FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2012-10478,
DIVISION "E" Honorable Clare Jupiter, Judge
Kearney S. Loughlin ATTORNEY AT LAW FOR PLAINTIFFS/APPELLANTS
R. Nieset, Jr. Kristopher M. Gould Jade E. Ennis PORTEOUS,
HAINKEL & JOHNSON, LLP FOR DEFENDANT/APPELLEE
composed of Judge Rosemary Ledet, Judge Regina Bartholomew
Woods, Judge Paula A. Brown
A. BROWN JUDGE
Kearney Loughlin ("Mr. Loughlin") and Terri
Loughlin ("Mrs. Loughlin"), seek review of the
district court's April 5, 2016 judgment in favor of
Appellee, United Service Automobile Association
("USAA"), dismissing, with prejudice,
Appellants' "Petition for Nullity of
reasons discussed below, we find the Petition is barred by
prescription; furthermore, we find no abuse of discretion in
the district court's denial of the Petition.
AND PROCEDURAL HISTORY
2005, Mr. Loughlin and members of his family filed suit
against USAA, arising from property damage caused by
Hurricane Katrina to a family home owned by Mr. Loughlin, his
mother, and his sister. At the time of Hurricane Katrina, Mr.
and Mrs. Loughlin, lived in an apartment in the home.
Throughout the lawsuit, Mr. Loughlin was both a plaintiff and
counsel of record. Additionally, for a period of time, Mrs.
Loughlin was also a plaintiff and counsel of record.
the litigation, the Loughlins were found in contempt of court
by district court Judge Nadine Ramsey ("Judge
Ramsey"). The contempt judgment was based upon alleged
misrepresentations regarding the service of certain documents
that had been filed by USAA in the underlying lawsuit. The
contempt judgment was appealed to this court and affirmed in
Talton v. USAA Casualty Ins. Co., 06-1513, 07-1414,
(La.App. 4 Cir. 3/19/08), 981 So.2d 696, writ
denied, 08-0837 (La. 6/6/08), 983 So.2d 923
("Talton "). In Talton, the Loughlins
argued that the district court erred in finding them in
contempt and assessing them a fine of $1, 000.00.
Specifically, they argued the proper procedures, as outlined
in La. C.C.P. art. 225, were not followed and asserted the
district court had previously found them not in contempt of
court. This Court affirmed the district
court's judgment, in part, and held:
After reviewing the trial court's judgment and
the transcript attached thereto, we find that the
trial court found the Loughlins in direct contempt for the
three misrepresentations. The burden of proof in a civil
contempt proceeding is by a preponderance of the evidence and
appellate review is the manifestly erroneous standard.
Lang v. Asten, Inc., 04-1665, p. 12 (La.App. 4 Cir.
3/30/05), 900 So.2d 1031, 1039. In accordance with La. C.C.P.
art. 223, the trial court rendered a judgment that recited
the facts constituting the contempt, adjudged the Loughlins
guilty, and specified the punishment imposed. The trial court
was not manifestly erroneous in its finding. However, in
light of the direct contempt, La. R.S. 13:4611 proscribes a
penalty less than that which the trial court imposed. Because
the trial court assessed the maximum fine for constructive
contempt, we will assess the maximum fine permitted for
direct contempt: $200.00 each for a total of $400.00.
Talton, 06-1513, 07-1414 at pp. 26-27, 981 So.2d at
713-14 (footnote omitted) (emphasis added).
2008, USAA's trial attorney, Tim Schafer ("Mr.
Schafer") filed a disciplinary complaint with the Office
of Disciplinary Counsel ("ODC") against the
Loughlins. The ODC brought formal charges against the
Loughlins in 2011. As part of the proceeding, Judge Ramsey
was deposed on November 9, 2011. Ultimately, the ODC charges
November 2012, the Loughlins filed a "Petition for
Nullity of Judgment". They alleged they recently discovered
evidence that the contempt judgment was procured by fraud or
ill practices. Judge Ramsey was also deposed on December
17, 2014, in relation to the Petition.
filed peremptory exceptions of prescription, no cause of
action, and no right of action, along with a motion for
sanctions in response to the Loughlins' Petition. At the
hearing on the exceptions, no evidence was introduced; and no
testimony was presented. On May 20, 2013, the district court
granted USAA's exceptions, but denied the motion for
sanctions. The Loughlins sought review, and this Court in
Loughlin v. United Servs. Auto. Ass'n., 13-1285
(La.App. 4 Cir. 6/4/14), 144 So.3d 113, reversed and remanded
for further proceedings.
remand, a two-day bench trial was held on September 2 and 3,
2015. Mrs. Loughlin, Mr. Loughlin, Judge Ramsey, and Mr.
Schafer testified. The following evidence and testimony were
adduced at trial:
Loughlin testified that the underlying suit was for damages
against USAA for property damages suffered during Hurricane
Katrina; she was a plaintiff and counsel of record in the
suit. Mrs. Loughlin testified she was dismissed as a
plaintiff in May 2006, and she purported she was no longer
counsel of record as of June 23, 2006.
Loughlin acknowledged she was served, on June 8, 2006, with
two documents: a "Motion for Order (1) Prohibiting
Plaintiffs from Contesting the 'Chuck Collins'
Appraisal; (2) Finding Plaintiffs in Contempt of Court; and
(3) Casting Plaintiffs for Expenses and Fees" and a
"Memorandum in Opposition to Plaintiffs' Motion to
Dismiss Without Prejudice." She marked, on the
documents, the date and time she received them.
