Mitchell v. Zeringue

• Decision Date: 14 October 1986
• Docket Number: No. 86-CA-187,86-CA-187
• Citation: 497 So.2d 19
• Parties: Ozeme Joseph MITCHELL v. Gary ZERINGUE, et al.
• Court: Court of Appeal of Louisiana — District of US

Page 19

497 So.2d 19

Ozeme Joseph MITCHELL v. Gary ZERINGUE, et al.

No. 86-CA-187.

Court of Appeal of Louisiana, Fifth Circuit.

Oct. 14, 1986.

Daniel E. Becnel, Jr., Becnel, Landry & Becnel, Reserve, for Ozeme Joseph Mitchell plaintiff-appellee.

Michael R. Zsembik, Reuter, Reuter, Reuter & Pizza, New Orleans, for Gary Zeringue defendant-appellant.

Before GRISBAUM and WICKER, JJ., and J. BRUCE NACCARI, J. Pro Tem.

J. BRUCE NACCARI, Judge Pro Tem.

The defendant appeals from an amended judgment rendered against him, which judgment substituted his name as a defendant found liable to the plaintiff for wrongful detention, in place of another defendant named in the original judgment. The appellant is not named in the original judgment. We reverse.

The plaintiff, Ozeme Mitchell filed an action against several defendants, including appellant Gary Zeringue, an Officer of the Sheriff's Office of the Parish of St. Charles, and his employer, The Sheriff's Office of the Parish of St. Charles, alleging wrongful detention. The plaintiff had been arrested for first degree murder pursuant to a warrant signed by Judge C. William Bradley. Approximately one (1) day after this arrest, it was learned that another individual had committed the murder at issue. At that time, the defendant, Gary Zeringue, notified the district attorney's office of the situation but did not notify a magistrate. As a result, the plaintiff was detained for one to two days longer than necessary.

On February 8, 1982, the Trial Court found liability on the basis that notification should have been made to a magistrate rather than to the district attorney, however it entered a judgment only against the "Sheriff's Office of the Parish of St. Charles" and not against appellant.

The Sheriff's Office, however, had been dismissed as a party defendant on March 19, 1979 pursuant to its exception of no cause of action. A judgment was thus rendered against an entity not a party to the suit.

The Judgment was mailed to counsel on the following day. The record reflects that neither a motion for new trial nor a motion for appeal was filed by either party.

On June 28, 1983, counsel for the plaintiff filed a Motion for Contempt of Court directed to the Sheriff's Office for failure to pay the judgment. The trial judge declined to sign the order setting the matter for hearing, but instead formulated an order advising counsel that a motion for contempt was an improper procedural remedy to enforce a judgment and advising him to proceed by writ of attachment and/or fi fa. Following the signing of the order, on September 27, 1984, the trial court transferred the case to Division C of the court. The order of transfer notwithstanding, on December 30, 1985, the original court signed an amended judgment which provided as follows:

This matter came for Trial on the 11th day of September, 1981, and was considered submitted for Judgment on the 27th day of October, 1981.

Present at the time of Trial were the following:

Ozeme J. Mitchell and his attorney Daniel E. Becnel, Jr.

The Defendant and his attorney, Steven F. Griffith

After hearing the evidence, argument of counsel and considering the law, it is the Judgment of this Court that the Plaintiff has sufficiently carried the burden of proof required and there is therefore, Judgment in favor of the Plaintiff, Ozeme Joseph Mitchell, and against Gary Zeringue as an employee of the Sheriff's Office of the Parish of St. Charles, in the full and true sum of THREE THOUSAND DOLLARS AND NO CENTS ($3,000.00). In addition to costs of all depositions, costs of Court and legal interest from date of...