Scott Vicknair, LLC v. Wayne Robinson

SCOTT VICKNAIR, LLC * NO. 2024-CA-0512

VERSUS *
COURT OF APPEAL
WAYNE ROBINSON *
FOURTH CIRCUIT
*
STATE OF LOUISIANA
*******

APPEAL FROM
FIRST CITY COURT OF NEW ORLEANS
NO. 2024-00104, SECTION “C”
Honorable Dianne T. Alexander, Judge
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Judge Rosemary Ledet
******
(Court composed of Chief Judge Roland L. Belsome, Judge Joy Cossich Lobrano,
Judge Rosemary Ledet, Judge Rachael D. Johnson, Judge Karen K. Herman)

HERMAN, J., DISSENTS WITH REASONS

Brad P. Scott
Jane C. Alvarez
Kayla Martynenko
Kameron P. Whitmeyer
SCOTT VICKNAIR, LLC
909 Poydras Street, Suite 2025
New Orleans, LA 70112

COUNSEL FOR PLAINTIFF/APPELLANT

REVERSED AND REMANDED
March 13, 2025

RML This is a suit on an open account. Plaintiff—Scott Vicknair, LLC

RLB (“Vicknair”), a law firm—appeals the trial court’s May 22, 2024 judgment (the

JCL “May 2024 Judgment”) granting certain exceptions filed by Defendant—Wayne

RDJ Robinson (“Mr. Robinson”), a former client—and dismissing the suit.1 For the

reasons that follow, we reverse and remand.

Factual and Procedural Background

In January 2024, Vicknair commenced this suit in First City Court of New

Orleans (“City Court”), averring that Mr. Robinson owed it $16,501.55, with

interest, attorney’s fees, and costs for legal services. In the petition, Vicknair

averred that it performed the legal services in connection with a succession matter

that was pending in Jefferson Parish—the Succession of Loretta Marie Coleman

(the “Coleman Succession”). Vicknair further averred that all the legal services

were performed in Orleans Parish, where its registered office is located, and that

Mr. Robinson’s domicile is in Ascension Parish. Mr. Robinson responded by filing

1 As explained elsewhere in this opinion, there were two judgments issued on the exceptions—

the May 2024 Judgment, which is before us on appeal; and a June 28, 2024 amended judgment,
which is not.

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a trio of declinatory exceptions—lis pendens, improper venue, and lack of subject

matter jurisdiction.2

In April 2024, a hearing was held on the exceptions. At the hearing, the trial

court ruled from the bench granting the exceptions of improper venue and lack of

subject matter jurisdiction, denying the exception of lis pendens, and dismissing

the suit. The following month, in May 2024, the trial court rendered a written

judgment granting the exceptions of improper venue and lis pendens, denying the

exception of lack of subject matter jurisdiction, and dismissing the suit. From the

May 2024 Judgment, Vicknair timely appealed.

Meanwhile, in June 2024, after the lodging of the appeal, the trial court

rendered an amended judgment (the “Amended Judgment”) granting exceptions of

improper venue and subject matter jurisdiction and denying the exception of lis

pendens.

Jurisdictional Issue

Before reaching the merits of the appeal, we address the jurisdictional issue

of which judgment is before us—the May 2024 Judgment or the Amended

Judgment. The jurisdictional issue is the result of the following chronology of

events:

• June 3, 2024: Vicknair filed a timely Motion for Devolutive Appeal from the
May 2024 Judgment;

2 Mr. Robinson incorrectly captioned its exception of lack of subject matter jurisdiction as a

declinatory exception. Effective August 1, 2023, the Legislature changed the characterization of
an exception of lack of subject matter jurisdiction from a declinatory to a peremptory exception.
See La. C.C.P. art. 927 (A)(8) (providing that peremptory exceptions include “[t]he court’s lack
of jurisdiction over the subject matter of the action”). This amendment was in effect in January
2024 when this suit was filed and these exceptions were filed.

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• June 13, 2024: The trial court signed an order granting Vicknair’s Motion
for Devolutive Appeal (the “Order of Appeal”); and

• June 28, 2024: The trial court issued the Amended Judgment, stating that it
was correcting “typographical errors” in the May 2024 Judgment to reflect
the ruling it made from the bench on the exceptions.

The governing statutory provision is La. C.C.P. art. 1951, which provides, in

part, that “[o]n 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.” Summarizing the jurisprudence

construing La. C.C.P. art. 1951, this Court, in Bates v. City of New Orleans, 13-

1153, pp. 13-14 (La. App. 4 Cir. 3/26/14), 137 So.3d 774, 785 (internal citations

omitted), outlined the following well-settled parameters regarding a court's

authority to amend a final judgment:

• “Article 1951 contemplates the correction of a ‘clerical error’ in a
final judgment, but does not authorize substantive amendments” An
amendment that “adds to, subtracts from, or in any way affects the
substance of a judgment, is considered a substantive amendment.”

