Radcliffe 10, L.L.C. v. Burger

• Decision Date: 28 March 2016
• Docket Number: No. 2014 CA 0347.,2014 CA 0347.
• Citation: 191 So.3d 79
• Parties: RADCLIFFE 10, L.L.C. v. Ronald G. BURGER and Lynda O. Burger.
• Court: Court of Appeal of Louisiana — District of US

191 So.3d 79

RADCLIFFE 10, L.L.C.
v.
Ronald G. BURGER and Lynda O. Burger.

No. 2014 CA 0347.

Court of Appeal of Louisiana, First Circuit.

March 28, 2016.

191 So.3d 80

Craig J. Robichaux, Mandeville, LA, for Plaintiff/Appellee, Radcliffe 10, L.L.C.

Joseph L. McReynolds, Duris L. Holmes, New Orleans, LA, for Defendant/1st Appellant, Ronald G. Burger.

Ross A. Dooley, Baton Rouge, LA, Counsel for Defendant/2nd Appellant, Lynda G. Burger.

Before WHIPPLE, C.J., PETTIGREW, McDONALD, McLENDON, WELCH, HIGGINBONTHAM, THERIOT, DRAKE, HOLDRIDGE, and CHUTZ JJ.

PER CURIAM.

In this suit by plaintiff to revoke a judgment approving a separation of property agreement entered into by defendants during their marriage and, thus, terminating the legal matrimonial regime existing between the defendants, defendants appeal the trial court's judgment, revoking the previous judgment terminating their community of acquets and gains as void ab initio for failure to follow the procedural requirements of LSA–C.C. art. 2329 and further ordering that plaintiff has the right to have any recordation of that judgment cancelled. This court, sitting en banc, has considered the merits of defendants' appeal. Ten of the twelve judges of this court have participated, but we are unable to render a decree reflecting a majority judgment on each issue presented in this case. Because there is no majority consensus on the dispositive issue of whether the underlying separation of property agreement and the subsequent judgment approving the agreement and terminating the community of acquets and gains were void ab initio or, instead, a relative ity subject to ratification, there is no executable majority judgment, and the effect of this court's vote is that the trial court's judgment stands.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Radcliffe 10, L.L.C., (“Radcliffe 10”) is a judgment creditor of defendant Ronald G. Burger. On April 24, 2007, Radcliffe 10 filed a “Petition to Revoke Judgment Terminating Legal Matrimonial Regime, Establishing Separation of Property Regime and Separation of Property Agreement,” seeking to revoke and annul a judgment that had approved a “Separation of Property Agreement After Marriage” executed by the defendants Ronald and Lynda Burger, as well as to annul the agreement itself. The background facts leading up to this suit are as follows.

Radcliffe 10 and Ronald Burger had previously been involved in litigation in the matter of Radcliffe 10, L.L.C. v. Zip Tube Systems of Louisiana, Inc., No.2003–14116 c/w 2003–14973, in the Twenty-second Judicial

191 So.3d 81

District Court in St. Tammany Parish (“the Zip Tube litigation”), in which Radcliffe 10 alleged: (1) that Ronald Burger and other named defendants therein had engaged in unfair trade practices, in violation of LSA–R.S. 51:1401, related to Radcliffe 10's purchase of Zip Tube Systems of Louisiana, Inc., a corporation of which Ronald Burger was secretary and Lynda Burger was president; and (2) that Ronald Burger had breached his employment contract with Radcliffe 10 executed as part of the sale of Zip Tube.¹

Following trial in the Zip Tube litigation, the trial court issued written reasons for judgment on June 24, 2005, finding that Ronald Burger had breached fiduciary duties owed to Radcliffe 10 and had engaged in unfair trade practices and that Radcliffe 10 was entitled to judgment in its favor against Ronald Burger and the remaining defendants in the amount of $3,428,000.00. However, a judgment in the Zip Tube litigation was not signed until almost two years later on March 23, 2007,² and an amended judgment in conformity with the written reasons for judgment was ultimately signed on March 29, 2007, in favor of Radcliffe 10 and against Ronald Burger and the other defendants, in solido, awarding damages in the total amount of $3,428,000.00.³

In the meantime, on March 20, 2006, after the trial court's issuance of its written reasons for judgment in the Zip Tube litigation, but before the ultimate signing of a judgment awarding Radcliffe 10 damages, Ronald Burger filed a “Petition to Terminate Legal Matrimonial Regime and Enter into Separation of Property Agreement,” naming Lynda Burger as defendant (“the Separation of Property proceeding”). In the petition, Ronald Burger averred that he had “no outstanding debts other than the usual monthly utility and rent bills,” that he “desire[d] to terminate the legal matrimonial regime of community property and enter into a regime of separation of property,” and that he “believe[d] that this action is in the best interests of both parties....”

