Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Smith v. Barial

Court of Appeals of Louisiana, Fourth Circuit

December 19, 2018

DONNA M. SMITH
v.
MONIQUE E. BARIAL, ET AL

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2017-09989, DIVISION "E" Honorable Melvin C. Zeno, Judge

          Donna M. Smith PRO SE

          Jeff Landry, Attorney General David G. Sanders, Assistant Attorney General LA DEPARTMENT OF JUSTICE, LITIGATION DIVISION

          COUNSEL FOR DEFENDANTS/APPELLEES, JUDGE MONIQUE E. BARIAL, OFFICE OF RISK MANAGEMENT, JUDICIARY COMMISSION MEMBERS

          Edward W. Trapolin Christopher Whelen IRWIN FRITCHIE URQUHART & MOORE, LLC. COUNSEL FOR DEFENDANTS/ APPELLEES, THE LAW OFFICE OF CHANEL R. DEBOSE AND CHANEL R. DEBOSE

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Paula A. Brown

          PAULA A. BROWN JUDGE

         This matter derives from a petition to annul a Community Property Consent Judgment ("Consent Judgment") involving Plaintiff/Appellant, Donna M. Smith ("Ms. Smith") and her former husband, Thomas Ussin Brown ("Mr. Brown"). In connection with the petition to annul, Ms. Smith filed a Petition for Damages (the "Petition") against Defendants/Appellees, the Law Offices of Chanel R. DeBose and Chanel R. DeBose (collectively, "Ms. DeBose'); Judge Monique Barial ("Judge Barial"); the Office of Risk Management ("ORM"); and Judiciary Commission members, Kelly McNeil Legier, Sandra A. Vujnovich, Michelle A. Beaty, and John Keeling (collectively, the "Judiciary Commission members"). Ms. DeBose filed an exception of prematurity. Judge Barial, the Judiciary Commission members, and ORM filed exceptions of no cause of action. Ms. Smith appeals the judgments sustaining the Defendants/Appellees' respective exceptions of prematurity and no cause of action. For the reasons that follow, we affirm.

         FACTUAL AND PROCEDURAL HISTORY

         This Court previously considered some of the underlying issues raised in this appeal in the matter of Brown v. Brown, 2015-1016 (La.App. 4 Cir. 2/24/16), 187 So.3d 538 ("Brown"). Accordingly, we adopt pertinent facts and the procedural history from Brown in our review of the case sub judice as follows:

Ms. Smith and Mr. Brown were divorced on December 22, 2009. In connection with the partition of community property, a consent agreement was executed on November 6, 2014. At that time, both parties were represented by counsel.[1] Thereafter, a ["Consent Judgment"] was rendered on December 10, 2014.
Ms. Smith, acting pro se, filed a petition to annul the [C]onsent [J]udgment alleging fraud and ill practice on the part of Mr. Brown and duress, coercion and misrepresentation by Ms. Smith's attorney.[2] In response, Mr. Brown filed peremptory exceptions of no cause of action and res judicata, along with a dilatory exception of nonconformity of the petition.
Mr. Brown's exceptions were heard on April 29, 2015.[3] In a judgment dated June 2, 2015, the trial court [Judge Barial] granted the exception of no cause of action and rendered all remaining matters moot. Ms. Smith's appeal followed.

         On appeal, this Court determined that the allegations pled in the petition to annul did not state a cause of action; hence, Judge Barial did not err in granting the exception of no cause of action. Brown, 2015-1016, pp. 4-5, 187 So.3d at 541-2. However, "out of an abundance of caution," we remanded the case to the district court to give Ms. Smith the opportunity to amend her petition to annul to state a cause of action in accord with La. C.C.P. art. 934.[4] Id. at pp. 5-6.

         On April 11, 2016, Ms. Smith filed a motion to set date to file amended petition for annulment of the Consent Judgment. Judge Barial granted the motion, ordering Ms. Smith to file her amended petition on or before May 15, 2016. Judge Barial further ordered that a hearing on the amended petition would be scheduled upon its filing. Ms. Smith failed to file her amended petition by the May 15, 2016 deadline. As a result, Ms. DeBose filed a motion to dismiss the petition to annul. Judge Barial heard argument on the motion to dismiss on March 27, 2017 and orally granted the motion.

         Sometime later, Ms. DeBose filed a motion for status conference, which Judge Barial granted on June 12, 2017 and scheduled for hearing on July 19, 2017. Ms. DeBose alleged in the motion that the written judgment of dismissal had not been signed due to outstanding costs owed to the Orleans Parish Clerk of Court. In a separate filing, on June 12, 2017, Judge Barial also granted Ms. Smith's notice for a suspensive appeal, but denied her request to proceed in forma pauperis without posting a security bond.[5] On July 11, 2017, pursuant to the district court's own motion, Judge Barial signed an order staying further proceedings and continued the status conference without date. The order noted that the district court had been divested of jurisdiction by granting Ms. Smith's appeal.

         On October 16, 2017, Ms. Smith, in proper person, filed the Petition, which is the subject of the present appeal, in another division of Civil District Court for the Parish of Orleans ("CDC"). Ms. Smith claimed she was entitled to damages from Defendants/Appellees for their various acts of fault. Ms. Smith generally alleged that Ms. DeBose engaged in conspiracy, fraud, and collusion with Mr. Brown and Ms. Smith's own attorney, Ms. Sandler, to confect the Consent Judgment. As to Judge Barial, Ms. Smith claimed that Judge Barial improperly disregarded orders from this Court and willfully participated in Ms. DeBose's alleged criminal acts. Ms. Smith contended the Judiciary Commission members were liable for damages, arguing they sanctioned illegal behavior by failing to act on the judicial complaint she had filed against Judge Barial. Ms. Smith further alleged that ORM was vicariously liable for the acts/omissions of Judge Barial and Judiciary Commission members for their refusal to adhere to the rules and laws governing their respective offices.

         In response to the Petition, Ms. DeBose filed an exception of prematurity, motion to stay, and alternatively, motion for security of costs (the "Prematurity Exception"). Ms. DeBose argued Ms. Smith's claims were premature as they emanated from Ms. DeBose's alleged actions in a pending judicial proceeding. Specifically, Ms. DeBose urged that Ms. Smith had filed a previous lawsuit, which was pending at the time ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.