Jeremy Locke v. MADCON Corporation

STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

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t - 2021 CA 0382

JEREMY LOCKE
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VERSUS

MADCON CORPORATION

Judgment Rendered: DEC 3 0 2021

On Appeal from the Twenty -Second Judicial District Court
In and for the Parish of St. Tammany
State of Louisiana
Docket No. 2020- 11872

Honorable William H. Burris, Judge Presiding

John A. Venezia Counsel for Plaintiff/Appellee
Julie O'Shesky Jeremy Locke
New Orleans, Louisiana

Jason P. Waguespack Counsel for Defendant/ Appellant
Kathleen K. Charvet Madcon Corporation
Wendell F. Hall
New Orleans, Louisiana

WI /Z"r JL
BEFORE: McCLENDON, WELCH, AND THERIOT, JJ.

i

McCLENDON, J.

In this suit for unpaid wages filed pursuant to LSA- R. S. 23: 631, et seq., the

defendant, Madcon Corporation ( Madcon),. appeals from a trial court judgment

awarding unpaid wages, penalty wages, and attorney's fees to the plaintiff, Jeremy

Locke. Locke filed an answer to Madcon' s appeal seeking an additional award of

attorney's fees in accordance with LSA- R. S. 23: 632( C). For the reasons that follow, we

vacate the judgment, dismiss the appeal and the answer to appeal, and remand for

further proceedings.

FACTUAL AND PROCEDURAL HISTORY

Madcon is a marine and diving contractor that performs underwater inspection,

repair, and maintenance work, as well as certain above -water marine work. Madcon

employed Locke on a commercial diving project, which was completed in 2019. On April

24, 2020, Locke filed suit against Madcon seeking wages, penalty wages, attorney' s

fees, and summary proceedings, alleging that Madcon failed to pay him according to

the terms of the parties' contract. On September 30, 2020, the trial court held a bench

trial on the merits of Locke's claims. Subsequently, the trial court executed a written

judgment on October 22, 2020 ( original judgment), which stated, in pertinent part:

The Court hereby renders JUDGMENT in favor of the plaintiff,
Jeremy Locke and against the defendants, MADCON Corporation for
wages in the amounts of $ 28, 725. 00 for wages [ sic], $ 51, 750. 00 for
penalty wages, and $ 20, 000. 00 for attorney' s fees, with judicial interest
on all amounts from date of filing until paid, along with all costs of these
proceedings.

Based on the record, it does not appear that the clerk of court mailed notice of

the October 22, 2020 judgment. Further, the trial court purportedly " vacated" the

October 22, 2020 judgment; a hand- written note on the October 22, 2020 judgment

reads " vacated Covington, LA November 18, 2020," and is followed by the trial court's

signature. Subsequently, on December 2, 2020, the trial court executed a second

written judgment ( amended judgment) which stated, in pertinent part:

The Court hereby renders judgment in favor of the plaintiff, Jeremy
Locke and against the defendant, MADCON Corporation, for wages in the
amount of $ 28, 725. 00 and judicial interest thereon from the date of filing
until paid, penalty wages in the amount of $ 51, 750. 00, and attorney's
fees in the amount of $20, 000. 00.

2

The Court further renders judgment in favor of plaintiff, Jeremy
Locke, against defendant, MADCON Corporation, for all costs of these
proceedings.

From this judgment, Madcon appeals.

APPELLATE JURISDICTION

As a reviewing court, we are obligated to recognize any lack of jurisdiction if it
exists. Starnes v. Asplundh Tree Expert Company, 1994- 1647 ( La. App. 1 Cir.

10/ 6/ 95), 670 So. 2d 1242, 1245. Our appellate jurisdiction extends to " final

judgments." See LSA- C. C. P. arts. 1841, 2081, and 2083( A); Quality Environmental

Processes, Inc. v. Energy Dev. Corp., 2016- 0171, 2016- 0172 ( La. App. 1 Cir.

