James Norman Thompson v. Chrystal Landry Thompson

NOT DESIGNATED FOR PUBLICATION

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 13-1237

JAMES NORMAN THOMPSON

VERSUS

CHRYSTAL LANDRY THOMPSON

**********

APPEAL FROM THE
NINTH JUDICIAL DISTRICT COURT
PARISH OF RAPIDES, NO. 223,238
HONORABLE GEORGE CLARENCE METOYER, JR., DISTRICT JUDGE

**********

JOHN D. SAUNDERS

JUDGE

**********

Court composed of John D. Saunders, Billy H. Ezell, and Phyllis M. Keaty,
Judges.

RULE RECALLED.
MOTION TO DISMISS APPEAL AND REQUEST FOR ATTORNEY FEES
DENIED.

Rodney Marchive Rabalais
Rabalais & Roy
Post Office Box 447
Marksville, LA 71351
(318) 253-4622
COUNSEL FOR PLAINTIFF/APPELLEE:
James Norman Thompson

Koby D. Boyett
Attorney at Law
Post Office Box 12746
Alexandria, LA 71315
(318) 481-2242
COUNSEL FOR DEFENDANT/APPELLANT:
Chrystal Landry Thompson

SAUNDERS, Judge.

This court issued a rule for defendant-appellant, Chrystal Landry Thompson,

to show cause, by brief only, why her appeal should not be dismissed as taken with

an order of appeal which was annulled. In response, Chrystal filed a brief

opposing the dismissal. For the reasons given below, we maintain the appeal,

recall the rule, and deny appellee, James Norman Thompson’s, motion to dismiss

the appeal and request for attorney fees.

Chrystal and James, a previously-married couple, went through a divorce

and, in that process, reached a settlement agreement that partitioned their

community property. The trial court homologated that agreement in August of

2010. In August of 2011, Chrystal filed a petition to annul the judgment

homologating the partition, to rescind the partition agreement, and for damages for

fraud, non-disclosure, and ill practices.

James filed an exception of prescription and requested attorney fees, and, in

July of 2013, the trial court held a hearing. James asserted entitlement to the

attorney fees based on La.Code Civ.P. art. 2004(C).1 After the arguments on the

merits of the exception, the following exchange took place:

MR. RABALAIS [James’s attorney]: Well, then this moves to the
Motion for Summary Judgment if that would be the case. But if
you’re dismissing the whole thing, I’m happy with that, obviously.
THE COURT: All right.
MR. RABALAIS: And reserve the right to come back for attorney’s
fees. And assessment of costs?
THE COURT: Both parties, half and half.
MR. RABALAIS: Thank you, Your Honor.

1
That section reads: “[t]he court may award reasonable attorney fees incurred by the prevailing
party in an action to annul a judgment on these [fraud or ill practices] grounds.”

On August 7, 2013, James filed a motion for attorney fees, and the trial court

set a hearing on the motion for September 16, 2013. On August 12, 2013, the trial

court signed a written judgment specifying that it granted James’s exception of

prescription, dismissed all of Chrystal’s claims against James with prejudice, and

ordered the court costs to be equally divided between the parties. The judgment is

completely silent on the issue of attorney fees.

On August 22, 2013, Chrystal filed a motion for devolutive appeal in which

she stated that she “wishes to appeal the judgment designated as a final judgment

for appeal purposes.” The trial court signed the order of appeal on August 26,

2013, and the record was transmitted to this court.

On September 9, 2013, Chrystal filed a memorandum in response to James’s

motion for attorney fees in which she argued that the trial court lacked jurisdiction

to decide this issue because the trial court has already issued an order of appeal.

Apparently, the trial court conducted a hearing on the motion for attorney fees on

September 16, 2013, but made no ruling.2 On September 23, 2013, James filed a

motion to annul the order of appeal based on fraud and requested attorney fees.

James argued that Chrystal’s motion for appeal, which stated that the trial court

issued a judgment designated as a final judgment for appeal purposes, was a

misrepresentation as the court made no such designation. On October 14, 2013,

the trial court conducted a hearing on the motion to annul, after which, the trial

court annulled the order of appeal. Despite this annulment, the record in this

matter was transmitted to this court, and James filed a motion to dismiss the

appeal.

2
No transcript of that hearing is in the record transmitted to this court, but the court minutes
indicate that there was a hearing.

2

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. Thereafter,
the trial court has jurisdiction in the case only over those matters not
reviewable under the appeal . . . .

La.Code Civ.P. art. 2088(A). Thus, the grant of an order of appeal perfects a

devolutive appeal. The trial court has no jurisdiction to rescind/dismiss/annul a

perfected appeal, except under limited circumstances. See David v. David, 13-171

(La.App. 3 Cir. 6/19/13), 115 So.3d 1277; La.Code Civ.P. art. 2088.

It is clear from La.Code Civ.P. art. 2088(A) that the trial court retains

jurisdiction to adjudicate matters not reviewable under the appeal, and the statute

provides a list of actions the trial court may perform. On the other hand, it is a

well-established rule that when “a judgment is silent as to part of the relief

requested, the judgment is deemed to have denied that relief.” Duhon v. Lafayette

Consol. Gov’t, 05-657, p. 11 (La.App. 3 Cir. 12/30/05), 918 So.2d 1114, 1120

(citing Guar. Bank & Trust Co. of Alexandria, La. v. Carter, 394 So.2d 701

(La.App. 3 Cir.), writ denied, 399 So.2d 599 (La.1981)). Thus, the question

presented to this court is whether the issue of attorney fees is reviewable on appeal.

