Anthony T. Straughter, Deron Alexander and Russell Bickham v. Occidental Fire & Casualty Company of North Carolina, the Trinity System, Inc., and Aaron Matthew White

ANTHONY T. STRAUGHTER, * NO. 2024-CA-0299
DERON ALEXANDER AND
RUSSELL BICKHAM *
COURT OF APPEAL
VERSUS *
FOURTH CIRCUIT
OCCIDENTAL FIRE & *
CASUALTY COMPANY OF STATE OF LOUISIANA
NORTH CAROLINA, THE *******
TRINITY SYSTEM, INC., AND
AARON MATTHEW WHITE

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-03996 C\W 2019-07181, DIVISION “A”
Honorable Ellen M. Hazeur, Judge
******
Judge Dale N. Atkins
******
(Court composed of Chief Judge Roland L. Belsome, Judge Daniel L. Dysart,
Judge Dale N. Atkins)

Jeffrey E. Richardson (#23273)
Kyle L. Potts (#26472)
ADAMS AND REESE, LLP
701 Poydras Street, Suite 4500
New Orleans, LA 70139

COUNSEL FOR APPELLANT, Wilshire Insurance Company

John Jerry Glas
Raymond C. Lewis
Joseph L. McReynolds
Justine M. Ware
DEUTSCH KERRIGAN LLP
755 Magazine Street
New Orleans, LA 70130

COUNSEL FOR APPELLANTS, The Trinity System, Inc., and Aaron
Matthew White

Lawrence Blake Jones
Julie Sumrall
David C. Whitmore
Kristi A. Post
BLAKE JONES LAW FIRM, LLC
701 Poydras Street, Suite 4100
New Orleans, Louisiana 70139

COUNSEL FOR APPELLEES, Anthony Straughter, Deron Alexander, and
Russell Bickham

REVERSED AND REMANDED; STAY LIFTED
OCTOBER 9, 2025

DNA

RLB

The underlying lawsuit in this matter concerns an accident between an 18-

wheeler and an automobile, but the present appeal pertains to an attempt to annul a

final judgment adopting a jury verdict, two consent judgments, and a settlement

agreement on the basis of fraud or ill practices. Specifically, Appellants, Wilshire

Insurance Company, The Trinity System, Inc., and Aaron M. White (hereinafter

collectively “Defendants”), seek review of the trial court’s March 7, 2024

judgment, which dismissed their Petition to Annul Judgments (“Petition to Annul”)

with prejudice on the basis of having granted the Exception of Peremption filed by

Appellees, Anthony T. Straughter, Deron Alexander, and Russell Bickham

(hereinafter collectively “Plaintiffs”). For the following reasons, we reverse the

trial court’s judgment and remand this matter for further proceedings consistent

with this Opinion and lift the stay issued by this Court in the previous appeal

concerning these parties.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Facts and Procedure Delineated in Prior Appellate Opinion

This matter has previously been before this Court on appeal, wherein the

Court summarized the factual and procedural background at that time as follows:

1

This suit arises from a collision that occurred on July 17, 2018
between a car and an 18-wheeler truck. Anthony T. Straughter
(“[Mr.] Straughter”) was operating a 2008 Ford Mustang carrying
passengers, Deron Alexander (“[Mr.] Alexander”), Russel Bickham
[(“Mr. Bickham”)], and De’Myron Alexander, when a 2009
International Prostar tractor-trailer owned by the Trinity System Inc.
(“Trinity”), and driven by its employee, Aaron M. White (“[Mr.]
White”), struck the passenger side of the vehicle.

As a result of injuries allegedly sustained, on April 12, 2019,
[Mr.] Straughter, [Mr.] Alexander, and [Mr.] Bickham filed suit
against [Mr.] White, Trinity, and its insurer, Wilshire Insurance
Company (collectively, “Defendants”), alleging [Mr.] White was in
the course and scope of his employment at the time of the accident.
De’Myron Alexander filed a separate petition for damages against
Defendants. Both matters were consolidated. [Mr.] Bickham and
De’Myron Alexander settled their claims prior [to] trial.

