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Wilkinson v. Parker

Court of Appeals of Louisiana, Fifth Circuit

December 27, 2018

THOMAS G. WILKINSON
v.
KAREN PARKER

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 779-517, DIVISION "D" HONORABLE SCOTT U.SCHLEGEL, JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLANT, THOMAS G. WILKINSON Roland A. Ditta

          COUNSEL FOR DEFENDANT/APPELLEE, KAREN PARKER Daniel E. Broussard, Jr.

          Panel composed of Judges Fredericka Homberg Wicker, Jude G. Gravois, and Marc E. Johnson

          FREDERICKA HOMBERG WICKER JUDGE

         FHW

         JGG

         MEJ

         This case is before us for review of a May 22, 2018 judgment in the Twenty-Fourth Judicial District Court sustaining an Exception of Lack of Jurisdiction Over the Subject Matter raised by defendant/appellee, Karen Parker. For the following reasons we reverse the judgment of the state district court and remand the matter for further proceedings consistent with this opinion.

         BACKGROUND

         On February 25, 2013, the United States District Court of the Eastern District of Louisiana imposed judgment against appellant, Thomas Wilkinson, and appellee, Karen Parker, who entered guilty pleas in connection with a federal criminal case and were sentenced.[1] A specific condition of both appellant and appellee's sentences was restitution in the amount of $160, 430.15[2] to the government of Jefferson Parish Louisiana (Jefferson Parish).[3] Appellant and appellee, along with two co-defendants, were each found to be joint and severally liable for the full restitution amount, $160, 430.15.[4] On January 25, 2017, the United States Department of Justice executed a Certificate of Release of Lien Imposed Under the Mandatory Victims Restitution Act of 1996 in favor of appellant, thereby canceling the lien issued in the Eastern District Court's judgment.

         On January 11, 2018, appellant filed a petition in the Twenty-Fourth Judicial District Court alleging that the virile portion of restitution he owed to Jefferson Parish as a result of his federal conviction was $66, 997.39; however, he averred that he paid $97, 426.79 in restitution, "approximately $30, 431.40 over and above his virile share."[5] Therefore, appellant sought contribution from appellee in the amount of $30, 431.40 along with legal interest, proceeding costs, and general and equitable relief, arguing that she failed to pay $30, 431.40 of her $40, 107.58 virile portion in restitution owed to Jefferson Parish.

         On April 17, 2018, appellee filed an Exception of Lack of Jurisdiction Over the Subject Matter in the state district court in which she alleged appellant sought to alter, modify, or amend a judgment rendered in a federal criminal proceeding, which she argued was outside of the state district court's jurisdiction. On the same day, appellee filed a memorandum in support of her exception in which she further alleged that appellant's petition sought to require appellee to pay more in restitution than she was sentenced to pay by the sentencing judge and argued that the decision concerning the amount of restitution remained with the sentencing federal court and not with the state district court.[6] The state district court set a hearing on the exception for May 22, 2018.

         Appellant filed an opposition to the exception in which he argued that the state district court is the proper forum in which to seek contribution. He maintained that he was not seeking to change, modify, or adjust the amount of restitution ordered by the federal court, but rather was seeking to recover appellee's virile share of the ordered restitution as he had paid both his virile share and the vast portion of hers. Appellant specifically referenced the clause contained in all four restitution orders finding appellee to be "joint and severally" liable with her co-defendants for payment of the $160, 430.15 restitution to Jefferson Parish as the basis for his position that appellee is responsible for a one-fourth virile portion, or $40, 107.53, of the aforementioned restitution amount. Therefore, appellant argued that the present case is an action for contribution among solidary obligors and not an actor to alter or amend the federal court sentence and restitution order.

         On May 22, 2018, the state district court sustained appellee's Exception of Lack of Jurisdiction Over the Subject Matter and dismissed the matter assessing costs against appellant. The court found that it lacked subject matter jurisdiction because it deemed the issue to be a federal criminal matter in which the federal court judge could "waive or not waive restitution at any given time from a particular party." The court further stated, "There's apparently a schedule that that judge authorized. ...


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