Carmen Bergeron Mosing v. Sharon Mosing Miller

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

20-632 consolidated with 20-633

CARMEN BERGERON MOSING, ET AL.

VERSUS

SHARON MOSING MILLER, ET AL.

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APPEAL FROM THE
FIFTEENTH JUDICIAL DISTRICT COURT
PARISH OF LAFAYETTE, NO. 2020-1625
HONORABLE LAURIE A. HULIN, DISTRICT JUDGE

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SHANNON J. GREMILLION
JUDGE

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Court composed of Shannon J. Gremillion, Van H. Kyzar, and Sharon Darville
Wilson, Judges.

AFFIRMED.

Jack M. Alltmont
Sessions, Fishman, Nathan & Israel, LLC
400 Poydras Street, Suite 2550
New Orleans, LA 70130
(504) 582-1500
COUNSEL FOR PLAINTIFF/APPELLANT:
Carmen Bergeron Mosing
Carmen Bergeron Mosing obo Chloe Bella Mosing
Carmen Bergeron Mosing obo Chase Dupre Mosing

Richard C. Stanley
Eva J. Dossier
Stanley, Reuter, Ross, Thornton & Alford, LLC
909 Poydras Street, Suite 2500
New Orleans, LA 70112
(504) 523-5180
COUNSEL FOR PLAINTIFF/APPELLANT:
Carmen Bergeron Mosing
Carmen Bergeron Mosing obo Chloe Bella Mosing
Carmen Bergeron Mosing obo Chase Dupre Mosing

Daniel J. Finch
Christopher B. Bailey
Shawn A. Carter
Randazzo Giglio & Bailey, LLC
900 E. Saint Mary Boulevard, Suite 200
Lafayette, LA 70503
(337) 291-4900
COUNSEL FOR DEFENDANT/APPELLEE:
Sharon Mosing Miller

Gary McGoffin
Durio, McGoffin, Stagg & Ackermann
220 Heymann Boulevard
P.O. Box 51308
Lafayette, La 70505
(337) 233-0300
COUNSEL FOR DEFENDANTS/APPELLEES:
Steven Brent Mosing
Michael Frank Mosing

GREMILLION, Judge.

This action filed by plaintiff/appellant, Carmen Bergeron Mosing,

individually and on behalf of her minor children, Chloe Bella Mosing and Chase

Dupre Mosing (Carmen), which she termed a “protective lawsuit,” demands the

annulment of a judgment of homologation in her husband’s succession. The named

defendants/appellees, Sharon Mosing Miller, Steven Brent Mosing (Brent), and

Michael Frank Mosing, interposed exceptions of lis pendens and exceptions of

collateral attack, in which they asserted that the present action was barred because

Carmen had filed a petition for damages against them in her husband’s succession.

The trial court maintained the exceptions and dismissed Carmen’s petition. For the

reasons that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

Carmen’s late husband, Timothy Dupre Mosing, perished in a motorcycle

accident in 2008. His sister, Sharon, was named executor of his estate. Timothy’s

family developed a highly successful oilfield services business that Timothy

eventually inherited a share in, along with the family’s other enterprises.

According to the allegations in Carmen’s petition, she had filed a petition for

damages in Timothy’s succession proceedings against Sharon alleging that she

breached her fiduciary duties as administratrix, which caused damages to Carmen

and her children.1 Brent and Michael were also named defendants in the succession.

On March 19, 2019, Sharon obtained a judgment of homologation in Timothy’s

succession and interposed an exception to the petition for damages that argued that

the judgment of homologation constitutes res judicata.

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A separate appeal pending before this court addresses actions taken in the succession.
Succession of Timothy Dupre Mosing, 21-9 (La.App. 3 Cir. ___/___/21), ____So.3d ____.

Also according to Carmen’s petition in this matter, the judgment of

homologation is subject to annulment pursuant to La.Code Civ.P. art. 2004, which

provides for the annulment of a judgment obtained by fraud or ill practices; “More

specifically, if Sharon had the judgment entered with the intention of precluding the

Petition for Damages, Sharon hid and failed to even suggest her intention to claim

such preclusive effect.”

Sharon, Brent, and Michael filed exceptions of lis pendens and an exception

of collateral attack; Brent and Michael also filed exceptions of no cause of action..2

They argued that the petition to annul arises from the same transaction or occurrence

as the petition for damages: the actions of the executrix in performance of her

fiduciary duties. According to the exceptions of lis pendens, the parties were

involved in the same capacities and the matter involved the same transaction or

occurrence. The exception of collateral attack asserted that the filing of the matter

as a “protective lawsuit” that conditioned annulment of the judgment of

homologation on whether it constituted res judicata represented a prohibited use of

the petition for annulment. The trial court maintained all the exceptions. This appeal

followed.

ASSIGNMENTS OF ERROR

Carmen assigns the following errors:

1. The trial court erred in dismissing the Petition to Annul pursuant to
lis pendens.

2. The trial court erred in dismissing the Petition to Annul pursuant to
the exception of “collateral attack.”

3. The trial court erred in dismissing the claims against Brent and
Michael for failure to state a cause of action.

2
Other exceptions were filed, but they are not relevant to this appeal.

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4. The trial court erred in declining jurisdiction, then granting the
exception of no cause of action on the merits.

5. In the alternative, the trial court erred in dismissing, rather than
transferring, the Petition to Annul.

ANALYSIS

Annulment of judgments

Louisiana Code of Civil Procedure Article 2004 provides:

A. A final judgment obtained by fraud or ill practices may be
annulled.

B. 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.

C. The court may award reasonable attorney fees incurred by the
prevailing party in an action to annul a judgment on these grounds.

Louisiana jurisprudence has established a two-part test to determine whether a

judgment should be annulled pursuant to Article 2004: “(1) when the circumstances

under which the judgment was rendered show the deprivation of legal rights of the

litigant who seeks relief, and (2) when the enforcement of the judgment would be

unconscionable and inequitable.” Kem Search, Inc. v. Sheffield, 434 So. 2d 1067,

1070 (La.1983).

[T]he article is not limited to cases of actual fraud or intentional
wrongdoing, but is sufficiently broad to encompass all situations
wherein a judgment is rendered through some improper practice or
procedure which operates, even innocently, to deprive the party cast in
judgment of some legal right, and where the enforcement of the
judgment would be unconscionable and inequitable.

Id.

When conduct “prevents an opposing party from having an opportunity to

appear and assert a defense,” that conduct has caused a deprivation of legal rights.

Id. A deprivation of a legal right also occurs when “the litigant appears in court but

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is prevented from participating in a fair and impartial proceeding due to ill practices

of another party.” Belle Pass Terminal, Inc. v. Jolin, Inc., 01-149, p. 6 (La.

10/16/01), 800 So.2d 762, 767. However, matters irrelevant to the basis of a

judgment will not result in its annulment. Ward v. Pennington, 523 So.2d 1286

(La.1988).

The decision to annul a judgment pursuant to La.Code Civ.P. art 2004 lies

within the discretion of the trial court. Wright v. La. Power & Light, 06-1181 (La.

3/9/07), 951 So.2d 1058. The decision regarding a petition to annul is reviewed by

the courts of appeal to determine not whether the trial court’s factual conclusions

were right, but whether they were reasonable. Belle Pass Terminal, 800 So.2d 762.

Exceptions of lis pendens

The exception of lis pendens is declinatory. La.Code Civ.P. art. 925.

Louisiana Code of Civil Procedure article 531 governs the exception. It reads:

When two or more suits are pending in a Louisiana court or
courts on the same transaction or occurrence, between the same parties
in the same capacities, the defendant may have all but the first suit
dismissed by excepting thereto as provided in Article 925. When the
defendant does not so except, the plaintiff may continue the prosecution
of any of the suits, but the first final judgment rendered shall be
conclusive of all.

The article establishes a three-prong test: 1) “there must be two or more suits

pending[,]” 2) “the suits must involve the same transaction or occurrence[,]” and 3)

“the suits must involve the same parties in the same capacities.” Travcal Prop., LLC

v. Logan, 10-323, p. 4 (La.App. 3 Cir. 10/6/10), 49 So.3d 466, 469. There exists no

bright-line test for determining whether two pending suits arise out of the same

transaction or occurrence, and the fact that the pending suits seek different relief

does not preclude such a finding. Patten/Jenkins BR Popeyes, L.L.C. v. SRG Baton

Rouge II, L.L.C., 19-1160 (La.App. 1 Cir. 6/16/20), 306 So.3d 453. The burden of

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proof in an exception of lis pendens lies with the exceptor. Robinson v. Robinson,

474 So.2d 46 (La.App. 3 Cir. 1985). If the grounds for the exception do not appear

in the pleadings, evidence may be introduced to support or oppose the exception. Id;

La.Code Civ.P. art. 930.

The defendants’ exceptions of lis pendens

Sharon, Brent, and Michael argued that the petition to annul arose from the

same transaction or occurrence—Sharon’s administration of Timothy’s estate—as

the petition for damages filed in Timothy’s succession. Because the separately-filed

petition to annul and the petition for damages arose from the same transaction or

occurrence and involved the same parties in the same capacities, they argued, the

petition to annul, as the suit more recently filed, must be dismissed pursuant to lis

pendens. The trial court agreed with the defendants.

Carmen points to this court’s decision in Succession of Skye, 364 So.2d 1357

(La.App. 3 Cir. 1978) to support her position that the matter should not be dismissed.

We distinguish Skye from this matter because the plaintiff in Skye had not filed a

previous demand in her mother’s succession. Skye might support Carmen’s

proposition that fraud or ill practices resulted in the homologation—a question we

do not reach here—but it does not stand for the proposition that Carmen’s separate

petition to annul is not subject to an exception of lis pendens. Rather, the trial court

in Skye found for the defendants in the annulment suit after trial.

Carmen also argues that the defendants failed to sufficiently support their

exceptions with evidence and that, even if they had, lis pendens does not apply to

this matter because they do not arise from the same transaction or occurrence. The

petition for damages involves breaches of Sharon’s fiduciary duties as executrix,

while the petition to annul involved Sharon’s actions and those of her attorney in

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promising that they would not seek homologation of the amended tableau of

distribution without first notifying Carmen’s attorney yet proceeded with

homologation without notice.

In support of their exceptions, the defendants filed the judgment of

homologation and tableau of distribution. No other evidence was adduced. But

Carmen’s petition to annul makes clear on its face that the annulment proceeding

and the petition for damages arise from the same transaction or occurrence, Sharon’s

administration of the estate. Specifically, Carmen alleged: Sharon was executrix of

the succession (¶ 7); Carmen filed a petition for damages within the succession (¶8);

and Carmen supplemented her petition for damages to name Brent and Michael as

defendants (¶ 9). Paragraph 15 of the petition to annul alleges that Sharon concealed

their intention to obtain the judgment of homologation, which represents a function

of the succession representative pursuant to La.Code Civ.P. art. 3197.

The same parties have been named defendants in this proceeding as in the

petition for damages, and they and Carmen occupy the same capacities. Accordingly,

we find no error in the trial court’s ruling.

Exception of collateral attack

Defendants also advance an exception of collateral attack, which the trial court

also maintained. This exception asserted that Carmen’s action to annul the judgment

of homologation should not have been brought in a separate proceeding. Louisiana

Code of Civil Procedure Article 2004 does not specify the manner in which an action

to annul must be brought. Comment (d) recognizes jurisprudence to the effect that

such an action must be brought directly and not collaterally.

Because we affirm the trial court’s dismissal of the action on grounds of lis

pendens, we find that this exception has been rendered moot. The basis of this

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exception essentially mirrors the basis of the exception of lis pendens, given the

pending petition for damages field in the succession.

Exception of no cause of action

Brent and Michael also filed exceptions of no cause of action, which the trial

court also maintained. We find that these exceptions are also rendered moot by the

maintenance of the exceptions of lis pendens.

DECREE

The judgment of the trial court is affirmed. All costs of this proceeding are

taxed to plaintiff/appellant, Carmen Bergeron Mosing.

AFFIRMED.

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