Kimberly Crittenden Daigle v. Merrill Lynch

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

12-1016

KIMBERLY CRITTENDEN DAIGLE

VERSUS

MERRILL LYNCH, PIERCE, FENNER
& SMITH, INC. AND KENNETH PAUL
DAIGLE

**********
APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2005-2784, DIVISION “K”
HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE

**********

JAMES T. GENOVESE
JUDGE

**********

Court composed of Elizabeth A. Pickett, James T. Genovese, and Shannon J.
Gremilion, Judges.

REVERSED.

Charles G. Fitzgerald
Cox Fitzgerald, L.L.C.
113 West Convent Street
Lafayette, Louisiana 70501
(337) 233-9743
COUNSEL FOR DEFENDANT/APPELLANT:
Kenneth Paul Daigle

Gerald H. Schiff
Armistead M. Long
Ashley S. Green
Gordon, Arata, McCollam,
Duplantis & Eagan, LLC
400 East Kaliste Saloom Road, Suite 4200
Post Office Box 81829
Lafayette, Louisiana 70598-1829
(337) 237-0132
COUNSEL FOR PLAINTIFF/APPELLEE:
Kimberly Crittenden Daigle

GENOVESE, Judge.

Defendant, Kenneth Paul Daigle, appeals the trial court’s grant of a motion

for partial summary judgment in favor of Plaintiff, Kimberly Crittenden Daigle.

Ms. Daigle has answered the appeal, seeking damages for frivolous appeal. For

the following reasons, we reverse the trial court’s grant of the partial summary

judgment and we deny Ms. Daigle’s request for damages for frivolous appeal.

FACTS AND PROCEDURAL HISTORY1

Plaintiff and Defendant were married on April 2, 1994. On October 22,

2002, they jointly filed a Petition for Approval of Matrimonial Regime of

Separation of Property in the Sixteenth Judicial District Court (16th JDC), Iberia

Parish. Concomitant with their petition, on October 22, 2002, the parties entered

into a Partition of Community Property Agreement, hereinafter referred to as the

“Partition Judgment”, and a judgment approving the Contract for Separation of

Property Regime was signed by the trial court. The parties later instituted divorce

proceedings in Iberia Parish and were granted a divorce on November 30, 2005.

On June 1, 2005, Ms. Daigle initiated separate proceedings in the Fifteenth

Judicial District Court (15th JDC), Lafayette Parish, by filing a Petition for Monies

Due, Damages, and for Physical Possession of Property against Mr. Daigle and his

employer at that time, Merrill Lynch.2 On December 17, 2008, Ms. Daigle filed a

Petition to Make Judgment Executory and for Garnishment in the 15th JDC,

1
The instant litigation has a lengthy procedural history and has been before this court twice
before on appeal. For a detailed discussion of same, see Daigle v. Merrill Lynch, 11-965
(La.App. 3 Cir. 2/8/12), 85 So.3d 168, writ denied, 12-523 (La. 4/13/12), 85 So.3d 1253.
2
Merrill Lynch was voluntarily dismissed from this suit in January 2008. Ms. Daigle later filed
a First Supplemental and Amended Petition for Relief, Damages, and Attorney Fees and Return
of Funds Held by Defendants Illegally and in Violation of Partition Agreement wherein she
named as an additional defendant, a subsequent employer of Mr. Daigle, Linsco/Private Ledger
Corp. (LPL). These claims were also dismissed.

seeking to make the Partition Judgment of October 22, 2002, rendered in the 16th

JDC executory.

On February 15, 2011, Ms. Daigle filed a Second Supplemental and

Amended Petition for Enforcement of Contract or Separation of Property and

Partition Agreement, Qualified Domestic Relations Order, Legal Interest, and

Attorney’s Fees in the 15th JDC. After Mr. Daigle answered this petition,

Ms. Daigle filed a motion for partial summary judgment, asserting that pursuant to

the terms of the Partition Judgment of October 22, 2002, she was entitled to “a

money judgment in her favor and against Kenneth Paul Daigle . . . in the amount of

one million five hundred thousand dollars ($1,500,000.00), plus legal interest,

attorneys’ fees and costs.” The trial court granted Ms. Daigle’s motion for partial

summary judgment and signed a judgment consistent therewith on May 31, 2012.

