Eldred v. Eldred

Decision Date02 March 2011
Docket NumberNos. 2010–CA–0794,2010–CA–0795.,s. 2010–CA–0794
Citation56 So.3d 432
PartiesLantson E. ELDREDv.Sally FLEMINGSally Flemingv.Lantson Eldred.
CourtCourt of Appeal of Louisiana — District of US


Irl R. Silverstein, The Silverstein Law Firm, APLC, Gretna, LA, for Lantson E. Eldred.Harry Rosenberg, Phelps Dunbar L.L.P., New Orleans, LA, for Sally Fleming.(Court composed of Chief Judge JOAN BERNARD ARMSTRONG, Judge PATRICIA RIVET MURRAY, and Judge MAX N. TOBIAS, JR.).JOAN BERNARD ARMSTRONG, Chief Judge.

[4 Cir. 1] The plaintiff, Lantson 1 E. Eldred, a citizen of California, appeals a summary judgment granted by the trial court dismissing his claims against the defendant, Sally Fleming, a citizen of Louisiana. For the reasons that follow, we affirm the judgment of the trial court.

On April 26, 2002, Mr. Eldred brought suit against Ms. Fleming in Civil District Court for the Parish of Orleans (CDC), No. 02–6743, to make executory in Louisiana a 2001 judgment he had obtained in the Superior Court for the State of California, County of Riverside, in Proceeding No. INC 019498. On August 28, 2003, Ms. Fleming brought a counter-suit against Mr. Eldred in the CDC proceeding, to declare the foreign judgment null on the basis of lack of in personam jurisdiction and to nullify Mr. Eldred's petition on the basis of fraud or ill practices, and for damages. Mr. Eldred filed a dilatory exception of improper cumulation of actions, which the trial court granted, allowing Ms. Fleming to sever her claims for relative nullity and damages by amending her original petition, and granting her leave to bring the claims in a new proceeding. Ms. Fleming subsequently complied with the trial court's ruling, filing a petition, bearing CDC [4 Cir. 2] No. 07–8460, for relative nullity, damages, and attorney's fees, encompassing the severed claims, and an amended petition and/or reconventional demand and third party petition to declare the foreign judgment null on the basis of lack of in personam jurisdiction. The latter amended petition contained only the claims of absolute nullity of the California Judgment and domesticated Louisiana judgment. Mr. Eldred filed an exception of lack of subject matter jurisdiction to the reconventional demand, and exceptions of lack of jurisdiction and prescription to the severed claims. By Order dated December 21, 2007, No. 07–8460 was transferred to the CDC division where 02–6743 was then pending. The trial court denied Mr. Eldred's exception of lack of subject matter jurisdiction by judgment rendered on January 4, 2008 and signed on January 8, 2008 2, and consolidated the two actions by Order dated March 6, 2008. On February 28, 2008, Mr. Eldred applied to this Court for supervisory review of the trial court's denial of his exceptions of lack of subject matter jurisdiction and prescription. On March 24, 2008, this Court denied the writ 3, holding:

We find no error in the trial court's judgment denying Relator's [Mr. Eldred's] exceptions of lack of subject matter jurisdiction and lack of jurisdiction and prescription. Accordingly, Relator's application for supervisory writ is denied.

In January 2010, Ms. Fleming moved for summary judgment, representing that there are no genuine issues of material fact as to the dispositive issue that the California court lacked in personam jurisdiction over her, making the California judgment an absolute nullity. The trial court granted the motion for summary judgment, nullifying absolutely the California default judgment and the subsequent [4 Cir. 3] domesticated judgment Mr. Eldred obtained in Orleans Parish. The trial court further annulled and vacated the California judgment domesticated in Orleans Parish nunc pro tunc from the date of the default judgment, and ordered the Recorder of Mortgages for Orleans Parish to cancel and erase immediately the judgment entered by the trial court on April 26, 2002, and recorded on July 12, 2002 in Book No. 3638, Folio 361, bearing Mortgage Instrument No. 660964. The trial court granted Mr. Eldred's motion for a suspensive appeal, upon his posting a $25,000.00 bond. The said bond was received by the Clerk of the trial court by receipt # 39885 dated April 13, 2010, and verified by the deputy clerk of court on April 15, 2010.

