Donald R. Modicue v. Prince of Peace Auto Sale LLC

Judgment rendered July 15, 2026.
Application for rehearing may be filed
within the delay allowed by Art. 2166,
La. C.C.P.

No. 56,962-CA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

*****

DONALD R. MODICUE Plaintiff-Appellee

versus

PRINCE OF PEACE AUTO SALE Defendant-Appellant
LLC

*****

Appealed from the
Monroe City Court for the
Parish of Ouachita, Louisiana
Trial Court No. 2019-CV-04012

Honorable Tammy Deon Lee, Judge

*****

BRIGETTE SWAYZER In Proper Person

LAW OFFICE OF ANTHONY J. Counsel for Appellee
BRUSCATO
By: Anthony J. Bruscato

*****

Before PITMAN, STEPHENS, and THOMPSON, JJ.

STEPHENS, J.,

This civil appeal arises out of the Monroe City Court, Ouachita

Parish, the Honorable Tammy Deon Lee, Judge, presiding. The defendant,

Prince of Peace Auto Sale LLC (“Prince of Peace”), has proceeded pro se

through Brigette Swayzer, its manager and sole member. The instant appeal

from the city court’s ruling denying a motion for contempt will highlight the

problems this has caused in this matter and serve as a warning to others who

ponder the wisdom of self-representation in their own cases. For the reasons

set forth below, we affirm the judgment of the city court and remand with

instructions for entry of a money judgment in favor of the defendant, Prince

of Peace, for the credit it was awarded by this Court in its previous opinion.

FACTS AND PROCEDURAL BACKGROUND

The plaintiff, Donald R. Modicue, purchased a used 2008 Ford Fusion

from Prince of Peace on April 13, 2019, for a sale price of $3,995.00.

Modicue made a down payment of $1,500.00 and the remaining balance was

financed at an interest rate of 29.9%, with installments to be paid to Prince

of Peace. Numerous undisclosed issues developed with the car immediately

after Modicue purchased it. The vehicle was “in and out of the shop,” with

Modicue having to pay for the repairs. He missed several car payments

before suing Prince of Peace seeking rescission of the sale and damages.

Prince of Peace seized the car for Modicue’s failure to make the agreed-upon

installment payments.

On July 7, 2020, the Monroe City Court rendered judgment in favor of

Modicue, granting rescission of the sale and awarding him special damages

in the amount of $3,591.78, general damages in the amount of $1,500.00,

and attorney fees in the amount of $2,500.00, for a total award of $7,591.78.

Prince of Peace maintained possession of the vehicle. Prince of Peace,

through Ms. Swayzer, was granted a suspensive appeal, which, on its face,

appeared to be untimely. Although the record contained a certificate of

mailing showing that notice of the judgment was sent to Ms. Swayzer on

November 9, 2020, there was nothing in the record to show when it was

received as it was not sent via certified or registered mail. Nonetheless,

because Ms. Swayzer was a pro se litigant, and due to mail delays caused by

COVID, this Court entertained the appeal.

This Court upheld the city court’s finding in favor of Modicue that

redhibitory defects existed warranting rescission of the “as is” sale and

affirmed the judgment, but amended it to: (1) remove the $383.00 in special

damages as unsupported and $1,500.00 in general damages as erroneous;

and (2) include a credit to the seller of $1,708.78 representing the value

derived by Modicue for use of the vehicle. This Court noted that this

reduced the damages awarded to the plaintiff to $4,000.00.1

While the appeal was pending, Modicue filed a writ of fieri facias and

proceeded to execute on the city court judgment. He received $8,000.17

from Prince of Peace via execution of the writ of fieri facias.2 Once the

Second Circuit’s ruling became final, it is undisputed that the amount

1
See, Modicue v. Prince of Peace Auto Sale, LLC, 54,095 (La. App. 2 Cir.
9/22/21), 328 So. 3d 1239, writ denied, 21-01864 (La. 2/15/22), 332 So. 3d 1188.
2
Modicue executed on the judgment based on an erroneous assumption that this
appeal was devolutive. It was not—it was suspensive. Modicue’s argument that the
appeal was converted to devolutive is incorrect. Per La. C.C.P. art. 2088(B), when an
appeal bond is not timely appealed and the suspensive appeal is thus not perfected, the
trial court maintains jurisdiction to convert an appeal from suspensive to devolutive. In
the absence of such conversion, an appeal will be maintained as suspensive, as the
appellate court cannot notice such an error on its own.
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Modicue received from Prince of Peace via fieri facias was greater than the

amount actually due him.

