Johnson v. Vinson Guard Service, Inc.

• Decision Date: 18 December 1990
• Docket Number: Nos. CA,s. CA
• Parties: Melvin JOHNSON v. VINSON GUARD SERVICE, INC., et al. (Two Cases). 860708, 891793. 577 So.2d 56
• Court: Court of Appeal of Louisiana — District of US

Page 56

577 So.2d 56

Melvin JOHNSON v. VINSON GUARD SERVICE, INC., et al. (Two Cases).

Nos. CA 860708, 891793.

577 So.2d 56

Court of Appeal of Louisiana,

First Circuit.

Dec. 18, 1990.

Rehearing Denied Feb. 13, 1991.

Writ Denied April 11, 1991.

Charles Bourg, Morgan City, for plaintiff-appellant.

Ralph Miller, Norco, for defendant Vinson Guard.

Charles Schutte, Baton Rouge, for defendant Louisiana Ins. Guar.

Before COVINGTON, C.J., and EDWARDS, SAVOIE, LANIER and FOIL, JJ.

LANIER, Judge.

This action is a suit by an employee for worker's compensation benefits, medical expenses and statutory penalties. Made defendants were the employer, Vinson Guard Service, Inc. (Vinson), and its insurer Western Preferred Casualty Company (Western). While this matter was pending, Western went into receivership. After a trial, judgment was rendered in favor of the employee against the employer for compensation benefits and medical expenses. The employer took a suspensive appeal from this judgment (CA-86-0708). Over a year after the suspensive appeal was taken, the employer filed a motion for a new trial asserting newly discovered evidence and fraud. Thereafter, the employee filed a motion for a new trial and a motion of no opposition to a new trial. The trial court ex parte granted the employee's motion. The employer then filed a third party demand against the Louisiana Insurance Guaranty Association (LIGA) asserting LIGA was its insurer in lieu of Western. Subsequently, the third party demand was severed from the main demand by court order and was separately submitted to the trial court. In the interim, the new trial was held on the main demand and the case was taken under advisement. The trial court then rendered judgment on the third party demand in favor of LIGA and against the employer. The employer took a devolutive appeal from this judgment (CA-89-0419). ¹ Thereafter, the trial court rendered judgment on the main demand in favor of the employer and against the employee dismissing the employee's claims. The employee took a devolutive appeal from this judgment (CA-89-1793). The appeals from the two judgments on the main demand were consolidated; the appeal from the judgment on the third party demand remained severed from the appeals on the main demand.

BASIC FACTS

On January 27, 1984, Melvin Johnson was employed by Vinson as a security guard and was performing his duties at the ODECO yard in Assumption Parish, Louisiana. As part of his duties, Johnson was required to punch a "key" at stations on the perimeter fence of the yard. As he was approaching one of the "key" stations, Johnson slipped on a piece of scrap iron, fell and injured his back. On February 9, 1984, Johnson underwent a lumbar laminectomy and disc excision at the L4-5 level.

Johnson was initially paid compensation benefits of $128.01 per week to August of 1984, when they were discontinued. This suit was filed on March 29, 1985.

PROCEDURAL FACTS

The first trial of the merits of this case was held on July 2, 1985. After the trial was completed, the trial court took the case under advisement. The first judgment was rendered on January 27, 1986, and it was in favor of Johnson and against Vinson ordering Vinson to pay compensation benefits of $128.01 per week for an indefinite period and pay all medical expenses. On February 26, 1986, Vinson filed a motion and order for a suspensive appeal. On February 27, 1986, the Clerk of Court of the 23rd Judicial District Court, Parish of Assumption, mailed the notice of judgment required by La.C.C.P. art. 1913. On March 31, 1986, Vinson filed a motion and order to dismiss its suspensive appeal on the ground that it was taken prematurely. This motion stated, in pertinent part, as follows:

Under Article 2123 of the Louisiana Code of Civil Procedure, the 30 day delay period for taking a suspensive appeal did not begin to run until the expiration of the delay for applying for a new trial pursuant to Article 1974 of the Louisiana Code of Civil Procedure. Under Article 1974, the delay for applying for a new trial is seven days, exclusive of legal holidays after the clerk has mailed notice of judgment as required by Article 1913. Accordingly, the 30 day delay period for taking a suspensive did not begin to run until March 11, 1986. Therefore, defendant Vinson Guard Services, Inc. could not suspensively appeal the judgment rendered in the above-entitled and numbered cause until March 11, 1986.

The trial court granted this motion. On April 7, 1986, Vinson filed a second motion and order for a suspensive appeal, which was granted by the trial court. This appeal was given docket number CA-86-0708 by this court.

