MARTIN v. MARTIN, 95 2557 (La.App. 1 Cir. 9/27/96)

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Docket Number

No. 95 CA 2557.

Attorney(S)

L. Walker Allen, II, New Orleans, John A. Hollister, Hammond, for Plaintiff-Appellee-Susan Taylor Martin. Richard J. Tomeny, Jr., Metairie, for Defendant-Appellant-Kenneth Glenn Martin.

Judges

Vanessa G. Whipple

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Smart Summary

Factual and Procedural Background

The petitioner, Susan Taylor Martin, filed a petition for declaratory judgment against the defendant, Kenneth Glenn Martin, on March 1, 1995, in the 22nd Judicial District Court of Louisiana. The defendant filed a Notice of Application to Remove the case to the United States Bankruptcy Court on June 9, 1995. The Bankruptcy Court issued an Order of Voluntary Abstention on July 17, 1995, remanding the case back to the state court, where it was logged on July 20, 1995. The petitioner then entered a preliminary default judgment against the defendant on August 8, 1995. The defendant filed an Answer to the Petition for Declaratory Judgment and Reconventional Demand on August 11, 1995, at 9:34 a.m. On the same day, the petitioner confirmed the preliminary default judgment in open court.

Legal Issues Presented

Whether the default judgment entered against the defendant was valid given the timing of the defendant's answer filing relative to the confirmation of the default judgment.
Whether the defendant's removal of the case to Bankruptcy Court constituted a general appearance that affected the timing for filing an answer under Louisiana law.
Whether the statutory delays for answering applied to a non-resident defendant were properly observed before entering default judgment.

Arguments of the Parties

Petitioner’s Arguments

The petitioner contended that the defendant made a general appearance by removing the matter to Bankruptcy Court and participating in the hearing, which triggered the regular 15-day delay for filing an answer under Louisiana law (LSA-C.C.P. art. 7).

Defendant’s Arguments

The defendant filed an answer within the statutory delays applicable to non-resident defendants, which require 30 days after filing an affidavit of service before a default judgment can be rendered.
The defendant argued that the preliminary default judgment and its confirmation were premature and null because the answer was filed prior to the signing of the default judgment.
The defendant also raised a peremptory exception of no cause of action, which was not ruled upon by the trial court.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. One 1990 GMC Sierra Classic Truck, VIN No. 1GTCS142XL25052929, 94-0639 (La.App. 4th Cir. 11/30/94), writ denied, 94-3171 (La. 2/17/95)	Filing an answer after a default judgment has been orally confirmed, but prior to its signing, operates to nullify the judgment.	The court applied this precedent to annul the default judgment because the defendant filed an answer before the judgment was signed.

Court's Reasoning and Analysis

The court analyzed the timing of the defendant’s answer in relation to the confirmation and signing of the default judgment. Louisiana Code of Civil Procedure article 1002 permits a defendant to file an answer at any time before confirmation of a default judgment, and article 2002 states that a default judgment granted after an answer is filed is null.

The court found it highly improbable that the judgment was signed before the defendant filed his answer at 9:34 a.m. on August 11, 1995, given the court’s regular 9:30 a.m. start time and the nature of the oral confirmation proceeding. The court reasoned that the trial judge would likely have been unaware of the answer’s filing at the time of confirmation, and thus the default judgment confirmation was premature.

Additionally, the court considered statutory provisions governing service and default judgments against non-resident defendants (LSA-R.S. 13:3204 and 13:3205). The affidavit of service was not filed until July 19, 1995, meaning the defendant had 30 days after that date to answer. The defendant filed his answer within this period, rendering the default judgment premature and legally null.

Regarding the petitioner’s argument that the defendant’s removal to Bankruptcy Court constituted a general appearance triggering a shorter answer period, the court disagreed, explaining that a general appearance waives jurisdictional objections but does not shorten the statutorily prescribed 30-day delay for non-resident defendants.

Finally, the court declined to rule on the defendant’s peremptory exception of no cause of action, deferring to the trial court for that determination.

Holding and Implications

The court ANNULLED the default judgment and REMANDED the case to the 22nd Judicial District Court for further proceedings consistent with its opinion. Costs of the appeal were to be paid by the petitioner.

