Raquel Antoinette Landry Auzenne v. Scott Douglas Auzenne

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

09-312

RAQUEL ANTOINETTE LANDRY AUZENNE
VERSUS
SCOTT DOUGLAS AUZENNE

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2006-0219
HONORABLE PHYLLIS M. KEATY, DISTRICT JUDGE

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BILLY H. EZELL
JUDGE

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Court composed of Billy H. Ezell, J. David Painter, and James T. Genovese, Judges.

MOTION TO DISMISS APPEAL DENIED.

Lenise R. Williams
The Williams Firm, L.L.C.
423 West Vermilion Street, Suite 2
Lafayette, LA 70501
(337) 504-3311
COUNSEL FOR PLAINTIFF/APPELLANT:
Raquel Antoinette Landry Auzenne

Gregory F. Williams, Sr.
600 Rue Jefferson Street, Suite 550, Box 82
Lafayette, LA 70501
(337) 266-2298
COUNSEL FOR PLAINTIFF/APPELLANT:
Raquel Antoinette Landry Auzenne

Cassie L. Willis
Attorney at Law
903 West University Avenue
Lafayette, LA 70506
(337) 234-5149
COUNSEL FOR PLAINTIFF/APPELLANT:
Raquel Antoinette Landry Auzenne

Kay Karre’ Gautreaux
Attorney at Law
405 West Convent Street
Lafayette, LA 70501
(337) 235-1362
COUNSEL FOR DEFENDANT/APPELLEE:
Scott Douglas Auzenne

EZELL, Judge.

The Defendant-Appellee, Scott Douglas Auzenne, moves to dismiss this appeal

on the ground that the judgment is not appealable, and alternatively, on the ground

that the appeal was not filed timely. For the reasons given herein, we deny the

motion.

This case involves a divorce proceeding, and Plaintiff-Appellant, Raquel

Antoinette Landry Auzenne, seeks to appeal from a judgment partitioning the parties’

community property. Throughout the course of these domestic proceedings, Plaintiff

changed attorneys on several occasions; some of these attorneys failed to file motions

to withdraw as counsel of record. Regardless, Plaintiff was represented by attorney

Harold Register at the time when the matter at issue was heard; however, on May 19,

2008, he withdrew as attorney of record. Plaintiff is currently represented by attorney

Lenise Williams, who enrolled as attorney of record on June 18, 2008.

Plaintiff and Defendant entered into a stipulated agreement regarding the value

of the community assets listed on a joint detailed descriptive list. However, the

parties were in dispute as to whether the land on which the community home is

located should be classified as separate or community property and whether

Defendant was entitled to reimbursements for contributions made towards that

property. Therefore, this matter was litigated on April 17, 2008. Following the

hearing, the trial court orally ruled that the property was Plaintiff’s separate property

and that Defendant was entitled to reimbursement for fifty percent of the funds which

had been contributed to that property. A judgment to that effect was signed on

August 4, 2008. Along with the ruling on the reimbursement issue, the judgment also

incorporated the parties’ stipulated agreement regarding the value of the community

assets. The notice of judgment was mailed to Defendant’s attorney on August 7,

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2008, and the notice also indicates that it was being carbon-copied to Plaintiff’s

former attorney, Harold Register.

On October 31, 2009, Plaintiff, through her current attorney, Lenise Williams,

filed a motion for a devolutive appeal, asserting the motion was not untimely because

the clerk of court had failed to mail the judgment to Plaintiff’s current attorney of

record. The order of appeal was signed by the trial court on October 31, 2008. On

February 6, 2009, Defendant filed a motion to vacate the appeal; however, on

February 11, 2009, the trial court denied the motion on the ground that it had been

divested of jurisdiction over the matter pursuant to La.Code Civ.P. art. 2088.

The appeal was lodged in this court on March 13, 2009. On March 19, 2009,

Defendant filed a motion to dismiss the appeal, seeking to have this appeal dismissed

on two grounds. First of all, Defendant asserts that the judgment at issue is not

appealable because it is a stipulated judgment. Defendant contends that because the

Plaintiff negotiated the terms of the judgment with the advice of counsel, the

judgment is not appealable pursuant to La.Code Civ.P. art. 2085, which prohibits an

appeal by a party who acquiesced in the judgment sought to be appealed.

In her opposition to the motion to dismiss the appeal, Plaintiff asserts that

La.Code Civ.P. art. 2085 does not preclude her from taking an appeal because she did

not acquiesce in that part of the judgment which she seeks to appeal. Specifically,

Plaintiff contends that she seeks to appeal the part of the trial court’s ruling involving

the partitioning of the community property, the classification of her separate property

as community property, and the valuation of reimbursement due to Defendant. Also,

Plaintiff asserts that the fact that the judgment is entitled “Stipulated Judgment” does

not alter the fact that the matter regarding the partitioning of the community property

was litigated. Additionally, Plaintiff contends that because Harold Register was no

longer her attorney when he gratuitously accommodated defense counsel by signing

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the purported stipulated judgment on August 4, 2008, Mr. Register did not have

authority to enter into a stipulated judgment on her behalf.

