In Re: M.L.M.

STATE OF LOUISIANA
COURT OF APPEAL
FIRST CIRCUIT
NUMBER 2019 CU 1030
IN RE: M.L.M.
Judgment Rendered: R 3 202F
C X 3F 3F 3F X
On appeal from the
Twentieth Judicial District Court
In and for the Parish of East Feliciana
State of Louisiana
Docket Number 38953
Honorable Kathryn E. Jones, Judge Presiding
X X K X] C X
Kathleen M. Wilson Counsel for Defendant/ Appellant
Baton Rouge, LA Lynell Matthews, Jr.
Charles E. Griffin, II Counsel for Plaintiff/Appellee
St. Francisville, LA Shimeka S. White, et al.
BEFORE: WHIPPLE, C. J., GUIDRY, AND BURRIS, ' JJ.
1 Judge William J. Burris, retired, serving pro tempore by special appointment of the Louisiana
Supreme Court.
GUIDRY, J.
This is an appeal of a May 1, 2019 judgment denying the appellant' s motion
to vacate the judgment and/ or for a new trial. For the reasons that follow, we
reverse and remand.
FACTS AND PROCEDURAL HISTORY
Appellant Lynell Matthews, Jr., and Appellee Shimeka S. White, who were
never married, are the parents of a minor child, M.L.M., born on August 3, 2007.
In December of 2008, the parties were granted joint custody of their minor child,
with Ms. White designated as the domiciliary parent; Mr. Matthews was ordered to
pay child support.
On March 20, 2017, Mr. Matthews filed a rule to modify child support and
visitation. After several continuances, Mr. Matthews' rule was scheduled to be
heard on July 3, 2017. On or about June 15, 2017, Ms. White filed a rule for
contempt and continuance. Ms. White' s rule hearing was also scheduled to be
heard on July 3, 2017, at which time that hearing was passed by the parties
subject to re -assignment."
Thereafter, in September of 2018, Mr. Matthews moved to have his rule to
modify child support and visitation reset; the court scheduled the matter for
November 5, 2018. Present at the November 5 hearing were Mr. Matthews, his
attorney, and Ms. White' s attorney of record. Ms. White was not present, and due
to confusion about whether her attorney of record would continue to represent her,
the court then again rescheduled the matter to be heard on December 3, 2018. 2
At the hearing on December 3, 2018, with a " stand- in" judge on the bench,
and only Ms. White and her attorney present in court, Mr. Matthews' rule to
2 At the March 18, 2019 hearing on the motion for new trial, the parties and trial court discussed
the fact that at the November 5, 2018 hearing, it was unclear whether Ms. White' s attorney
would continue to represent her. As a result, the court ordered personal service on Ms. White, as
opposed to service through her attorney of record.
2
modify child support and visitation was dismissed.' The court then took up Ms.
White' s rule for contempt, and rendered judgment in favor of Ms. White and
against Mr. Matthews. A judgment was signed on December 10, 2018.
On December 21, 2018, Mr. Matthews filed a " motion to vacate judgment
and/ or for new trial." Mr. Matthews argued, in essence, that he had not been
served with notice of the rule for contempt hearing, and prayed that the judgment
be annulled due to insufficiency of service. After a hearing on the matter, the trial
court, in a judgment signed on May 1, 2019, denied Mr. Matthews' motion to
vacate the December 10, 2018 judgment and/ or for a new trial. Mr. Matthews now
appeals that judgment, contending that the trial court erred by failing to annul the
judgment.'
DISCUSSION
Louisiana Code of Civil Procedure article 1911 requires that every final
judgment shall be signed by the judge, except as otherwise provided by law. This
has been interpreted to mean that the judge before whom the case was tried must
sign the judgment. Employers Nat. Ins. Co. v. Workers' Camp. Second Injury Bd.,
95- 1756, p. 3 ( La. App. 1st Cir. 414196), 672 So. 2d 309, 311. A judgment signed
by a judge, other than the one which presided over the hearing, is invalid. See
Louisiana Paving Co., Inc. v. St. Charles Parish Public Schools, 593 So. 2d 892La. App. 5th Cir. 1129192) and Ledoux v. Southern Farm Bureau Casualty
3
During the December 3, 2018 hearing, the judge noted that both parties were present on the
November 5 hearing date. However, during the March 18, 2019 hearing on the motion for new
trial, Mr. Matthews argued that he was not present at the December 3 hearing because he was not
able to personally serve Ms. White.
a This court issued a rule to show cause order, directing the parties to show cause whether this
appeal should be dismissed for an untimely motion for new trial. The parties responded, and we
note that although the pleading was alternatively captioned as a motion for new trial, we interpret
it to attack the prior judgment as a nullity; therefore, the time delays for a motion for new trial
are inapplicable. Because Mr. Matthews raised issues of a null judgment in his motion, his
appeal was timely under La. C. C. P. art. 2001 et seq., which address the grounds for nullity of a
final judgment. See Hood v. Cajun„Constructors, Inc., 10- 0845, ( La. App. 1st Cir. 2/ 11/ 11), 57
So. 3d 595. Further, the parties were granted leave by this court to file supplemental briefs
limited to the issue of the finality of the December 10, 2018 judgment.