• The substance of a judgment can be altered only by a timely motion
for new trial, nullity action, or appeal.

• “The trial judge cannot, on his own motion or on the motion of any
party, change a judgment which has been so signed, notwithstanding
it was signed in error.”

• “La. C.C.P. art. 1951 does not permit the trial court to substantively
alter a final judgment even if the amendment merely expresses the
trial judge's actual intention. The trial court’s written judgment is
controlling, even if the trial judge may have intended otherwise.”

• A trial court’s authority on a motion to enforce a final judgment is
limited to enforcing its judgment as written.

• Substantive amendments to judgments made without recourse to the
proper procedures—a timely motion for a new trial or an appeal—
are absolute nullities.

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• The remedy generally granted by an appellate court when it finds an
improper substantive amendment has been made to a final judgment
is to set aside and annul the amending judgment and to reinstate the
original judgment.

Based on these principles, we find that the Amended Judgment is an

absolute nullity. The Amended Judgment was rendered after the trial court signed

the Order of Appeal. At that juncture, this Court was vested with appellate

jurisdiction; and the trial court lacked jurisdiction to make any substantive

amendment to the May 2024 Judgment. The Amended Judgment made two

substantive amendments to the May 2024 Judgment: (i) it changed the rulings on

the exceptions; and (ii) it failed to dismiss the case. For these reasons, we vacate

the Amended Judgment and reinstate the May 2024 Judgment. The May 2024

Judgment, thus, is the only judgment properly before us on appeal.

Merits of the Appeal

All three of Mr. Robinson’s exceptions are premised on the argument that

the claim asserted here is part of the Coleman Succession, which is pending in

Jefferson Parish, and that jurisdiction and venue are therefore improper. Likewise,

he contends that lis pendens applies given Vicknair filed a proof of claim for the

same amount of legal fees in the Coleman Succession (the “POC”).3 Given the

intertwined nature of the exceptions, we address all of them.

3 If this was a succession proceeding, Mr. Robinson’s contentions may have merit. See

Succession of McElwee, 276 So.2d 391 (La. App. 2d Cir.1973) (observing that “[i]n succession
proceedings, jurisdiction and venue are synonymous”). Indeed, a succession proceeding is one of
the type of cases carved out of the jurisdiction of city courts. See La. C.C.P. art. 4847. But, this is
not a succession proceeding. This is a suit on open account by Vicknair against Mr. Robinson
individually. As discussed elsewhere in this opinion, a suit on an open account is within the
subject matter jurisdiction of a city court.

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Peremptory Exception of Lack of Subject Matter Jurisdiction

“Whether a court has subject matter jurisdiction is reviewed on appeal under

the de novo standard of review.” Lassalle v. Napoleon, 22-0460, p. 4 (La. App. 4

Cir. 12/20/22), 356 So.3d 74, 77 (internal citations omitted). Subject matter

jurisdiction is a threshold requirement in all suits. “Once the objection of the lack

of subject matter jurisdiction is raised by the parties or noticed by the court on its

own motion, the court shall address the objection before ruling on any other matter.

and it must be addressed, when raised by the parties, before any other exception.”

La. C.C.P. art. 927 (B).

A city court’s subject matter jurisdiction is limited in two respects: (i) by the

amount in dispute; and (ii) by the nature of the proceeding. La. C.C.P.

art. 4841(A). Neither limitation applies here.

First, the amount of the demand in this case—$16,501.55, with interest,

attorney’s fees, and costs—falls within the $25,000 statutory cap for a city court in

New Orleans. See La. C.C.P. art. 4843(D) (providing that “the civil jurisdiction is

concurrent with the district court in cases where the amount in dispute, or the value

of the property involved, does not exceed twenty-five thousand dollars”).4

Second, the subject matter of this suit—a petition on open account—is not

one of the type cases or proceedings carved out of the jurisdiction of a city court by

La. C.C.P. art. 4847. See La. C.C.P. art. 4846. 5

4 La. C.C.P. art. 4841(B) (providing that “[f]or the purposes of this Chapter, the amount in

dispute is determined by the amount demanded, including damages pursuant to Civil Code
Articles 2315.3 and 2315.4, or value asserted in good faith by the plaintiff, but does not include
interest, court costs, attorney fees, or penalties, whether provided by agreement or by law”).
5 La. C.C.P. art. 4847 provides:

Except as otherwise provided by law, a parish court or city court has no jurisdiction
in any of the following cases or proceedings:

5

Recapping, Vicknair’s suit asserts an open account claim—a type of case

that a city court has jurisdiction to decide—and the amount it demands falls within

the $25,000 statutory cap on the City Court’s jurisdiction. Hence, the City Court

has subject matter jurisdiction over this open account suit. The exception of lack of

subject matter jurisdiction lacks merit.

