Tommy McCain v. Joanna Cassidy

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 11-124

TOMMY MCCAIN

VERSUS

JOANNA CASSIDY

**********

APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 83539, DIV. B
HONORABLE DEE A. HAWTHORNE, DISTRICT JUDGE

**********

BILLY HOWARD EZELL
JUDGE

**********

Court composed of Elizabeth A. Pickett, Billy Howard Ezell, and Phyllis M. Keaty,
Judges.

AFFIRMED.

Anna E. Dow
1434 North Burnside Avenue, Suite 14
Gonzales, LA 70737
(225) 644-1865
Counsel for Plaintiff/Appellant:
Tommy McCain

Fred L. Herman
Thomas J. Barbera
George W. Jackson, Jr.
1010 Common Street, Suite 3000
New Orleans, LA 70112
(504) 581-7070
Counsel for Defendant/Appellee:
Joanna Cassidy

Billy Lynn West, Jr.
P. O. Box 1033
Natchitoches, LA 71458-1033
(318) 352-7300
Counsel for Plaintiff/Appellant:
Tommy McCain

John C. Guillet
Corkern, Crews & Guillet
P. O. Box 1036
Natchitoches, LA 71458-1036
(318) 354-1377
Counsel for Defendant/Appellee:
Joanna Cassidy

EZELL, JUDGE.

Tommy McCain appeals a trial court judgment which dismissed his lawsuit to

annul a 2008 Natchitoches City Court judgment based on an exception of prescription

filed by Joanna Cassidy. He also appeals the trial court’s award of attorney fees in

the amount of $2,500.00 to Ms. Cassidy.

FACTS

The facts leading up to this dispute are found in the city court’s reasons for

judgment as follows:

Mr. McCain performed painting services for Ms. Cassidy from
approximately September of 2006 through December, 2006. During this
time period, he would submit his bill weekly for his and the other
painters, and Ms. Cassidy would pay the bill. Sometime around the end
of 2006, Mr. McCain was let go by Ms. Cassidy.

Beginning in March, 2007, Mr. McCain again began to do certain
work at Ms. Cassidy’s Natchitoches residence, both painting and acting
as a pseudo contractor for the other trades. Here is where the dispute
develops. Mr. McCain says he was to be paid for this work, but was
withholding billing her until it was complete because Ms. Cassidy was
running short of money to complete the renovation. Ms. Cassidy’s
version is that she and Mr. McCain had developed an intimate and
personal relationship and his work was a reflection of that relationship
and that he did not expect payment.

In ruling on the dispute, the trial court explained:

The evidence shows that the nature of their relationship changed
around March, 2007. This was evidenced by Mr. McCain not billing her
weekly as he had done in the past. At some point in time, he moved into
the defendant’s home and used her vehicle when she was out of town.
He had other jobs going on during this entire time period, and testified
that he worked on Ms. Cassidy’s home at night and weekend[s]. He still
did not bill her until October 1, 2007, even after they split up in July,
which gives the impression that it was an after thought [sic].

Mr. McCain explains away his not billing her during the work by
claiming she was short of funds. However, Mr. McCain’s own evidence
showed that she borrowed $100,000.00 in May of 2007, so certainly she
had access to funds to pay him during the disputed period.

1

The evidence paints a picture of Mr. McCain doing the work from
March to July, 2007 [sic] as result of their relationship, not as a result of
getting paid for said work. Plaintiff did not bear his burden of proof,
and therefore, the Court denies the relief he has prayed for and orders
his petition to be dismissed, at his cost.

Following the city court ruling, a judgment was signed on July 15, 2008. There

was no other action concerning the issue until Mr. McCain filed a petition in

Natchitoches District Court on June 18, 2010. At that time, Mr. McCain sought to

annul the city court judgment and sought payment of $9,292.50 for services rendered

to Ms. Cassidy. In response, Ms. Cassidy filed an exception of prescription and a

motion for attorney fees. A hearing on the exception was held on October 28, 2010.

The trial court granted Ms. Cassidy’s exception of prescription and ordered the

case dismissed. Attorney fees in the amount of $2,500.00 were also awarded to Ms.

Cassidy. It is from this judgment that Mr. McCain appeals.

PRESCRIPTION

When “evidence is introduced at the hearing on [a] peremptory exception of

prescription, the [trial] court’s findings of fact are reviewed under the manifest error-

clearly wrong standard of review.” Carter v. Haygood, 04-646, p. 9 (La. 1/19/05),

892 So.2d 1261, 1267. “If the findings are reasonable in light of the record reviewed

in its entirety, an appellate court may not reverse even though convinced that had it

been sitting as the trier of fact, it would have weighed the evidence differently.” Id.

The city court’s reasons for judgment, the judgment itself, and a portion of the

transcript of the testimony from the city court case were introduced into evidence at

the hearing on exception of prescription. The attorneys also presented argument to

the court. Therefore, we must decide if the trial court was clearly wrong in its

determination that Mr. McCain’s action to nullify the city court judgment has

prescribed.

2

NULLITY

Louisiana Code of Civil Procedure Article 2002

Mr. McCain claims that the trial court erred in not finding that he was entitled

to bring this nullity action pursuant to La.Code Civ.P. art. 2002(A)(3), contending

that city court judgment is an illegal judgment. An action to annul a judgment under

the provisions of Article 2002 can be brought at any time. La.Code Civ.P. art

2002(B).

The basis for Mr. McCain’s nullity action is the city court’s finding that there

was an intimate relationship between he and Ms. Cassidy which was consideration

for the work performed by him. Citing Schwegmann v. Schwegmann, 441 So.2d 316

(La.App. 5 Cir. 1983), writ denied, 443 So.2d 1122 (La.1984), cert. denied, 467 U.S.