Appellate courts review summary judgment de novo, using the same criteria applied by trial courts to determine whether summary judgment is appropriate. Independent Fire Insurance Company v. Sunbeam Corp., 99–2181, 99–2257, p. 7 (La.2/29/00), 755 So.2d 226, 230. The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of actions such as this. The procedure is favored and shall be construed to accomplish these ends. La.Code Civ. Proc. art. 966 A(2). A summary judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that the mover is entitled to judgment as a matter of law. La.Code Civ. Proc. art. 966 B. The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an [4 Cir. 4] absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact. La.Code Civ. Proc. art. 966 C(2).

An adverse party to a supported motion for summary judgment may not rest on the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided by law, must set forth specific facts showing that there is a genuine issue of material fact for trial. La.Code Civ. Proc. art. 967; Townley v. City of Iowa, 97–493, p. 5 (La.App. 3 Cir. 10/29/97), 702 So.2d 323, 326.

The following facts were established by Ms. Fleming's sworn affidavit, submitted in support of her motion for summary judgment:

1. Ms. Fleming is and was at all relevant times a major, resident and domiciliary of the State of Louisiana.

2. Ms. Fleming is the former owner of 821–823 Governor Nicholls Street in New Orleans (the Property).

3. Daniel Resnic, a resident of the State of California, acted independently and was at no time given authority to act as Ms. Fleming's agent or in any other way on her behalf.

4. Mr. Resnic was not authorized to enter into agreements on her behalf.

5. Under the terms of her agreement with Mr. Resnic, Ms. Fleming had the right to approve the terms of any lease entered into on the Property.

6. Ms. Fleming did not pledge to oversee or control Mr. Resnic's work.

7. There was no understanding on Ms. Fleming's part that Mr. Resnic would advertise the rental of the Property exclusively in California.

[4 Cir. 5] 8. Ms. Fleming has never resided in or been employed in California.

9. Ms. Fleming has never engaged in any action designed to avail herself of the legal protections of California.

10. Ms. Fleming received no payment from Mr. Resnic or Mr. Eldred, except for Mr. Eldred's check payable to her in the amount of $75.00, representing payment of a fraction of the utility bills incurred in connection with his occupation of the Property.

11. Ms. Fleming and Mr. Resnic were named defendants in an action brought by Mr. Eldred on October 6, 2000, in the Superior Court of the State of California, Riverside County, Indio Branch.

12. In that complaint, Mr. Eldred erroneously alleged that Mr. Resnic acted as Ms. Fleming's agent.

13. On August 22, 2001, Ms. Fleming filed a motion to quash service for lack of in personam jurisdiction in the California court.

14. In the motion to quash, Ms. Fleming denied Mr. Eldred's allegation that Mr. Resnic was her agent, and asserted that there was no basis for holding her subject to the jurisdiction of the California court.

15. Ms. Fleming telephoned the California court and was informed that her motion to quash was set for hearing on November 7, 2001.

16. The hearing did not take place on November 7, 2001, but on October 11, 2001 a hearing was held in the California court and on November 7, 2001, a default judgment was entered into the court's record.

17. Ms. Fleming received no notice of the October 11, 2001 hearing date.

[4 Cir. 6] 18. Ms. Fleming received no service or notice of the default judgment, because notice was sent to an address in Louisiana that Mr. Eldred knew to be out-dated.

19. Mr. Eldred initiated the present suit on April 26, 2002, by filing his petition to domesticate the California default judgment.

20. The domesticated Judgment was signed that same day, April 26, 2002.

21. Mr. Eldred's petition misstated her address as 621 Governor Nicholls, although she has never resided at that address.

22. Ms. Fleming never received service of the petition or the subsequent domesticated judgment, and discovered the existence of the domesticated judgment while perusing the public record.

23. On August 20, 2007, she filed her amended petition and/or reconventional demand alleging that the California default judgment and the domesticated judgment are absolutely null for lack of in personam jurisdiction.

Ms. Fleming attached to her affidavit the following documents: (1) copy of Mr. Eldred's California petition against Mr. Resnic, Ms. Fleming and twenty “Does”; (2) copy of Ms. Fleming's motion to quash service for lack of in personam jurisdiction, filed by special and limited appearance in the California court; (3) copy of Ms. Fleming's memorandum in support of her motion to quash service; (4) copy of...

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  • First Bank & Trust v. Simmons
    • United States
    • Court of Appeal of Louisiana — District of US
    • April 22, 2015
    ...with other claims that must use ordinary process. See La. C.C.P. art . 462.38 In support, FB & T cites Eldred v. Fleming, 10–0794 (La.App. 4 Cir. 1/20/11), 56 So.3d 432, as an example of a case wherein a defendant was allowed to cumulate claims for a relative ity with a claim for damages. F......

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