Bonnie Jane Neal, Through Her Agent Betty Jean Henshaw v. Sheran Sue Drewery King Cash

Judgment rendered June 29, 2022.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 54,579-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

BONNIE JANE NEAL, Plaintiff-Appellee
THROUGH HER AGENT
BETTY JEAN HENSHAW

versus

SHERAN SUE DREWERY Defendant-Appellant
KING CASH

*****

Appealed from the
Third Judicial District Court for the
Parish of Union, Louisiana
Trial Court No. 49,486

Honorable Jeffrey Levance Robinson, Judge

*****

SMITH & NWOKORIE, LLC Counsel for Appellant
By: Brian G. Smith

ELLIS LAW FIRM OF NORTH Counsel for Appellee
LOUISIANA
By: Phillip J. Ellis

*****

Before PITMAN, COX, and HUNTER, JJ.

COX, J.

This case arises out of the Third Judicial District Court, Union Parish,

Louisiana. Bonnie Neal filed a petition against Sheran Sue Drewery King

Cash to enforce a judgment from justice of the peace court. The district

court found in favor of Mrs. Neal and ordered Mrs. Cash to comply with the

judgment. Mrs. Cash now appeals. For the reasons outlined below, we

affirm the justice of the peace judgment and vacate the district court’s

enforcement of that judgment.

FACTS

Danny Brewer gave a gun to his uncle, Author King. For purposes of

this appeal, Author King had two children, Mrs. Neal and James King. Mrs.

Neal gained possession of the gun after her father passed away. As he was

dying, James King asked Mrs. Neal for their father’s gun. Mrs. Neal then

gave James King the gun, but it was her understanding that the gun would be

returned to her when he died.1 James King passed away and was survived

by his wife, Mrs. Cash.2 The gun was never returned to Mrs. Neal. Mrs.

Neal filed a statement of claim in justice of the peace court against Mrs.

Cash in order to have the gun returned.

On February 26, 2020, Mrs. Neal obtained a judgment against Mrs.

Cash in the justice of the peace court for the gun or $1,000.

In June 2020, Mrs. Cash delivered a Ruger 10/22 to Mrs. Neal, but

Mrs. Neal returned it because the gun sought is an M1 Carbine.

1
Based on her attorney’s arguments before the trial court, Mrs. Neal remained the
owner of the gun but allowed her brother to hold on to it while he was on his deathbed.
2
James King’s date of death is not given, but the transcript reveals this dispute
has been going on for over 10 years.

On July 29, 2020, after the gun was not delivered, Mrs. Neal, through

her agent Mrs. Henshaw, filed a petition against Mrs. Cash requesting that

Mrs. Cash comply with the justice of peace judgment by either producing

the gun or $1,000. Mrs. Cash answered the petition and requested the matter

be dismissed and she be awarded attorney fees.

On September 8, 2020, Mrs. Cash filed peremptory exceptions of no

cause of action and no right of action. She asserted that she is in possession

of a gun that was owned by a third party, Danny Brewer, who is now

deceased.3 She argued that the justice of the peace court lacked jurisdiction

over the matter because it is a succession matter. Additionally, she asserted

that Mrs. Neal has no right of action because she is not a succession

representative. She noted that Mrs. Neal refused to accept the gun that was

delivered to her.

Mrs. Neal opposed the exceptions and argued that she possesses a

right of action because she is the plaintiff in the judgment from the justice of

the peace; therefore, she is a member of the class that has a legal interest in

the litigation. She argued that she has a cause of action because she has a

valid judgment against Mrs. Cash. She then asserted that Mrs. Cash failed to

have the justice of the peace judgment annulled and failed to appeal it. She

argued that because James King was never the owner of the gun, it was not a

succession matter.

A hearing was held on December 17, 2020. No testimony was heard

in the case. Attorneys representing both parties argued their positions on the

exceptions and the enforcement of the justice of the peace judgment. The

3
Danny Brewer was Author King’s nephew and gave the gun to him.
2

district court gave no opinion as to whether the justice of the peace had

jurisdiction over the matter, but stated that this suit was for enforcement of

the judgment. Based on the four corners of the justice of the peace

judgment, the district court denied the exceptions and granted Mrs. Neal

relief in accordance with the justice of the peace judgment.

On December 30, 2020, the district court signed the judgment denying

the exceptions of no cause of action and no right of action. The district court

found in favor of Mrs. Neal and ordered Mrs. Cash to pay her $1,000, all

costs associated with the justice of the peace proceedings, and all district

court costs. Mrs. Neal’s request for attorney fees was denied. Mrs. Cash

now appeals.

DISCUSSION

Mrs. Cash argues that the district court erred in denying her

exceptions of no cause of action and no right of action. She asserts that Mrs.

Neal is required to file a succession proceeding to determine the ownership

of the property and transfer assets to an heir. She argues that Mrs. Neal has

no right of action before the filing of a succession or obtaining a judgment of

possession. She also argues that a justice of the peace does not have

jurisdiction over succession and probate matters; therefore, that judgment

should be dismissed.

Mrs. Neal argues the district court’s judgment should be affirmed.