On January 16, 2023, Plaintiffs filed a motion for partial
summary judgment on issues of liability and course and scope of
employment and a motion in limine to exclude Defendants’ facts and
expert witnesses and exhibits, with the exception of Dr. Everett
Robert. Defendants did not oppose the motions and in February 2023,
the parties entered into consent judgments [regarding these issues
(hereinafter “February 2023 Consent Judgments”)].

The jury trial was scheduled to begin on March 27, 2023[,] on
damages. However, on or about March 13, 2023, Defendants alleged
that they discovered evidence of fraud and/or ill practices.

Thereafter, on March 21, 2023, Defendants filed a motion to
continue trial and a petition to annul the [February 2023] [C]onsent
[J]udgments. In the motion to continue, Defendants contended that
they had learned that Plaintiffs concealed telephone numbers that they
had at the time of [the] accident and that telephone records that had
recently been obtained showed that Plaintiffs were in contact with
Cornelius Garrison (“[Mr.] Garrison”), “an indicted conspirator in
over 50 staged accidents.” Defendants alleged that proceeding with
trial would allow Plaintiffs to commit fraud and profit from a scheme
to defraud by staging the subject accident.

The petition to annul contained additional information
regarding the indictment and telephone records. The petition provided
that the United States Attorney for the Eastern District of Louisiana
and the Federal Bureau of Investigation began an investigation of
staged motor vehicle accidents that occurred in Orleans Parish, and on
September 18, 2020, a federal grand jury indicted [Mr.] Garrison and
other individuals on six counts of mail fraud and one count of
conspiracy to commit mail fraud involving lawsuits arising from

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staged motor vehicle accidents. The petition further provided that the
telephone numbers identified for [Mr.] Straughter and [Mr.]
Alexander appear[] numerous times on telephone records of [Mr.]
Garrison on the date of the subject accident. The petition also stated
that the telephone numbers [Mr.] Straughter and [Mr.] Alexander
provided in discovery were different than those on the telephone
records of [Mr.] Garrison. The numbers that matched the [Mr.]
Garrison telephone records were found in the medical records and
accident report.

Plaintiff[s] opposed the motion to continue on March 22, 2023,
arguing among other things, that the discovery deadline had passed
and that Defendants were aware of the possible fraud prior to March
2023. Specifically, Plaintiffs claimed that in Defendants’ May 2021
discovery answers, Defendants noted that the instant suit had
similarities with the accidents under investigation by the United States
District Attorney for the Eastern District of Louisiana.

On March 27, 2023, prior to trial, the trial court denied the
motion, stating “Discovery closed in 2021. The motion to continue the
trial is denied.” The matter proceeded to [a] jury trial and on March
29, 2023, the jury rendered a verdict in favor of Plaintiffs, awarding
$985,000.00 to [Mr.] Straughter and $2,390,000.00 to [Mr.]
Alexander. The trial court entered a judgment adopting the jury’s
verdict as the judgment of the court on April 13, 2023 [(hereinafter
“April 2023 Judgment”)]. Defendants filed for a suspensive appeal.

Straughter v. Occidental Fire & Cas. Co. of N.C., 2023-0480, 0481, pp. 1-4 (La.

App 4 Cir. 5/8/24), ___ So.3d ___, ___, 2024 WL 2043662, at *1-2 (footnotes

omitted) (hereinafter “Straughter I”).

Defendants’ Petition to Annul

After the trial court signed its judgment adopting the jury’s verdict, on

August 4, 2023, Defendants filed their Petition to Annul, which is at issue in the

subject appeal. Defendants explained their Petition to Annul was timely under La.

C.C.P. art. 2004 because they did not discover the grounds for the fraud and ill

practices alleged therein until March 13, 2023. Describing said grounds,

Defendants again referenced the investigation by the U.S. Attorney’s Office for the

Eastern District of Louisiana and the local Federal Bureau of Investigation that had

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“uncover[ed] a fraud scheme involving the staging of accidents with 18-wheeler

tractor-trailers and other commercial vehicles to defraud and obtain insurance

settlements” (“Operation Sideswipe”). After further describing Operation

Sideswipe, Defendants contended that the subject “accident bears almost all of the

trademarks of a[n Operation Sideswipe] staged accident.”

Defendants also explained that they had discovered that one Plaintiff, Mr.

Alexander, communicated with one of the ringleaders of Operation Sideswipe, Mr.

