Marilyn Williams Hedlesky v. Steven Hedlesky

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

15-837

MARILYN WILLIAMS HEDLESKY

VERSUS

STEVEN HEDLESKY

**********

APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2009-4392, DIVISION C
HONORABLE GUY BRADBERRY, DISTRICT JUDGE

**********

MARC T. AMY
JUDGE

**********

Court composed of Marc T. Amy, Billy Howard Ezell, and David Kent Savoie,
Judges.

REVERSED IN PART AND RENDERED; AFFIRMED IN PART.

Oliver Jackson Schrumpf
Schrumpf & Schrumpf
3801 Maplewood Drive
Sulphur, LA 70663
(337) 625-9077
COUNSEL FOR PLAINTIFF/APPELLANT:
Marilyn Williams Hedlesky

Walter M. Sanchez
B. Thomas Shea
The Sanchez Law Firm, L.L.C.
901 Lakeshore Drive, Suite 1050
Lake Charles, LA 70601
(337) 433-4405
COUNSEL FOR DEFENDANT/APPELLEE:
Steven Hedlesky

AMY, Judge.

The property of the parties‟ former marriage was partitioned by a December

2013 judgment. In January 2015, the former wife filed a petition to annul

judgment for fraud and ill practices, alleging that she had since discovered that her

former husband made certain omissions in the detailed descriptive list filed in the

partition proceeding. The former husband thereafter filed exceptions of no cause

of action and prescription. The trial court sustained both exceptions and dismissed

the suit. The former wife appeals. For the following reasons, we reverse in part

and affirm in part.

Factual and Procedural Background

By judgment rendered December 3, 2013, the trial court partitioned the

community property of the parties‟ former marriage. The present matter was

instituted when the plaintiff, Marilyn Williams Hedlesky (Ms. Williams), 1 filed a

Petition to Annul Judgment on January 7, 2015, wherein she alleged that the

partition judgment “was obtained through a series of fraud and ill practices . . . and

said judgment should be declared null and void.” In particular, Ms. Williams

contended that Mr. Hedlesky failed to fully account for all of his assets and the

separate debt that he brought into the marriage (and that was allegedly

extinguished during the community regime). Through her petition and amending

petition, Ms. Williams suggested that, had this additional information been

included, the equalizing payment she was required to pay under the judgment

1
The record and judgment on appeal in this case report the plaintiff‟s name as Marilyn
Williams Hedlesky whereas her brief to this court prefers the usage of Marilyn Williams. For
purposes of discussion, we reference the plaintiff as Ms. Williams, but maintain the formal name
in the case caption and decree in order to maintain consistency with the record and docket.

would have been offset.2 In her request for relief, Ms. Williams sought annulment

of the December 3, 2013 partition judgment “for fraud and ill practices, and for

such equitable relief as may be proper under the circumstances, and for all costs of

these proceedings.”

Mr. Hedlesky thereafter filed exceptions of no cause of action and

prescription. He asserted that the December 2013 partition judgment was a final

judgment as Ms. Williams‟ appeal of that ruling was dismissed in March 2014 on

grounds of abandonment. As for the exception of no cause of action, Mr. Hedlesky

asserted that Ms. Williams alleged that the partition judgment became final at a

time when her attorney was no longer appearing on her behalf. Mr. Hedlesky

argued, however, that attorney conduct does not serve as a basis for a nullity

action.

As for the timeliness of the petition, Mr. Hedlesky suggested that the

applicable prescriptive period for such an action was “one year of the discovery by

the plaintiff in the nullity action of the fraud or ill practices.” Mr. Hedlesky argued

that to the extent Ms. Williams alleged that he incompletely reported his assets and

liabilities, she was aware of such an alleged occurrence at the time of trial. These

events, Mr. Hedlesky argued, occurred more than one year before the filing of the

January 7, 2015 petition to annul judgment. Following a hearing, at which the trial

court heard testimony and received evidence regarding prescription, the trial court

granted both exceptions in favor of Mr. Hedlesky, dismissing Ms. Williams‟

petition(s).

2
The “Partition Judgment” entered judgment against Ms. Williams and in favor of Mr.
Hedlesky in the amount of $263,485.10.

2

Ms. Williams appeals, addressing both exceptions. We turn first to

consideration of the exception of no cause of action as a prescription analysis

necessarily rests upon the existence of a cause of action.

Discussion

Exception of No Cause of Action

The exception of no cause of action tests “the legal sufficiency of the

petition by determining whether the law affords a remedy on the facts as alleged in

the petition.” McCarthy v. Evolution Petroleum Corp., 14-2607, p. 4 (La.

10/14/15), _ So.3d _, _. (quoting Scheffler v. Adams and Reese, LLP, 06-1774, p.

4 (La. 2/22/07), 950 So.2d 641, 646.) “The exception is triable on the face of the

pleadings, and, for purposes of resolving the issues raised by the exception, the

well-pleaded facts in the petition must be accepted as true.” Id. The moving party

must bear the burden of demonstrating that the petition sets forth no cause of

action. Jackson v. City of New Orleans, 12-2742, 12-2743 (La. 1/28/14), 144

So.3d 876, cert. denied, _ U.S. _, 135 S.Ct. 197 (2014). As the exception raises a

question of law, an appellate court conducts a de novo review of a trial court‟s

ruling thereon. Id.

