MIDLAND FUNDING, LLC. v. CADY No. 47,854-CA.
110 So.3d 656 (2013)
MIDLAND FUNDING, LLC., Plaintiff-Appellant, v. Bennett CADY, Defendant-Appellee.
Court of Appeal of Louisiana, Second Circuit.
February 27, 2013.
Bennett Cady, In Proper Person.
Before BROWN, MOORE and SEXTON (Pro Tempore), JJ.
Midland Funding LLC appeals an order denying its motion to nullify an ex parte order in which the Shreveport City Court "vacated" a prior summary judgment against Bennett Cady for the balance due on a MasterCard account. For the reasons expressed, we reverse and render.
Midland, which acquired certain Master-Card accounts of First Bank & Trust, sued Cady in Shreveport City Court for the balance due on his account, $1,225.47, plus contractual interest and attorney fees.
On October 25, 2011, Cady filed a "motion and memorandum to vacate judgment." In support, he cited FRCP 60 ("Relief from a judgment or order") and three federal cases from the Northern District of Ohio which allegedly enjoined Midland from using false and misleading affidavits to collect debts.
The city court granted this motion ex parte, writing on the bottom of the order, "Judgment vacated. This 17th November 2011. Set case for trial on merits."
On December 15, 2011, Midland filed the instant motion to nullify the judgment to vacate. Midland contended that it never received notice of Cady's "motion to vacate"; even if this filing could be construed as a motion for new trial or petition for nullity, it was untimely; and the city court lacked jurisdiction once Cady appealed. The city court ultimately set Midland's rule for hearing on February 24, 2012, at 1:30 p.m.
At 1:30 on February 24, Cady appeared pro se in city court but Midland's counsel did not. According to the transcript, the court stated that all parties received notice, but it was already 1:44 p.m. and "the court has not been notified of any express reason why there is a delay or absence." The court therefore denied Midland's motion to nullify.
Midland took a writ, which this court remanded to the city court for perfection as an appeal.
Midland now raises one assignment of error: the city court erred in granting Cady's motion to vacate the underlying judgment. It shows that La. C.C.P. art. 963 permits an ex parte judgment if it is "one to which the mover is clearly entitled without supporting proof," and argues that a court cannot nullify a prior judgment without notice and a hearing. State v. Babineaux,
Cady has filed no brief.
Midland's position has merit. As noted above, this court dismissed Cady's appeal of the summary judgment and Cady did not seek supervisory relief; that judgment is therefore final and we will not revisit it. Morneau v. American Oil Co., supra; Sheets Family Partners-Louisiana, Ltd. v. Inner City Refuge Dev. Corp., supra. After the appeal was taken, the city court lacked jurisdiction to amend the judgment or entertain a motion for new trial. La. C.C.P. art.2088; Bourgeois v. Kost, 2002-2785 (La.5/20/03),
Cady attempted to modify or avoid the judgment by filing a document called a "motion and memorandum to vacate judgment." The Code of Civil Procedure does not recognize a motion to "vacate" a judgment. Bourgeois v. Kost, supra. Cady's filing must therefore be interpreted by its substance rather than its caption. La. C.C.P. art. 865; Smith v. Cajun Insulation Inc.,
The jurisprudence has established the following criteria for an action in nullity: (1) the circumstances under which the judgment was rendered showed the deprivation of legal rights of the litigant seeking relief, and (2) the enforcement of the judgment would have been unconscionable and inequitable. Wright v. Louisiana Power & Light, 2006-1181 (La.3/9/07),
Discovery of evidence which could have been presented at the original trial usually cannot serve as the basis for an action for nullity. Gladstone v. American Auto. Ass'n,
On close examination, we find the city court abused its great discretion in
Perhaps most importantly, this record does not show that in the original city court proceeding Cady was deprived of legal rights or of any opportunity to appear or present a defense. Perhaps unwisely, Cady elected to proceed without legal representation in city court; he apparently offered no competent summary judgment evidence to dispute Midland's properly supported motion, and his motion for appeal was untimely. While he did not present much of a defense, this was not because of fraud, ill practices or other circumstances depriving him of his rights; it was because of his own choice to act pro se. On this record, we perceive not one scintilla of evidence that enforcing the original judgment would be inequitable or unconscionable. Cady has not shown that he is entitled to nullity under Art. 2004.
Finally, we note that the city court granted Cady's motion to "vacate" the summary judgment ex parte, without notice to Midland or a hearing. A judgment of nullity without notice and hearing is, itself, a nullity. Halley v. Guerriero,
For these reasons, the order of November 17, 2011, vacating the summary judgment is reversed and vacated; the summary judgment of July 28, 2010, is hereby reinstated. All costs in the city and appellate court are to be paid by the defendant, Bennett Cady, to the extent permitted by La. C.C.P. art. 5186.
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