Opinion
No. 05-CA-773.
January 30, 2007. Reh. den. March 21, 2007.
ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 322-932, DIVISION "P" HONORABLE MELVIN C. ZENO, JUDGE PRESIDING.
THOMAS R. SCHMIDT, Attorney at Law, Metairie, Louisiana, COUNSEL FOR INTERVENOR/APPELLANT, PAUL J. GALUSZKA.
LEONARD J. CLINE, JR., Attorney at Law, Metairie, Louisiana and THOMAS J. CAPELLA, Attorney at Law, Metairie, Louisiana, COUNSEL FOR DEFENDANTS-IN-INTERVENTION/APPELLEES, ROSE ANN WALTON, JEFFREY WALTON, AND LEONARD J. CLINE.
Panel composed of Judges EDWARD A. DUFRESNE, Jr. MARION F. EDWARDS, and SUSAN M. CHEHARDY.
AFFIRMED.
On February 5, 1985, Rose Ann Walton was in the course scope of her employment when she was injured during an automobile accident with Bruce Lee. On February 4, 1986, Walt through her attorney of record, Phillip Wallace, filed suit against Lee, his employer, and its insurer for injuries suffered a result of the accident.
On June 27, 1986, Phillip Wallace withdrew as coun record. On June 30, 1986, Leonard J. Cline, who is appellee-herein, enrolled as counsel of record. On July 18, 1986, Paul Galuszka, who is appellant-herein, enrolled as counsel of record. On November 10, 1986, Galuszka filed an Amended and Supplemental Petition seeking loss of consortium for Walton's husband, Jeffrey.
On or about June 12, 1987, Walton discharged Galuszka. On August 20, 1987, Galuszka filed a Petition for Intervention, seeking attorney fees for services rendered pursuant to his contingency-fee contract with Rose Walton.
Galuszka alleges in his Petition for Intervention that he was discharged without cause. The Waltons argue in their Answer to the Intervention that Galuszka was "discharged for cause on June 12, 1987, after no progress was made toward the prosecution of her claim." Further, the record contains a copy of the discharge letter from Rose Walton alton sent certified mail to Paul Galuszka on June 12, 1987.
On September 7, 1989, the Waltons answered the intervention. On September 14, 1989, Galuszka filed an amende petition adding Leonard Cline as defendant-in-intervention Trial of the intervention was set for March 21, 1990 and continued a number of times until the matter was transferred to another division of the Twenty-Fourth Judicial District Court, Parish of Jefferson on September 29, 1992. The record does not reflect a trial of Galuszka's intervention claim. Furthermore, for the purposes of this opinion, we will refer to the Waltons and Cline, who are the defendants-in-intervention, collectively "Cline."
From June 27, 1988 through June 29, 1988, trial of Walton's personal injury claim was held. The trial judge thereafter took the matter under advisement. On June 30, 1989, the tria awarded judgment in favor of the Waltons in excess of $1,500,000.00. The defendants appealed. This Court affirmed in part and reversed in part, substantially reducing the Walton's awards. American Motorist Ins. Co. et al v. American Rent-All Inc. et al, 566 So.2d 121 (La.App. 5th Cir. 1990). The Louisiana Supreme Court granted writs. American Motorist Ins. Co. et al v. American Rent-All Inc. et al., 572 So.2d 53 (La. 1991) and 572 So.2d 54 (La. 1991). The supreme court thereafter affirmed this Court's judgment in part, amended in part, reversed in part, and rendered judgment. American Motorist Ins. Co. et al v. American Rent-All Inc. et al., 579 So.2d 429 (La. 1991). In essence, the supreme court reinstated the lower court judgment with a reduction in quantum to a little over $934,000.00. Id. at 436, 437.
Thi judgment is final and is not the subject of this appeal.