Mr. Daigle has appealed this judgment, and Ms. Daigle has answered the appeal.

ASSIGNMENT OF ERROR

On appeal, Mr. Daigle contends that “[t]he trial court erred as a matter of

law in adding legal interest to a prior final judgment―here, the Partition Judgment

of October 22, 2002―that is silent as to that issue.” In her Answer to Appeal,

Ms. Daigle seeks an award of damages for frivolous appeal.

LAW AND DISCUSSION

As phrased by Mr. Daigle, “the controversy stems from the trial court’s

award of legal interest, not on the Judgment being appealed, but a prior final

judgment that was silent as to that issue. The appropriateness of the interest award

is the only issue on appeal.”

Mr. Daigle seeks a de novo review of the record, asserting that “[w]hen, as

here, the trial court misapplies the law, the standard of appellate review is de novo

review.” A de novo review is the proper standard of review in a summary
2

judgment case where there are contested issues of fact. Guillot v. Guillot, 12-109

(La.App. 3 Cir. 6/6/12), 92 So.3d 1212. However, “[i]n a case where there are no

contested issues of fact[] and the only issue is the application of the law to the

undisputed facts, . . . the proper standard of review is whether or not there has been

legal error.” Tyson v. King, 09-963, p. 2 (La.App. 3 Cir. 2/3/10), 29 So.3d 719,

720 (quoting Bailey v. City of Lafayette, 05-29, p. 2 (La.App. 3 Cir. 6/1/05), 904

So.2d 922, 923, writs denied, 05-1689, 05-1690, 05-1691, and 05-1692

(La.1/9/06), 918 So.2d 1054, 1055, and the cases cited therein). In this case, there

are no facts in dispute; therefore, the proper standard of review is whether the trial

court’s grant of Ms. Daigle’s motion for partial summary judgment constituted

legal error.

The relevant portions of the October 22, 2002 Partition Judgment are as

follows:

(1) KENNETH PAUL DAIGLE does herewith bind and obligate
himself to pay unto KIMBERLY CRITTENDEN DAIGLE the
following sums, to-wit:

(a) THREE HUNDRED THOUSAND AND NO/100
($300,000.00) DOLLARS, cash, due and payable
immediately upon the execution of this PARTITION OF
COMMUNITY PROPERTY AGREEMENT BETWEEN
KENNETH PAUL DAIGLE AND KIMBERLY
CRITTENDEN DAIGLE (herein “AGREEMENT”) by
the said KIMBERLY CRITTENDEN DAIGLE.

....

(c) ONE HUNDRED FIFTY THOUSAND AND NO/100
($150,000.00) DOLLARS, cash, each year following the
execution of this Agreement for a period of ten (10)
consecutive years, the first of such annual payments due
and payable within one (1) year from date of execution
hereof; provided, however, if such amount does not equal
fifty (50%) percent of KENNETH PAUL DAIGLE’s yearly
gross after tax earnings, then and in such event, the said
KENNETH PAUL DAIGLE shall pay such additional sum
of money each year to equal the aforesaid percentage of
KENNETH PAUL DAIGLE’s total annual net annual
3

earnings from his endeavors, such annual payments to
continue for the aforementioned ten (10)-year period of
time.

By contrast, the May 31, 2012 judgment provides, in pertinent part: “IT IS

ORDERED, ADJUDGED AND DECREED that Kim Daigle’s Motion for

Partial Summary Judgment is GRANTED. As a consequence of the foregoing

finding of law, Judgment is granted in favor of Kim Daigle and against Ken Daigle

in the amount of $1,500,000.00 plus legal interest from the date each payment was

due[.]”

A perusal and comparison of the foregoing judgments reveals that the

May 31, 2012 judgment contains an obvious and substantial modification of the

Partition Judgment by the inclusion of an award of legal interest. Neither statute

nor jurisprudence allows for such a modification.

