Appealed from the Twenty-Sixth Judicial District Court for
the Parish of Bossier, Louisiana Trial Court No. 157, 444
Honorable Michael O. Craig, Judge
KITCHENS LAW FIRM By: P. Nelson Smith, Jr. Counsel for
B. DUNLAP Counsel for Appellee
MOORE, STONE, and STEPHENS, JJ.
J. Donatto appeals a judgment of the 26th Judicial District
Court, Bossier Parish, that made executory a judgment from
the state of Virginia. We reverse and remand.
plaintiff, Debra C. Holmes-Taylor, filed this suit on
September 28, 2018, in the 26th JDC. She alleged that she had
obtained a judgment against Ms. Donatto in the Hampton
General District Court, Hampton, Va., and that the delay for
appeals had expired. She listed Ms. Donatto's current
address, in Bossier City, and her own, in Hampton, Va., and
attached an affidavit from a Virginia attorney attesting to
all the facts alleged. She also alleged that she was entitled
to judgment under the Uniform Enforcement of Foreign
Judgments Act ("EFJA"), R.S. 13:4241 et seq.
Finally, she attached a copy of the "Warrant in
Debt," a kind of docket or ledger sheet from the Hampton
General District Court. This showed that Ms. Holmes-Taylor
had filed a suit on December 29, 2017, against Ms. Donatto
and three other defendants - a home inspector, an
exterminating company and a real estate agency - for failure
to disclose damage or signs of damage to property in Hampton,
prior to the sale, and that a default judgment had been
rendered against Ms. Donatto (only) on July 6, 2018, for
principal of $25, 000, interest of $92 and court costs of $2,
next document in this slim record is a judgment, filed
October 5, 2018, making the Virginia judgment executory. A
notice of judgment was issued October 10, with service on Ms.
Donatto October 12.
Donatto took the instant devolutive appeal. She raises two
assignments of error. The first urges that the court erred in
making the judgment executory without any showing that Ms.
Donatto received notice of the petition to make judgment
executory, as required by La. R.S. 13:4243 B. The record
supports this contention.
foreign judgment may be made executory against a judgment
debtor in Louisiana either through an ordinary proceeding,
with citation and service to the debtor, La. C.C.P. art.
2541, or through EFJA, which allows notice of the filing of
the petition to be given to the debtor by certified mail, La.
R.S. 13:4243 B. Cajun Beverage Inc. v. American Nat'l
Can Co., 577 So.2d 172 (La.App. 1 Cir. 1991). The
B. Promptly upon the filing of the petition, the foreign
judgment, and the affidavit, the clerk shall send a
notice by certified mail to the judgment debtor at the
address given and shall make a note of the mailing in the
record. The notice shall include the name and address of
the judgment creditor and his attorney, if any. In addition,
the judgment creditor may mail a notice of the filing to the
judgment debtor and may file proof of mailing with the clerk.
Failure to mail notice of filing by the clerk shall not
affect the enforcement proceedings if proof of mailing by the
judgment creditor has been filed. (Emphasis added.)
the clerk shall send a notice of filing of the
petition to the judgment debtor and shall make a
note of this mailing; failure to mail this notice shall not
affect enforcement "if proof of mailing by the judgment
creditor has been filed." On close examination, we are
constrained to find no such note of mailing by the clerk of
court, or proof of mailing by the judgment creditor, in the
instant record. Ms. Holmes-Taylor's petition prayed for
the clerk to mail a certified copy to Ms. Donatto and to make
a note of this in the record, but the clerk's compliance
is simply not shown. There are no court minutes, which might
supply the missing note of evidence.
Holmes-Taylor responds that she complied with every element
of the statute, and argues that there is no requirement that
the judgment debtor actually receive notice of filing,
Morgan Building & Spas Inc. v. Cutrer, 97-0599
(La.App. 1 Cir. 4/8/98), 711 So.2d 777. We agree that she
prayed for the clerk to send a notice of filing by certified
mail to the judgment debtor, and that the statute does not
require actual receipt of this notice by the judgment.
However, the statute plainly requires the clerk to send the
notice of filing by certified mail, and to make a note of
this mailing. The instant record simply does not show
compliance with these requirements.
Holmes-Taylor further argues Ms. Donatto's only remedy is
that stated in La. R.S. 13:4244: the judgment debtor must
file a contradictory motion and prove that either (1) the
foreign judgment is being appealed or has been stayed, or (2)
any ground exists that would stay the execution of the
judgment in Louisiana. Harrah's Club v. Mijalis,
557 So.2d 1142 (La.App. 2 Cir.), writ denied, 559
So.2d 1387 (1990); North Amer. Charitable Servs. Inc. v.
ADSA Inc., 35, 523 (La.App. 2 Cir. 1/23/02), 805 So.2d
1226. Ms. Donatto did not allege that the Virginia judgment
was pending appeal or had been stayed, or that execution in
Louisiana would be improper; she merely alleged that the
clerk did not ...