On June 12, 1991, the Waltons' filed a Motion to Withdraw Fund from the Registry of the Court on the basis that the liability judgment in their favor was final. Galuszka was served with this motion through his counsel of record on June 26, 1991. Neither Galuszka nor his counsel appeared at the hearing.
On August 4, 1994, the Waltons filed a Motion for and Judgment of Dismissal, which ordered that "the above entitled and numbered cause be and the same is hereby dismissed, with full prejudice, each party to bear their own costs. . . ." The trial judge granted the motion on August 8, 1994.
From 1991, when the quantum issue was finalized, unti December 16, 1993, defendant, Massachusetts Bay Insurance Company, unsuccessfully pursued its appeal of the amount of prejudgment judicial interest owed.
On August 28, 1994, Galuszka filed a "Petition/Motion to Annul Judgment and for Sanctions" seeking to set aside the judgment of dismissal and to set his attorney-fees intervention for trial. On September 23, 1994, Cline filed dilatory, declinatory, and peremptory exceptions.
On that date, Cline filed exceptions of lack of citation and service of process, unauthorized use of summary proceedings, vagueness, nonjoinder of necessary parties, improper cumulation of actions, no cause or right of action, and lack of procedural capacity.
On October 4, 1994, Galuszka filed a "Petition for Appeal" seeking review of the judgment of dismissal. On October 7, 1994, the trial judge granted Galuszka's motion for devolutive appeal and set the return date for November 22, 1994.
That same day, Galuszka filed a Notice of Intent to Apply for Supervisory Writs. On January 30, 1995, the trial judge signed the order and set the return date for March 17, 1995. The record does not reflect that Galuszka filed a writ application with this Court.
On February 2, 1998, Cline filed a Motion to Dismiss Galuszka's Appeal as abandoned. Galuszka's appeal was formally dismissed as abandoned by consent judgment on March 15, 2005.
On October 11, 1994, counsel for Galuszka and Cline appeared before the trial judge, who refused to allow argument on Galuszka's "Petition/Motion to Annul Judgment" on the grounds that the filing of the appeal divested the trial judge of jurisdiction to hear motions in the case. The trial judge did not rule on Galuszka's Motion to Annul Judgment. That same day, counsel for Galuszka and Cline stated on the record, but outside of the trial judge's presence, that "Cline at no point attempted to dismiss the . . . intervention for attorney's fees . . . and that he will cooperate to whatever extent is necessary to have the . . . motion to dismiss which was signed on August 8, 1994, nullified, amended, voided, or whatever procedure is necessary to preserve Mr. Galuszka's rights to continue the interventio Galuszka's counsel subsequently prepared a consent judgment purporting, among other things, to nullify the August 1994 Judgment of Dismissal.
On December 23, 1997, Galuszka filed a Rule to Compel Signing of Consent Judgment, for Contempt, and for Costs and Attorney's Fees. On May 10, 2001, after numerous continuances, trial judge heard arguments on Galuszka's Rule to Compel. After taking the matter under advisement, the trial judge denied the rule to compel on May 25, 2001 on the basis that any "consent judgment" was "so procedurally flawed as render same unenforceable by the Court."
At that time, La. C.C.P. art. 561 read that an action is abandoned when the parties fail to take any step in its prosecution or defense in the trial court for a period of five years. By Acts 1997, No. 1221 §§ 1, effective July 1, 1998, the Louisiana Legislature amended La. C.C.P. art. 561 to reduce the period within which an action may be deemed abandoned from five years to three years.
This Court denied Galuszka's application for supervisory writs. Galuszka v. Cline, 01-706 (La.App. 5 Cir. 7/31/06) (unpublished writ disposition). The Louisiana Supreme Court also denied writs. American Motorists Ins. Co. v. American Rent-All. Inc., et al., 01-2487 (La. 12/7/01), 803 So.2d 35.
On July 12, 2004, Cline filed a peremptory exception of res judicata, on the basis that the August 8, 1994 judgment was final. On July 14, 2004, Cline moved for a hearing on his exceptions.
