Michael L. Glass v. Patricia M. Glass

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1328

MICHAEL L. GLASS

VERSUS

PATRICIA M. GLASS

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APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 213,870
HONORABLE HARRY RANDOW, DISTRICT JUDGE

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OSWALD A. DECUIR
JUDGE

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Court composed of Oswald A. Decuir, Jimmie C. Peters, and Marc T. Amy, Judges.

Peters, J., concurs in the result and assigns written reasons.

REVERSED IN PART; AFFIRMED
IN PART; AND REMANDED.

Jeffrey H. Thomas
Thomas Law Firm
P. O. Drawer 548
Natchitoches, LA 71458-0548
(318) 352-6455
Counsel for Defendant/Appellant:
Patricia M. Glass

Terry Aubin
The Aubin Law Firm
3600 Jackson Street, Suite 107
Alexandria, LA 71303
(318) 561-7000
Counsel for Plaintiff/Appellant:
Michael L. Glass

DECUIR, Judge.

This is the second appeal in this community property partition proceeding to

this court. In the first appeal, this court issued an unpublished opinion wherein we

addressed Glass v. Glass, 07-124 (La.App. 3 Cir. 5/30/07), writ denied 07-1797 (La.

11/21/07).

FACTS

Michael and Patricia Glass were divorced on February 9, 2004. A fairly

complex partition proceeding followed and the trial court entered a single money

judgment representing net reimbursement owed and a cash equalizing sum together

with legal interest. That judgment ultimately ended up before this court. This court

amended the trial court judgment to adjust the amount of reimbursement due the

respective parties and otherwise affirmed the trial court. The net effect of that

amendment was to award an additional $50,148.65 to Patricia. Our judgment was

silent with regard to judicial interest. Patricia did not seek a rehearing nor did she

raise the issue of judicial interest in her writ application to the supreme court. In

December 2007, Patricia filed a rule to show cause in the trial court, wherein she

sought to receive judicial interest on the amount of the court of appeal judgment and

to require an accounting of all rental income received by Michael from July 12, 2006

through September 30, 2006. Michael filed an exception of no subject matter

jurisdiction, alleging the trial court was without authority to amend the court of

appeal judgment. The trial court denied Michael’s exception and ordered the

requested accounting which Michael filed, and judgment was entered on August 28,

2008, finding that the net rental income from July 12, 2006, through September 30,

2006, was $3,856.04, based on the accounting filed by Michael, and amending the

court of appeal judgment to award Patricia judicial interest on the increased

reimbursement. Both parties appeal.

AMENDMENT TO COURT OF APPEAL JUDGMENT

Michael argues that the trial court had no authority to amend the judgment of

the court of appeal. We agree.

In Wheat Inc. v. Caruthers, 439 So.2d 1065, 1066 (La.1983), the supreme court

said:

Within thirty days of the mailing of notice of rendition of judgment by
the court of appeal, a party may either apply to the court of appeal for a
rehearing or apply to the supreme court for certiorari. If no timely
application is filed in either court, the judgment of the court of appeal
becomes final and definitive, and acquires the authority of the thing
adjudged. C.C.P. 2166. Once the judgment of the court of appeal
acquired the authority of the thing adjudged, the court of appeal lost the
power and authority to reverse or modify that judgment. (Footnote
omitted)

Louisiana Code of Civil Procedure article 2088 provides, in pertinent part:

The jurisdiction of the trial court over all matters in the case reviewable
under the appeal is divested, and that of the appellate court attaches, on
the granting of the order of appeal and the timely filing of the appeal
bond, in the case of a suspensive appeal or on the granting of the order
of appeal, in the case of a devolutive appeal.

Accordingly, when Patricia filed her rule to show cause in December 2007, neither

this court nor the trial court had the authority to amend the court of appeal judgment.

Moreover, even if the court had jurisdiction to amend the judgment, it could not have

done so to award judicial interest. In Sanders v. American Fidelity Fire Ins. Co.,

98-308 (La.App. 3 Cir. 9/23/98), 750 So.2d 210, 213, this court said:

The following situations have been held by various courts to be
impermissible modifications of the substance of a judgment: ordering
a husband to pay $300.00 monthly rental on a community home, Sellers
v. Sellers, 95-196 (La.App. 3 Cir. 5/31/95); 660 So.2d 499, writ denied,
95-2687 (La. 12/15/95); 664 So.2d 445; granting legal interest and
correcting award to children of $79.00 per month, Hunt Plywood, Inc.

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v. Estate of Davis, 26,161 (La.App. 2 Cir. 10/26/94); 645 So.2d 248,
writ denied, 94-2871 (La. 1/27/95); 649 So.2d 388; amending an
original judgment to grant an exception of a party, Smith v. Succession
of Trattler, 96-225 (La.App. 5 Cir. 9/18/96); 681 So.2d 961; adding an
award for medical expenses in the amount of $19,342.92, expenses for
continuing medical treatment and mileage reimbursement expenses,
Starnes v. Asplundh Tree Expert Co., 94-1647 (La.App. 1 Cir. 10/6/95);
670 So.2d 1242; adding another partner and partnership to a judgment,
Pitard v. Schmittzehe, 28,571 (La.App. 2 Cir. 8/21/96); 679 So.2d 515;
and amending a judgment adding judicial interest, Stevenson v. State
Farm, 624 So.2d 28 (La.App. 2 Cir. 1993). It is obvious that, without
the consent of the parties, a judgment cannot be amended to take away
or add something affecting substantive rights. La.Code Civ.P. art.1951.
Sellers, 660 So.2d 499; Starnes, 670 So.2d 1242.

