Biosonix, LLC v. Olson

Decision Date10 February 2016
Docket NumberNo. 15–659.,15–659.
Citation185 So.3d 924
Parties BIOSONIX, LLC v. Marcia OLSON.
CourtCourt of Appeal of Louisiana — District of US

185 So.3d 924

BIOSONIX, LLC
v.
Marcia OLSON.

No. 15–659.

Court of Appeal of Louisiana, Third Circuit.

Feb. 10, 2016.


185 So.3d 925

Andrew P. Texada, Stafford, Stewart & Potter, Alexandria, LA, James L. Maughan, The Maughan Law Firm, L.L.C., Baton Rouge, LA, Counsel for Plaintiff/Appellant, Biosonix, LLC.

William Alan Pesnell, The Pesnell Law Firm, APLC, Shreveport, LA, Counsel for Defendant/Appellee, Marcia Olson.

185 So.3d 926

Court composed of ULYSSES GENE THIBODEAUX, Chief Judge, SHANNON J. GREMILLION, and PHYLLIS M. KEATY, Judges.

KEATY, Judge.

This matter concerns several attempts by the plaintiff to make a Texas judgment executory in Louisiana. After a hearing, the trial court granted the defendant's motion to deny full faith and credit to the Texas judgment and ordered that it be stricken from the public records of Rapides Parish, Louisiana. The plaintiff appeals. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY 1

The plaintiff, Biosonix, LLC (BSX), is a Delaware limited liability company in the business of developing, distributing, and selling fishing products that is wholly owned by William H. Lewis (Lewis), the brother of Marcia Olson (Olson), the named defendant in this matter. In August of 2012, BSX filed suit in the Ninety–Fifth Judicial District Court in Dallas County, Texas, against Olson and seven other defendants, seeking damages for various torts and contract violations allegedly committed against it. In a Final Default Judgment rendered on May 27, 2013, the Texas court entered a judgment in favor of BSX and against Olson in the total amount of $5,183,260.68 (hereafter referred to as "the Texas judgment"). On August 5, 2013, BSX filed an Ex Parte Petition in the Ninth Judicial District Court in Rapides Parish, Louisiana (the trial court), seeking to have the Texas judgment made executory in this state pursuant to the Enforcement of Foreign Judgments Act.2 By order dated August 13, 2013, the trial court made the Texas judgment executory "in accordance with Louisiana law."

Olson filed a dilatory exception of lack of procedural capacity, seeking to have BSX's Louisiana suit against her dismissed based upon her assertion that, because BSX was a Delaware corporation doing business in Louisiana but was not authorized to do business in this state, it was prohibited from filing any pleadings in this state. In addition, Olson filed an answer and opposition to the ex parte petition wherein she claimed that the Texas judgment against her was null and void because Texas did not have personal jurisdiction over her. Olson's answer contained affirmative defenses and a reconventional demand wherein she alleged that the Texas judgment was "violative of the Louisiana constitution and due process of law" and that it was not entitled to full faith and credit because the issue of the Texas court's lack of personal jurisdiction over her was not litigated in the Texas action. More specifically, Olson submitted that the allegations made by BSX in the Texas litigation were false and defamatory and that she lacked sufficient minimum contacts with the state of Texas such as to render her subject to personal jurisdiction there. Following a hearing, the trial court granted Olson's exception of lack of procedural capacity. By judgment dated November 18, 2013, the trial court declared the August 13, 2013 order making the Texas judgment executory in Louisiana null and void on the basis that BSX was not properly registered to do business in this state and, thus, "did not have authority to file a demand in this Court." As a result, the trial court vacated the judgment and ordered the

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Rapides Parish Clerk of Court to cancel the judgment from the parish's mortgage records.

Meanwhile, Olson had filed a Petition to Annul the Texas judgment in the trial court on November 8, 2013,3 on the basis that it was obtained by fraud and ill practices and in a court that had no personal jurisdiction over her. She asserted therein that she neither did business, owned property, paid taxes in Texas, nor had she taken any personal actions there so as to subject her to the personal jurisdiction of that state. While Olson acknowledged therein that the August 13 order making the Texas judgment executory in Louisiana had been annulled, she sought to have the underlying Texas judgment annulled to prevent BSX from ever being able to make it executory in this state. In an Amended Petition to Annul Judgment, Olson sought a judgment annulling the Texas judgment and declaring it to have "no force and effect, and denying full faith and credit to the Texas judgment."