4/ 12/ 17), 218 So. 3d 1045, 1053. On October 26, 2021, this Court, ex proprio motu,

issued an order granting the parties leave to file optional supplemental briefs, only on

the issue of whether or not the amended judgment on appeal is an appealable

judgment. In response to the order, both parties filed briefs, each arguing that the

amended judgment is valid and properly before this Court on appeal. However, having

thoroughly reviewed the record, the jurisprudence, and the parties' arguments, we find

that the trial court lacked authority to vacate the original October 22, 2020 judgment

and execute the amended December 2, 2020 judgment in its stead. Thus, the

December 2, 2020 judgment before us is an absolutely null judgment, and we lack

jurisdiction to entertain the appeal of that judgment. See Starnes, 670 So. 2d at 1246,

and Dobyns v. University of Louisiana System, 2018- 0488 ( La. App. 1 Cir. 6/ 12/ 19)

2019 WL 2462496, * 4- 5.

It is well settled in our jurisprudence that a judgment which has been signed

cannot be altered, amended, or revised by the trial judge who rendered it, except in the

manner provided by law. Denton v. State Farm Mut. Auto. Ins. Co., 2008- 0483 ( La.

12/ 12/ 08), 998 So. 2d 48, 52. At the time the judgments at issue in this appeal were

executed, Louisiana Code of Civil Procedure article 19511 provided, as follows, with

regard to amendment of a judgment:

1 Article 1951 was amended pursuant to Acts 2021, No. 259, § 2, effective August 1, 2021. As amended,
Article 1951 presently provides in full:
On motion of the court or any party, a final judgment may be amended at any time to
alter the phraseology of the judgment or to correct deficiencies in the decretal language
or errors of calculation. The judgment may be amended only after a hearing with notice

3

On motion of the court or any party, a final judgment may be amended at
any time to alter the phraseology of the judgment, but not its substance,
or to correct errors of calculation. The judgment may be amended only
after a hearing with notice to all parties, except that a hearing is not
required if all parties consent or if the court or the party submitting the
amended judgment certifies that it was provided to all parties at least five
days before the amendment and that no opposition has been received.

In other words, a final judgment may be amended by the court where the

resulting judgment takes nothing from or adds nothing to the original judgment.

Suprun v. Louisiana Farm Bureau Mut. Ins. Co., 2009- 1555 ( La. App. 1 Cir.

4/ 30/ 10), 40 So. 3d 261, 268. However, an amendment to a final judgment which adds

to, subtracts from, or in any way affects the substance of the judgment, is considered a

substantive amendment, and is generally prohibited under Article 1951. Duncan v.

Gauthier, 2021- 0220 ( La. App. 1 Cir. 10/ 28/ 21), --- So. 3d ---, ---, 2021 WL 5625410, at

4. This is true even if the amendment merely expresses the trial court's actual

intention; the trial court's written judgment is controlling, even if the trial court intended

otherwise. McGee v. Wilkinson, 2003- 1178 ( La. App. 1 Cir. 4/ 2/ 04), 878 So. 2d 552,

554.

In the event the trial court or a party seeks to alter the substance of a judgment,

the proper recourse is a timely application for a new trial, LSA- C. C. P. art. 1971, et seq.,

an action for nullity, LSA- C. C. P, art. 2001, et seq., or a timely appeal. McGee, 878

So. 2d 552, 554. The Louisiana Supreme Court in Villaume v. Villaume, 363 So. 2d

448, 451 ( La. 1978) has also recognized that the trial court may amend a judgment

substantively on its own motion and with consent of the parties. Subsequently, the

Louisiana Supreme Court expressed that an assertion of amendment of a final judgment

by consent must be supported by competent evidence. LaBove v. Theriot, 597 So. 2d
1007, 1010- 11 ( La. 1992). 2

to all parties, except that a hearing is not required if all parties consent or if the court or
the party submitting the amended judgment certifies that it was provided to all parties at
least five days before the amendment and that no opposition has been received. A final
judgment may not be amended under this Article to change its substance.
This Court will apply the version of Article 1951 that was in effect at the time of the pertinent events. See
2021- 0288, 2021- 0289 ( La. App. 1 Cir. 10/ 4/ 21), --- So. 3d at ---, ---, 2021 WL
e. g., Dean v. Dimattia,
4535660, at * 2- 3.

z We make no comment as to whether the amendment to Article 1951, pursuant to Acts 2021, No. 259,
2, effective August 1, 2021, would affect this jurisprudential rule.