Ms. Swayzer filed a motion to enforce judgment. Modicue

responded, pointing out that there had been no amicable demand and

offering to resolve the matter through a consent judgment. The parties could

not reach an agreement.

At that point Prince of Peace got an attorney. The motion to enforce

was set for hearing three times. On December 27, 2023, and January 18,

2024, Modicue appeared but the attorney for Prince of Peace did not, so the

trial court continued and reset the hearing. On January 31, 2024, when

Modicue appeared and defendant’s attorney failed to appear for a third time,

the motion to enforce was dismissed without prejudice for failure to

prosecute.

Instead, the attorney representing Prince of Peace withdrew, and Ms.

Swayzer, acting pro se for defendant, noticed a judgment debtor rule.

Modicue’s counsel appeared for the rule on July 26, 2024. Ms. Swayzer did

not obtain a transcript of these proceedings, so there is no record. However,

Ms. Swayzer claims that Modicue acted improperly by failing to fully

answer her questions and failing to produce the documents she requested.

She filed a motion seeking to have Modicue held in contempt for

misconduct during the judgment debtor rule. It is this motion that gives rise

to the current appeal.

There was a hearing on Ms. Swayzer’s motion for contempt. Ms.

Swayzer argued that Modicue had been uncooperative and should be held in

contempt. Modicue’s attorney noted that there was no evidence of any

action constituting contempt, and further, because there was no judgment in
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her favor, Ms. Swayzer did not have the judgment debtor rule available to

her as a remedy. Plaintiff’s counsel also reminded the trial court that Ms.

Swayzer had rejected an unconditional tender made by Modicue previously.

The trial court denied Ms. Swayzer’s contempt motion and advised her again

she needed to retain legal counsel to help her follow the necessary

procedures in securing her rights in this matter.

Ms. Swayzer, on behalf of Prince of Peace, has appealed from the trial

court’s denial of the motion for contempt.

DISCUSSION

Prince of Peace’s Argument

Prince of Peace, through Ms. Swayzer, asserted one assignment of

error: whether the trial court erred in dismissing the motion for contempt

filed by Prince of Peace without determining whether a lawful court order

had been violated and in advising Prince of Peace, who has been acting

exclusively through Ms. Swayzer, to retain legal counsel. According to Ms.

Swayzer, the lower court erred by failing to properly consider her motion for

contempt.

In the motion for contempt, she alleged that Modicue failed to comply

with a court-ordered judgment debtor examination and refused to produce

documents as directed. The trial court erred because it did not analyze any

of these required elements. There was no finding by the court that:

• no order existed;

• the order did not require production;

• compliance occurred;

• any refusal was justified.

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Instead, urges Ms. Swayzer, her motion for contempt was dismissed without

any legal analysis. She contends that a court cannot decline to determine

whether its own order was violated and failure to address the elements

necessary for a finding of contempt constitutes an abuse of discretion.

Ms. Swayzer also takes issue with the trial court’s ruling dismissing

the motion and advising her to retain counsel. She contends that the

judgment should have contained legal reasoning and a factual basis for her

determination. As it lacked both, it was an abuse of judicial discretion.

Lastly, Ms. Swayzer contends that her pro se status is not a reason for

denying her judicial relief. She claims that the record contains no legal basis

for dismissal substantively.

Modicue’s Argument

Modicue claims that this appeal should be dismissed for lack of

appellate jurisdiction or, alternatively, that the trial court’s judgment should

be affirmed, since there is nothing to support Ms. Swayzer’s argument that

Modicue has taken any action that could be characterized as contempt of

court. In a separate motion, Modicue urges that Prince of Peace’s brief

should be stricken for non-service upon plaintiff contrary to certification

stating that such service had in fact been made.

In support of all of the above issues, Modicue points out that although

some leniency is afforded pro se litigants, they are not excused from

reasonable efforts to understand and comply with court rules and procedures.

In this case, Ms. Swayzer filed a motion to enforce without amicable

demand. Thereafter, on three separate occasions, she failed to proceed on

the motion to enforce. After the third hearing date, the motion to enforce

was dismissed without prejudice for failure to prosecute. Nothing in the trial
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court’s ruling prevents Prince of Peace from starting over, this time

following the correct procedure.