Garrison,1 “multiple times in the days immediately before and after the . . . subject

accident,” as well as on the day of the accident.2 Additionally, Defendants alleged

that a telephone number for another Plaintiff, Mr. Straughter, “appear[ed]

numerous times on telephone records of [Mr.] Garrison” on the date of the subject

accident. Defendants contended they had been “previously unable to discover the

fraud and ill practices” because Mr. Alexander and Mr. Straughter had provided

different telephone numbers in their answers to interrogatories during discovery.

Defendants explained they ultimately discovered the telephone numbers for Mr.

Alexander and Mr. Straughter that appeared in Mr. Garrison’s telephone records

within medical records and the police report for the subject accident, respectively.

Further, Defendants explained they determined that the witness who had

given a report to police after the subject accident but whose name was not provided

in said report was Rennada Ramee (“Ms. Ramee”). Defendants stated they

ultimately identified Ms. Ramee through dashboard and body camera footage from

1 As explained by Defendants, Mr. Garrison was indicted for his role in staging accidents

on September 18, 2020. However, four days later, Mr. Garrison was shot in his apartment and
died.
2 Defendants specified that Mr. Garrison received a call from Mr. Alexander both
seventeen minutes before and seventeen minutes after the subject accident based on the
telephone records they obtained.

4

an officer who responded to the accident. According to Defendants, Ms. Ramee

was “likely a participant in the staged [a]ccident,” but Defendants explained they

required additional discovery to determine if telephone numbers associated with

Ms. Ramee might be found in Mr. Garrison’s or Plaintiffs’ telephone records.

Defendants also alleged that Ms. Ramee had previously been charged with

insurance fraud in another case. Similarly, Defendants asserted that Mr. Straughter

had also been part of prior insurance fraud incidents.

Defendants contended the trial court should annul the February 2023

Consent Judgments because they had been obtained through fraud or ill practices

and enforcement of said judgments would be “unconscionable based on the actions

of [Plaintiffs] and [Mr.] Garrison.” As described by Defendants, one of the

February 2023 Consent Judgments granted “Plaintiffs’ Motion for Partial

Summary Judgment on the Issue of Liability and Course and Scope of

Employment,” thereby “effectively decid[ing] the question of liability against”

Defendants and in favor of Plaintiffs. The second February 2023 Consent

Judgment, according to Defendants, “grant[ed] Plaintiffs’ Motion In Limine to

Exclude Defendants’ Fact and Expert Witnesses and Exhibits,” thereby effectively

striking from use at trial all witnesses and exhibits identified by Defendants.

Defendants alleged Mr. Straughter and Mr. Alexander committed fraud and ill

practices by failing to disclose the telephone numbers they used on the date of the

accident in their answers to interrogatories so as to “attempt to conceal their

scheme to defraud [Defendants] by staging the [a]ccident and/or their relationship

and communications with [Mr.] Garrison from” Defendants. As asserted by

Defendants, alternatively, “[Mr.] Straughter’s and [Mr.] Alexander’s actions

deprived [them] of facts and knowledge which would have enabled them to plead

5

and prove at trial the affirmative defense provided for in [La. R.S.] 9:2800.10,

which is known as the Felony Bar defense.”3

Additionally, Defendants asked the trial court to annul the May 3, 2023

settlement they reached with Mr. Bickham (hereinafter “Mr. Bickham’s Settlement

Agreement”).4 Defendants contended that the code article providing for annulment

of judgments, La. C.C.P. art. 2004, also applies to settlement agreements.

Defendants alleged that Mr. “Bickham knew of the actions, communications, and

plans by and between [Mr.] Garrison, [Mr.] Straughter, [Mr.] Alexander, and [Ms.]

Ramee to stage the [a]ccident and defraud” Defendants. They further asserted Mr.

Bickham “was a knowing and willing participant in and contributed to actions that

furthered the fraud scheme to defraud [Defendants] by staging the [a]ccident.”

Finally, Defendants argued the trial court should annul its April 2023

Judgment which adopted the jury’s verdict because it was also obtained through

fraud or ill practices. They asserted that Mr. Alexander and Mr. Straughter

“knowingly and intentionally made false and misleading statements while

testifying at trial. . . . in furtherance of their fraud and ill practices to obtain a

money judgment against [Defendants] arising out of the staged [a]ccident.” Again,

Defendants contended that enforcement of the “[j]udgment would be

unconscionable.” In addition, Defendants requested reasonable attorney fees and

costs.