Ms. Williams‟ petition and amending petition advance a claim for annulment

of the underlying judgment due to fraud or ill practices. See La.Code Civ.P. art.

2004(A)(providing that: “A final judgment obtained by fraud or ill practices may

be annulled.”). The supreme court has noted that La.Code Civ.P. art. 2004 is not

applicable only to cases of actual fraud or intentional wrongdoing. Wright v.

Louisiana Power & Light, 06-1181 (La. 3/9/07), 951 So.2d 1058 (quoting Power

Marketing Direct, Inc. v. Foster, 05-2023 (La. 9/6/06), 938 So.2d 662). Rather,

Article 2004 encompasses situations where a judgment is rendered through an

3

improper practice or procedure which operates, even innocently, to deprive the

party cast in judgment of some legal right, and where enforcement of the judgment

is unconscionable and inequitable. Id. However, a nullity action is not intended as

a substitute for an appeal or a second chance to prove a claim previously denied

due to insufficient proof. Id. (quoting Belle Pass Terminal, Inc. v. Jolin, Inc., 01-

0149 (La. 10/16/01), 800 So.2d 762.) Rather, the purpose of the nullity action is to

prevent injustice which cannot be corrected through a new trial and appeals. Id.

Pertinent to this matter, the supreme court has explained that “‛[d]iscovery

of evidence which could have been presented at the original trial usually cannot

serve as the basis for an action for nullity‟”. Wright, 951 So.2d at 1068 (quoting

Gladstone v. American Auto. Ass’n, Inc., 419 So.2d 1219 (La.1982)) (alteration in

the original). An unsuccessful litigant may not attack a judgment as fraudulent

simply because the opposing party failed to disclose certain facts when the party

attacking the judgment could have ascertained those facts with reasonable

diligence. Id. Such a determination depends upon the nature of the information at

issue and the circumstances surrounding the proceeding. Id. “Absent a specific

discovery request or „knowing concealment,‟ failing to disclose information that

might have been helpful to the opposing party‟s case does not constitute fraud or ill

practice if with, reasonable diligence, the party could have ascertained the

information himself.” Id. at 1074.

Having reviewed the petition and amending petition within this context, we

conclude that the plaintiff set forth a cause of action for nullity. Both the petition

and amending petition allege that Mr. Hedlesky failed to include evidence

regarding his separate debt as would be necessary to accurately partition the former

couple‟s community property. Under the standard of review, those facts must be

4

accepted as true. McCarthy, _ So.3d _. Ultimately, those broad allegations may

not be demonstrated by sufficient evidence to satisfy the burden of proof required

to prevail on a nullity action under La.Code Civ.P. art. 2004. See, e.g., Wright, 951

So.2d 1058 (wherein the supreme court determined that the petition‟s allegations

stated a cause of action for nullity, but ultimately concluded that a motion for

summary judgment was appropriately entered in favor of the defendants due to the

plaintiffs‟ lack of proof of fraud and ill practices). However, determinations

regarding the discoverability of such facts are dependent upon the information at

issue and the circumstances surrounding the underlying proceeding. Id.

Furthermore, in the preliminary context of the exception of no cause of action, all

doubts are resolved in favor of the sufficiency of a petition so as to afford a litigant

his or her day in court. Jackson, 144 So.3d 876.3

For these reasons, we find error in the trial court‟s granting of Mr.

Hedlesky‟s exception of no cause of action. We reverse that ruling and deny the

exception.

Exception of Prescription

Having found that the petition states a cause of action pursuant to La.Code

Civ.P. art. 2004, we turn to consideration of the trial court‟s determination that Ms.

Williams‟ claim was prescribed. In this regard, La.Code Civ.P. art. 2004(B)

provides that: “An action to annul a judgment on these grounds must be brought

within one year of the discovery by the plaintiff in the nullity action of the fraud or

ill practices.” This court has previously described this one-year period for the
3
In his brief in opposition, Mr. Hedlesky notes that Ms. Williams alleged that judgment
was entered at a time when her trial counsel was no longer representing her and that an issue of
counsel‟s representation cannot serve as a basis for granting an action in nullity. Citing
DeBaillion v. Consol. Operating Co., Inc., 07-1117 (La.App. 3 Cir. 1/30/08), 975 So.2d 682.
We do not address the opposing argument in this regard, having found that the petition
adequately sets forth a cause of action regarding alleged conduct by Mr. Hedlesky.

5

institution of a suit to annul a final judgment as one of peremption rather than

prescription. See Thompson v. Thompson, 14-963 (La.App. 3 Cir. 3/4/15), 159

So.3d 1121; In re Succession of Bernat, 13-277 (La.App. 3 Cir. 10/9/13), 123

So.3d 1277, writ denied, 13-2640 (La. 2/7/14), 131 So.3d 865.