The modification of the judgment in the case sub judice adds legal
interest for ten years, a substantial sum. There was no agreement of the
parties to do so. It is a substantive amendment to the judgment in this
case. In Sellers, this court said: “[a] substantive amendment to a
judgment is an absolute nullity. LaBove v. Theriot, 597 So.2d 1007
(La.1992); Coomes v. Allstate Ins. Co., 517 So.2d 436 (La.App. 1 Cir.
1987); Almerico v. Katsanis, 458 So.2d 158 (La.App. 5 Cir.1984);
Templet v. Johns, 417 So.2d 433 (La.App. 1 Cir.), writ denied, 420
So.2d 981 (La.1982).” Id. at 504-5.

In this case, the trial court amended a judgment of this court to add judicial interest.

Louisiana Code of Civil Procedure Article 1951 provides no authority for the trial

court to amend its own judgment to award judicial interest let alone to amend a

judgment of this court.

We are cognizant of the fact that this court awarded interest in a similar

circumstance in Preis v. Preis, 95-352 (La.App. 3 Cir. 12/6/95), 664 So.2d 860, writ

denied, 95-3096 (La. 2/28/96), 668 So.2d 368. As pointed out in Judge Peters’

dissent, the majority in that case in resolving the question of the claimants’

entitlement to legal interest overlooked the court’s lack of authority to modify a final

judgment. Therefore, by overlooking the issue the court did not specifically hold that

it had the authority to modify a final judgment. Instead, that holding is inferred from

the court’s action. It is, however, an improper inference. The court in Preis simply

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exceeded its authority. As noted above, the legislature and the supreme court have

clearly resolved this issue; neither we nor the trial court have the authority to make

substantive modifications to a final judgment. To the extent that Preis suggests the

contrary, it is incorrect. Accordingly, the judgment of the trial court denying the

exception of lack of subject matter jurisdiction and amending the court of appeal

judgment to provide for judicial interest is reversed.

POST HEARING RENTAL INCOME

Patricia contends the trial court erred in refusing to award rental income for the

period from trial to judgment. We disagree.

In the previous appeal to this court, Patricia raised this issue, but we declined

to discuss this issue believing it had not been raised in the trial court. However, in

its written reasons for judgment supporting the judgment currently being appealed,

the trial court indicated that it had addressed the issue of rental income together with

rental expenses and that it denied both for the reasons cited in Sheridon v. Sheridon,

03-103 (La.App. 3 Cir. 2/4/04), 867 So.2d 38. We find no error in the trial court’s

ruling on this issue.

HEARING ON ACCOUNTING

Patricia next contends that the trial court erred calculating post-judgment net

rental income and in not holding a hearing on the accounting submitted by Michael.

We agree. Louisiana Revised Statute 9:2801 clearly contemplates a contradictory

hearing to traverse an accounting of community assets. Accordingly, we vacate the

trial court’s determination that the net rental income generated by the property is

$3,856.04 and remand the case for a hearing on the accounting submitted by Michael.

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DECREE

For the foregoing reasons, the judgment of the trial court is reversed insofar as

it amends the prior judgment of this court to award judicial interest; the judgment is

affirmed insofar as it denies Patricia Glass’ claim for rental income between trial and

judgment; the judgment is vacated insofar as it determines that the net rental income

from July 12, 2006, through September 30, 2006, is $3,856.04 and the case is

remanded for a hearing to traverse the accounting submitted by Michael Glass. All

costs of these proceedings are taxed to appellant, Patricia Glass.

REVERSED IN PART; AFFIRMED IN PART; VACATED AND

REMANDED IN PART.

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STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

08-1328

MICHAEL L. GLASS

VERSUS

PATRICIA M. GLASS

PETERS, J., concurring in part.

I agree with the majority in its conclusion that the trial court did not have the

authority to amend this court’s May 30, 2007 judgment. However, I write separately

to point out that the trial court’s effort to grant Patricia Glass legal interest on the

increased reimbursement was a vain and useless act, as Patricia already has a

judgment awarding her legal interest. The amended trial court judgment reads in

pertinent part as follows:

ORDERED that the parties’ respective reimbursement claims
totaling $256,530.33 for Michael Glass and $301,198.49 for Patricia
Glass; it is further

ORDERED that Patricia Glass owes Michael Glass a cash
equalizing sum for the difference in net assets allocated, and that cash
equalizing sum is $41,380.00;

Accordingly, considering the net reimbursement owed and also
considering the cash equalizing sum owed, all as mentioned above, it is
further

ORDERED that [a] single money judgment is hereby rendered
herein, representing net reimbursement owed and also representing the
cash equalizing sum, in favor of Patricia Glass and against Michael
Glass in the principal sum of $3,284.16 plus legal interest thereon from
August 22, 2006 until paid in full[.]

(Emphasis added.)

In its prior opinion, this court made the following amendment to that judgment:

For these reasons, the judgment of the trial court is affirmed in
part, reversed in part, and rendered as follows. The reimbursement due
Michael, considering the conclusions reached herein, is $252,150.30.
The reimbursement due Patricia, considering the conclusions reached
herein, is $343,682.99.

Glass v. Glass, 07-124, p. 18 (La.App. 3 Cir. 5/30/07), writs denied, 07-1797, 07-
1883 (La. 11/21/07), 967 So.2d 1156, 1157.

Thus, this court’s prior opinion only adjusted the reimbursement claims established

by the trial court. In fact, our opinion specifically affirmed the remainder of the

judgment, which would include the award of interest on the adjusted single money

judgment.

In all other respects, I agree with the majority’s opinion.

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