Declinatory Exception of Lis Pendens

“A trial court’s ruling on an exception of lis pendens, pursuant to La. C.C.P.

art. 531, presents a question of law; thus, it is reviewed de novo.” TMF Hotel

Properties, L.L.C. v. Crescent City Connections 501(C) 7 Gris-Gris Pleasure Aide

& Soc. Club, 18-0079, p. 4 (La. App. 4 Cir. 11/28/18), 318 So.3d 756, 760. In

order to grant a lis pendens exception, all of the following three elements must be

satisfied: (1) two or more suits pending; (2) the pending suits involve the same

transaction or occurrence; and (3) the pending suits involve the same parties in the

(1) A case involving title to immovable property.

(2) A case involving the right to public office or position.

(3) A case in which the plaintiff asserts civil or political rights under the federal or
state constitutions.

(4) A claim for annulment of marriage, divorce, separation of property, or alimony.

(5) A succession, interdiction, receivership, liquidation, habeas corpus, or quo
warranto proceeding.

(6) A case in which the state, or a parish, municipal, or other political corporation
is a defendant, except for a petition for nullity filed in the City Court of East St.
Tammany to nullify a judgment of bond forfeiture rendered by the City Court of
East St. Tammany.

(7) Any other case or proceeding excepted from the jurisdiction of these courts by
law.

B. In addition, city courts shall not have jurisdiction in tutorship, curatorship,
emancipation, and partition proceedings.

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same capacities. See La. C.C.P. art. 531; Nieto v. Dodd, 24-0293, p. 3 (La. App. 4

Cir. 5/20/24), 390 So.3d 432, 435.

Here, Mr. Robinson’s lis pendens exception is premised on the undisputed

fact that, in February 2023, Vicknair filed the POC asserting a claim against the

Coleman Succession for unpaid legal fees in the same amount asserted in this

case—$16,501.55. For this reason, Mr. Robinson contends that Vicknair’s claim is

pending in the Coleman Succession.

At the hearing on the exceptions, Vicknair countered that the filing of a

proof of claim in a succession proceeding is akin to sending a demand letter and

that it is not the filing of a legal proceeding. Moreover, Vicknair emphasized that

the POC was filed against the Coleman Succession; whereas, this open account suit

was filed against Mr. Robinson, individually. Thus, the parties are not the same.

We agree.

In its POC, Vicknair asserted that it was filing its claim pursuant to La.

C.C.P. art. 3245, which is part of the procedural scheme to enforce a claim against

a succession. See Succession of Wray, 577 So.2d 1163, 1165 (La. App. 2d Cir.

1991) (observing the procedural scheme is set forth in La. C.C.P. arts. 3241-46 and

that “[a] creditor ‘may enforce his claim judicially’ only after the succession

representative has rejected the claim”). Filing a proof of claim is not akin to filing

suit. See Succession of Griffith, 415 So.2d 670, 675 (La. App. 4th Cir. 1982)

(observing that “[b]y filing . . .[a] “Proof of Claim” . . . [the creditor] was

following the procedures prescribed by the Code of Civil Procedure. . . . [the]

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purpose was to have the succession representative acknowledge or reject the claim,

to have security posted for the claim and to stop the running of prescription on the

claim”).

Summarizing, the POC is not a pending prior suit. Regardless, the parties in

the Coleman Succession and this case are not the same. The Coleman Succession

is the other party in the succession proceeding; the other party in this case is Mr.

Robinson, individually. All the lis pendens requirements are not satisfied here. The

lis pendens exception lacks merit.6

Declinatory Exception of Improper Venue

“Venue is a question of law and where a legal error interdicts the fact

finding process and the record is otherwise complete, an appellate court should

then conduct a de novo review of the record.” Anaya v. Legg Mason Wood Walker,

Inc., 07-0654, p. 18 (La. App. 4 Cir. 5/14/08), 985 So.2d 281, 291 (internal

citations omitted). But, “the trial court’s factual findings underlying the decision

are reviewed under the manifest error standard of review.” Arc Industries, L.L.C. v.

Nungesser, 06-1353, p. 2 (La. App. 3 Cir. 11/21/07), 970 So.2d 690, 693 (internal

citations omitted).

