John Ford Dietz v. Anne Bennett Morrison Dietz

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

13-186

JOHN FORD DIETZ

VERSUS

ANNE BENNETT MORRISON DIETZ, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF VERMILION, NO. 88309-B
HONORABLE JULES DAVIS EDWARDS III, DISTRICT JUDGE

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JOHN E. CONERY
JUDGE

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Court composed of James T. Genovese, Shannon J. Gremillion, and John E.
Conery, Judges.

JUDGMENT AND AMENDED JUDGMENT
SET ASIDE; CASE REMANDED; APPEAL
DISMISSED.

Anne Bennett Morrison Dietz (Appeal Dismissed May 9, 2013)
In Proper Person
Santa Domingo, 24
San Miguel de Allende, Centro
GTO Mexico, 37700
DEFENDANT/APPELLANT

Richard Morrison
In Proper Person
570 El Camino Real, #150-242
Redwood City, California 94063
(650) 321-3729
DEFENDANT/APPELLANT

Edward K. Bauman, APLC
Post Office Box 1641
Lake Charles, Louisiana 70602
(337) 491-0570
COUNSEL FOR PLAINTIFF/APPELLEE
John Ford Dietz

CONERY, Judge.

John Ford Dietz (“John”) filed suit against his former wife, Anne Bennett

Morrison Dietz (“Anne”) and her brother Richard Morrison (“Richard”), seeking

damages for defamation, extortion, intentional infliction of emotional distress, and

civil conspiracy. The dispute arose out of John and Anne’s divorce proceedings

involving both custody of the two minor children and property still held jointly.

After conducting a bench trial on the merits on January 13, 2012, the trial

court issued a “Judgment,” which incorporated lengthy Reasons for Judgment.

Anne and Richard timely filed a motion for new trial, and after a hearing on the

motion, the trial court denied Anne and Richard’s motion for new trial in a May 23,

2012 “Amended Judgment.”

The “Amended Judgment” conflated the trial court’s Reasons for Judgment

with what the trial court obviously intended to be a final judgment. The “Amended

Judgment” confirmed the original ruling in favor of John on three of his claims, but

additionally found Anne and Richard liable in solido for conspiring against John.

Damages in the “Amended Judgment,” in the amount of $85,000, remained the

same as the January 13, 2012 “Judgment.” For the following reasons, we set aside

the judgment and amended judgment, remand the case to the trial court, and

dismiss the appeal.

PROCEDURAL HISTORY

A bench trial was held on November 7–10, and January 9–10, 2012.1 The

court took the matter under advisement and promptly issued what is entitled a

“Judgment” on January 13, 2012. In fact, the “Judgment” contains the trial court’s

1
Although the “Judgment” reflects that trial ended on January 9, 2012, the minutes of the
court reflect that the bench trial concluded on January 10, 2012.

entire reasons for ruling, finding in favor of John on each of his three claims of

defamation, extortion, and intentional infliction of emotional distress. The

“Judgment” discusses the three claims under the headings of “Defamation

Claim:,” “Extortion Claim:,” “Intentional Infliction of Emotional Distress:,”

and “Damages.” Under the heading of “Damages,” the trial court stated,

“Accordingly, it is ordered Anne Bennett Morrison Dietz and Richard Morrison

pay unto Plaintiff John Ford Dietz the sum of Eighty Five Thousand Dollars 00/00

($85,000).” (Emphasis added.) No Analysis of how the court arrived at its damage

award was included, and this court is left with the impression that the trial court

likely intended this language to be its decree and judgment.

At the close of John’s case in chief, the defendants, Anne and Richard,

moved for directed verdict on each of John’s claims. The trial court denied

defendants’ motions for directed verdict for John’s claims of defamation, extortion,

and intentional infliction of emotional distress. The trial court granted defendants’

motions and dismissed John’s claim for conversion of property which included

silverware, rugs, and furniture, based on John’s lack of objection and his admission

he had no viable conversion claim for these items. The trial court also dismissed

John’s claim for loss of rental income in connection with the property owned by

John and Anne in Mexico, and expanded its May 28, 2011 interlocutory ruling to

specifically state that the trial court had no jurisdiction over that claim. The trial

court further granted a dismissal of John’s claim for special damages, which

included not only his loss of rental income from the jointly owned property in

Mexico, but also the costs of a bodyguard hired by John for protection after being

threatened by Richard and Anne in Mexico.