One year and twenty-three days later, on April 30, 1987, Vinson filed a motion for a new trial in the trial court asserting newly discovered evidence and fraud. La.C.C.P. art. 1971 et seq. Prior to the hearing of this motion, Johnson filed a motion for a new trial on June 19, 1987, which motion was granted in an ex parte order signed by the trial court on June 22, 1987. The new trial of this matter was held on December 11, 1987, and January 21, 1988, and the trial court took the case under advisement. On August 3, 1989, the trial court rendered a second judgment which was in favor of Vinson and against Johnson dismissing Johnson's claims. On August 15, 1989, Johnson filed a motion and order for a devolutive appeal. This appeal was given docket number CA-89-1793 by this court.

VALIDITY OF THE SECOND JUDGMENT AND SECOND APPEAL

Jurisdiction is the legal power and authority of a court to hear and determine an action or proceeding involving the legal relations of the parties, and to grant the relief to which they are entitled. La.C.C.P. art. 1. Jurisdiction over the subject matter is the legal power and authority of a court to hear and determine a particular class of actions or proceedings, based upon the object of the demand, the amount in dispute, or the value of the right asserted. La.C.C.P. art. 2. The jurisdiction of a court over the subject matter of an action or proceeding cannot be conferred by consent of the parties or waived; a judgment rendered by a court which has no jurisdiction over the subject matter of the action or proceeding is void. La.C.C.P. arts. 3 and 925. An appellate court, on its own motion, can recognize a lack of subject matter jurisdiction in a trial court. Sears, Roebuck and Company v. City of New Orleans, 238 La. 936, 117 So.2d 64 (1960); Counts v. Bracken, 494 So.2d 1275 (La.App. 2nd Cir.1986); Succession of Guitar, 197 So.2d 921 (La.App. 4th Cir.1967).

La.C.C.P. art. 2088 provides as follows:

Art. 2088. Divesting of jurisdiction of trial court

The jurisdiction of the trial court over all matters in the case reviewable under the appeal is divested, and that of the appellate court attaches, on the granting of the order of appeal and the timely filing of the appeal bond, in the case of a suspensive appeal or on the granting of the order of appeal, in the case of a devolutive appeal. Thereafter, the trial court has jurisdiction in the case only over those matters not reviewable under the appeal, including the right to:

(1) Allow the taking of a deposition, as provided in Article 1433;

(2) Extend the return day of the appeal, as provided in Article 2125;

(3) Make, or permit the making of, a written narrative of the facts of the case, as provided in Article 2131;

(4) Correct any misstatement, irregularity, informality, or omission of the trial record, as provided in Article 2132;

(5) Test the solvency of the surety on the appeal bond as of the date of its filing or subsequently, consider objections to the form, substance, and sufficiency of the appeal bond, and permit the curing thereof, as provided in Articles 5123, 5124, and 5126;

(6) Grant an appeal to another party;

(7) Execute or give effect to the judgment when its execution or effect is not suspended by the appeal;

(8) Enter orders permitting the deposit of sums of money within the meaning of Article 4658 of this Code;

(9) Impose the penalties provided by Article 2126, or dismiss the appeal, when the appellant fails to timely pay the estimated costs or the difference between the estimated costs and the actual costs of the appeal; or

(10) Set and tax costs and expert witness fees.

(Emphasis added)

When Vinson filed its motion and order for an appeal on April 7, 1986, the delay for applying for a new trial had expired, La.C.C.P. art. 1974, the trial court was divested of its subject matter jurisdiction over the merits of this case, and the subject matter jurisdiction over the merits of this case attached to this court. Thereafter, the trial court had no subject matter jurisdiction to act on a subsequently filed motion for a new trial. Whitehead v. Fireman's Fund Insurance Company, 529 So.2d 82 (La.App. 3rd Cir.), writ denied, 532 So.2d 119 (La.1988). Because the trial court had no subject matter jurisdiction over the motions for new trial filed by Vinson and Johnson, its actions in granting a new trial, conducting a new trial, rendering the second judgment and granting the second appeal are void. La.C.C.P. art. 3. We recognize this lack of jurisdiction on our own motion.

In oral argument, Vinson asserted that its motion for new trial should be considered as an action for nullity of a final judgment as provided for in La.C.C.P. art. 2001 et seq., and that, accordingly, the trial court properly granted a new trial. Vinson contended that a pleading should be construed pursuant to its substance and not its caption, and, since its motion asserted that the first judgment was based on fraud, it alleged a cause of action for nullity of judgment under La.C.C.P. art. 2004, and, pursuant to La.C.C.P. art. 2005, the nullity claim could be adjudicated while an appeal was pending.

Initially, we note that the trial court granted Johnson's, not Vinson's, motion for a new trial. Johnson's motion for a new trial can not be construed as...