1206, 104 S.Ct. 2389(1984). Mr. McCain claims that the city court’s reasons indicate

the existence of an unenforceable contract. It is Mr. McCain’s position that the trial

court found that this was a “sex for services” contract, although he denies that there

was ever any such type of contract. Mr. McCain argues that since the city court

judgment is based on an absolutely null contract, it is an absolutely null judgment

which does not prescribe and may be attacked at any time citing Bass v. LaPorte, 95-

867 (La.App. 1 Cir. 4/4/96), 672 So.2d 1121, writ granted in part and judgment set

aside on other grounds, 96-1651 (La. 10/25/96), 681 So.2d 344.

As can be seen from the quoted reasons for judgment above, the city court did

not find that there was a sexual relationship in exchange for work performed. The

city court found that a personal relationship had developed between Mr. McCain and

Ms. Cassidy. During this time, he worked on her house, never billing her as before.

He did not submit a bill until some three months after the relationship ended. This

is not a case of an illicit “sex for services” issue, and the city court did not find so.

3

In the presence of a gratuitous intent on the party of a party performing

services, circumstances which would otherwise give rise to a quasi-contractual

obligation to pay for the services rendered give rise merely to an imperfect obligation

incapable of enforcement in a court of law. Webb v. Webb, 01-1577 (La.App. 1 Cir.

11/8/02), 835 So.2d 713, writ denied, 02-3001 (La. 3/14/03), 839 So.2d 37(citing

Martin v. Bozeman, 173 So.2d 382 (La.App. 1 Cir. 1956). The city court simply

found that the evidence established that Mr. McCain intended to perform his services

for free during this time period and did not expect payment.

The judgment in the city court is not an absolute nullity. The trial court did not

err in finding that Article 2002 is not applicable to this case.

Louisiana Code of Civil Procedure Article 2004

Mr. McCain also asserts that his claim was timely under the one-year

peremptive period of La.Code Civ.P. art. 2004. Mr. McCain alleges that the city

court judgment was based on fraud and ill practices. He claims that on June 9, 2010,

he became aware of a pattern by Ms. Cassidy to claim an intimate and personal

relationship as a defense against another alleged obligation.

An action for nullity is “not a substitute for an appeal from a judgment that

might be erroneous due to insufficient evidence or a misinterpretation of substantive

law but is a separate remedy designed to afford relief to a party against a judgment

procured by methods viewed with disdain by the judiciary.” Andrus v. Chrysler Fin.

Corp., 99-105, p. 7 (La.App. 3 Cir. 6/2/99), 741 So.2d 780, 784, writ denied, 99-1968

(La. 10/15/99), 748 So.2d 1150. The criteria used to determine whether a particular

judgment has been obtained by fraud or ill practices are: “(1) when the circumstances

under which the judgment was rendered show the deprivation of legal rights of the

litigant who seeks relief, and (2) when the enforcement of the judgment would be

4

unconscionable and inequitable.” Kem Search, Inc. v. Sheffield, 434 So.2d 1067,

1070 (La.1983). “Conduct which prevents an opposing party from having an

opportunity to appear or to assert a defense constitutes a deprivation of his legal

rights.” Id.

Mr. McCain’s assertion that Ms. Cassidy used the same defense in another

lawsuit, indicating a pattern of behavior, is not an allegation amounting to fraud or

ill practices. It is simply a defense to a claim filed in court and does nothing to

prevent any party from having an opportunity to appear and challenge that defense

to her claim.

We agree with the trial court that Mr. McCain’s action for nullity of the July

15, 2008 city court judgment under Article 2004 was prescribed when he filed the

petition for nullity on June 18, 2010.

ATTORNEY FEES

The trial court awarded Ms. Cassidy $2,500.00 in attorney fees. Mr. McCain

claims that this was in error because there was no evidence introduced to support the

award and the trial court gave no reason for awarding the sum of $2,500.00.

“The court may award reasonable attorney fees incurred by the prevailing party

in an action to annul a judgment on these grounds.” La.Code Civ.P. art. 2004(C).

“Regardless of the language of the statutory authorization for an award of

attorney fees or the method employed by the trial court in making an award of

attorney fees, courts may inquire as to the reasonableness of attorney fees. . . .” Rivet

v. State, Dep’t. of Transp. and Dev., 96-145, p. 11 (La. 9/5/96), 680 So.2d 1154,

1161. Factors to be considered include the ultimate result obtained; the responsibility

incurred; the importance of litigation; the amount of money involved; the extent and

character of the work performed; the legal knowledge, attainment, and skill of

5

attorneys; the number of appearances involved; the intricacies of facts involved; the

diligence and skill of counsel; and the court’s own knowledge. Id.

At the hearing on the matter, counsel for Ms. Cassidy stated that $2,500.00 was

the amount of attorney fees Ms. Cassidy had incurred in the case. No argument was

made disputing this amount. Furthermore, the record indicates that answers and

exceptions were filed, in addition to memorandum supporting the exceptions. We

find no error in the trial court’s award of $2,500.00 in attorney fees.

Ms. Cassidy has requested an additional award of attorney fees for work

performed on the appeal. When an appellee neither appeals nor answers the appeal,

she is not entitled to additional attorney fees for legal services rendered on appeal.

La.Code Civ.P. art. 2133; Dugas v. Aaron Rents, Inc., 02-1276 (La.App. 3 Cir.

3/5/03), 839 So.2d 1205. Although Ms. Cassidy requested additional attorney fees

in her brief, she is not entitled to additional attorney fees since she did not follow

proper appellate procedure.

For the above reasons, the judgment of the trial court is affirmed. Costs of this

appeal are assessed to Tommy McCain.

AFFIRMED.

6