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Richard and Anne timely filed a motion for new trial on January 26, 2012,

urging the “Judgment was contrary to law and evidence in several respects.” The

petition for new trial stated in pertinent part:

1) The Judgment contained no finding of conspiracy among
Defendants, yet failed to allocate fault among them, violating
Louisiana’s comparative fault principles that are codified in La.
C.C. arts. 2323 and 2324;

In his response to the motion for new trial, John also asked the trial court to

clarify the issue of Anne and Richard’s fault. First, John asked the trial court to

determine the percentage of comparative fault of Anne and Richard pursuant to

La.Civ.Code art. 2323. In the alternative, John asked the trial court to determine

whether Anne and Richard had engaged in a conspiracy, making them solidarily

liable for the amount awarded pursuant to La.Civ.Code art. 2324. John’s response

to the motion for new trial stated in pertinent part:

Plaintiff agrees with defendants’ argument that this court was
required to apportion fault pursuant to LSA-C.C. art. 2323, and
requests that this Court modify the Judgment to apportion 50% fault
to each defendant.

Plaintiff also agrees with defendants’ argument that this court
was required to express in the Judgment its implicit finding that
defendants engaged in a conspiracy and are therefore solidarily liable
under LSA-C.C. art. 2324, and requests that his Court modify the
Judgment to so state.

The trial court held a hearing on Anne and Richard’s motion for new trial on

May 14, 2012. After again taking the matter under advisement, on May 23, 2012,

the trial court promptly issued the “Amended Judgment.” As previously indicated,

the “Amended Judgment” again conflated the trial court’s Reasons for Ruling with

its judgment, and mirrored the January 13, 2012 “Judgment,” adding specific

citations to the record, two further comments on the conduct and credibility of

Anne and Richard, and a determination of the solidary liability of Anne and

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Richard based on a finding of conspiracy. The introduction of the “Amended

Judgment” stated:

The above captioned matter was presented to the court on 14
MAY 2012 as a Motion for New Trial filed on behalf of the
defendants. During this hearing, the court reported that the 13
January 2012 Judgment was incorrect; and although it included
reasons for ruling, it did not clearly communicate the reasons for the
decision reached by this court. Accordingly, the court advised that it
would issue a corrected judgment before the end of the week.
Considering the evidence submitted and the arguments of counsel, the
Motion for New Trial is DENIED.

This Amended Judgment is presented to correct the
phraseology of the 13 January 2012 Judgment to explicitly state that
which was only implied in the prior judgment. It contains some (but
not all) of the citations to the transcript of the trial which support the
reasons for ruling. Many of the documents admitted in to evidence
during the trial also support this judgment. The additions to the 13
January 2012 Judgment are highlighted herein for convenience.

The following language was an addition to the trial court’s ruling on John’s

claims of intentional infliction of emotional distress:

This particular method of extortion by Mr. Morrison and Ms.
Morrison, coupled with Mr. Morrison’s harmful conduct directed
towards the plaintiff’s father was outrageous, extreme and calculated
to (and did in fact) cause the plaintiff to suffer severe emotional
distress. . . . Further, Anne Morrison and Richard Morrison were not
credible witnesses and were inaccurate historians.

The trial court’s “Amended Judgment” contains the following language

which was not a part of the January 13, 2012 “Judgment” with respect to the issue

of fault versus solidarity:

The actions described above were acts taken in furtherance of
the conspiracy of this brother and sister to inflict emotional distress on
the plaintiff by producing emotional stress on his family members and
presenting false statements to third parties for the purpose of
convincing the plaintiff to surrender certain property to Anne
Morrison. These defendants enlisted the assistance of various third
parties in furtherance of this conspiracy. These defendants intended
their actions to produce the desired effects on the plaintiff while he
was residing in Louisiana. Thus, the defendants[,] Anne Bennett

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Morrison Dietz and Richard Morrison[,] are solidarily liable to the
plaintiff for the damages caused by their tortuous conduct.

The same language under the heading “Damages” contained in the

“Judgment” is also contained in the “Amended Judgment” which states,

“Accordingly, it is ordered Anne Bennett Morrison Dietz and Richard Morrison

pay unto Plaintiff John Ford Dietz the sum of Eighty Five Thousand Dollars 00/00

($85,000).”

The “Amended Judgment” decretal language makes no mention of the

substantive addition to the “Amended Judgment,” finding Anne and Richard liable

in solido for the award of $85,000 to John. Neither the “Judgment” nor the

“Amended Judgment” contains the necessary decretal language awarding judicial

interest as required by La.Code Civ.P. art. 1921, which requires that the trial “court

shall award interest in the judgment as prayed for or as provided by law.”

Procedural Defects in the Amended Judgment and Judgment

Louisiana Code of Civil Procedure Article 2082 provides that an “[a]ppeal is

the exercise of the right of a party to have a judgment of the trial court revised,

modified, set aside, or reversed by an appellate court.” In order to exercise the

right to appeal there must be a final judgment. La.Code Civ.P. art. 2083(A).

Louisiana Code of Civil Procedure Article 1841 provides:

A judgment is the determination of the rights of the parties in
an action and may award any relief to which the parties are entitled. It
may be interlocutory or final.

