Dorothy Davis in her capacity as Administrator of the Estate of Jack D. Thomas v. Bonnie Thomas, individually and Michael A. Thomas in his capacity as of the Estate of James O. Thomas ( 2020 )

NOT DESIGNATED FOR PUBLICATION
STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
2019 CA 1484
DOROTHY DAVIS IN HER CAPACITY AS ADMINISTRATOR OF THE
ESTATE OF JACK D. THOMAS
VERSUS
BONNIE THOMAS, INDIVIDUALLY AND MICHAEL A. THOMAS IN HIS
CAPACITY AS EXECUTOR OF THE ESTATE OF JAMES O. THOMAS
Judgment rendered: OCT 0 6 1010
On Appeal from the
Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 682132, Div. / Sec. D
The Honorable Janice Clark, Judge Presiding
Richard L. Crawford Attorney for Plaintiff/Appellant
Baton Rouge, Louisiana Dorothy Davis
Wendell C. Woods Attorney for Defendant/Appellee
Baton Rouge, Louisiana Bonnie Thomas
Michael A. Thomas Attorney for Defendant/Appellee
Houston, Texas Estate of James O. Thomas
BEFORE: McCLENDON, WELCH, AND HOLDRIDGE, JJ.
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HOLDRIDGE, J.
Plaintiff, Dorothy Davis in her capacity as administrator of the estate of Jack
D. Thomas, filed a petition to make a judgment of a New Jersey court executory in
Louisiana. In response, defendants, Bonnie Thomas, individually, and Michael A.
Thomas in his capacity as executor of the estate of James O. Thomas, filed
peremptory exceptions raising the objection of no right of action. The trial court
sustained the exceptions, and from that judgment plaintiff has filed this appeal.
For the following reasons, we find that the trial court erred in its judgment and
reverse.
FACTUAL AND PROCEDURAL HISTORY
On April 22, 2019, plaintiff filed an ex parte petition to make a foreign
judgment executory pursuant to La. R.S. 13: 4241, et seq. - the Enforcement of
Foreign Judgments Act (" the Act"). Plaintiff claimed to be the judgment creditor
of defendants by virtue of a judgment of the Superior Court of New Jersey. That
judgment, dated December 13, 2018, was rendered in the matter of the estate of
Jack D. Thomas, deceased, and purported to award monetary damages stemming
from several transfers of certain real property in Louisiana. The December 13,
2018 judgment was later modified by two subsequent orders of the New Jersey
court dated January 24, 2019 and February 27, 2019 to allow for an award of
additional counsel fees and expenses. In accordance with the provisions of La.
R.S. 13: 4243, plaintiff attached to her petition certified copies of the judgment and
orders of the New Jersey court, together with plaintiff's affidavit setting forth the
correct names and addresses of the judgment creditor and judgment debtors. The
clerk of court sent a notice of filing via certified mail to both defendants on May 6,
2019. On June 7, 2019, defendants filed separate peremptory exceptions raising
0a
the objection of no right of action. Plaintiff filed an opposition to defendants'
exceptions on July 30, 2019.
The record reflects that plaintiff's ex parte petition was denied by the
Louisiana trial court on July 19, 2019, based upon the showing made. The court,
however, also set the exceptions of no right of action for contradictory hearing.
Accordingly, the exceptions were heard on August 19, 2019, following which the
trial court sustained the exceptions. The court signed a judgment to that effect on
September 26, 2019, and the instant appeal filed by plaintiff followed.
ISSUES PRESENTED
In connection with her appeal in this matter, plaintiff presents the following
issues for review:
1. Whether the trial court erred when it failed to make a foreign
judgment executory in Louisiana; and
2. Whether the trial court erred when it reviewed exception of no
right of action issues and later relied upon those issues to deny the
motion to make a foreign judgment executory.
APPLICABLE LAW
Louisiana Revised Statutes 13: 4242, relating to the filing and status
accorded judgments rendered outside of Louisiana, provides as follows:
A copy of any foreign judgment authenticated in accordance with an
act of congress or the statutes of this state may be annexed to and filed
with an ex parte petition complying with Code of Civil Procedure
Article 891 and praying that the judgment be made executory in a
court of this state. The foreign judgment shall be treated in the same
manner as a judgment of a court of this state. It shall have the same
effect and be subject to the same procedures, and defenses, for
reopening, vacating, or staying as a judgment of a court of this state
and may be enforced in the same manner.