“The burden of proving that an action of nullity is brought within one year

of the discovery of the fraud or ill practice is upon the plaintiff.” Gennuso v. State,

339 So.2d 335, 338 (La.1976); See also Succession of Bernat, 123 So.3d 1277. As

described in Article 2004(B), the date of discovery is the date on which a plaintiff

either knew, or should have known through the exercise of reasonable diligence, of

facts sufficient to excite attention and put the plaintiff on guard and call for

inquiry. Id. Such notice constitutes knowledge or notice of everything to which a

reasonable inquiry may lead. Id. In the event that the parties introduce evidence in

support of or in contravention of the exception of prescription, an appellate court

considers a trial court‟s ruling under the manifest error standard of review.

Thompson, 159 So.3d 1121.

On appeal, Ms. Williams first suggests that the matter is timely as it is a

personal action subject to the ten-year prescriptive period of La.Civ.Code art.

3499. See also La.Civ.Code art. 2366; La.Civ.Code art. 2367.1. We reject this

initial suggestion by Ms. Williams. Although the underlying subject matter

pertained to the personal obligations of the former marriage, the instant matter is

one strictly stemming from the petition to annul judgment.

Accordingly, we turn to Ms. Williams‟ remaining assertion that matter was

under La.Code Civ.P. art. 2004, as she did not discover the alleged basis for her

suit until early January 2015 when her present attorney discovered allegedly

omitted separate debts of Mr. Hedlesky and informed her of such information. She

6

suggests that the nullity action was filed within one week after that date of

discovery and is thus timely pursuant to Article 2004(B). After review, we find no

merit in this position and leave the trial court‟s ruling undisturbed.

First, we note that the underlying partition judgment was signed by the trial

court on December 3, 2013. Yet, the petition to annul was not filed until more than

a year after that point, on January 7, 2015. At the hearing on the exception, Ms.

Williams testified on her own behalf and explained to the court that, in January

2015, her new attorney informed her that she was entitled to reimbursement from

Mr. Hedlesky for one-half of sums paid toward his separate mortgages. She

further asserted that the attorney also informed her “of a whole lot of things that

[she] didn‟t know.” However, upon questioning by Mr. Hedlesky‟s attorney, Ms.

Williams explained further regarding her feeling that something was wrong at the

time of the March 2013 hearing date. She noted that she had discussed with her

original attorney that she did not have in her possession various items that were

attributed to her in the descriptive list. When she informed him “that not all that

matches up, . . . he said that‟s okay. You‟re going to keep whatever and he‟s going

to keep whatever and this doesn‟t matter.” While she could not recall whether the

conversation occurred on the date of the hearing or the day before the hearing, she

explained that her feeling was that she did not have to worry because she and Mr.

Hedlesky would keep whatever property they had. She stated that they then “came

into court, and that I ended up with this huge judgment against me and that it‟s

ridiculous[.]” Finally, opposing counsel questioned Ms. Williams regarding her

receipt of the December 3, 2013 partition judgment at that time. Counsel inquired

whether: “Knowing what had happened during the community property trial, you

7

saw that judgment and instantly thought something is not right here?” To which

Ms. Williams responded: “That‟s correct.”

Despite Ms. Williams‟ questioning of the substance of the documentation

provided to the trial court at the time of the March 2013 hearing and to the

accuracy of the December 3, 2013 partition judgment at that time, the petition to

annul was not filed until January 7, 2015 after new counsel purportedly

investigated Mr. Hedlesky‟s representations further. We find no manifest error in

the trial court‟s determination that this period well exceeded the one-year period

provided for by La.Code Civ.P. art. 2004(B) had expired. Recall that, in

Succession of Bernat, 123 So.3d 1277, a panel of this court determined that the

one-year period of Article 2004(B) begins to run when the plaintiff either knows or

should have known, with the exercise of reasonable diligence, facts sufficient to

excite attention and put the plaintiff on guard and to call for inquiry. Significantly,

Ms. Williams explained to the court that she felt that the parties would leave the

partition hearing each retaining the property in their possession. However, the

resulting partition judgment cast her in judgment for $263,485.10 and did so upon

a submission she testified that she felt was faulty at the time of the hearing.

Certainly, these facts support a determination that Ms. Williams was in possession

of facts to put her on guard and call for inquiry at that time. See Id.

For these reasons, we do not find that the trial court was manifestly

erroneous in granting the exception of prescription.

This assignment of error lacks merit.

DECREE

For the foregoing reasons, the trial court‟s judgment is reversed to the extent

it granted the exception of no cause of action filed by the defendant—appellee,

8

Steven Hedlesky. The exception of no cause of action is hereby denied. The trial

court‟s ruling granting the exception of prescription and dismissing the plaintiff‟s

Petition to Annul Judgment and First Amending and Supplemental Petition to

Annul Judgment is affirmed. Costs of this proceedings are assessed equally to the

plaintiff—appellant, Marilyn Williams Hedlesky, and the defendant—appellee,

Steven Hedlesky.

REVERSED IN PART AND RENDERED; AFFIRMED IN PART.

9