In total, Cline filed exceptions of unauthorized use of summary proceedings, insufficiency of citation, insufficiency of service of process, improper cumulation of actions, res judicata, prescription, and no cause of action.
On January 27, 2005, Cline's exceptions were heard and grante on the basis that Galuszka failed to pursue the appeal of the August 1994 Judgment of Dismissal. On February 28, 2005, Galuszka filed a Petition for Appeal, which was granted. This appeal follows.
On March 15, 2005, the trial judge signed a written dgment to that effect.
On appeal, Galuszka raises two assignments of error: first, th trial court erred in failing to properly apply La. C.C.P. art. 1039, and, second, the trial court erred in holding that intervenor judicially waived the protection of La. C.C.P. art. 1039. We note that, although Galuszka fails to characterize it as such, the appealable ruling before this Court is the trial judge's granting of Cline's "exceptions" on the basis that Galuszka failed to pursue an appeal of the 1994 judgment of Dismissal.
In this case, Galuszka intervened in the Waltons' personal injury suit while the lawsuit was pending. "A third person having an interest therein may intervene in a pending action. . . ." La. C.C.P. art. 1091. Until a judgment dismissing a suit is filed, the proceeding is still pending. Hebert v. Doctors Memorial Hospital, 486 So.2d 717 (La. 1986). When an intervention is pleaded prior to a motion to dismiss the principal action, "a subsequent dismissal[of the principal action] shall not in any way affect the incidential action, which must be tried and decided independently of the principal demand." La. C.C.P. art. 1039. See Jordan v. Sutton, 491 So.2d 743, 744 (La.App. 1st Cir. 1986). The Official Revision Comments to La. C.C.P. art. 1039 note, however, that, "[a]s to intervention, the Louisiana courts have held that the intervention falls with the dismissal of the suit by the plaintiff."
Further, Galuszka cites Francis v. Hotard, 00-0302 (La.App. 1 Cir. 3/30/01) 798 So.2d 982, in support of his argument that, by operation of law, La. C.C.P. art. 1039 prevented his intervention from being dismissed via the August 1994 Judgment of Dismissal. In Francis, the intervenor's arguments were reviewed by the appellate court because the intervenor properly pursued an appeal of the intervention's dismissal. The Court relied on La. C.C.P. art. 1039 to grant relief to the intervenor pursuant to an appeal but, contrary to Galuszka's assertions, the Court did not rely on the article to revive the intervention, which had also been dismissed by a final judgment, by operation of law.
In this case, the Judgment of Dismissal, which inadvertently dismissed Galuszka's intervention, was signed on August 8, 1994. We note that a timely and properly-filed Petition to Annul the Judgment of Dismissal would have been the appropriate procedural vehicle to attack the inadvertment dismissal as a relative nullity. See La. C.C.P. art. 2004.
In Kern Search. Inc. v. Sheffield, 434 So.2d 1067, 1070 (La. 1983), the Louisiana preme Court noted,
According to article 2004 of the Code of Civil Procedure, any final judgment obtained by fraud or ill practices may be annulled. Louisiana jurisprudence sets forth two criteria to determine whether a judgment has been obtained by actionable fraud or ill practices: (1) when the circumstances under which the judgment was rendered show the deprivation of legal rights of the litigant who seeks relief, and (2) when the enforcement of the judgment would be unconscionable and inequitable. Smith v. Caiun Insulation. Inc. 392 So.2d 398 (La. 1980); Johnson v. Jones-Journet, 320 So.2d 533 (La. 1975). Furthermore, although our courts do not sanction negligence or laches, they have not hesitated to afford relief against such judgments regardless of any issue of inattention or neglect. La. C.C.P. art. 2004, Official Comment (b); Alonso v. Bowers, 222 La. 1093, 64 So.2d 443 (1953) Thus, the article 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. Chauvin v. Nelkin Ins. Agency. Inc., 345 So.2d 132 (La.App. 1st Cir. 1977), writ denied, 347 So.2d 256 (La. 1977).