She asserts that she clearly possessed a cause of action on the face of the

petition because she obtained a judgment from the justice of the peace;

recorded the judgment in the Union Parish mortgage records; all delays to

appeal had lapsed; attempts were made to satisfy the judgment; and she

sought an order requiring Mrs. Cash to comply with the judgment. Mrs.
3

Neal argues that she had a right of action because she obtained a judgment

from the justice of the peace in her favor and took the necessary steps to

have the judgment enforced.

A justice of the peace court shall, within its territorial jurisdiction,

have jurisdiction, concurrent with the parish or district court, over suits for

the possession or ownership of movable property not exceeding five

thousand dollars in value. La. C.C.P. art. 4912(A)(1). Appeals from a

judgment rendered by a justice of the peace court or a clerk of court shall be

taken to the parish court or, if there is no parish court, to the district court of

the parish in which the justice of the peace court is situated. La. C.C.P. art.

4924(A). The appellant from a judgment rendered by a justice of the peace

court shall file suit in the district court within fifteen days from the date of

judgment or service of notice of judgment. La. C.C.P. art. 4925. A justice

of the peace who renders a judgment shall retain original jurisdiction over

that judgment, the enforcement, and collection of garnishments, judgment

debtor examinations, and the issuance of any writ to enforce its judgment.

La. R.S. 13:2586.

Appellate courts have a duty to examine subject matter jurisdiction

sua sponte, even when the parties do not raise the issue, and are obligated to

recognize any lack of jurisdiction if it exists. Dobyns v. Univ. of Louisiana

Sys., 2018-0811 (La. App. 1 Cir. 4/12/2019), 275 So. 3d 911, writ denied,

2019-00950 (La. 9/24/2019), 278 So. 3d 977.

Mrs. Neal brought her action in justice of the peace court for the

possession and ownership of a movable, the gun, which was valued at less

than $5,000. Mrs. Neal’s action was brought against Mrs. Cash,

individually, not against her brother’s succession. Mrs. Neal did not claim
4

to be the owner of the gun because of her brother’s death. Mrs. Neal

asserted that she is and has been the owner of the gun that was in the

possession of Mrs. Cash. This is not a succession matter. This falls

squarely within the jurisdiction of the justice of the peace court.

Mrs. Neal filed her petition in district court to enforce the justice of

the peace judgment. Both Mrs. Neal and Mrs. Cash had the right to appeal

the judgment from the justice of the peace, but the justice of the peace

retains jurisdiction over the enforcement and collection of the judgment.

The district court, acting as an appellate court, could affirm or reverse the

justice of the peace judgment, but it does not have jurisdiction to enforce the

judgment.

All appeal delays have run on the justice of the peace judgment;

therefore, the judgment is final. We affirm the district court insofar as it

acknowledged the validity of the justice of the peace judgment. However,

we vacate the district court’s enforcement of the judgment as that function

remains within the jurisdiction of the justice of the peace. Mrs. Neal’s

remedy for enforcement of the judgment lies with the justice of the peace.

Because the district court did not have jurisdiction over the

enforcement of the judgment, we do not reach the issues of no right of action

and no cause of action.

Mrs. Neal requests attorney fees and costs related to this frivolous

appeal. She argues that Mrs. Cash has not shown that she seriously believes

in the proposition of law that is being advanced because she never appealed

the justice of the peace judgment. She states that Mrs. Cash has unduly

delayed these proceedings for over three years. Mrs. Neal asserts that had

5

she not made a motion to dismiss the appeal for failure to pay the costs, Mrs.

Cash would have never paid the costs and the appeal would still be pending.

The appellate court shall render any judgment which is just, legal,

and proper upon the record on appeal. The court may award damages,

including attorney fees, for frivolous appeal or application for writs, and

may tax the costs of the lower or appellate court, or any part thereof, against

any party to the suit, as in its judgment may be considered equitable. La.

C.C.P. art. 2164. This provision is penal in nature and is to be strictly

construed. Aymond v. Citizens Progressive Bank, 52,623 (La. App. 2 Cir.

6/26/2019), 277 So. 3d 477, writ denied, 2019-1200 (La. 10/15/2019), 280

So. 3d 602; Victus 1, Inc. v. Stocky’s World Famous Pizza #14, Inc., 52,221

(La. App. 2 Cir. 9/26/2018), 256 So. 3d 1146. Damages for frivolous appeal

are allowed only when it is obvious that the appeal was taken solely for

delay, that the appeal fails to raise a serious legal question, or that counsel is

not sincere in the view of the law he advocates, even though the court is of

the opinion that such view is not meritorious. Id. The award of damages

and attorney fees for a frivolous appeal are utilized to curtail the filing of

appeals that are intended to delay litigation, harass another party, or those

that have no reasonable basis in fact or law. Id. Appeals are always favored

and, unless the appeal is unquestionably frivolous, damages will not be

allowed. Aymond v. Citizens Progressive Bank, supra.

Although Mrs. Cash was unsuccessful in proving this was a

succession matter, we cannot say that this appeal is frivolous. We deny Mrs.

Neal’s request for frivolous appeal damages.

6

CONCLUSION

For the reasons stated, the justice of the peace judgment is affirmed.

The district court’s enforcement of the judgment is vacated as jurisdiction to

enforce remains with the justice of the peace. Mrs. Neal’s request for

frivolous appeal damages is denied. Costs associated with this appeal are

cast on the appellant, Mrs. Cash. Further enforcement proceedings are

remanded to the justice of the peace.

AFFIRMED IN PART; VACATED IN PART.

7