Louisiana Code of Civil Procedure Article 1951 provides that a final

judgment may be amended under very limited circumstances. “A final judgment

may be amended by the trial court at any time, with or without notice, on its own

motion or on motion of any party: (1) To alter the phraseology of the judgment,

but not the substance; or (2) To correct errors of calculation.” Id. Moreover, as

Mr. Daigle notes, this article “provides no authority for the trial court to amend its

own final judgment to award judicial interest, let alone to amend a final judgment

of another court.”3 In this case, the May 31, 2012 judgment of the 15th JDC

impermissibly makes such an amendment to the Partition Judgment of the 16th

JDC.

A similar claim made for interest was previously disallowed by this court in

Gremillion v. Gremillion, 10-05 (La.App. 3 Cir. 7/7/10), 43 So.3d 1063, writ

3
In support thereof, Mr. Daigle cites Glass v. Glass, 08-1328 (La.App. 3 Cir. 4/1/09), 7 So.3d
118, writ denied, 09-988 (La. 6/19/09), 10 So.3d 743.
4

denied, 10-2125 (La. 12/10/10), 51 So.3d 726, which we find persuasive. In

Gremillion, this court opined as follows:

In her first issue raised, Mrs. Gremillion argues that the trial
court erred by finding that she was not entitled to legal interest on her
prior money judgment in the December 11, 2006 judgment. She
states that jurisprudence provides that judicial interest from the date of
judgment is appropriate in cases where an equalizing payment is
awarded in the division of community property, even in instances
where the judgment is silent on the award. See Reinhardt v.
Reinhardt, 99-723 (La.10/19/99), 748 So.2d 423; Manno v. Manno,
01-2138 (La.App. 1 Cir. 10/2/02), 835 So.2d 649.

While we agree in principal with the holdings in Reinhardt and
Manno, we find that both are distinguishable from the interest issue
before us. In Reinhardt, the supreme court was not faced with a
judgment silent as to interest. Instead, it was called upon to resolve
the conflict among the appellate circuits as to when interest was to
begin to run on a judgment. It concluded that interest was to run from
date of judgment and not date of filing. The court in Manno, amended
the judgment being appealed to provide for an interest award.

In the matter before us, Mrs. Gremillion argues that she is
entitled to an interest award, not on the judgment being appealed,
but on a prior final judgment that was silent as to that issue. We
rejected this argument in the recent case of Glass v. Glass, 08-1328
(La.App. 3 Cir. 4/1/09), 7 So.3d 118, writ denied, 09-988
(La.6/19/09), 10 So.3d 743. Specifically, we held that once a
judgment becomes final, no court is authorized to amend or
modify its terms. See La.Code Civ.P. art. 1951; Stevenson v. State
Farm, 624 So.2d 28 (La.App. 2 Cir.1993).

We find no merit in this argument on the interest issue.

Id. at 1066-67 (second emphasis added).

Ms. Daigle’s present claim for legal interest is indistinguishable from those

claims asserted in Gremillion. Ms. Daigle’s claim is based upon the prior final

judgment that was silent as to interest. The Partition Judgment of the 16th JDC is

final, and Louisiana Code of Civil Procedure Article 1951 only empowers that

court to amend that judgment for the limited purposes set forth in the article.

However, neither the 16th JDC nor any court of another jurisdiction has the

authority to substantively amend the Partition Judgment to now include an award

5

of legal interest.4

Finally, in her Answer to Appeal, Ms. Daigle seeks an award of damages for

frivolous appeal. However, having found merit in Mr. Daigle’s appeal and having

reversed the trial court’s grant of partial summary judgment, we deny Ms. Daigle’s

claim for damages for frivolous appeal.

DECREE

For the foregoing reasons, we reverse the May 31, 2012 judgment of the trial

court granting the motion for partial summary judgment in favor of Plaintiff,

Kimberly Crittenden Daigle, and we deny Ms. Daigle’s request for damages for

frivolous appeal. All costs of this appeal are assessed to Kimberly Crittenden

Daigle.

REVERSED.

4
See Sanders v. American Fidelity Fire Ins. Co., 98-308, p. 5 (La.App. 3 Cir. 9/23/98), 750
So.2d 210, 213, wherein this court stated: “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.”
6