Loughlin recalled Mr. Loughlin was in court, on June 23,
2006, on a separate matter. He called and told her that when
he had stopped by Judge Ramsey's courtroom to check on
the things she was served with, he was told something was set
for hearing that morning-June 23rd. Mrs. Loughlin
explained to Mr. Loughlin she was never served with anything
setting a hearing for that morning, and he responded that he
would tell the court.
June 23rd hearing was moved to June 29, 2006. Mrs.
Loughlin testified that before the June 29th
hearing, she reviewed the documents that had been served on
her, and she noticed a June 23rd hearing date.
29th, Mrs. Loughlin appeared at the hearing. The
court addressed USAA's motion for contempt for failure of
the Loughlins to appear at the June 23rdhearing.
In open court, Judge Ramsey ruled in favor of USAA and denied
USAA's motion for contempt, sanctions, and fees. The
written judgment was signed on July 17, 2006.
29, 2006, after the hearing, Judge Ramsey requested all the
parties to return to her chambers. According to Mrs.
Loughlin, Judge Ramsey examined the original documents and
concluded that her staff had made a mistake by failing to
fill in the correct order for the rule to show cause. Mrs.
Loughlin testified Judge Ramsey requested, at the meeting,
the Loughlins get someone to represent them on further
trial, the parties stipulated that the order setting a
hearing date for the rule to show cause on the Motion for
Order was blank. Additionally, Mrs. Loughlin testified
the Memorandum in Opposition to Plaintiffs' Motion to
Dismiss had an order setting a hearing date for June 23,
2006. Mrs. Loughlin explained, however, she did not notice it
on June 8, 2006, because it was unusual for a memorandum to
be set for a hearing.
6, 2006, USAA filed a "Motion for Expedited
Hearing/Status Conference" requesting the district court
to hear several issues, including the contempt
issue. The hearing on the motion was set for
August 4th, but moved to August 18, 2006. A letter
sent by Mr. Schafer to Judge Ramsey's law clerks and
copied to Mr. Loughlin, reflected the rescheduling of the
August 4th date; it did not reference the contempt
issue. Mrs. Loughlin further testified that the contempt
motion had been denied by Judge Ramsey on July 17, 2006, and
she was unaware a re-urged motion for contempt had been filed
by USAA or raised by the court, sua sponte, after
August 18, 2006, Attorney Sharonda Williams ("Ms.
Williams") appeared at the hearing, but the Louglins
were not present. At the hearing, Judge Ramsey ruled on
several issues requested in the motion for expedited hearing,
including the contempt issue. The transcript of this hearing,
which was introduced into evidence, only reflected Judge
Ramsey's ruling. The transcript, provided in pertinent
Regarding the motion for contempt filed by USAA, the Court
finds the plaintiff [sic] in contempt and orders that they
pay a fine of $1, 000.00.
I mean, I find it incredulous that two attorneys did not
notice. When you look at the pleading - - I mean, there are
short pages in between. The last page clearly shows that
there were service instructions to them.
. . . Mr. Loughlin first came in and told me that there was
no service, and then Mrs. Loughlin came in and told me that
there was service but there was a blank page there. And I
thought something was very odd about that. I still can't
prove that anything was done to change that page. But
clearly, she did have notice. She knew enough to mark the
date and time that the document was brought to her house. . .
Loughlin testified she and Mr. Loughlin reviewed the proposed
judgment prepared by Mr. Schafer, and they had many
objections to it. The first line of the proposed judgment
indicated the contempt issue was brought by the district
court's own motion. Mrs. Loughlin stated she was unaware
Judge Ramsey had motioned for them to be held in contempt.
Mrs. Loughlin objected to the reference that they were
present at the August 18, 2006 hearing. Additionally, Mrs.
Loughlin testified she objected to the inclusion of the
language that Judge Ramsey found that they made
misrepresentations. She explained the objection in an
exchange during cross-examination which provided:
Q: You do say, though, that the bold lines that scratch out
the words 'the Court finds that misrepresentations of
material fact regarding service of notice of hearing were
made by Kearney L. Loughlin and Terri B. Loughlin.'
Q: Okay, you scratched that out?
Q: Why did you do that?
A: Because Sharonda said she didn't find that we
Loughlin set forth their complaints to the proposed judgment
in a letter to Mr. Schafer dated August 21,
2006. Mr. Loughlin wrote in pertinent part:
With respect to the contempt judgment, please remove from the
first paragraph all reference to a motion for contempt
brought either by the Court or by USAA. There was no such
motion for contempt and no trial of a rule for contempt as
required by La. Code Civ. Pro. art. 225. Nor was a rule to
show cause setting a motion for contempt ever served.
Moreover, there was never a rule to show cause stating
"the facts alleged to constitute the contempt" as
required by La. Code Civ. Pro. art. 225 (A).
Please also remove the second paragraph the appearance of
Sharonda Williams on behalf of the plaintiffs. Plaintiffs did
not engage Ms. Williams nor anyone else to appear on their
behalf regarding a trial for contempt for which there was no
motion, no rule, and no service.
Please remove the third paragraph of the proposed judgment.
Again, there was no motion for contempt nor a rule for
contempt. Accordingly, plaintiffs did not present any
evidence. . . .
. . . Ms. Williams informs me that the language 'the
Court finds misrepresentations of material facts regarding
service of notice of hearing were made by Kearney L. Loughlin
and Terri B. Loughlin' do not reflect the findings of the
Court and should be removed.
September 12, 2006, a contempt judgment was signed by Judge
Ramsey; and it provided in pertinent part:
This matter was considered by the Court on its own motion and
in connection with the motion of defendant, United Services
Automobile Association, for an expedited hearing/status
conference, which was deferred ...