Modicue points out that the judgment debtor rule filed by Ms.

Swayzer was improper as there is no judgment in favor of Prince of Peace, a

necessary precondition for the filing of a judgment debtor rule. See, La.

C.C.P. art. 2451. At the hearing on Ms. Swayzer’s motion for contempt, she

failed to offer evidence to back up the motion for contempt, which is why

her motion for contempt was not granted. Ms. Swayzer again failed to

follow the ten-day rule for appeals and writs set forth in La. C.C.P. art. 5002

and failed to comply with the rule requiring service on opposing counsel.

Regarding the merits of this appeal, Modicue asserts that although the

judgment debtor rule was not properly noticed, plaintiff appeared in

response thereto. Nonetheless, Prince of Peace filed a motion for contempt,

alleging Modicue’s non-cooperation. When the motion for contempt came

up for hearing, Ms. Swayzer failed to offer any evidence to support that

plaintiff was in contempt. This is not a simple formality, urges Modicue.

Ms. Swayzer did not present a transcript of the proceedings of the judgment

debtor rule because there is not one. Plaintiff contends that Ms. Swayzer

cannot even describe the offending behavior that constitutes contempt of

court.

Modicue suggests that this Court dismiss the appeal for lack of

jurisdiction, or, alternatively, affirm the trial court as there is no basis for

reversal.

Analysis

The sole issue on appeal is whether the trial court erred in granting the

motion for contempt filed by Prince of Peace. This Court agrees with
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Modicue that the trial court correctly found that there was no basis

whatsoever for Ms. Swayzer’s motion and, as such, no grounds for her

motion for contempt. With no judgment, there can be no judgment debtor

rule.

We point out that in the first appeal in this matter, Prince of Peace was

granted a suspensive appeal. Modicue argued in his appellate brief that this

prior appeal was devolutive. It was not. When an appeal bond is not timely

filed and a suspensive appeal is not perfected, the trial court retains

jurisdiction to convert the suspensive appeal to a devolutive appeal. La.

C.C.P. art. 2088(B). The record in the prior appeal does not show that an

appropriate motion was filed in the trial court. Therefore, the seizure by

Modicue was arguably improper.

In its previous opinion, this Court affirmed the trial court’s finding

that redhibition warranted rescission of the sale but amended the judgment to

reduce the amount of damages to which Modicue was entitled. Specifically,

the award of general damages was removed, and Prince of Peace was given

a credit in the form of a reduction of the amount assessed by the trial court

for general damages. This reduced the damage award to Modicue from

$7,591.78 to $4,000.00. Modicue, 54,095, p. 16, 328 So. 3d at 1250.

La. C.C.P. art. 1841 provides that a judgment is the determination of

the rights of the parties in an action and may award any relief to which the

parties are entitled. It further provides that a judgment that determines the

merits in whole or in part is a final judgment. La. C.C.P. art. 2251 provides

that a judgment can be executed only by a trial court. Article 2251 further

provides that a party seeking to execute a judgment of an appellate court

must first file a certified copy with the clerk of the trial court.
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This Court’s previous opinion constitutes a judgment as it determined

the rights of the parties to this action, awarded relief to which they were

entitled, and determined the merits of the matters before it. The amount of

credit to which Prince of Peace was actually entitled was not specifically set

forth in the prior opinion, so there is arguably no money judgment in its

favor. For this reason, the judgment debtor remedy provided by La. C.C.P.

arts. 2451 et seq., was not available to Prince of Peace. Thus, the rule for

contempt had no legal basis and the trial court’s ruling denying said rule was

proper. However, because the credit that Prince of Peace is owed is easily

determinable from the language of this Court’s previous opinion, in the

interest of justice, see La. C.C.P. art. 2164, we are remanding this matter to

the trial court to render judgment forthwith in favor of Prince of Peace

awarding to it the credit it is owed by Modicue.

CONCLUSION

For the reasons set forth above, the judgment of the trial court denying

the rule for contempt filed by Prince of Peace is affirmed. This matter is

remanded for the trial court to render judgment in favor of the defendant,

Prince of Peace Auto Sale LLC, in the amount of the credit it is owed by the

plaintiff, Daniel R. Modicue.

AFFIRMED; REMANDED WITH INSTRUCTIONS.

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