In early April 2014, BSX filed a second Ex Parte Petition seeking to have the Texas judgment made executory in Louisiana. Pursuant to an order dated April 3, 2014, the trial court again made the Texas judgment executory in Louisiana. Olson filed a motion for new trial and for a stay of the proceedings on April 21, 2014, on the basis that BSX was still not authorized to do business in this state.

Olson filed a second motion for new trial and for a stay of the proceedings in July 2014 on the basis that BSX was still not authorized to do business in this state. In an answer to Olson's petition to annul the Texas judgment, BSX asserted that it was not required to qualify to do business in Louisiana in order to make the Texas judgment executory in this state. Olson also filed a motion to stay enforcement of the Texas judgment that BSX was again seeking to make executory in Louisiana.

After conducting hearings on August 18, 2014, and October 1, 2014, the trial court signed a Final Judgment4 on March 3, 2015, granting Olson's motion to deny full faith and credit to the Texas judgment, cancelling the Texas judgment, and ordering the Rapides Parish Clerk of Court erase the judgment from the public records of Rapides Parish.5

BSX appeals, assigning the following errors:6

1. The Trial Court Exceeded its Authority by Vacating and Declaring the First Judgment of The Domestication
185 So.3d 928
[7 ] Null And Void.

2. BSX Was Not Required to Obtain a Certificate of Authority Prior to Bring [ing] Domestication Proceedings.



3. The Second Judgment Vacating the Order of Domestication Could Not be Rendered by The Court In A Summary Proceeding.

4. Louisiana was Precluded From Re–Litigating Whether Olson Was Subject to In Personam Jurisdiction of The Texas Court.

5. Olson Failed to Carry Her Burden of Proving That She Was Not Subject to In Personam Jurisdiction By The Texas Court.

DISCUSSION

Louisiana Code of Civil Procedure Article 2541(A) provides:

A party seeking recognition or execution by a Louisiana court of a judgment or decree of a court of the United States or a territory thereof, or of any other state, or of any foreign country may either seek enforcement pursuant to R.S. 13:4241, et seq., or bring an ordinary proceeding against the judgment debtor in the proper Louisiana court, to have the judgment or decree recognized and made the judgment of the Louisiana court.

In this case, BSX attempted to make the Texas judgment executory pursuant to the Enforcement of Foreign Judgments Act (EFJA) as authorized in La.R.S. 13:4241 –4248. Olson responded by filing a dilatory exception of lack of procedural capacity, arguing that BSX needed to qualify to do business in Louisiana before filing suit to make the Texas judgment executory in this state.8 Later, by way of an original and amended Petition to Annul Judgment, Olson sought to deny full faith and credit to the Texas judgment on the grounds that the Texas court had no personal jurisdiction over her.

Did The Trial Court Exceed Its Authority By Vacating The August 13, 2013 Order Making The Texas Judgment Executory In Louisiana?

In its first assignment of error, BSX contends that the trial court exceeded its authority by vacating and declaring the August 13, 2013 order making the Texas judgment executory in Louisiana null and void. Olson counters that because BSX did not appeal nor seek writs from the November 18, 2013 judgment declaring the August 13, 2013 order null and void, that judgment became final and may not now be challenged on appeal.

The November 18, 2013 judgment vacating the earlier order making the Texas

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judgment executory and declaring that BSX did not have authority to file a demand in this state was a final judgment. See La.Code Civ.P. art. 1841. Therefore, because BSX failed to timely appeal that judgment, it is precluded from challenging the merits of that judgment. See Fulton v. Blue Cross of La., 563 So.2d 492 (La.App. 4 Cir.), writs denied, 567 So.2d 1129 (La.1990). Thus, we need not address the substance of BSX's first assignment of error.

Was BSX Required To Obtain A Certificate of Authority Before Petitioning To Make The Texas Judgment Executory Pursuant To The EFJA?

In the November 18, 2013 judgment declaring the August 13, 2013...

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