The original “home base” venue concept—the principle that one is entitled

to be sued in one’s domicile—“has become anachronistic with the ever-increasing

number of legislative exceptions to venue at the party’s domicile.” Underwood v.

Lane Mem’l Hosp., 97-1997, p. 3 (La. 7/8/98), 714 So.2d 715, 716-17 (citing Kellis

v. Farber, 523 So.2d 843, 847 (La.1988)). The Supreme Court has observed that

6 As noted elsewhere in this opinion, the trial court, at the hearing on the exceptions, reached the

same result, observing that the parties in the two proceeding were not the same.

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“plaintiffs may choose any venue available under La. Code Civ. P. art. 42 or any

other supplementary venue provided by law that fits the particular circumstances of

their claims.” Cacamo v. Liberty Mut. Fire Ins. Co., 99-3479-81, p. 5 (La.

6/30/00), 764 So.2d 41, 44. “These alternative statutory venue provisions are an

extension, supplement, and legal part of the general venue provisions, rather than

exceptions requiring strict construction.” Elliott v. Amato & Creely, 05-0376, p. 4

(La. App. 1 Cir. 3/29/06), 934 So.2d 779, 781.

Procedurally, a plaintiff invoking one of the supplemental venue provisions

“must allege sufficient facts to prove that the chosen venue is proper.” Elliott, 05-

0376, p. 5, 934 So.2d at 782. “For the purposes of determining a proper venue, the

plaintiff’s allegations are taken as true.” Id. “If the grounds for an objection of

improper venue do not appear on the face of the plaintiff’s petition, the burden is

on the defendant to offer evidence in support of his position.” Id. (internal citations

omitted).

Here, La. C.C.P. art. 74.4 (A)—which governs venue for an open account

suit—is the applicable supplemental venue provision;7 it provides that “[a]n action

to collect an open account may be brought in the parish where the open account

was created or where the services that formed the basis of such open account were

performed, or in the parish of the domicile of the debtor.” La. C.C.P. art. 74.4 (A).

Vicknair alleged in its petition that the unpaid legal services all were performed at

its law office, which is located in Orleans Parish. Taking this allegation as true,

7 Vicknair also relies upon La. C.C.P. art.76.1, the supplemental venue provision for contract

actions which provides: “[a]n action on a contract may be brought in the parish where the
contract was executed or the parish where any work or service was performed or was to be
performed under the terms of the contract.” Given our finding that La. C.C.P. art. 74.4 (A)
applies, we find it unnecessary to address that issue.

9

Vicknair alleged sufficient facts to establish that venue was proper in City Court

pursuant to La. C.C.P. arts. 74.4(A).8

Mr. Robinson’s venue exception is based on the argument that, contrary to

the allegations of the petition, all the unpaid legal services were performed by

Vicknair in Jefferson Parish where the Coleman Succession is pending.9 Again,

when, as here, the grounds for the improper venue exception do not appear on the

face of the petition, the burden is on the defendant—here, Mr. Robinson—to offer

evidence in support of his position. Elliott, 05-0376, p. 5, 934 So.2d at 782.

Mr. Robinson, in support of his improper venue exception, offered copies of

pleadings that Vicknair filed in the Coleman Succession in Jefferson Parish. But,

each of those pleadings have a signature block. The signature block is signed by

one of Vicknair’s attorneys and lists the firm’s address—909 Poydras Street, Suite

2025, New Orleans, Louisiana. Thus, the evidence upon which Mr. Robinson relies

fails to support his position that all the legal services were performed in Jefferson,

as opposed to Orleans, Parish. Rather, the evidence reflects that the legal services

were performed, at least in part, in Orleans Parish. Stated otherwise, the pleadings

reflect, as the petition alleges, that the legal services were performed, at least in

part, at the firm’s office located in Orleans Parish. Accordingly, we find that Mr.

Robinson failed to carry his burden of establishing that venue in City Court was

improper. The exception of improper venue lacks merit.

8 See La. C.C.P. art. 4851(B) (providing that “[t]he rules of venue provided in Articles 41

through 45, 71 through 79 and 121 through 124 apply to suits brought in city court, except that
where these articles use the word ‘parish’ it shall be construed to mean the territorial jurisdiction
of the city court”).
9 In sustaining the exception, the trial court, at the hearing, observed that venue was improper

because if a judgment was awarded in Vicknair’s favor, the judgment would have to be made
executory in another parish to be enforced against Mr. Robinson.

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DECREE

For the foregoing reasons, the trial court’s May 22, 2024 judgment granting

the exceptions of improper venue and lis pendens is reversed; and this matter is

remanded for further proceedings consistent with the views expressed in this

opinion.

REVERSED AND REMANDED

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