Ranger Insurance Company v. State of Louisiana

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

06-488

RANGER INSURANCE COMPANY

VERSUS

STATE OF LOUISIANA, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2003-6669
HONORABLE MARILYN CARR CASTLE, DISTRICT JUDGE

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MARC T. AMY
JUDGE

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Court composed of Oswald A. Decuir, Marc T. Amy, and Billy Howard Ezell, Judges.

AFFIRMED.

Ezell, Judge, dissents with written reasons.

David F. Hutchins
Assistant District Attorney
Post Office Box 3306
Lafayette, LA 70502-3306
(337) 232-5170
COUNSEL FOR APPELLEE:
State of Louisiana

Graymond F. Martin
Halpern & Martin, LLC
3900 N. Causeway Blvd.,
One Lakeway Center, Suite 605
Metairie, LA 70002
(504) 835-6705
COUNSEL FOR PLAINTIFF/APPELLANT:
Ranger Insurance Company

AMY, Judge.

The judgment in this consolidated matter is affirmed. See also Ranger

Insurance Company v. State of Louisiana, 06-487 (La.App. 3 Cir. _/_/06), _ So.2d

_. All costs of this appeal are assigned to the appellant, Ranger Insurance Company.

AFFIRMED.

2

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT
06-488

RANGER INSURANCE COMPANY
VERSUS
STATE OF LOUISIANA, ET AL

EZELL, J. dissenting.

I respectfully disagree with the majority in this matter. Not only would I
address Ranger’s assignment of error concerning notice in the Zamora judgment,
but I would also reverse the trial court’s judgment finding the commissioner of the
Fifteenth Judicial District Court had authority to sign both the Zamora and the
McClendon bond forfeiture judgments.
Although Ranger succeeded in having the Zamora judgment nullified, it
asks this court to address its alternative contention that the procedural
requirements of La.R.S. 15:85 were not met as notice of the forfeiture was
allegedly not mailed within a sixty-day window. A finding that the procedural
requirements were not met would release the surety of any and all obligations
under the bond. La.R.S. 15:85(3). The majority recognizes that neither the trial
court’s reasons nor its judgment touches upon this issue. Citing La.Code Civ.P.
art. 2082, the majority declines to address the merits of the argument. I would
address the merits of this issue because it was presented to the trial court and is
raised on appeal as an assignment of error.
However, I find that the evidence in the record indicates that there is no
merit to this argument which is probably why it was not addressed by the trial
court. Silence on an issue raised in the trial court is considered a rejection of that
issue. Mitchell Co. v. Mucavil, Inc., 02-381 (La.App. 3 Cir. 10/1/03), 855 So.2d
426.
On February 18, 2003, Zamora failed to appear for a hearing. It was noted
that Zamora had failed to appear at a previous hearing and a fugitive warrant and
bond forfeiture was in effect. However, no judgment of bond forfeiture had been

signed. It was not until after this hearing that a judgment of bond forfeiture was
signed on March 19, 2003. Notice to the parties was mailed within sixty days of
the date of the February 18 hearing. Ranger tries to assert that notice should have
been mailed within sixty days of November 19, 2002, when Zamora first failed to
appear. However, the judgment of bond forfeiture was based on Zamora’s failure
to appear at the February 18 hearing. As this court held in State v. Breaux, 94-
1553, 94-1562, (La.App. 3 Cir. 5/31/95), 657 So.2d 371, the State’s notice of
nonappearance could be sent to the appearance bond surety within sixty days after
date the of nonappearance upon which the bail bond forfeiture judgment was
based and was not required to be sent within sixty days from when defendants first
failed to appear for trial. Therefore, I find that the evidence indicates that notice
was timely.
Regarding the signing of the bond forfeiture judgments by the court
commissioner in both cases, La.R.S. 15:85(2) provides that “the court shall sign a
written judgment of bond forfeiture.” In this case the commissioner for the
Fifteenth Judicial District Court signed both judgments of bond forfeiture. The
position of commissioner was created by La.R.S. 13:714. Regarding the
commissioner’s authority, La.R.S. 13:716(A)(emphasis supplied) provides that:

The commissioner of the Fifteenth Judicial District Court shall
perform such duties as are assigned by the chief judge of the district
in accordance with rules which shall be prescribed by the elected
judges of the court, not inconsistent herewith or with the
constitution and laws of the state.