3
Insurance Company, 337 So. 2d 906 ( La. App. 3rd Cir. 9129176). Moreover, a
judgment signed by a judge who did not preside over the trial is fatally defective
and does not constitute a final judgment over which this court can exercise
appellate jurisdiction. Until the judge who conducted the trial signs the judgment,
there is no final judgment. State in Interest of LK., 18- 0406, p. 4 ( La. App. 1 st Cir.
9/ 21118), 257 So. 3d 694, 696- 697.
In this matter, the minutes show that Judge William Carmichael presided
over the December 3, 2018 hearing. The minute entry reads, "[ H] ON. WILLIAM
G. CARMICHAEL, STANDING IN FOR KATHRYN E. JONES." Judge
Carmichael orally ruled on Mr. Matthews' rule to modify child support and Ms.
White' s motion for contempt. The written judgment reflects Judge Carmichael' s
name typed below the signature line; however, the judgment was signed by Judge
Jones.
Although there are exceptions allowing a judge who did not hear a matter to
sign a judgment, none apply here. Under La. C. C.P. art. 253. 3, a duty judge is
permitted to hear and sign specific orders and judgments; however, the judgment at
issue, which reflects the substantive ruling of another judge, is not one of those
specified. Nor was this a case involving a successor judge pursuant to La. R. S.
13: 4209, as Judge Carmichael simply " stood -in" for Judge Jones. 5
5 Louisiana Revised Statutes 13: 4209 provides:
A. In all cases heard and taken under advisement of the district judge or judges of
the city courts, if the judge before whom a case is tried dies, resigns, or is
removed from office, or if his term expires before rendering his judgment in the
case, his successor in office shall decide the case from the evidence in the record,
if all of the testimony is in writing. If it is a case in which the testimony has not
been reduced to writing, the succeeding judge shall decide the case from a
statement of the facts, if one is found in the record, or if the parties to the suit
agree upon a statement of facts. if the testimony is not in the record, and there is
no statement of facts, the case shall be tried de nova.
S. ( 1) In cases which are heard and in which judgment is rendered, but not signed,
whether the case was taken under advisement or not. if the judge who rendered
the judgment dies, resigns, or is removed from office, or if his terra expires before
4
A judgment signed by a judge who did not preside over the trial is not an
informality, irregularity, or misstatement which may be corrected by the trial court
under La. C. C. P. art. 2088( 4), but is instead a fatal defect. Employers Nat. Ins.
Co., 95- 1756 at p. 5, 672 So. 2d at 312. Absent the signature of the judge required
by La. C. C. P. art. 1911, there is no final judgment. Moreover, if a judgment not
signed as required by La. C. C.P. art. 1911 is not considered a final judgment on
direct appeal, it cannot be considered a final judgment simply because there was no
direct appeal wherein the fatal defect would have been discovered and corrective
measures ordered. Acker v. Bailiff, 47, 160, p. 10 ( La. App. 2nd Cir. 6127112), 94
So. 3d 1011, 1017.
In his motion to vacate the judgment, the appellant herein prayed that the
December 10, 2018 judgment be annulled for fraud or ill practices. However, for
differing reasons, aligned with the jurisprudence set forth above, we find that the
December 2018 judgment is fatally defective and must be vacated. In light of this
finding, we reverse the trial court' s May 1, 2019 judgment, which denied the
appellant' s motion to vacate the December 10, 2018 judgment and/ or for a new
trial.
CONCLUSION
For the above and foregoing reasons, the May 1, 2019 judgment is reversed
and the December 10, 2018 judgment is vacated. This case is remanded for further
proceedings. The assessment of the costs of this appeal is deferred until a final
determination on the merits.
signing judgment in the case, his successor in office shall have the authority to
sign a judgment which conforms with the judgment rendered.
2) If a prior judge has stated an affirmative intent to sign ajudgment and failed to
do so for whatever reason, the successor judge is empowered to sign the
judgment.
5
MAY 1, 2019 JUDGMENT REVERSED; DECEMBER 10, 2018
JUDGMENT VACATED; REMANDED.