87 So. 3d 970
La. Ct. App.2012Background
- Yellowbird filed an annulment of Barber's default judgment for damages from a fallen tree.
- Barber obtained a $36,250 judgment against Yellowbird; Yellowbird received notice on March 10, 2010.
- Yellowbird sought annulment under La. C.C.P. art. 2004 and to enjoin sheriff's sale of seized property.
- Trial court dismissed the annulment, awarded Barber $1,500 in fees, and denied new trial.
- The appellate court affirmed the judgment and awarded an additional $1,000 in appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the default judgment was obtained by fraud or ill practices | Yellowbird alleging Barber used false testimony/inadequate service to obtain judgment | Barber contends evidence at confirmation was truthful and sufficient | No ill practice; judgment affirmed overall |
| Whether the trial court erred by denying leave to amend for lack of service | Yellowbird sought to amend to allege lack of service | Barber argued amendment improper and unnecessary | Trial court did not abuse discretion; amendment would not change outcome |
| Whether lack of service can justify annulment under art. 2004 given defenses could have been raised | Lack of service prevented defense; annulment warranted | Barber not at fault; service record valid | Annulment not warranted; no fraud/ill practice proven |
| Whether appellate attorney fees should be awarded and in what amount | (Yellowbird) should not be liable for additional fees beyond trial | Prevailing party entitled to attorney fees; appellate work warranted | Appellate fees awarded; additional $1,000 deemed appropriate |
Key Cases Cited
- Belle Pass Terminal, Inc. v. Jolin, Inc., 800 So.2d 762 (La. 2001) (fraud/ill practice under art. 2004 requires deprivation of rights and inequitable enforcement)
- Kem Search, Inc. v. Sheffield, 434 So.2d 1067 (La. 1983) (nullity action not limited to actual fraud; improper practices may qualify)
- Payne v. Glass, 939 So.2d 526 (La.App.2d Cir. 2006) (absence of valid defense precludes annulment based on those defenses)
- Lieber v. Caddo Levee Dist. Bd. of Com’rs, 748 So.2d 587 (La.App.2d Cir. 1999) (conduct depriving a party of legal rights; not necessarily ill practice if not proven)