In addition, La. R. S. 13: 4243 addresses the notice to be given of the filing of the
petition and foreign judgment, and states:
A. At the time of the filing of the petition and foreign judgment, the
judgment creditor shall file with the court an affidavit setting forth
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the name and last known address of the judgment debtor and the
judgment creditor.
B. Promptly upon the filing of the petition, the foreign judgment, and
the affidavit, the clerk shall send a notice by certified mail to the
judgment debtor at the address given and shall make a note of the
mailing in the record. The notice shall include the name and
address of the judgment creditor and his attorney, if any. In
addition, the judgment creditor may mail a notice of the filing to
the judgment debtor and may file proof of mailing with the clerk.
Failure to mail notice of filing by the clerk shall not affect the
enforcement proceedings if proof of mailing by the judgment
creditor has been filed.
C. No execution or other process for enforcement of a foreign
judgment filed hereunder shall issue until thirty days after the
mailing of the notice of the filing of the foreign judgment.
The clear language of this provision stays the execution or other enforcement of
the foreign judgment for a thirty -day period commencing from the mailing of the
notice of the filing of the foreign judgment. During this thirty -day period, the
judgment debtor may proceed by " contradictory motion," seeking to prolong the
stay in accordance with La. R.S. 13: 4244, which provides as follows:
A. If the judgment debtor proves on contradictory motion that an
appeal from the foreign judgment is pending or will be taken, or
that a stay of execution has been granted, the court shall stay
enforcement of the foreign judgment until the appeal is concluded,
the time for appeal expires, or the stay of execution expires or is
vacated, upon proof that the judgment debtor has furnished the
security for the satisfaction of the judgment required by the state in
which it was rendered.
B. If the judgment debtor proves on contradictory motion any ground
upon which the execution of a judgment of a court of this state
would be stayed, the court shall stay enforcement of the foreign
judgment upon requiring security for satisfaction of the judgment
as is required in this state.
DISCUSSION
On review, we find initially that the trial court erred in granting defendants'
exceptions raising the objection of no right of action. An action can only be
brought by a person having a real and actual interest which he asserts. La. C. C. P.
I
art. 681; Robertson v. Sun Life Financial, 2009- 2275 ( La. App. 1 Cir. 6/ 11/ 10),
40 So. 3d 507, 511. The function of an exception urging no right of action is to
determine whether the plaintiff belongs to the class of persons to whom the law
grants the cause of action asserted in the suit. La. C. C. P. art. 927( A)(6);
Robertson, 40 So. 3d at 511. The focus of the objection of no right of action is
whether the particular plaintiff has a right to bring the suit; it assumes that the
petition states a valid cause of action for some person and questions whether the
plaintiff in the particular case is a member of the class that has a legal interest in
the subject matter of the litigation. The question is simply whether the plaintiff has
a right to sue the defendant. JP Morgan Chase Bank, N.A. v. Boohaker, 2014-
0594 ( La. App. 1 Cir. 11/ 20/ 14), 168 So. 3d 421, 426; Robertson, 40 So. 3d at 511.
Whether a plaintiff has a right of action is a question of law and is reviewed de
novo on appeal. Eagle Pipe and Supply, Inc. v. Amerada Hess Corp., 2010-
2267 ( La. 10/ 25/ 11), 79 So. 3d 246, 256. Objections of no right of action cannot be
used simply because there may be a valid defense to the proceeding. Randy
Landry Homes, LLC v. Giardina, 2012- 1669 ( La. App. 1 Cir. 6/ 7/ 13), 118 So. 3d
4595 461. The exception does not raise the question of the plaintiff' s ability to
prevail on the merits or the question of whether the defendant may have a valid
defense. Id
In this case, plaintiff, the judgment creditor, obtained a judgment in a New
Jersey court against defendants, the judgment debtors. The judgment creditor is
attempting to make the New Jersey judgment executory in Louisiana. Clearly,
plaintiff, as the judgment creditor, is the only party who has a right of action to
bring the instant suit against the judgment debtors seeking to enforce a specific
New Jersey judgment in Louisiana. The trial court erred in holding otherwise.
