of the succession property. Because of this, the district court signed a judgment on April 4, 2018 to annul the injunction against the appellee. Additionally, the district court stated in open court that the injunction and motion for contempt became moot after the heirs, including Mr. Ard, were put into possession, thereby curing any question of authority Mr. Ard had to place the mobile home. It is the judgment of April 4, 2018 that is now under appeal.
ASSIGNMENTS OF ERROR
The appellant assigns the following errors:
1. The district court erred in annulling a final judgment without a petition to annul the judgment being filed and proper notice to the judgment holder.
2. The district court committed reversible error in signing a judgment on April 4, 2018 annulling the October 20, 2017 judgment for a permanent injunction requiring the appellee to remove the mobile home from the succession property.
In the appellant's brief, the first assignment of error reads: "The trial court erred in annulling a final judgment without a petition to amend the judgment...". We find that the appellant's use of the word "amend" is in error, and that the word intended was "annul."
DISCUSSION
The judgment of April 4, 2018, which is on appeal, states the following:
This matter came for hearing on the 23rd day of February, 2018 wherein the Court granted a motion for the heirs to be placed in possession of the succession property ... Therefore the judgment of October 16, 2017 on docket #23,445 is annulled insofar as the defendant, Hammond Mobile Homes, LLC was ordered to remove the mobile home he [sic] moved onto the disputed succession property. The defendant still owes the costs of the court and attorney fees ordered in favor of the plaintiff, Succession of Ard, for having to file the suit against the defendant, as ordered in October 16, 2017.
We note that neither the judgment of October 20, 2017, nor the judgment of October 27, 2017 award attorney fees.
Initially, it is unclear whether the "judgment of October 16, 2017 on docket #23,445" on its face refers to the judgment granting the preliminary injunction on October 27, 2017 or the judgment granting the permanent injunction on October 20, 2017, since both of those judgments are under docket number 23,445 and refer to the date of October 16, 2017. However, the appellant's second assignment of error clearly avers that the district court committed error by annulling the judgment of October 20, 2017, which granted the permanent injunction. Also, since a preliminary injunction is essentially an interlocutory order issued in summary proceedings incidental to the main demand for permanent injunctive relief, it is obvious to this Court that the judgment of April 4, 2018 is an attempt by the district court to annul the judgment of October 20, 2017. See Concerned Citizens for Proper Planning, LLC v. Parish of Tangipahoa, 2004-0270 (La. App. 1 Cir. 3/24/05), 906 So.2d 660, 664.
The judgment of October 20, 2017 states that exhibits and testimony were entered into evidence on October 16, 2017, and the judgment of October 27, 2017 states that it was rendered on October 16, 2017.
The Louisiana Code of Civil Procedure provides for an "action of nullity," allowing parties to file a direct action to nullify a prior incorrect judgment. La. C.C.P. art 2001; Zavala v. Dover Construction USA, LLC, 2017-0001 (La. App. 1 Cir. 4/11/18), 249 So.3d 24, 29. In the instant case, no action of nullity was filed by either party to nullify the judgment of April 4, 2018; rather, the district court sought to nullify its prior judgment of October 20, 2017 with its judgment of April 4, 2018.
There is no law or jurisprudence which supports a court's nullifying a judgment on its own motion. Judgments may be annulled for vices of form at any time by an action to annul. La. C.C.P. art. 2002(B). Judgments may also be annulled for vices of substance by an action to annul within one year of the plaintiff's discovery of the fraud or ill practices by which the judgment was obtained. La. C.C.P. art. 2004. An action for nullity alleging fraud or ill practices must be brought in an ordinary proceeding. Smith v. LeBlanc, 2006-0041 (La. App. 1 Cir. 8/15/07), 966 So.2d 66, 72. Therefore, we find the district court's rendering of a judgment to annul a previous judgment without a petition for nullity filed by either party to be in error.
Moreover, even if the district court could annul a judgment on its own motion, the grounds for nullity do not exist in the October 20, 2017 judgment. There is no evidence in the record that the aforementioned judgment contains a vice of form enumerated in La. C.C.P. art. 2002. Neither is there any allegation or evidence in the record that the judgment of October 20, 2017 was obtained by fraud or ill practices. See La. C.C.P. art. 2004. The only reason for which the district court gave to annul the October 20, 2017 judgment was that the rule for contempt against the appellee had become moot once Mr. Ard and the other heirs were put into possession of the succession property. Since mootness is not a ground for which a judgment can be annulled, the district court's judgment of April 4, 2018 must be vacated.
Louisiana Code of Civil Procedure article 2002 states:
A. A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented as required by law.
(2) Against a defendant who has not been served with process as required by law and who has not waived objection to jurisdiction, or against whom a valid final default judgment has not been taken.
(3) By a court which does not have jurisdiction over the subject matter of the suit.
B. Except as otherwise provided in Article 2003, an action to annul a judgment on the grounds listed in this Article may be brought at any time.
DECREE
The judgment of the Twenty-First Judicial District Court, signed on April 4, 2018, is hereby vacated, and this matter is remanded for further proceedings. All costs in this appeal are assessed to the appellee, Hammond Mobile Homes, LLC.
JUDGMENT OF APRIL 4, 2018 VACATED; REMANDED.