3 Louisiana Revised Statutes 9:2800.10 is titled “Immunity from liability for injuries

sustained while committing a felony offense.” It provides, in pertinent part, that “[n]o person
shall be liable for damages for injury, death, or loss sustained by a perpetrator of a felony offense
during the commission of the offense or while fleeing the scene of the offense.” La. R.S.
9:2800.10(A).
4 According to the Petition to Annul, Mr. Bickham agreed to settle his claims against

Defendants prior to the March 2023 trial but the agreement was not officially signed until May
2023.

6

Exception of Peremption

In response, on December 29, 2023, Plaintiffs filed their Exception of

Peremption. In their Memorandum in Support, Plaintiffs argued “the claims

asserted . . . in the nullity action [were] perempted because the evidence . . .

establishe[d] that [Defendants] knew or should have known of the grounds for the

nullity action on or before May 12, 2021[,] and failed to take any action to assert

their allegations of fraud.” That is, Plaintiffs argued Defendants knew or should

have known about the alleged fraud when they first stated in discovery on May 12,

2021, that the subject accident resembled the staged accidents in Operation

Sideswipe. The particular discovery response by Defendants stated:

Subject to and without waiving objections, Defendant refers
Plaintiffs to the similarities in the circumstances of the subject motor
vehicle accident and the circumstances of the motor vehicle accidents
that are the subject of the investigations and legal actions of the
United States Attorney for the Eastern District of Louisiana as
announced from 2019 through the present.

Plaintiffs averred the above discovery response mimicked Defendant’s subsequent

Petition to Nullify.

As asserted by Plaintiffs, Defendants had “sufficient information” in 2021

“to trigger them to take some action – such as amending their answer to assert the

affirmative defense of fraud – before the cause of action set forth in the petition for

nullity was lost.” Accordingly, Plaintiffs contended “that any cause of action”

Defendants might have had “for alleged fraud” had been “waived by [Defendants’]

failure to plead the affirmative defense of fraud in the underlying litigation.”

Plaintiffs further contended that Defendants could not revive the fraud cause of

action by asserting fraud in their Petition to Nullify. Rather, as argued by Plaintiffs,

Defendants’ Petition to Nullify was perempted under the one-year time period set

7

forth in La. C.C.P. art. 2004. Plaintiffs averred that Defendants failed to discover

the additional information supposedly supporting their fraud or ill practices claims

because they did not exercise due diligence in investigating the case.

On February 9, 2024, the trial court held a hearing on Plaintiffs’ Exception

of Peremption and then took the matter under advisement.

March 7, 2024 Judgment

On March 7, 2024, the trial court signed a judgment, which granted

Plaintiffs’ Exception of Peremption and dismissed Defendants’ Petition to Annul

with prejudice. It stated:

IT IS HEREBY ORDERED ADJUDGED, AND DECREED
that Defendants, Anthony Straughter, Deron Alexander, and Russell
Bickham’s Exception of Peremption is MAINTAINED, and
Plaintiffs, The Trinity System, Inc., Aaron Matthew White, and
Wilshire Insurance Company’s Petition to Annul Judgments is
dismissed with prejudice. Each party shall bear their own costs.

The trial court also denied Defendants’ request for attorney fees.

Additionally, the trial court provided written reasons for judgment,

explaining that “the allegations that form [Defendants]’ nullity action were in their

possession since at least May 12, 2021, the date [they] responded to [Plaintiffs]’

discovery request and stated that this accident bares similarities to a staged

accident.” The trial court found Defendants “had knowledge of their alleged claim

more than a year before filling suit.” The trial court explained that while

Defendants “allege[d] they were unable to discover” the alleged “connection”

between the subject accident and Operation Sideswipe because of the telephone

numbers provided in discovery, Plaintiffs “did not conceal their phone numbers.”

