222 So. 3d 867
La. Ct. App.2017Background
- Schiff and Pollard were business partners in N.O.W. Properties who bought/renovated 12 houses; dispute arose after profits and management conflicts.
- After a three-day bench trial the court entered judgment for Pollard on Aug. 2, 2013, awarding ~ $685k; this judgment was largely affirmed on appeal (Pollard decision).
- While that appeal was pending Schiff filed a petition to annul the Aug. 2, 2013 judgment alleging fraud and ill practices by Pollard and her counsel.
- Procedural history: the trial court granted exceptions (some initially), Schiff amended his petition twice after remand; Pollard renewed an exception of res judicata.
- On May 3, 2016 the trial court granted Pollard’s exception of res judicata and dismissed Schiff’s petition with prejudice; Schiff appealed, the appellate court converted the appeal to a supervisory writ and reviewed the merits.
- The court affirmed the trial court, holding res judicata barred Schiff’s annulment action because the alleged grounds were raised or could/should have been raised in the prior litigation.
Issues
| Issue | Plaintiff's Argument (Schiff) | Defendant's Argument (Pollard) | Held |
|---|---|---|---|
| Whether res judicata may be invoked to bar a suit to annul a prior judgment | A prior judgment cannot be pleaded as res judicata in a suit to annul it; this action raises different causes and newly discovered fraud | The Aug. 2, 2013 judgment is a valid final judgment and bars relitigation of causes/issues that were or could have been raised | Res judicata applies: the records show the issues/claims were raised or could have been raised in the prior suit, so the annulment is precluded |
| Whether the petition alleges fraud/ill practices that were not litigated and thus justify annulment | Alleged concealment of a Regions 2974 account, misstated reimbursements, perjured testimony, and misrepresentation of contractor’s license justify annulment | Most allegations were raised at trial/post-trial/appeal; the contractor-license claim could have been discovered with diligence and was not material to the prior judgment | Most fraud allegations were previously litigated or could have been litigated; the contractor-license claim is not a basis for annulment (discoverable with diligence and irrelevant to the judgment) |
| Whether the May 3, 2016 judgment invoked appellate jurisdiction despite lacking formal decretal language | Schiff timely appealed the judgment | Pollard argued the judgment operated to dismiss plaintiffs’ claims with prejudice | Appellate court found decretal language lacking but exercised discretion to convert the appeal to a supervisory writ and proceeded to review and affirm the judgment |
| Whether newly discovered evidence (license status) permits annulment | Schiff: discovery after trial that Pollard misrepresented being a licensed contractor vitiates contract and supports annulment | Pollard: license status was discoverable by due diligence and was irrelevant to the trial court’s decision | Court: newly discovered evidence that could have been found with reasonable diligence does not support annulment; claim is barred by res judicata |
Key Cases Cited
- Pollard v. Schiff, 161 So.3d 48 (La. App. 4th Cir.) (prior appeal affirming judgment in favor of Pollard)
- Ward v. Pennington, 523 So.2d 1286 (La. 1988) (fraud must be causally related to obtaining the judgment to annul it)
- Belle Pass Terminal, Inc. v. Jolin, Inc., 800 So.2d 762 (La. 2001) (action for nullity is not a substitute for appeal)
- Makar v. Ivy, 291 So.2d 861 (La. App. 3d Cir. 1974) (res judicata may be asserted in suits to annul where elements are clearly established)