4

When a trial court substantively amends a judgment without recourse to the

proper procedure, the amended judgment is an absolute nullity. When this court notices

such an absolute nullity, we must vacate. on our own motion. Mack v. Wiley, 2007-

2344 ( La. App. 1 Cir. 5/ 2/ 08), 991 So. 2d 479, 485- 86, writ denied, 2008- 1181 ( La.

9/ 19/ 08), 992 So. 2d 932. Thus, when a judgment has been improperly amended, the

amending judgment is annulled and set aside, and the original judgment is reinstated.

Greene v. Succession of Alvarado, 2015- 1960 ( La. App. 1 Cir. 12/ 27/ 16), 210 So. 3d

321, 339.

A change in a judgment which alters the amount of relief that a party is entitled

to receive is a substantive change. Preston Oil Co. v. Transcon. Gas Pipe Line

Corp., 594 So. 2d 908, 911 ( La. App. 1 Cir. 1991). Consistent therewith, a change in the

assessment of judicial interest constitutes a substantive change. Suprun, 40 So. 3d at

269. Additionally, Article 1951, which generally governs the amendment of a final

judgment, has been utilized in instances where the trial court vacates a judgment and

renders a new judgment. See McMillian v. Breen, 2018- 0998 ( La. App. 1 Cir. 8/ 2/ 19),

282 So. 3d 239, 246, citing Bourgeois v. Kost, 2002- 2785 ( La. 5/ 20/ 03), 846 So. 2d

6921 695- 96.

As set forth above, the original October 22, 2020 judgment ordered Madcon to

pay judicial interest on all amounts awarded therein. After the trial court purportedly

vacated the original judgment, the trial court executed an amended December 2, 2020

written judgment which awarded ` wages in the amount of $ 28, 725. 00 and judicial

interest thereon from the date of filing until paid, penalty wages in the amount of

51, 750. 00, and attorney's fees in the amount of $ 20, 000. 00." The trial court's

amendment removing the award of legal interest from the awards for penalty wages

and attorney's fees decreased the amount of legal interest that Locke was entitled to

recover from Madcon. Thus, the December 2, 2020 amendment altering the amount of

judicial interest that Locke is entitled to receive constituted a substantive change.

In this matter, it is unclear from the record how the amended December 2, 2020

judgment came to be signed by the trial court. The record does not contain a motion

for new trial, a motion for nullity, or any evidence that the amended judgment was

5

signed with the consent of the parties, such as the signatures of the parties' respective

counsel being included on the December 2, 2020 judgment. In the absence of

competent evidence establishing otherwise, it appears that the substantive amendment

was not made in accordance with proper procedure, and therefore the amended

December 2, 2020 judgment is an absolute nullity. See LaBove v. Theriot, 597 So. 2d

at 1011.

This Court very recently considered a similar situation in Dean, --- So. 3d ----,

2021 WL 4535660. In Dean, the trial court executed a judgment on June 2, 2020,

ordering the eviction of one party, and then amended that judgment on its own motion

on June 8, 2020 to order the eviction of another party. Because changing the name of a

party cast in judgment constitutes a substantive change, this Court was required to

consider whether the June 8, 2020 judgment was properly before it for review. Dean, -

So. 3d at ---, 2021 WL 4535660, at * 2. In appellate briefs, the parties argued that the

June 8, 2020 judgment was executed to correct a typographical error in the June 2,

2020 judgment that mistakenly named the wrong party to be evicted. However, the

record did not contain a motion for new trial, a motion for nullity, or any evidence that

the second judgment was signed with the consent of the parties, such as the signatures

of the parties' respective counsel being included on the June 8, 2020 judgment. This

Court reasoned:

Although it may be clear to the parties and to this court that the
district court was attempting to correct its own error in the June 2, 2020
judgment, "[ a] judgment which has been signed cannot be altered,
amended, or revised by the judge who rendered the same, except in the
manner provided by law." Bourgeois, 846 So. 2d at 696. The district
court signed the June 8, 2020 judgment in violation of the prohibition
contained in Article 1951.