Rather, as described by the trial court, Defendants “never requested [Plaintiffs]’

phone numbers at the time of the accident,” instead “request[ing] only the phone

8

numbers [Plaintiffs] were using at the time the discovery was issue.” The trial

court thus reasoned that it was untrue that Plaintiffs concealed their relationship

with Mr. Garrison. Instead, according to the trial court, Defendants “just failed to

request the information that suggested fraud.” Additionally, the trial court noted

that Defendants failed to present evidence why they were unable to obtain the

dashcam and body camera footage from the date of the 2018 accident, which

linked Ms. Ramee to the accident, until 2023. The trial court concluded

Defendants’ Petition to Nullify was perempted under La. C.C.P. art. 2004 because

Defendants “were aware of the facts which gave rise to their nullity claim on or

before May 12, 2021, or had sufficient information ‘to excite attention . . . and call

for inquiry.’” The trial court found this case analogous to Haney v. Davis, 2006-

1058 (La. App. 4 Cir. 2/14/07), 952 So.2d 804.

Straughter I

Subsequently, in Straughter I, Defendants argued, in pertinent part, in two of

their assignments of error that the trial court abused its discretion under La. C.C.P.

arts. 1601 and 1602 in denying their motion to continue trial. 2023-0480, 0481, pp.

4-5, ___ So.3d at ___, 2024 WL 2043662, at *2. As explained previously,

Defendants filed this motion on March 21, 2023, after discovering the evidence

they allege establishes fraud or ill practices on March 13, 2023. Trial was

scheduled to commence on March 27, 2023. The trial court denied Defendants’

motion to continue, and the matter proceeded to a jury trial on the issue of damages

for Mr. Alexander and Mr. Straughter. As explained above, by that point in time,

the issue of liability had already been resolved in one of the February 2023

Consent Judgments, and Defendants had already settled with Mr. Bickham.

9

In resolving Defendants’ assignments of error, this Court noted that trial

courts have discretion in deciding a motion to continue but nonetheless found the

trial court had abused its discretion. Straughter, 2023-0480, 0481, p. 6, ___ So.3d

at ___, 2024 WL 2043662, at *3 (citing Doe v. Lewis, 2020-0320, p. 3 (La. App. 4

Cir. 12/30/20), 312 So.3d 1165, 1169). This Court explained that “the possibility of

fraud being perpetrated on the judicial system warrant[ed] this Court’s

in[ter]ference with the trial court’s discretion and constitute[d] good cause for a

continuance under La. C.C.P. art. 1601.” Id. at p. 8, ___ So.3d at ___, 2024 WL

2043662, at *4. This Court held the trial court had abused its discretion in refusing

to grant Defendants’ Motion to Continue to allow them to investigate the potential

fraud, noting the record established a connection between Plaintiffs and Mr.

Garrison who was an indicted conspirator in 50 staged motor vehicle accidents

with 18-wheelers. Id. Specifically, this Court pointed to the “approximately 30

calls to and from [Mr.] Garrison [and Plaintiffs] on the day of the accident, both

before and after the collision.” Id. Additionally, this Court noted that there had

been no prior continuances of the trial date in this case when Defendants filed their

motion to continue. Id.

Ultimately, this Court reversed the trial court’s ruling which denied

Defendants’ Motion to Continue; vacated the trial court’s April 13, 2023 judgment,

which adopted the jury’s verdict; and remanded the matter with instructions to

“stay any further proceedings pending disposition of the forthcoming appeal,” i.e.,

this appeal. Id. Plaintiffs filed a writ application with the Louisiana Supreme Court

regarding the Straughter I Opinion, which remains pending before that court

pending our resolution of this appeal.

10

ASSIGNMENT OF ERROR

In their brief to this Court, Defendants assert one assignment of error.

Specifically, they contend:

“A final judgment obtained by fraud or ill practices may be annulled”
and a petition to “annul a judgment on those grounds must be brought
within one year of the discovery by the plaintiff in the nullity action of
the fraud or ill practices.” La. C.C.P. art. 2004. The Original
Defendants filed a petition to annul within one year of the date of the
judgments obtained by fraud or ill practices. The trial court erred
when it ruled that the petition to annul was perempted and needed to
have been filed before there was even a final judgment to seek to
annul.

Based on our review of the record and the parties’ briefs, this appeal calls for us to

determine whether the trial court was correct in granting Plaintiffs’ Exception of

Peremption with regard to Defendants’ Petition to Annul.