The decision directly affects the parties by invalidating the default judgment and requiring further litigation on the merits. No new precedent was established beyond the application of existing procedural rules concerning default judgments and timing of answers, particularly as applied to non-resident defendants.

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SUSAN TAYLOR MARTIN v. KENNETH GLENN MARTIN.

FITZSIMMONS, Judge.

The petitioner filed a petition for declaratory judgment against the defendant/appellant on March 1, 1995 in the 22nd Judicial District Court. Thereafter, on June 9, 1995, the defendant filed a Notice of Application to Remove to United States Bankruptcy Court. The U.S. Bankruptcy Court issued an Order of Voluntary Abstention on July 17, 1995. The matter was remanded to the 22nd Judicial District Court, where the record was officially logged in on July 20, 1995. There is no recordation of defendant's receipt of notice of the Bankruptcy Court's abstention.

This appearance demonstrated actual notice.

In the factual scenario, the petitioner thereupon entered a preliminary default judgment against the defendant on August 8, 1995. The record reveals that an Answer to Petition for Declaratory Judgment and Reconventional Demand against Susan Taylor Martin was filed by the defendant at 9:34 a.m. on August 11, 1995. On that same day, however, the petitioner confirmed the preliminary default judgment in open court.

A defendant may file his answer at any time prior to confirmation of a default judgment against him. La. Code Civ.P. art. 1002. A default judgment formally granted after an answer is filed constitutes an absolute nullity. La. Code Civ.P. art. 2002. Filing an answer after a default judgment has been orally confirmed, but prior to its signing, operates to nullify the judgment. State v. One 1990 GMC Sierra Classic Truck, VIN No. 1GTCS142XL25052929, 94-0639, p. 2 (La.App. 4th Cir. 11/30/94); 646 So.2d 492, 494; writ denied, 94-3171 (La. 2/17/95); 650 So.2d 254.

Any procedural action that would result in the deprivation of another party's right to defend himself in court should be strictly construed. There is no evidence in the record of the actual time of day that the judgment of confirmation of the default was signed by the district court judge. Oral testimony, taken in open court, was probably conducted at some time during the morning, prior to the judge's signing of the judgment by default. Given the following facts, id est, that the court proceedings in the 22nd judicial district court regularly commence at 9:30 a.m., that items which can be expeditiously resolved are dispensed with immediately (while those cases requiring testimony are heard thereafter), and that the oral confirmation of the default proceeding at issue comprises 13 pages of transcribed oral testimony, it is highly improbable that the judgment confirming the default was signed by the judge prior to the filing of the answer to the petition by the defendant at 9:34 a.m. Moreover, there was little way for the trial judge to know that the answer to the petition had been filed at 9:34 a.m. Had the trial court known, the default would not have gone forward.

Plaintiff's attorney initiated the oral presentation with the salutation, "Good morning, Your Honor."

Rule II, Section I of the Rules of the Twenty-second Judicial District Court provides: "All court sessions will begin at 9:30 A.M. . . . ."

Accordingly, this court finds that the evidence demonstrates that the answer was filed before the confirmation of the default judgment was signed by the judge. The default judgment is annulled as a matter of law. The case is remanded to the 22nd Judicial District Court for proceedings consistent with this decree. Costs of this proceeding are to be paid by the petitioner.

ANNULLED AND REMANDED.

WHIPPLE, J., concurs with reasons.

PITCHER, J., concurs for reasons assigned by WHIPPLE, J.

WHIPPLE, Judge, concurring

I respectfully concur. Initially, I disagree with the majority's reliance on "facts" not contained in the record, specifically, "that the court proceedings in the 22nd judicial district court regularly commence at 9:30 a.m., that items which can be expeditiously resolved are dispensed with immediately (while those cases requiring testimony are heard thereafter)," to support the conclusion that the answer filed herein was filed prior to the signing of the formal judgment confirming the preliminary judgment of default.

Nonetheless, I would annul the judgment obtained by default and remand for further proceedings because my review of the record shows that both the preliminary judgment of default and the confirmation thereof were taken prior to the expiration of the delays for answering. As defendant has filed an answer within the delays provided by law, there is no basis for a judgment by default.