Dean, --- So. 3d at ---, 2021 WL 4535660, at * 3. Thus, this Court found the June 8,

2020 judgment to be null and void, vacated the June 8, 2020 judgment, and reinstated

the June 2, 2020 judgment.3

3 See also LaBove, 597 So. 2d 1007. In LaBove, the parties urged that the amended judgment was
issued by consent of all parties, and therefore was valid notwithstanding that it did not fall within the
provisions of LSA- C. C. P. art. 1951. The Louisiana Supreme Court wrote, The difficulty with this entire
argument is that it depends on facts not appearing in the record." LaBove, 597 So. 2d at 1010. Because
there was no competent evidence of record demonstrating how the amendment came about, the
Supreme Court concluded, " On this showing, we can only conclude that the amended judgment is

0

Here, as in Dean, the parties have argued that the appeal should be

maintained. 4 Critically, however, the record contains no evidence regarding the manner

in which the December 2, 2020 amended judgment came to be signed. The Code of

Civil Procedure provides only a limited means of correcting errors of substance in a final

judgment. Denton, 998 So. 2d at 53. In the absence of any indication that the trial

court adhered to proper procedures when it vacated the original judgment and

executed the amended judgment, we are constrained to find that the December 2,

2020 amended judgment is null and void. See also Duncan, --- So. 3d ---, 2021 WL

5625410.

The motion for appeal sought to appeal the December 2, 2020 judgment, and

this Court noticed the appeal of the December 2, 2020 judgment. No appeal has been

taken from or noticed regarding the October 22, 2020 judgment. Because Madcon

devolutively appealed the absolutely null December 2, 2020 judgment, we lack

jurisdiction to consider the merits of this appeal. See Starnes, 670 So. 2d at 1246, and

Dobyns, 2019 WL 2462496, * 4- 5. Accordingly, we dismiss the appeal. This matter is

remanded for further proceedings, with instructions to the clerk of court to issue notice

of judgment of the October 22, 2020 judgment.

Having dismissed the appeal, we likewise deny Locke's answer to Madcon' s

appeal.

CONCLUSION

For the reasons expressed above, we vacate the December 2, 2020 judgment,

and reinstate the October 22, 2020 judgment. The appeal is dismissed, the answer to

the appeal is dismissed, and this matter is remanded to the trial court for proceedings

consistent with the opinions expressed herein, including the issuance of notice of

without legal effect, and that the original judgment... remains valid." LaBove, 597 So. 2d at 1011.
Compare to Radcliffe 10 L. L. C. v. Zip Tube Sys. of Louisiana, Inc., 2009- 0417, 2009-0418 ( La. App.
1 Cir. 12/ 29/ 09), 30 So. 3d 825, writ denied, 2010- 0244 ( La. 4/ 9/ 10), 31 So. 3d 394, which we find to be
distinguishable.

4 Madcon also claimed that the original judgment does not include a filing date, a signature of the clerk,
or any stamp denoting it was filed. However, the original judgment in the record before us contains the
seal of the clerk of court, followed by text that reads: " Submitted Date: 10/ 9/ 2020 11: 25 AM File Date:
10/ 9/ 2020 11: 25 AM Case Number 202011872 St. Tammany Parish, LA Deputy Clerk: Courtney Hebert."
This seal and stamp is located on the right side of the page and is consistent with other pleadings filed in
the record, including the petition.

7

judgment of the October 22, 2020 judgment. Costs of this appeal are assessed equally

between Jeremy Locke and Madcon Corporation.

DECEMBER 21 2020 JUDGMENT VACATED; OCTOBER 22, 2020
JUDGMENT REINSTATED; APPEAL DISMISSED; ANSWER TO THE APPEAL
DISMISSED; REMANDED.