DISCUSSION

In their Petition to Annul, Defendants sought to annul the February 2023

Consent Judgments, the April 2023 Judgment, and the May 2023 settlement

agreement on the basis of fraud and ill practices. As previously explained, the trial

court granted Plaintiffs’ Exception of Peremption and denied Defendant’s Petition

to Annul on the basis that Defendants had knowledge of their alleged fraud claim

in May 2021 based on their discovery response which was more than a year before

they filed their Petition to Annul in August 2023. Accordingly, the trial court ruled

Defendants did not timely file their Petition to Annul per the one-year peremptive

period found in La. C.C.P. art. 2004 regarding the annulment of judgments

obtained by fraud or ill practices. In their brief to this Court, Defendants argue the

trial court’s reasoning violated multiple rules of statutory interpretation. In

pertinent part, Defendants argue the trial court’s reasoning was wrong because,

based on the language of La. C.C.P. art. 2004, “there cannot possibly be a petition

11

to annul pursuant to [that article] before there is a judgment.” Essentially,

Defendants contend they had to wait until there were judgments to annul before

they could put forth their allegations of fraud. Defendants note they filed the

Petition to Annul in August 2023, which was within one year of the February 2023

Consent Judgments, the April 2023 Judgment, and the May 2023 settlement,

thereby putting them in compliance with the one-year time period found in La.

C.C.P. art. 2004.

Plaintiffs counter the trial court correctly found Defendants’ “right existed

and time began to run [under La.C.C.P. art. 2004] when they admitted the

similarities” to Operation Sideswipe in their May 2021 discovery response.

Further, Plaintiffs contend that if a party knows or suspects fraud prior to

judgment, as in this case, that party “should plead the affirmative defense of fraud”

because “the law does not intend to give those with knowledge of possible fraud

the opportunity to do nothing, await the result of trial, and then spring previously

known allegations of fraud in a nullity action after the final judgment.” That is,

Plaintiffs argue Defendants did not have to wait until there were judgments to

annul to assert fraud and could have, instead, pled it as an affirmative defense. We

begin our discussion of the propriety of the trial court’s grant of Plaintiffs’

Exception of Peremption and denial of Defendants’ Petition to Annul with the

principles applicable to that type of exception and the standard of review.

Peremption is one of the exceptions a party raises via peremptory exception.

La. C.C.P. art. 927(A)(2). It is defined as “a period of time fixed by law for the

existence of a right.” La. C.C. art. 3458. According to La. C.C. art. 3458, “Unless

timely exercised, the right is extinguished upon the expiration of the peremptive

period.” As this Court has explained, “Courts strictly construe peremptive statutes

12

against peremption and in favor of the claim.” Int’l Rivercenter Lessee, L.L.C. v.

Robinson, 2022-0428, p. 12 (La. App. 4 Cir. 12/28/22), 355 So.3d 1125, 1133

(quoting McGaha v. Franklin Homes, Inc., 2021-0244, p. 29 (La. App. 4 Cir.

2/4/22), 335 So. 3d 842, 860). In terms of the appellate standard of review, if “a

peremptory exception involves the interpretation of a statute, it is a legal question

that is reviewed de novo.” Fank v. Eagle, Inc., 2023-0068 (La. App. 4 Cir. 2/7/23),

382 So.3d 846, 848 (citing Duvio v. Specialty Pools Co., 2015-0423, p. 12 (La.

App. 4 Cir. 6/16/16), 216 So.3d 999, 1009). If, however, the parties introduced

evidence at the hearing on the exception of peremption, then the appellate court

reviews “the trial court’s findings of fact . . . under the manifest error or clearly

wrong standard of review.” Id. If an appellate court determines the trial court erred

in granting an exception of preemption and dismissing a nullity petition, the

appellate court should reverse the grant of the exception and remand the matter for

further proceedings. Schiff v. Pollard, 2015-0340, p. 5 (La. App. 4 Cir. 10/7/15),

177 So.3d 719, 722. In the matter sub judice, at the hearing on Plaintiffs’

Exception of Peremption, both parties introduced exhibits into evidence; so, with

regard to any findings of fact made by the trial court in its decision to grant

Plaintiffs’ Exception of Peremption, we review those under the manifest

error/clearly wrong standard of review.