Louisiana Revised Statutes 13:716(B)(4)(a)(emphasis supplied) further provides:

In civil cases, the commissioner may be designated and
assigned to conduct hearings, including evidentiary hearings, and
trials, except motions for injunctive relief and temporary restraining
orders. In furtherance of the above, civil trials and hearings by the
commissioner shall be governed by the following rules:

The commissioner may conduct any or all proceedings on any
matter pending before the court and order the entry of judgment in
any case where the parties consent to the matter being heard and
adjudicated by the commissioner. Each judgment so entered shall
be signed by a judge of the district. The clerk of court, at the time
the action is filed, shall notify the parties of their right to consent to
the exercise of such jurisdiction. The decision of the parties shall be
communicated to the clerk. An aggrieved party may appeal a
judgment of the commissioner rendered pursuant to the authority of

this Subsection in the same manner as an appeal from any other
judgment of a district court.

The majority cites the Louisiana Supreme Court case of State v. O’Reilly,

00-2864, 00-2865 (La. 5/15/01), 785 So.2d 768, which discusses the application of

the de facto official doctrine. The supreme court in O’Reilly, 785 So.2d at 777(

quoting Ryder v. United States, 515 U.S. 177, 180, 115 S.Ct. 2031, 2034 (1995)

(internal citations omitted)), explained the application of the doctrine as follows:

The de facto officer doctrine confers validity upon acts
performed by a person acting under the color of official
title even though it is later discovered that the legality of
that person’s appointment or election to office is
deficient. The de facto doctrine springs from the fear of
the chaos that would result from multiple and repetitious
suits challenging every action taken by every official
whose claim to office could be open to question, and
seeks to protect the public by insuring the orderly
functioning of the government despite technical defects
in title to office.

In this case we are not dealing with a de facto officer. The commissioner is
a validly appointed position under state law. There is no argument about the
constitutionality of the commissioner to act. The law simply does not provide the
commissioner with the authority to sign judgments. There is no provision in the
law giving the commissioner authority to sign the judgment. It is just the opposite.
Aside from La.Code Civ.P. art. 1911 providing that every final judgment shall be
signed by a judgment, La.R.S. 13:716 specifically provides that a judge of the
district court shall sign a civil judgment. The commissioner has the no authority
to sign judgments under the law. Simply put, the commissioner exceeded the
authority conferred on him by law.
In Bankers Ins. Co. v. State, 32,460 (La.App. 2 Cir. 10/27/99), 743 So.2d
870, the second circuit recognized that a judgment of bond forfeiture must be
signed by the judge who ordered the judgment. As noted by La.R.S. 15:85(1), it is
the judge, not the commissioner, who orders the judgment of bond forfeiture.
While La.R.S. 13:716 gives the commissioner the authority to hold hearings and
order the entry of judgment when the parties consent, the judge must still sign the
judgment.

I also do not find that the local rules of the Fifteenth Judicial District Court
confer any authority upon the commissioner to sign judgments. Local Rules for
the Fifteenth Judicial District Court Parish of Lafayette provide that the
commissioner can sign “forfeiture motions.” It does not provide that he can sign
forfeiture judgments.
I think it is clear that the commissioner exceeded his authority in signing the
judgments of bond forfeiture. In Bankers, 743 So.2d 870, the second circuit found
that a judgment of bond forfeiture signed by a judge other than the one who
ordered the judgment was a relative nullity pursuant to La.Code Civ.P. art 2004.
The second circuit noted that the term “ill practice” was not limited to cases of
actual fraud or wrongdoing, but broadly defined to encompass all situations in
which a judgment is rendered through some improper practice or procedure which
operates, even innocently, to deprive the party cast in judgment of some legal
right. The second circuit further noted that a judgment will be annulled for ill
practices only when the circumstances under which it was rendered show the
deprivation of legal rights of the litigant who seeks relief, and when enforcement
of the judgment would be unconscionable and inequitable.
In the present cases the absence of a judge signing the judgment of bond
forfeiture is a fatal defect. There have been cases in which the judge who signed
the judgment was not the judge who heard the case. Cases have held this is a fatal
defect and remanded the case to the trial court to issue a proper and valid
judgment once the present judgment is annulled. See Employers Nat. Ins. Co. v.
Workers’ Comp. Second Injury Bd., 95-1756 (La.App. 1 Cir. 4/4/96), 672 So.2d
309; and Louisiana Paving Co., Inc. v. St. Charles Parish Pub. Schs., 593 So.2d
892 (La.App. 5 Cir. 1992). In this case, the fact that the commissioner signed the
judgment and had no authority is a deprivation of legal rights that Ranger is
entitled to under La.R.S. 15:85, enforcement of which would be unconscionable
and inequitable. Therefore, I find that the judgments should be annulled and the
case remanded for the issuance of a valid judgment.
I also note that the majority states that Ranger’s assignment of error lacks
merit because Ranger did not raise the issue of whether the commissioner acted
permissibly. I respectfully disagree as I find that this is precisely the issue that
Ranger has raised.