However, "[a]fter rendition of final judgment, the Code of Civil Procedure clearly spells out the rights of the appellants They may either apply for new trial or appeal from an adverse judgment." Loupe v. Circle, Inc., 545 So.2d 694, 695 (La.App. 5th Cir. 1989).
The record before us does not reflect that Galuszka filed a Motion for New Trial of the Judgment of Dismissal. The record does reflect that on October 4, 1994, Galuszka filed a timely Motion to Appeal the Judgment of Dismissal. Unfortunately, Galuszka also abandoned that appeal failing to prosecute said appeal within the statutory time periods. La. C.C.P. art. 2165 ; U.R.C.A. 2-8.6, 2-12.7. Thus, Galuska abandoned his appeal by operation of law no later than November of 1995.
La. C.C.P. art. 2165 reads, "An appeal is abandoned when the parties fail to take any step in its prosecution or disposition for the period provided in the rules of the appellate court."
U.R.C.A. 2-8.6. reads, in pertinent part:
For civil appeals, if an appellant does not file a brief within the time prescribed by Rule 2-12.7 or any extension thereof granted by the court as provided by Rule 2-12.8, a notice shall be mailed by the clerk to counsel for the appellant, or to the appellant if not represented, that the appeal shall be dismissed days thereafter unless a brief is filed in the meantime. If an appellant does not file a brief within 30 days after such notice is mailed, the appeal shall be dismissed as abandoned.
Where appellant neither filed a brief nor appeared when the case was called for argument, the appeal is considered abandoned and it is dismissed at the appellant's cost. See Vowell v. Vowell, 348 So.2d 730, 731(La.App. 1977). Although the parties filed a motion to dismiss the appeal (of the Judgment of Dismissal) in 2005, it is of no consequence as Galuszka's appeal was abandoned by operation of law years earlier.
All of that brings us to the real question of this appeal, which is whether the trial court erred in granting Cline's exceptions. We note that it is not readily apparent from the transcript of the hearing on the exceptions or the subsequent judgment which of Cline's seven exceptions was sustained. Accordingly, we will focus on Cline's exception of prescription.
An exception of prescription is a peremptory exception, which a defendant may raise at any time, including on appeal, or, after the close of evidence, but prior to its submis La. C.C.P. arts. 927 and 928 (B). La. C.C.P. art. 931 allows the introduction of evidence at the trial of all peremptory exceptions, except the objection of no cause of action. The trial court is not bound to accept as true the the allegations of plaintiffs petition in its trial of peremptory exception. Bowers v. Orleans Parish School Bd., 95-2530 (La.App. 4 Cir. 5/29/96), 694 So.2d 967, 972. When evidence is introduced and evaluated at the trial of a peremptory exception, an appellate court must review the entire record to determine whether the trial court manifestly erred its factual conclusions.Id.
As we noted above, Galuszka could have attacked the Judgment Dismissal as a relative nullity by filing a Petition to Annul within one year of the "discovery. . . of the fraud or ill practices." La. C.C.P. Art. 2004. He failed to properly file such an action. Accordingly, Galuszka's action has prescribed. Based on the foregoing and the duty of this court on appeal to render any judgment which is just, legal, and proper upon the record, we see no error in the trial court's grant of Cline's exceptions in this case. Costs of this appeal are taxed Galuszka.
AFFIRMED
CERTIFICATE
I CERTIFY THAT A COPY OF THE OPINION IN THE BELOW-NUMBERED MATTER HAS BEEN MAILED ON OR DELIVERED THIS DAY JANUARY 30, 2007 TO ALL COUNSEL OF RECORD AND TO ALL PARTIES NOT PRESENTED BY COUNSEL, AS LISTED BELOW: