Corey Lewis v. Tyrissa Hart

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

17-24

COREY LEWIS

VERSUS

TYRISSA HART

**********

APPEAL FROM THE
SIXTEENTH JUDICIAL DISTRICT COURT
PARISH OF IBERIA, NO. 128700
HONORABLE KEITH R.J. COMEAUX, DISTRICT JUDGE

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DAVID E. CHATELAIN*
JUDGE

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Court composed of Shannon J. Gremillion, John E. Conery, and David E.
Chatelain, Judges.

Conery, J., concurs in the result.

WRIT GRANTED; JUDGMENT VACATED AND REMANDED.

*Honorable David E. Chatelain participated in this decision by appointment of the
Louisiana Supreme Court as Judge Pro Tempore.

Lucretia Pecantte
Attorney at Law
420 Iberia Street
P. O. Box 9010
New Iberia, LA 70562-9010
(337) 374-1202
COUNSEL FOR PLAINTIFF/APPELLANT:
Corey Lewis

Irvin J. Celestine Jr.
Law Office of Irvin J. Celestine Jr., L.L.C.
214 E. Landry Street
P. O. Box 849
Opelousas, LA 70571
(337) 407-2898
COUNSEL FOR DEFENDANT/APPELLEE:
Tyrissa Hart

CHATELAIN, Judge.

In this custody proceeding, Corey Lewis (the Father) appeals the trial court’s

judgment that denied his peremptory exception of res judicata and also annulled

and vacated all previous custody orders and judgments rendered by the court.

Tyrissa Hart (the Mother) in response, raises the issue of whether the trial court

erred in fixing the Father’s exception for hearing, and in ruling thereon prior to

ruling on her motion for new trial. For the following reasons, we vacate the trial

court’s judgment and remand for a hearing on the Mother’s new trial motion.

FACTS AND PROCEDURAL HISTORY

All the issues herein revolve around the custody of T.A.L., born on July 11,

2016. The parents were never married to each other. On July 25, 2016, the Father

filed suit against the Mother to establish custody and visitation. The next day, July

26, 2016, the trial court signed an order setting (1) the hearing officer conference

for September 1, 2016, and (2) the Rule for Joint Custody on September 28, 2016,

“if all issues are not resolved, and any objections thereto are file[d] timely[.]”

Shortly thereafter, on August 2, 2016, the Father filed a Motion and Order to

Amend and Supplement the Petition for Custody, along with a Temporary Custody

Implementation Plan. By order dated that same day, the trial court granted the

Father temporary custody of the infant.

After a continuance to allow the Mother to retain counsel, the hearing officer

conference was held on September 12, 2016. On that date, the parties, along with

their counsel, appeared before the hearing officer. Both parties and/or their

attorneys spoke with the hearing officer and related what they expected the

evidence at trial would show. The hearing officer rendered his written report that

same day, recommending that the parties share joint custody, “with the Father

designated as the domiciliary parent.” Also on September 12, 2016, the Mother

filed her Answer and Reconventional Demand in which she sought custody of

T.A.L.1

Pursuant to the Rules of Louisiana District Courts, the parties had five days

in which to file with the clerk of court their written objections to the hearing

officer’s recommendations.2 Prior to the lapse of that five-day delay, the Father,

on September 16, 2016, filed a judgment to adopt the hearing officer’s

recommendations as the final judgment of the court, pursuant to La.R.S.

46:236.5(C)(7), which provides:

If no written objection is filed with the clerk of court within the
time and manner established, the order shall become a final judgment
of the court and shall be signed by a judge and appealable as a final
judgment. The judgment after signature by a district judge shall be
served upon the parties in accordance with law.

As no written objection was filed, the trial court signed the judgment on

September 28, 2016. On September 20, 2016, the Father filed an Amended

Judgment to reflect the correct date of the hearing officer conference as September

12, 2016, instead of September 1, 2016, as reflected in the judgment originally

submitted. The trial court signed the Amended Judgment on September 22, 2016.3

Thereafter, on September 28, 2016, this matter came before the trial court

for hearing on the previously set Rule for Joint Custody, and the trial court

continued the matter without date. That same day, the trial court signed an order

1
Although the Mother asserts that she also filed an objection to the Hearing Officer’s
recommendation on this date, the record does not reflect the filing of any objections. We do,
however, note the clerk of court delayed processing the Mother’s pleadings for lack of fees until
the trial court granted her request to proceed in forma pauperis on September 28, 2016.
2
La.Dist.Ct.R. 35.5 sets forth the delay for filing such objections:

Any objection to the written recommendation of a hearing
officer . . . shall be filed with the clerk of court within five (5) days,
exclusive of legal holidays, from the issuance of the recommendation.
3
Although it may appear incongruous, the record clearly shows that the trial court signed
the Amended Judgment first. That judgment correctly reflects that the Hearing Officer
conference was held on September 12, 2016.
2

setting (1) the hearing officer conference on the Mother’s reconventional demand

for October 13, 2016, and (2) the Rule for Custody hearing on October 19, 2016,

“if any party files a timely objection to the recommendations of the Hearing

Officer, within the prescriptive delays allowed by law[.]” These dates were

subsequently continued.

The clerk of court then mailed the notice of signing of the Judgment and

Amended Judgment to the parties on October 3, 2016. Thereafter, the Mother

timely filed her Motion for New Trial on October 10, 2016, requesting the trial

court “grant a new trial and/or that the Judgment, previously signed and executed,

on or about, September 22, 2016, be held in abeyance as to all parties and issues

presented.”

The next day, October 11, 2016, the trial court signed an order: (1) setting

the Mother’s Motion for New Trial hearing for October 19, 2016, (2) immediately

vacating “the Judgment and Amended Judgment, signed and executed, on or about

September 22, 2016,” and (3) ordering “that no Judgment shall be recognized in

these proceedings, until further Order(s) of this Court and/or until a decision is

rendered, as it relates to Defendant/Plaintiff-in-Reconvention’s [the Mother’s]

Motion for New Trial hearing.”

Then, on October 12, 2016, the Father filed his Peremptory Exception of Res

Judicata in which he asserted the Mother’s reconventional demand was barred

because the custody claims raised therein were “decided and set aside” by the trial

court in the Amended Judgment. The trial court signed an order on October 13,

2016, setting the Father’s exception for hearing on October 19, 2016.

As the trial court minutes reflect, the parties appeared with counsel on

October 19, 2016, for the “hearing on Rule for Custody on behalf of [the Mother].”

After hearing the pleadings, evidence, and arguments of counsel, the trial court
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reset the matter until November 7, 2016, and apparently directed the parties “to

ascertain whether the Answer and Reconventional Demand filed by [the Mother]

will be considered an objection to the hearing officer conference report.” The

minutes also reflect the trial court withheld its ruling on the Motion for New Trial.

Thereafter, on November 4, 2016, the trial court vacated its orders signed on

October 11, 2016, which had (1) set the hearing date for the Mother’s new trial

motion, (2) vacated the Judgment and Amended Judgment, and (3) refused to

recognize any judgment until further order of the court or rendition of judgment on

the new trial motion.

Initially, only the Father and his counsel appeared before the court on the

morning of November 7, 2016 for the hearing on his exception of res judicata.

After noting the Mother’s counsel’s failure to timely appear, the trial court

rendered the following ruling from the bench:

an answer in reconventional demand [was not] an objection because it
didn’t specifically point to the fact or the issues that were objected to
in the hearing officer conference. To be an objection - - an answer in
reconventional demand, he certainly has a right to litigate his
reconventional demand, but that was filed subsequent to the hearing
officer conference. So, therefore, anything that was taken up at the
hearing officer conference would become law, and he could certainly
file an answer in reconventional demand, have a hearing on that, but
he may have to prove a change of circumstances.

....

Depending on what happened. The Court will find that because
R. S. 46:235(C) (7) [sic] provides that the hearing officer judgment
shall become final unless there’s a valid objection, the Court has to
provide that the hearing officer recommendations are the final
judgment of the Court based upon 46:236.5 (C) (7) since no valid
objection was filed pursuant to the hearing officer conference.

It then directed plaintiff’s counsel to submit a judgment, presumably to grant the

exception.

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Later that same day, however, the trial court reconvened when the Mother’s

counsel arrived, and, once again, took up the exception. Broadly interpreting the

answer as an objection, the trial court, from the bench, reversed its initial reasoning

and denied the exception of res judicata “to give everybody their day in court.”

Also from the bench and as reflected in the formal judgment signed on November

14, 2016, the trial court, “on its own motion without a hearing or any reasons

assigned[,]” ordered that “all orders or judgments previously rendered regarding

custody is [sic] hereby annulled and vacated.” On November 17, 2016, the Father

filed his Motion for Expedited Appeal and Order Fixing Return Date. The Father’s

appeal to this court timely followed.

DISCUSSION

The Father assigns two errors to the trial court’s judgment. First, the Father

asserts the trial court erred in denying his peremptory exception of res judicata.

Second, the Father claims the trial court further erred in annulling and vacating all

previous orders or judgments regarding custody of T.A.L. In her response, the

Mother raises two other issues for this court’s review. The first questions whether

the trial court erred in fixing the Father’s exception for hearing prior to ruling on

the Mother’s motion for new trial. The second inquires as to whether the trial

court erred “in assigning oral reasons for denying [the Father’s] Exception of Res

Judicata, by not issuing a ruling on [the Mother’s] Motion for New Trial.”

Before reaching the merits, however, we must first determine whether we

have jurisdiction to hear plaintiff’s appeal.

Appellate Jurisdiction

At the outset we recognize that appellate courts have a duty to examine

subject matter jurisdiction sua sponte, even when the parties, as in this case, do not

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raise the issue. State in Interest of J.C., 16-138 (La.App. 1 Cir. 6/3/16), 196 So.3d

102.

Pursuant to La.Code Civ.P. art. 2083, our appellate jurisdiction extends to

final judgments and to those limited interlocutory judgments for which the law

expressly provides an appeal. A judgment denying an exception of res judicata,

however, “is interlocutory and is not appealable.” Laird v. Laird, 46,459, p. 11

(La.App. 2 Cir. 6/22/11), 69 So.3d 1173, 1179. Therefore, because the judgment

plaintiff appeals herein is neither a final judgment nor an expressly appealable

interlocutory judgment, we lack appellate jurisdiction.

Nevertheless, this does not end our inquiry, as the Louisiana Constitution

confers upon a court of appeal “supervisory jurisdiction over cases which arise

within its circuit.” La.Const. art. 5, § 10(A). “Moreover, the jurisprudence

indicates that the decision to convert an appeal to an application for supervisory

writs is within the discretion of the appellate courts.” Stelluto v. Stelluto, 05-74, p.

7 (La. 6/29/05), 914 So.2d 34, 39. Because this matter involves the custody of an

infant, we find it in the child’s best interest, which is always paramount, to exercise

our supervisory jurisdiction and address the assignments of error raised by the

parties herein.

Those assignments can easily be separated into two sections, the first

addressing the exception of res judicata, and the second addressing the annulment

of the prior custody orders and judgments.

Res Judicata

In his exception of res judicata, the Father asserted the Amended Judgment

signed on September 22, 2016, in accordance with La.R.S. 46:236.5(C)(7), is a

final judgment as to the custody of T.A.L., which precludes the relitigation of

custody issues, absent a change in circumstances. Therefore, according to him, the
6

Mother’s reconventional demand seeking custody of T.A.L. is precluded by the

doctrine of res judicata pursuant to La.R.S. 13:4231, which provides:

Except as otherwise provided by law, a valid and final
judgment is conclusive between the same parties, except on appeal or
other direct review, to the following extent:

(1) If the judgment is in favor of the plaintiff, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of the litigation are extinguished and merged in the
judgment.

(2) If the judgment is in favor of the defendant, all causes
of action existing at the time of final judgment arising out
of the transaction or occurrence that is the subject matter
of the litigation are extinguished and the judgment bars a
subsequent action on those causes of action.

(3) A judgment in favor of either the plaintiff or the
defendant is conclusive, in any subsequent action
between them, with respect to any issue actually litigated
and determined if its determination was essential to that
judgment.

Although the Father is correct in that the Amended Judgment is a final

judgment of the trial court, his analysis is nevertheless flawed because it does not

address the Mother’s motion for new trial, which was timely filed on October 10,

2016, within seven days of the October 3, 2016 mailing of the notice of judgment.4

It has long been established that a timely filed motion for new trial suspends

the operation of a final judgment pending the resolution of the motion. In re

Slaughter-house Cases, 77 U.S. 273 (1869); see also Jabbia v. Sanders, 499 So.2d

1070 (La.App. 3 Cir.), writ denied, 501 So.2d 198 (La.1986). In light of the timely

filed motion for new trial, we find the Father’s exception of res judicata was

premature, and the trial court erred in ruling on the exception prior to acting on the

4
Louisiana Code of Civil Procedure Article 1974 provides:

The delay for applying for a new trial shall be seven days, exclusive
of legal holidays. The delay for applying for a new trial commences to
run on the day after the clerk has mailed, or the sheriff has served, the
notice of judgment as required by Article 1913.
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Mother’s new trial motion. Accordingly, we vacate the trial court’s ruling on the

exception and remand this matter for resolution of the Mother’s motion for new

trial.

We turn now to a discussion of the correctness vel non of the trial court’s

judgment, annulling and vacating all of its previous custody orders and judgments.

Annulment and Vacating of Previous Judgments

After rendering judgment, a trial court, on its own motion, may amend a

final judgment at any time “to alter the phraseology of the judgment, but not its

substance, or to correct errors of calculation.” La.Code Civ.P. art. 1951. It is well

established, therefore, that a judgment may be amended only when the resulting

judgment takes nothing from or adds nothing to the original judgment. Villaume v.

Villaume, 363 So.2d 448 (La.1978).

However, an amendment to a judgment, which adds to, subtracts from, or in

any way affects the substance of the judgment, is considered a substantive

amendment. Safeguard Storage Props., L.L.C. v. Donahue Favret Contractors,

Inc., 10-673 (La.App. 4 Cir. 3/31/11), 60 So.3d 110. Trial courts are prohibited

from making substantive amendments to final judgments on their own motions or

on motion of any party. Daughdrill v. Tenneco Oil, 529 So.2d 104 (La.App. 4 Cir.

1988). Rather, our law recognizes only three ways in which a party may seek to

alter the substance of a final judgment: a timely application for new trial, an action

for nullity, or a timely appeal. Bonaventure v. Pourciau, 577 So.2d 742 (La.App. 1

Cir. 1991).

When none of these procedures are employed, a trial court lacks authority to

make any modifications of substance to a final judgment. Ast v. Ast, 14-1282

(La.App. 3 Cir. 4/1/15), 162 So.3d 720, writ denied, 15-869 (La. 6/5/15), 171

So.3d 952. It follows therefore that, where the trial court does not follow one of
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the three prescribed methods for making a substantive amendment to a final

judgment, the amended judgment is an absolute nullity. Webster v. Boh Bros.

Const. Co., Inc., 603 So.2d 761 (La.App. 4 Cir. 1992).

When the parties fail to raise the issue of absolute nullity of a
judgment either by a new trial or on appeal, it is proper for the
appellate court to vacate the absolutely null judgment and reinstate the
original judgment due to the appellate court’s power “to render any
judgment which is just legal and proper upon the record on appeal.”

Francis v. Lafon Nursing Home of Holy Family, 02-1863, p. 17 (La.App. 4 Cir.

3/19/03), 840 So.2d 1281, 1290-91, writ denied, 03-1373 (La. 9/19/03), 853 So.2d

643 (quoting La.Code Civ.P. art. 2164; Davenport v. Amax Nickel, Inc., 569 So.2d

23 (La.App. 4 Cir.1990)).

In the present case, the trial court twice sought to vacate the Amended

Judgment on its own motion. Because the trial court’s action does not follow any

of the long-prescribed methods for making substantive amendments to a judgment,

we must recognize that the orders vacating and annulling the Amended Judgment

are absolutely nullities. Accordingly, we vacate the orders sua sponte.

The sole issue remaining before us is which judgment to reinstate -- the

Judgment of September 28, 2016 or the Amended Judgment of September 22,

2016. Louisiana jurisprudence provides that, when a trial court signs a judgment

and then signs another, the second judgment is an absolute nullity and without

legal effect. Oreman v. Oreman, 05-955 (La.App. 5 Cir. 3/31/06), 926 So.2d 709,

writ denied, 06-1130 (La. 9/1/06), 936 So.2d 206. As the first judgment signed by

the trial court herein, the Amended Judgment dated September 22, 2016 is the

original judgment of the trial court, and therefore, we hereby reinstate that

judgment.

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DECREE

For the reasons discussed above, we grant writ, vacate the trial court’s

judgment dated September 28, 2016, in its entirety, reinstate the amended

judgment dated September 22, 2016, and remand this matter for hearing on the

Mother’s motion for new trial. The trial court is directed to assess costs after

remand.

WRIT GRANTED; JUDGMENT VACATED AND REMANDED.

10