Michael Nelson v. Corbert Dinger, Jr.

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 07-54

MICHAEL NELSON

VERSUS

CORBERT DINGER, JR.

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APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 106219-F
HONORABLE EDWARD LEONARD, JR., DISTRICT JUDGE

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BILLY HOWARD EZELL
JUDGE

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Court composed of Sylvia R. Cooks, Oswald A. Decuir, and Billy Howard Ezell,
Judges.

Cooks, J. concurs in the result.

AFFIRMED.

David W. Groner
Attorney at Law
P. O. Box 9207
New Iberia, La 70562-2907
(337) 364-3629
Counsel for Appellant:
Romero Power Sports

Allen Anthony McElroy, Jr.
McElroy & Duffy
P. O. Box 208
Berwick, LA 70342-0208
(985) 384-2157
Counsel for Plaintiff/Appellee:
Michael Nelson

EZELL, JUDGE.

Romero Power Sports (RPS) appeals the decision of the trial court casting it

in judgment for $7,500 plus interest and attorney fees for the failure to timely answer

wage garnishment interrogatories. For the following reasons, we affirm the decision

of the trial court.

Michael Nelson won a judgment against Corbert Dinger in the amount of

$7,500 in Morgan City City Court. Mr. Dinger works at RPS as a mechanic and in

sales, as he did at the time of the judgment. Garnishment interrogatories were served

on RPS on October 25, 2005. When no answer was filed within the allowed time, Mr.

Nelson filed a motion for judgment pro confesso on November 16, 2005. The

original hearing on the motion was set for November 28 of that year. RPS filed its

answers to the garnishment interrogatories on December 15, well over one month

after they were required by La.Code Civ. P. art. 2412(D). The untimely answer

admitted that RPS was indebted to Mr. Dinger for wages.

The trial court ruled that RPS was liable for the entire amount of the original

judgment against Mr. Dinger, plus interest and attorney fees. From this decision, RPS

appeals, asserting as its lone assignment of error that the trial court failed to allow

RPS to rebut Mr. Nelson’s prima facie case. We disagree.

Under Louisiana law, a garnishment proceeding is nothing more than a

streamlined legal process for a creditor’s seizing property of a judgment debtor in the

hands of a third party. First Nat’l Bank of Commerce v. Boutall, 422 So.2d 1159

(La.1982). Louisiana Revised Statutes 13:3921(A) states:

In every case in which the wage or salary of a laborer, wage
earner, artisan, mechanic, engineer, fireman, carpenter, bricklayer,
secretary, bookkeeper, clerk, employee on a commission basis, or
employee of any nature and kind whatever, whether skilled or unskilled,
shall be garnished either under attachment or fieri facias or as otherwise
provided by law, a judgment shall be rendered by the court of competent

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jurisdiction in which the garnishment proceedings may be pending
fixing the portion of such wage, salary, commission, or other
compensation as may be exempt, as provided by law, and providing for
the payment to the seizing creditor of whatever sum for which judgment
may be obtained, out of the portion of such compensation which is not
exempt.

Louisiana Code of Civil Procedure Article 2411(B) states that upon service of the

petition, citation, and interrogatories, seizure is thereby effected against any property

of, or credit due, the judgment debtor. From the moment of the seizure the garnishee

becomes the legal custodian of future wages, as well as unpaid current wages, owed

the judgment debtor who is an employee. Sun Sales Co. v. Hodges, 256 La. 687, 237

So.2d 684,(1970); Owen v. Owen, 335 So.2d 529, (La.App. 2 Cir.1976). The

garnishee is obligated to hold any such wages as a custodian subject to the order of

the court. Id. “The test of a garnishee’s liability to the judgment creditor is whether

the garnishee has in his hands the principal debtor’s property, funds, or credits, for

the recovery of which the debtor has a present subsisting cause of action.” Pine Tree

Assocs. v. Subway Restaurants, Inc., 93-603, p. 5 (La.App. 5 Cir. 9/14/94), 643 So.2d

1271, 1274, writ denied, 94-2537 (La. 12/9/94), 647 So.2d 1120.

Louisiana Code of Civil Procedure Article 2413 states, in pertinent part:

If the garnishee fails to answer within the delay provided by
Article 2412, the judgment creditor may proceed by contradictory
motion against the garnishee for the amount of the unpaid judgment,
with interest and costs. . . .The failure of the garnishee to answer prior
to the filing of such a contradictory motion is prima facie proof that he
has property of or is indebted to the judgment debtor to the extent of the
judgment, interest, and costs.

The failure to file a sworn answer to garnishment interrogatories thus creates

a prima facie case against the garnishee under La.Code Civ. P. art. 2413, which is

rebuttable if the garnishee against whom this presumption is raised presents evidence

of its actual debt or lack thereof to the defendant. The judgment pro confesso is not

self-executing, and until a contradictory motion is filed against the garnishee for the

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amount of the judgment, the stage is not set for a default judgment against the

garnishee.

After a hearing on the rule to show cause, judgment shall be rendered against

the garnishee unless the garnishee proves that it either had no property of, or was not

indebted to, the judgment debtor. If the garnishee fails to meet this burden, it may

still limit its liability by proving the amount of property or indebtedness owed to the

debtor under La.Code Civ. P. art. 2413(B). In that circumstance, the judgment

against the garnishee shall be limited to the delivery of the property or payment of the

indebtedness. The exception to this scenario is a suit such as this one, which involves

“garnishment of wages, salaries, or commissions” as set forth under La.Code Civ. P.

art. 2415.

By the clear wording of Article 2413(B), upon its failure to timely answer the

garnishment interrogatories, RPS was responsible for the entirety of Mr. Dinger’s

debt to Mr. Nelson. The only way RPS, who clearly failed to timely answer

garnishment interrogatories propounded to it, could avoid a judgment pro confesso

is if it could prove at the hearing on the contradictory motion that it had no property

of and was not indebted to the judgment debtor. The only evidence presented at the

hearing on the motion for judgment pro confesso was the admission by RPS that it

did, in fact, possess property of and was indebted to the judgment debtor, Mr. Dinger.

Therefore, RPS is unable to prevent judgment being rendered against it. The trial

court simply applied the law as it is written and committed no error.

For the above reasons, the decision of the trial court is hereby affirmed. Costs

of this appeal are assessed against Romero Power Sports.

AFFIRMED.

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THIS OPINION IS NOT DESIGNATED FOR PUBLICATION. Rule 2-16.3
Uniform Rules, Court of Appeals.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

07-54

MICHAEL NELSON

VERSUS

CORBERT DINGER, JR.

COOKS, J., concurs in the result.

I agree with the majority’s decision to affirm the judgment, finding the trial

judge simply applied the law as written and committed no error. However, I take

exception with the majority opinion’s statement that “[t]he only way RPS, who

clearly failed to timely answer garnishment interrogatories propounded to it, could

avoid a judgment pro confesso is if it could prove at the hearing on the contradictory

motion that it had no property of and was not indebted to the judgment debtor.”

Article 2413B’s provision that if the garnishee proves the amount of indebtedness,

the judgment shall be limited to the payment of that indebtedness, was not available

to RPS, because this involved the garnishment of wages. Thus, there was no “way”

for RPS to avoid the judgment after it failed to timely file its answer and the plaintiff

filed the contradictory motion.