The record shows the following relevant dates. On March 1, 1995, plaintiff filed a petition for declaratory judgment in state district court. On June 9, 1995, defendant filed a "Notice of Application to Remove Action to United States Bankruptcy Court of the Eastern District of Louisiana." On July 17, 1995, on plaintiff's motion, the bankruptcy court signed an order of voluntary abstention and remanded the matter to the Twenty-Second Judicial District Court. The "Order for Voluntary Abstention and Remand" was filed in the suit record of the Twenty-Second Judicial District Court on July 19, 1995. On that same date, plaintiff filed in the record an "Affidavit and Certificate of Service" and a "Motion to Enter Preliminary Default." A second motion for preliminary default was filed on August 7, 1995 and, on that motion, a preliminary judgment of default was entered on August 8, 1995. By judgment dated August 11, 1995, signed in open court, plaintiff's preliminary judgment of default was confirmed. On that same date, at 9:34 a.m., defendant filed an answer.

Pursuant to LSA-C.C.P. art. 1701, a judgment by default may be obtained against a defendant who fails to answer within the time prescribed by law. Generally, a defendant must file an answer within 15 days after service of citation upon him. LSA-C.C.P. art. 1001. However, special rules apply to non-resident defendants, such as Mr. Martin the defendant herein. LSA-R.S. 13:3204 addresses service of process on a non-resident defendant, providing in part as follows:

A. A certified copy of the citation and of the petition in a suit under R.S. 13:3201 shall be sent by counsel for the plaintiff, or by the plaintiff if not represented by counsel, to the defendant by registered or certified mail, or actually delivered to the defendant by an individual designated by the court in which the suit is filed, or by one authorized by the law of the place where the service is made to serve the process of any of its courts of general, limited, or small claims jurisdiction.

Thereafter, LSA-R.S. 13:3205 authorizes a default judgment against a non-resident defendant who fails to timely answer, providing as follows:

No default judgment can be rendered against the defendant until thirty days after the filing in the record of the affidavit of the individual who either:

(a) mailed the process to the defendant, showing that it was enclosed in an envelope properly addressed to the defendant, with sufficient postage affixed, and the date it was deposited in the United States mails, to which shall be attached the return receipt of the defendant; or

(b) actually delivered the process to the defendant, showing the date, place and manner of delivery.

The record shows that defendant was served with process by a civil deputy of Burnet County, Texas, who is authorized by law to make service of process. An affidavit was executed on June 7, 1995 by the civil deputy attesting to actual delivery of the citation and petition to defendant on April 7, 1995 at his residence in Texas. However, this affidavit was not filed into the suit record of the Twenty-Second Judicial District Court until July 19, 1995.

LSA-R.S. 13:3205 is clear in its provision that no default judgment can be rendered against the defendant until thirty days after the filing in the record of this affidavit. Defendant had until August 18, 1995 to file an answer. Answer was filed on August 11, 1995. The entry of the preliminary judgment of default and confirmation thereof were therefore erroneous and should be annulled.

Plaintiff argues on appeal that defendant made a general appearance by removing the matter to bankruptcy court and by participating in the bankruptcy court hearing. According to plaintiff, this general appearance "immediately and independently starts the running of the regular statutory fifteen-day delay for answer," citing LSA-C.C.P. art. 7. I disagree. When a party makes a general appearance which subjects the party to the jurisdiction of the court, that party impliedly waives all objections to the court's jurisdiction. I cannot find that the making of a general appearance deprived defendant of the statutorily provided 30 day delay for filing an answer or otherwise allowed plaintiff to obtain a default judgment prior to the passage of thirty days from the time of the filing of the affidavit of service. Accordingly, I would annul the judgment rendered herein for the above and foregoing reasons and find that the remaining assignments of error raised by defendant regarding nullity of the judgment are therefore pretermitted.

However, defendant also claims on appeal that this court should maintain a peremptory exception of no cause of action apparently filed by defendant in the lower court after plaintiff obtained the judgment confirming the preliminary judgment. While acknowledging that the peremptory exception of no cause of action may be raised by an appellate court on its own motion, I would decline to do so until the trial court has ruled on the exception. See LSA-C.C.P. art. 927.

For these reasons, I respectfully concur.