We find that there is no merit to Defendant’s argument that La.Code Civ.P. art.

2085 prohibits Plaintiff from seeking an appeal in this case. Defendant correctly

states that La.Code Civ.P. art. 2085 provides that “[a]n appeal cannot be taken by a

party who confessed judgment in the proceedings in the trial court or who voluntarily

and unconditionally acquiesced in a judgment rendered against him.” Nonetheless,

we note that this article goes on to state that “[c]onfession of or acquiescence in part

of a divisible judgment or in a favorable part of an indivisible judgment does not

preclude an appeal as to other parts of such judgment.”

In the instant case, we find that the parties did not enter into a stipulated

agreement with regards to the entire judgment. Instead, a review of the record

indicates that while the parties were in agreement as to the value of the community

assets listed on the joint detailed descriptive list, they did not reach an agreement

regarding the classification of the property on which the family home is located or

regarding Defendant’s entitlement to reimbursement for funds contributed to that

property. Therefore, before a full judgment could be rendered for the partitioning of

the property, the parties had to litigate the issues regarding the classification of the

land and Defendant’s entitlement to reimbursement.

Thus, when the judgment was rendered, it included both the valuations to

which the parties had agreed and the classification and reimbursement matters which

had to be decided by the trial court. Because the parties litigated the reimbursement

and classification issues, we find that Plaintiff did not acquiesce in the part of the

judgment pertaining to those issues. Accordingly, we find that while La.Code Civ.P.

art. 2085 may preclude Plaintiff from appealing the property valuations to which she

has stipulated, this article does not preclude Plaintiff from appealing those

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reimbursement and property classification issues which she litigated at the trial court

level and which she now seeks to appeal.

As an alternative basis for dismissal of this appeal, Defendant asserts that the

appeal is untimely because it was filed more than sixty days after rendition of

judgment. Defendant points out that although Plaintiff has changed attorneys several

times, she has always continuously been represented by counsel. According to

Defendant, because the judgment is a public record and because Plaintiff’s current

attorney, Lenise Williams, had access to the public records, ignorance or lack of

notice cannot be asserted.

With regards to the timeliness issue, Plaintiff asserts that the clerk of court has

never mailed notice of the signing of judgment either to Mr. Register, who

represented Plaintiff at the hearing for the partitioning of the community property, or

to Lenise Williams, who is currently representing Plaintiff. Plaintiff contends that

since notice of judgment was never mailed to her or her attorney, the appeal delay for

taking a devolutive appeal has not yet commenced to run. According to Plaintiff, she

did not learn of the judgment at issue until October 22, 2008, when her former

counsel, Mr. Register, revealed that he had signed the judgment on August 4, 2008.

Plaintiff points out that she filed her motion for appeal on October 27, 2008, five days

after learning of the judgment. As such, Plaintiff contends that her appeal was timely

filed.

Louisiana Code of Civil Procedure Article 1913(A) provides, in pertinent part,

that “[e]xcept as otherwise provided by law, notice of the signing of a final judgment

. . . is required in all contested cases, and shall be mailed by the clerk of court to the

counsel of record for each party . . . .” Also, La.Code Civ.P. art. 1913(D) provides

that “[t]he clerk shall file a certificate in the record showing the date on which, and

the counsel and parties to whom, notice of the signing of the judgment was mailed.”

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In the case at bar, the judgment was signed on October 4, 2008. The record

indicates that on October 7, 2008, the notice of judgment was mailed to Defendant’s

attorney, Kay Karre’ Gautreaux, and that it was carbon-copied to Plaintiff’s former

attorney, Mr. Register. However, although Mr. Register withdrew as Plaintiff’s

attorney of record on May 19, 2008, and Lenise Williams enrolled as Plaintiff’s

attorney of record on June 18, 2008, the record does not indicate that the notice of

judgment was ever sent to Ms. Williams. As such, we find that the record filed in this

court fails to show that the Plaintiff ever effectively received notice of the judgment

as required by La.Code Civ.P. art. 1913. Further, this court has stated, “if notice of

judgment is not furnished as required, the delay for seeking an appeal does not

ordinarily begin to run.” Ouachita Equipment Rental, Inc. v. Dyer, 386 So.2d 193,

194 (La.App. 3 Cir. 1980) (citation omitted). Accordingly, we find that since notice

was not furnished in the instant case, the appeal delays have not begun to run, and

Plaintiff’s appeal is timely.

For the foregoing reasons, we find that the appeal is not barred by La.Code

Civ.P. art. 2085 and that the appeal is not untimely. Therefore, Defendant’s motion

to dismiss the appeal is denied at Defendant’s cost.

MOTION TO DISMISS APPEAL DENIED.

This opinion is NOT DESIGNATED FOR PUBLICATION.
Rules 2-16.2 and 2-16.3, Uniform Rules, Courts of Appeal.

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