On May 8, 2006, the trial court in the Separation of Property proceeding signed the judgment that Radcliffe 10 has sought to have ified in the instant proceedings, i.e., a judgment approving a Separation of Property Agreement signed by Ronald and Lynda Burger on May 3, 2006, terminating the legal matrimonial regime that existed between the parties and establishing a separation of property regime. The Separation of Property Agreement, in addition to providing that Ronald and Lynda were terminating the legal regime and entering into a separation of property regime, also

191 So.3d 82

partitioned property of the Burgers classified as community under their previous regime by allocating to Lynda Burger $251,247.00 in liquid assets, together with “[a]ll future [i]ncome from any source” and allocating to Ronald Burger “[a]ll future [i]ncome from any source.”

In its “Petition to Revoke Judgment Terminating Legal Matrimonial Regime, Establishing Separation of Property Regime and Separation of Property Agreement” in the instant matter, Radcliffe 10 averred that Ronald Burger's petition to terminate the legal matrimonial regime existing between him and Lynda was filed in violation of LSA–C.C. art. 2036, et seq., and was, therefore, subject to a revocatory action.⁴ Thus, it averred that “the acts of terminating the legal community of acquets and gains, establishing a separation of property regime, and the separation of property agreement after marriage must be aned.”

In a later-filed motion for summary judgment on January 16, 2012, Radcliffe 10 also advanced an additional theory in support of its claim to have the Separation of Property Agreement aned, i.e., that the Separation of Property Agreement signed by the Burgers was void ab initio for failure of the parties to “follow strictly the requirements of [LSA–C.C.] Article 2329.”⁵ Specifically, Radcliffe 10 argued that LSA–C.C. art. 2329 provides that spouses may terminate the matrimonial regime during marriage “only upon joint petition,” but that in this particular case, Ronald Burger filed the petition individually, naming Lynda as a defendant. Thus, Radcliffe 10 argued that the failure to adhere to the required procedure set forth in LSA–C.C. art. 2329 rendered the Separation of Property Agreement, which was “made the judgment of the court on May 8, 2006” in the Separation of Property proceeding, void ab initio.

Although Radcliffe 10's motion for summary judgment was ultimately denied, it continued to advance this theory in support of its claim to annul the May 8, 2006 judgment and underlying Separation of Property Agreement. Radcliffe 10's claim to annul the May 8, 2006 judgment approving a Separation of Property Agreement was submitted to the trial court below on briefs in lieu of a trial. In its trial brief filed on October 24, 2013, Radcliffe 10 again advanced the argument that the May 8, 2006 judgment terminating the Burgers' legal community property regime was an absolute ity for failure of the Burgers to comply with the formalities of LSA–C.C. art. 2329, noting that this theory was “[p]erhaps the simplest way to dispose of this case.”⁶

By judgment dated October 30, 2013, the trial court ordered that there be judgment

191 So.3d 83

in favor of Radcliffe 10 and against Ronald and Lynda Burger, “revoking the previous judgment terminating their community of acquets and gains ... ab initio for failure to follow the procedural requirements for obtaining such a judgment under [LSA–C.C. art. 2329 ]. That judgment is hereby declared to be and of no legal effect at any time.” The October 30, 2013 judgment further provided that Radcliffe 10 “shall have the right to have any recordation of that judgment in any parish or county cancelled upon payment by plaintiff of the costs related thereto.”

From this judgment, Ronald and Lynda Burger appeal, contending that the trial court committed legal error in aning, as void ab initio, either the May 3, 2006 Separation of Property Agreement between them or the May 8, 2006 final judgment rendered. in the Separation of Property proceeding that had approved the matrimonial agreement and terminated the community property regime between the Burgers “solely because the action to terminate the legal regime was not initiated by a ‘joint petition.’ ” The issues they present for review to this court are:

(1) Was non-compliance with the requirements of Article 2329 properly before the district court, when the petition asserted only one cause of action for ity, based on the Revocatory Action under Civil Code Article 2036 ?

(2) When a husband

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