The peremptive period at issue herein is found in La. C.C.P. art. 2004. Azar-

O’Bannon v. Azar, 2000-0101, p. 4 (La. App. 4 Cir. 9/27/00), 770 So.2d 458, 461

(holding that the one-year time limit found in La. C.C.P. art. 2004 “is considered a

period of peremption rather than prescription” (first citing Russland Enters., Inc. v.

City of Gretna, 1998-676, p. 5 (La. App. 5 Cir. 1/26/99), 727 So.2d 1223, 1226;

and then citing Civello v. Johnson, 567 So.2d 643, 649 (La. App. 4th Cir. 1990))).

13

Louisiana Code of Civil Procedure Article 2004 is titled “Annulment for vices of

substance; peremption of action.” It provides, in pertinent part:

A. A final judgment obtained by fraud or ill practices may be
annulled.

B. An action to annul a judgment on these grounds must be
brought within one year of the discovery by the plaintiff in the nullity
action of the fraud or ill practices.

La. C.C.P. art. 2004. As this Court has held, La. C.C.P. art. 2004 applies to consent

judgments and settlement agreements too. See State v. Turner, 1997-0396 (La.

App. 4 Cir. 12/23/97), 705 So.2d 293; Allen v. Noble Drilling (U.S.) Inc., 1993-

2383 (La. App. 4 Cir. 5/26/94), 637 So.2d 1298.

As the text of La. C.C.P. art. 2004 establishes, the peremptive period begins

with “the discovery . . . of the fraud or ill practices.” For purposes of La. C.C.P,

art. 2004,

The date of discovery is the date on which [the party asserting the
nullity] either knew, or should have known through the exercise of
reasonable diligence, of facts sufficient to “excite attention and put the
[that party] on guard and call for inquiry. Such notice is tantamount to
knowledge or notice of everything to which a reasonable inquiry may
lead.”

Ellison v. Ellison, 2006-0944, p. 4 (La. App. 1 Cir. 3/23/07), 960 So.2d 155, 157

(citations omitted). As the Louisiana Third Circuit Court of Appeal has held, the

peremptive period commences when the party seeking to nullify the judgment had

knowledge of the actions alleged to be fraudulent so as to have “the requisite

knowledge of the facts that formed the basis of [the] nullity action.” Williams v.

Williams, 2009-472, 473, pp. 9-10 (La. App. 3 Cir. 11/4/09), 22 So.3d 1165, 1171.

However, a party’s “mere apprehension that something may be wrong is

insufficient to commence the running of . . . peremption.” Ellison, 2006-0944, p. 4,

14

960 So.2d at 157-58 (citing Campo v. Correa, 2001-2707, p. 12 (La. 6/21/02), 828

So.2d 502, 511).

In contrast to the situation in which a party has a “mere apprehension that

something may be wrong,” in DiLeo v. Hansen, the Louisiana Fifth Circuit Court

of Appeal noted that the alleged “falsehoods and misrepresentations” were known

to the party seeking to annul the consent judgment at the time he signed it. 2009-

974, p. 6 (La. App. 5 Cir. 6/29/10), 45 So.3d 1120, 1123. Specifically, the alleged

“falsehoods and misrepresentations” were in pleadings that he and/or his counsel

had received and reviewed. Id. Similarly, in Williams, the Third Circuit noted that

Ms. Williams had knowledge about Mr. Williams’ allegedly fraudulent conduct

because she was present when he testified about same, such that she

“[u]nquestionably . . . had the requisite knowledge of the facts that formed the

basis of her nullity action . . . in excess of the one-year time period set forth in [La.

C.C.P.] art. 2004.” 2009-472, 473, p. 10, 22 So.3d at 1171. In Turner v. Williams,

this Court held a father’s unemployed status at the time he signed a consent

judgment relating to child support did not provide a basis to nullity that consent

judgment more than one year later because the father knew he was unemployed

when he signed the judgment. 1997-0396, p. 5 (La. App. 4 Cir. 12/23/97), 705

So.2d 293, 296.