Likewise, we find the trial court erred in denying plaintiff' s petition to make
the foreign judgment executory. In this case, the record reflects that plaintiff
complied with the formalities required under the Act to make a judgment of
another state executory in Louisiana. La. R.S. 13: 4241, et seq. On April 22, 2019,
plaintiff filed an ex parte petition in the Louisiana trial court to recognize and make
executory the New Jersey judgment. La. R.S. 13: 4242. In addition, plaintiff
simultaneously filed an authenticated copy of the New Jersey judgment and two
subsequent orders modifying the same, along with an affidavit containing the name
and last known address of each judgment debtor and the judgment creditor. La.
R.S. 13: 4243( A). Finally, the clerk sent via certified mail a Notice of Filing
Enforcement of Foreign Judgment to the judgment debtors on May 6, 2019. La.
R.S. 13: 4243( B). At that point, the foreign judgment shall be treated in the same
manner as a judgment of a court of this state. La. R.S. 13: 4242; See Ellis v.
Professional Management Providers, Inc., 2004- 1507 ( La. App. 1 Cir. 7/ 27/ 05),
923 So.2d 1, 7- 8, writ denied, 2005- 2231 ( La. 2/ 17/ 06), 924 So.2d 1018.
Accordingly, the trial court erred in denying the petition to make the judgment
executory " upon the showing made." The plaintiff complied with all of the
requirements of the Act and was entitled to have the foreign judgment treated in
the same manner and with the same effect as a judgment of a court of this state in
accordance with the mandatory provisions of La. R.S. 13: 4242.
However, the Act' s provisions allow a judgment debtor a thirty -day period
from the mailing of notice of the filing of the petition and foreign judgment within
which to file a contradictory motion raising one of two defenses: ( a)( i) an appeal of
the foreign judgment has or will be taken or ( ii) a stay of execution has been
granted, or ( b) there exists " any ground upon which the execution of a judgment of
a court of this state would be stayed." See La. R.S. 13: 4243( C) and 13: 4244; see
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also Ellis, 923 So. 2d at 7. The defenses listed in La. R.S. 13: 4244 do not involve
the validity of the judgment on the merits. Rather, those defenses involve whether
the judgment is susceptible of being enforced immediately or whether the
enforcement of the judgment should be stayed pending further proceedings.
Pursuant to La. R. S. 13: 4244( B), the judgment debtor is entitled to an opportunity
to present proof at a contradictory hearing as to why the enforcement of the
judgment should be stayed. If no such defenses are filed, the foreign judgment is
immediately enforceable after the passage of the thirty -day period. See La. R.S.
13: 4243( C); Raj v. Tomasetti, 2007- 2223 ( La. App. 1 Cir. 6/ 6/ 08), 2008 WL
2332284, at * 6 ( unpublished).'
In this case, defendants failed to file with the Louisiana court any type of
contradictory motion within the thirty -day period set forth in La. R.S. 13: 4243( C).
Rather, the defendants' exceptions were filed and set for hearing by the trial court
2
after the thirty -day period elapsed. This was clearly legal error. See Ellis, 923
So. 2d at 7. In consideration of plaintiff' s compliance with the Act' s statutory
requirements, we must conclude that the trial court erred in its failure to make the
New Jersey judgment and related orders executory in Louisiana.
CONCLUSION
For the foregoing reasons, the trial court' s judgment sustaining defendants'
peremptory exceptions raising the objection of no right of action is reversed. The
New Jersey judgment and subsequent orders of the New Jersey court previously
1 The Louisiana court cannot inquire into the merits of the foreign judgment. See Official
Revision Comments — 1960( a) to La. C. C. P. art. 2541. The provision of La. R.S. 13: 4244 only
allows the Court to issue a stay of the execution if a timely contradictory motion is filed and the
judgment debtor is able to prove one of the grounds under which a stay is permissible.
2 Under La. C. C. P. art. 852, an exception is a separate pleading from a written motion. However,
since the clerk of court mailed the notice of filing via certified mail on May 6, 2019, the
defendants had 30 days or until June 5, 2019 to file a contradictory motion or other defense as to
why execution of the foreign judgment should not be stayed. The defendants' exceptions filed
on June 7, 2019 were not timely in accordance with La. R.S. 13: 4243( C).
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rendered in favor of plaintiff are hereby made executory within the State of
Louisiana. All costs associated with this appeal are assessed against defendants,
Bonnie Thomas, individually, and Michael A. Thomas in his capacity as executor
of the estate of James O. Thomas.
REVERSED AND RENDERED.
n.