A judgment that does not determine the merits but only
preliminary matters in the course of the action is an interlocutory
judgment.

A judgment that determines the merits in whole or in part is a
final judgment.

In addition, La.Code Civ. P. art. 1951 provides:

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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.[2]

The determination of the trial court to apply either La.Civ.Code art. 2323,

requiring a determination of fault as between the parties, or La.Civ.Code art. 2324,

which imposes solidary liability on the parties to a conspiracy, is substantive in

nature and “can only be accomplished by motion for a new trial or on appeal.”

Saacks v. Mohawk Carpet Corp., 03-386, p. 23 (La.App. 4 Cir. 8/20/03), 855 So.2d

359, 374, writ denied, 03-2632 (La. 12/12/03), 860 So.2d 1158, (citing Teague v.

Barnes, 519 So.2d 817 (La.App. 5 Cir.1988)).

The trial court denied Anne and Richard’s motion for new trial, but then, as

requested in John’s motion for a new trial, altered the “Judgment” to include a

determination that Anne and Richard engaged in a conspiracy and were liable in

solido. Because the trial judge denied the Motion for New Trial, this change

amounted to a substantive change in the “Amended Judgment” in violation of

La.Code Civ.P. art. 1951, rendering the “Amended Judgment” null and void and

requiring it be set aside.

If an appellate court sets aside an amended judgment, pursuant to La.Code

Civ.P. art. 1951, “[t]he usual remedy of the appellate court in such a case is to

vacate the amended judgment and reinstate the original judgment.” Teague, 519

So.2d at 822 (quoting Schexnayder v. Schexayder, 503 So.2d 104 (La.App. 5 Cir.

1987), writ denied, 506 So.2d 1228 (La.1987)). However for the following reasons

2
Louisiana Code of Civil Procedure Article 1951 was amended, effective August 1, 2013
subsequent to the judgment and amended judgment at issue.

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we find that the January 13, 2012 “Judgment” is equally flawed and must also be

set aside.

Louisiana Code of Civil Procedure Article 1918 dictates the required form of

a final judgment and states, “A final judgment shall be identified as such by

appropriate language. When written reasons for judgment are assigned, they shall

be set out in an opinion separate from the judgment.” (Emphasis added.) A panel

of this court held, “[a] valid judgment must be precise, definite, and certain. A

final appealable judgment must contain decretal language, and it must name the

party in favor of whom the ruling is ordered, the party against whom the ruling is

ordered, and the relief that is granted or denied.” State v. White, 05-718, p. 2

(La.App. 3 Cir. 2/1/06), 921 So.2d 1144, 1146 (quoting Jenkins v. Recovery Tech.

Investors, 02-1788, pp. 3-4 (La.App. 1 Cir. 6/27/03), 858 So.2d 598, 600)

(citations omitted).

This court is aware that jurisprudence has interpreted the language in

La.Code Civ.P. art. 1918 requiring written reasons to be separate from the

judgment to be “merely precatory.” Extraneous language in a judgment does not

automatically render a judgment which includes written reasons invalid in all cases.

Hinchman v. Int’l Bhd. of Elec. Workers, Local Union No. 130, 292 So.2d 717

(La.1974). However, Article 1918 does contain the word “shall” when it directs

the trial court to set out Reasons for Judgment “in an opinion separate from the

Judgment.” (Emphasis added.) In this particular case, because of the problems in

the language of the “Judgment” and “Amended Judgment,” we apply the article as

written. Even assuming the word “shall” could be interpreted as “precatory,” a

final and appealable Judgment must nevertheless contain sufficient decretal

language consistent with the Reasons espoused.

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The January 13, 2012 “Judgment” does not contain all of the necessary

decretal language to meet the requirements of a final judgment. The “Judgment”

fails to make a determination of the allocation of fault between Anne and Richard,

or to award judicial interest as required by La.Code Civ.P. art. 1921. It certainly

does not meet the requirements of the form of a final judgment required in La.Code

Civ.P. art. 1918, as the written reasons for the judgment are not set forth in a

separate opinion. We therefore find that the January 13, 2012 “Judgment” must be

set aside. Likewise, the May 13, 2012 “Amended Judgment” lacks decretal

language on the issues of solidary liability and legal interest. As previously

indicated, the reasons for judgment, likewise, are not set forth in a separate opinion

in the “Amended Judgment” in clear violation of the mandate in La.Code Civ.P. art.

1918.

DISPOSITION

Finding that both the “Judgment” and “Amended Judgment” must be set

aside, and since there is no final appealable judgment from which an appeal may

be taken, we hereby dismiss the appeal and remand the case to the trial court for

further proceedings and the entry of a final appealable judgment.

JUDGMENT AND AMENDED JUDGMENT SET ASIDE; CASE
REMANDED; APPEAL DISMISSED.

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