We note that under La.Code Civ.P. art. 2088(A)(10), the trial court retains

jurisdiction to assess and tax costs and expert witness fees after it grants the order

of appeal. Nevertheless, attorney fees are not costs or expert witness fees and have

been distinguished therefrom by our sister-jurisdictions. See Pointe Coupee Elec.

Membership Corp. v. Mounger, 447 So.2d 1104 (La.App. 1 Cir. 1984); Dixie

Servs., L.L.C. v. R & B Falcon Drilling USA, Inc., 05-1212 (La.App. 4 Cir.

3/21/07), 955 So.2d 214, writ denied, 07-801 (La. 6/1/07), 957 So.2d 182.

3

Where the plaintiff sued and sought attorney fees based on contractual

provisions, the trial court denied the main demand and, in oral reasons for

judgment, stated that it would address the attorney fees at a later date, and the

court’s written judgment was silent regarding attorney fees, the appellate court

held that the trial court had no jurisdiction to adjudicate attorney fees at a later

date. La. Casino Cruises, Inc. v. Capitol Lake Props., Inc., 04-882 (La.App. 1 Cir.

3/24/05), 915 So.2d 784. The court reasoned that because the issue of attorney

fees was part of the main demand and a part of the reconventional demand in the

matter, the issue was reviewable on appeal of the judgment which denied the main

demand. (See also Dixie Servs., L.L.C., 955 So.2d 214, holding that the trial court

denied attorney fees, making the denial reviewable on appeal, where the plaintiff

alleged that the parties stipulated, and the trial court agreed, to defer the issue of

attorney fees until after the judgment on the merits, but did not cite to the record to

evidence this assent).

Where in 2010 the trial court signed a judgment on the jury verdict and the

judgment included a statement that “[i]njunctive relief and other collateral issues

will [be] submitted to the Court for judgment at a later date,” the 2010 judgment

went through the appellate process, and in 2013 the trial court singed a second

judgment granting a permanent injunction and attorney fees, this court concluded

that res judicata did not bar the 2013 judgment. Siemens Water Techs. Corp. v.

Revo Water Sys., LLC, 13-631 (La.App. 3 Cir 1/8/14), ___ So.3d ___. This court

found that the “exceptional circumstances” of the case warranted an application of

the exception to res judicata, and proceeded to review the appeal. This court found

that the trial court’s explicit reservation of certain issues in its 2010 judgment was

paramount to its decision.

4

Here, like in La. Casino Cruises, Inc., 915 So.2d 784, the issue of attorney

fees was presented to the trial court: James’s motion scheduled for a hearing in

July of 2013, requested two things from the court, the grant of his peremptory

exception of prescription and the grant of attorney fees pursuant to La.Code Civ.P.

art. 2004(C). The hearing on this motion focused on the exception of prescription.

At the end of this hearing, James’s attorney made a statement regarding reservation

of a right to come back for attorney fees. Unlike the trial court in La. Casino

Cruises, Inc., 915 So.2d 784, which specifically stated that it intended to address

the attorney fees issue at a later date, the court here did not respond in any manner

to James’s attempted reservation of the right to come back for attorney fees. Thus,

in this case, there is an even greater reason to deem denied James’s request for

attorney fees.

Like the trial court’s written judgment in La. Casino Cruises, Inc., 915

So.2d 784, the written judgment here is silent on the issue of attorney fees. Based

on these considerations, we deem that the relief James requested has been denied,

and the trial court’s judgment of August 12, 2013, is a final judgment. See Duhon,

918 So.2d 1114. Therefore, we conclude, as the first circuit did in La. Casino

Cruises, Inc., 915 So.2d 784, that the issue of attorney fees is reviewable on

appeal, and, therefore, the trial court is without jurisdiction to decide it.

We find that our reasoning in Siemens, ___ So.3d ___, is inapplicable to the

factual circumstances of this case. Furthermore, we find that even if Siemens were

applicable, it is distinguishable. Unlike the res judicata issue in Siemens, the issue

here, while similar, is not that of res judicata, and, therefore, the exceptions

applicable to the doctrine of res judicata do not apply in this case. Moreover, in

Siemens, the written judgment expressly stated that the issues of attorney fees and

5

the permanent injunction will be addressed in another judgment at a later date.

Therefore, the judgment at issue in Siemens was not silent as to part of the relief

requested, and, therefore, could not be deemed to have denied that relief.

Furthermore, we conclude that Chrystal perfected her appeal when the trial

court signed the order of appeal. At that point, the trial court was divested of its

jurisdiction and could not annul or rescind the perfected appeal. See David v.

David, 13-171 (La.App. 3 Cir. 6/19/13), 115 So.3d 1277. Because this court

concludes that the trial court issued a final and appealable judgment on August 12,

2013, James’s allegations of fraud are without merit.

RULE RECALLED.
MOTION TO DISMISS APPEAL AND REQUEST FOR ATTORNEY FEES
DENIED.

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION.
Rule 2-16.3 Uniform Rules, Court of Appeal

6

7