110 So. 3d 656
La. Ct. App.2013Background
- Midland Funding LLC sued Bennett Cady in Shreveport City Court for a $1,225.47 debt plus interest and fees based on a MasterCard account; Midland obtained a summary judgment on July 28, 2010.
- Cady, proceeding pro se, denied the contract and moved for an appeal, which was dismissed as untimely and thus the summary judgment became final.
- On November 17, 2011, Cady ex parte moved to vacate the judgment, asserting new evidence and alleged misrepresentation by Midland and citing FRCP 60 and related federal cases.
- The city court vacated the judgment ex parte and set a merits trial, prompting Midland to file a motion to nullify the vacatur; the court denied this motion on February 24, 2012 after a late appearance by Midland’s counsel.
- Midland sought a writ; on review, the court concluded the city court abused its discretion by vacating the judgment and held FRCP 60 is inapplicable to Louisiana state court proceedings; the original July 28, 2010, judgment was reinstated and the vacatur reversed.
- Costs were allocated to Cady to the extent permitted by law; the final order reinstated the original summary judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ex parte vacatur of the summary judgment was permissible | Cady argued new evidence and misrepresentation warrant nullity. | Midland contends vacatur lacked due process and was improper after final judgment. | Vacatur abused; reverse and reinstate judgment. |
| Whether Cady is entitled to nullity under Article 2004 | Art. 2004 grounds may apply due to fraud/ill practices. | No deprivation of rights or due process; no fraud proven. | Not entitled to nullity; Article 2004 not satisfied. |
| Whether FRCP 60 applies to Louisiana state court proceedings | FRCP 60 supports relief from judgment; misused affidavits cited. | FRCP 60 does not control state court practice; not applicable. | FRCP 60 not controlling; state law governs nullity. |
Key Cases Cited
- Morneau v. American Oil Co., 272 So.2d 313 (La.1973) (appeal timing and finality of city court judgment)
- Sheets Family Partners-Louisiana, Ltd. v. Inner City Refuge Dev. Corp., 94 So.3d 964 (La.App. 2 Cir. 6/20/12) (finality of appeal; non-reviewability of untimely appeals)
- Bourgeois v. Kost, 846 So.2d 692 (La.5/20/03) (nullity not recognized for captioned motion; Art. 2004 criteria)
- Winston v. Martin, 764 So.2d 368 (La.App. 2 Cir. 7/6/00) (jurisdiction to amend judgments after appeal)
- Halley v. Guerriero, 577 So.2d 781 (La.App. 2 Cir.1991) (nullity without notice or hearing is a nullity)
- Wright v. Louisiana Power & Light, 951 So.2d 1058 (La. 3/9/07) (Art. 2004 criteria for nullity and deprivation of rights)
- Straughter v. Hodnett, 975 So.2d 81 (La.App. 2 Cir. 1/9/08) (nullity principles and inequitable enforcement)
- Gladstone v. American Auto. Ass’n, 419 So.2d 1219 (La.1982) (new evidence usually not basis for nullity)
- Connell v. Albritton, 64 So.2d 507 (La.App. 1 Cir.1953) (Article 2004 scope and grounds)
- Midland Funding LLC v. Brent, 644 F.Supp.2d 961 (N.D. Ohio 2009) (fraud findings in affidavits and non-personal knowledge issues)
- Scranton v. Ashley Ann Energy, 91 So.3d 1174 (La.App. 2 Cir. 4/11/12) (nullity analyses and due process considerations)