In the matter sub judice, by contrast, Defendants did not “unquestionably”

know about Plaintiffs’ other phone numbers tied to Mr. Garrison and Ms. Ramee’s

involvement in the subject accident—their bases for alleging fraud and ill

practices—until March 2023. It was at that time that Defendants had knowledge

sufficient to start the running of the peremptive period because these alleged

connections to Operation Sideswipe constituted “sufficient information, which, if

15

pursued,” may “lead to the true condition of things,” i.e., whether the subject

accident was or was not part of Operation Sideswipe. Alexander v. Centanni, 2020-

0321, p. 7 (La. App. 4 Cir. 1/27/21), 365 So.3d 533, 539 (citing Bayou Fleet, Inc.

v. Bollinger Shipyards, Inc., 2015-0487, 0702, p. 13 (La. App. 4 Cir. 7/21/16), 197

So.3d 797, 806). Prior to that time, Defendants merely suspected this case might be

a staged accident part of Operation Sideswipe but did not have sufficient

knowledge of the alleged fraud or ill practices. Contrary to what the trial court

found, Defendants were not aware of the facts giving rise to their nullity claim

until March 2023, at which time they discovered the alleged connections between

Plaintiffs and Mr. Garrison and Ms. Ramee’s role as the witness to the accident.

Upon discovery of same, this called for further inquiry by Defendants, but the trial

court denied them that opportunity and allowed the matter to proceed to trial.

Defendants’ “mere apprehension that something may be wrong” in May 2021—

that this accident resembled those in Operation Sideswipe—was insufficient to

commence the running of peremption.

Accordingly, we find Defendants timely filed their Petition to Annul on

August 4, 2023, because they filed it within one year of their discovery of the

alleged fraud or ill practices, i.e., within one year of March 13, 2023. We hold the

trial court manifestly erred in finding the peremptive period began instead in May

2021 and in granting Plaintiffs’ Exception of Peremption on that basis.

Though we have already determined Defendants timely filed their Petition to

Annul within one year of their discovery of the alleged fraud, we nonetheless find

it necessary to address Defendants’ argument in their brief to this Court that they

could not file their Petition to Annul until there were judgments to annul. We

disagree with Defendants’ characterization that a party’s hands are tied if that party

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knows or suspects fraud prior to there being a judgment to annul. Rather, in that

instance, the party has the opportunity to not only investigate the matter further but

also to plead the affirmative defense of fraud. In this latter regard, La. C.C.P. art.

1005 lists fraud as one of the affirmative defenses that a party can set forth in an

answer. If the party already filed their answer prior to discovering the fraud, the

party can still assert fraud as an affirmative defense by seeking permission to

amend the answer with “leave of court or by written consent of the adverse party”

per La. C.C.P. art. 1151.5

We felt compelled to address this argument because of the potential and

problematic ramifications evident in Defendants’ interpretation of the situation. To

wait until after the trial court has issued a final judgment even if the party knows

about the fraud beforehand, as Defendants propose, would require the trier of fact,

whether jury or trial court judge, to revisit issues during a new trial that could have

been considered during the first trial (assuming, that is, that the trial court grants

the post-judgment nullity petition and orders a new trial). This is not only

judicially inefficient but would also wreak havoc on the judicial system and would

permit collateral attacks on judgments at the behest and in favor of a party who did

not properly take advantage of the options available to them, such as investigating

the matter further or pleading the affirmative defense of fraud prior to the issuance

of the judgment. In this regard, we also express concern that Defendants’

interpretation of the situation may encourage parties and their counsel to sit on

their hands in the face of fraud; wait to see if they get a favorable judgment despite

the fraud; and, if not, go for a second bite at the metaphorical apple by attempting

5 If a party were to attempt to amend their answer and fail to receive permission to do so,

then this, of course, changes the situation. In that instance, at least, the party would have tried to
assert fraud prior to the issuance of a judgment.

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to annul the judgment on the basis of fraud. We feel compelled to discourage

Defendants’ interpretation of this situation, which interpretation may encourage

such a “do nothing” approach as cautioned by Plaintiffs in their brief to this Court.

In sum, we disagree with Defendants’ characterization that La. C.C.P. art. 2004

presents the only avenue for asserting a claim of fraud.

DECREE

For the foregoing reasons, we reverse the trial court’s March 7, 2024

judgment, which granted the Exception of Peremption filed by Plaintiffs and

dismissed with prejudice all of Defendants’ claims in their Petition to Annul. We

remand this matter for the trial court to rule on the merits of Defendants’ Petition

to Annul, and we lift the stay issued by this Court in Straughter I.

REVERSED AND REMANDED; STAY LIFTED

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