Green v. Holmes

• Decision Date: 12 April 2011
• Docket Number: No. 10–CA–880.,10–CA–880.
• Parties: Willie GREEN, Jr. and his Spouse, Betty Townsend Greenv.Jessie Lee HOLMES, Mable Holmes, Alice Kizzie Elson Holmes, Widow of Manuel Holmes, and Michael Black.
• Court: Court of Appeal of Louisiana — District of US

68 So.3d 1

Willie GREEN, Jr. and his Spouse, Betty Townsend Green

v.Jessie Lee HOLMES, Mable Holmes, Alice Kizzie Elson Holmes, Widow of Manuel Holmes, and Michael Black.

No. 10–CA–880.

Court of Appeal of Louisiana, Fifth Circuit.

April 12, 2011.

Maria D. Calvo, Grant & Barrow, Attorney at Law, New Orleans, LA, for Plaintiffs/Appellants.Brad J. Gegenheimer, Attorney at Law, Gretna, LA, for Defendants/Appellees.Panel composed of Judges CLARENCE E. McMANUS, WALTER J. ROTHSCHILD, and FREDERICKA HOMBERG WICKER.CLARENCE E. McMANUS, Judge.

[5 Cir. 2] Plaintiffs appeal from two trial court rulings, the first denying their motion to vacate the settlement agreement, and the second granting defendants' motion to enforce settlement, and ordering plaintiffs to comply with the terms of the Consent Judgment entered into between the parties. For the reasons that follow, we affirm the decision of the trial court. In addition, defendants filed a motion to dismiss the appeal, which was referred to the merits for consideration. We deny the motion to dismiss.

This case arises out of a boundary dispute between plaintiffs, Willie Green, Jr. and his spouse, Betty Townsend Green, and defendants Jessie Lee Holmes, Mable Holmes and Michael Black.¹ The parties each own adjoining properties. Both parties claim ownership of a portion of the land that runs alongside each of their properties, either by title or by acquisitive prescription.

Trial commenced on July 14, 2009, and the plaintiffs presented their case. After the plaintiffs rested, the defendants called one witness and then a recess was taken. When trial recommenced, counsel for the plaintiffs stated that a settlement agreement had been reached between the parties. The agreement, which was read [5 Cir. 3] into the record, provided that defendants would purchase the two lots adjoining their property from plaintiffs for $7,500.00; that plaintiffs would arrange for survey rods to be placed identifying the corners of the transferred lots and plaintiffs remaining property, the cost of which was to be shared equally by plaintiffs and defendants; and that defendants would place a fence along the property line between the transferred plots and plaintiffs' remaining property at their expense.

After the consent agreement was read into the record, each party was questioned as to whether they had heard the terms and conditions and whether they were in agreement with same. Each party responded that they heard the terms and conditions and were in agreement with them. The Consent Judgment was reduced to writing and rendered by the Court on July 20, 2009. The attorneys for both plaintiffs and defendants placed their signatures on the judgment, indicating that it had been “Approved as to Form and Content.”

On July 23, 2009, the plaintiffs filed a motion to vacate the Consent Judgment, alleging that their consent to the judgment was not valid as it was obtained under fraud and/or duress. The motion to vacate was denied by the trial court on August 18, 2009. Plaintiffs filed a timely motion for appeal from that judgment and were granted a devolutive appeal.

On September 25, 2009, the defendants filed a motion to enforce the settlement agreement. Defendants also alleged that plaintiffs breached their duty of good faith and fair dealings, and therefore should be assessed with attorney fees and costs. That matter was heard on May 26, 2010, and on June 14, 2010, the trial court granted defendants' motion to enforce the settlement agreement. Plaintiffs filed a timely motion from that judgment and were granted a suspensive appeal.

[5 Cir. 4] MOTION TO DISMISS APPEAL

On December 22, 2010, defendants filed a motion to dismiss appeal in this court, citing LSA–C.C.P. art. 2085. The motion was referred to the merits of the appeal by order of this Court on January 7, 2011. After consideration, we deny the motion to dismiss.

LSA–C.C.P. art. 2085 provides in part that “An appeal cannot be taken by a party who confessed judgment in the proceedings in the trial court or who voluntarily and unconditionally acquiesced in a judgment rendered against him.”

Defendants argue that plaintiffs consented in the judgment against them, and therefore cannot appeal from that judgment. In support of their contention, they cite Guidry v. Sothern, 98–1152 (La.App. 1 Cir. 5/14/99), 734 So.2d 928. In the Guidry case, the court found that a motion to vacate was not the appropriate remedy for a party seeking to set aside a final judgment and that the only remedy available is an action in nullity pursuant to LSA–C.C.P. art. 2001, et seq. See also Johnson v. Cain, 08–0936 (La.App. 1 Cir. 11/14/08), 999 So.2d 51, writ denied, 09–0295 (La.4/3/09), 6 So.3d 773.

In this case, the plaintiffs allege that the consent judgment was obtained by fraud and/or duress. A final judgment obtained by fraud or ill practices is not an absolute nullity; the nullity must be properly decreed within the time prescribed. LSA–C.C.P. art. 2004. The party seeking vacation of a relatively null judgment must bring his action by means of a petition, and the adverse party must be cited to appear, as in ordinary suits. However, a direct action can be brought by filing a separate proceeding or by the filing of a pleading in the same proceeding as that in which the offending judgment was rendered. Mooring Financial Corp. 401(K) Profit Sharing Plan v. Mitchell, 08–1250 (La.App. 4 Cir. 6/10/09), 15 So.3d 311, 318; Smith v. LeBlanc, 06–0041 (La.App. 1 Cir. 8/15/07), 966 So.2d 66, 71–72.

[5 Cir. 5] Here, the plaintiffs' action for nullity was brought by a Motion to Vacate the Consent Judgment, and service was requested on defendants' counsel of record. Defendants did not object to the motion, and did in fact appear and defend the consent judgment. To the extent that this procedure may not have been in accordance with the requirements of LSA–C.C.P. art. 2004, because no objection was made to the procedure employed, any error in this regard is considered waived. See Russland Enterprises, Inc. v. City of Gretna, 98–676 (La.App. 5 Cir. 1/26/99), 727 So.2d 1223, 1226, writ denied, 99–0980 (La.5/28/99), 743 So.2d 669.

Having received judgments that first denied their request to annul the consent judgment on the basis of fraud and/or duress and second ordered enforcement of that consent judgment, the plaintiffs are entitled to appeal from those judgments. Accordingly, we deny the motion to dismiss the appeal.

MERITS OF THE APPEAL

In this appeal, plaintiffs allege that the trial court erred in failing to vacate the Consent Judgment of July 20, 2009. They allege that the trial court erred in failing to vacate the Consent Judgment on the grounds that defendants breached the consent agreement by failing to timely tender payment and also that plaintiffs consent was obtained by fraud and/or duress. They also challenge the trial court's ruling enforcing that Consent Judgment.

A judgment is a solemn adjudication of a court, settling the rights of the parties, as disclosed by the record, and which passes on the matters presented for determination. Peeler v. Dural, 06–936 (La.App. 5 Cir. 4/11/07), 958 So.2d 31, 34. Whether a judgment results from the assent of the parties or is the result of a judicial determination after a trial on the merits, it is accorded sanctity under the law. Id. at page 35...