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Schiff v. Pollard

Court of Appeals of Louisiana, Fourth Circuit

September 12, 2019

ROBERT ANDREW SCHIFF AND N.O.W. PROPERTIES, L.L.C.
v.
LIDIA POLLARD

          APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2014-06056, DIVISION "L" Honorable Kern A. Reese, Judge.

          Henry A. King Timothy S. Madden Nicole M. Babb KING & JURGENS COUNSEL FOR PLAINTIFF/APPELLANT

          W. Patrick Klotz KLOTZ & EARLY Mark P. Glago Jatavian L. Williams Katherine E. May THE GLAGO LAW FIRM, LLC COUNSEL FOR DEFENDANT/APPELLEE

          Court composed of Judge Edwin A. Lombard, Judge Joy Cossich Lobrano, Judge Sandra Cabrina Jenkins

          Edwin A. Lombard, Judge.

         This devolutive appeal arises from a garnishment proceeding initiated by the appellee Lidia Pollard against the appellant Schiff Family Holdings, LP a Nevada limited partnership of which Robert Schiff is a member. The garnishment proceeding is an attempt to collect on a judgment rendered in favor of Ms. Pollard and against Robert Schiff, her former business partner in N.O.W. Properties, L.L.C. After review of the record and arguments of the parties in light of the applicable law, we find that the district court erred when, through garnishment under a writ of fieri facias, it ordered the New Orleans Sheriff to seize partnership assets of the non-resident third person garnishee, Schiff Family Holdings Nevada Limited Partnership (the Partnership Garnishee) located in Nevada in the amount of $54, 446.22, plus 6% Sheriff's commission, interest, and court costs to fully satisfy a Louisiana money judgment against a non-resident limited partner, Robert Andrew Schiff (the Judgment Debtor), as requested by the judgment creditor, Lidia Pollard (the Judgment Creditor).

         Relevant Facts and Procedural History

         In the aftermath of Hurricane Katrina, Ms. Pollard, a Louisiana resident and real estate renovator, and Mr. Schiff, a non-resident of Louisiana and real estate investor, entered into a limited liability partnership (N.O.W. Properties, L.L.C.) with the intention to purchase, renovate, and sell properties. The business venture failed, resulting in a successful breach of contract lawsuit filed by Ms. Pollard wherein judgment was rendered on August 2, 2013, in favor of Ms. Pollard and against Ms. Schiff and N.O.W. Properties, L.L.C. Mr. Schiff appealed the district court judgment and, while the appeal was pending, filed an action in district court to nullify the judgment. On appeal, this court amended the judgment and, as amended (awarding Ms. Pollard a total amount of $684, 824.73), affirmed the district court judgment. Pollard v. Schiff, 2013-1682, 2014-0853 (La.App. 4 Cir. 2/4/15), 161 So.3d 48.

         After Mr. Schiff's nullity action was defeated, Ms. Pollard (the prevailing party) filed a motion for attorney fees and costs on September 12, 2017. The district court awarded $54, 466.22, plus interest, Sheriff's commission, and costs, against Mr. Schiff to Ms. Pollard, the judgment creditor. In an effort to collect on this judgment, Ms. Pollard sent garnishment interrogatories to the Schiff Family LP in Nevada. Barbara Schiff, a member of the Schiff Family LP, timely answered the interrogatories, denying that the Schiff Family LP had any of Robert Schiff's property in its possession. Ms. Pollard filed a Motion to Traverse Answers to Garnishment Interrogatories, asserting that Mr. Schiff was a limited partner in the Schiff Family LP and, therefore, Schiff Family LP was in possession of Mr. Schiff's property and subject to garnishment.

         At the district court hearing on Ms. Pollard's motion, counsel for the Schiff Family LP asserted that the Schiff Family LP could not be subject to garnishment proceedings because Mr. Schiff's partnership interest in the Schiff Family LP did not entitle him to automatic or mandated disbursements and he had received no disbursements since the filing of Ms. Pollard's garnishment proceeding.[1]

         In response, Ms. Pollard submitted a copy of the Schiff Family LP 2017 tax return indicating a capital balance of $20, 443, 000.00 and that Mr. Schiff held a 2.67% partnership interest in the Schiff Family LP. Based on this evidence, the district court entered a judgment on November 13, 2018, granting Ms. Pollard's Motion to Traverse and ordering the Schiff Family LP to pay the total amount of $54, 446.22, plus 6% Sheriff's Commission, plus interest and court costs.

         The Schiff Family LP now appeals this judgment, arguing that it was error for the district court to (1) award a judgment over a non-Louisiana resident when it lacked personal jurisdiction over the non-Louisiana resident: (2) find that Ms. Pollard established that the Schiff Family LP was in possession of property belonging to Mr. Schiff; and (3) find that Mr. Schiff's partnership interest in the Schiff Family LP was sufficient to satisfy the judgment in full.

         Discussion

         First, it is axiomatic that an appellate court does not address an issue raised for the first time on appeal. Uniform Rule, Courts of Appeal, Rule 1-3; see also Williams v. Doctors' Hosp.of Shreveport, Inc., 39, 609, p. 3 (La.App. 2 Cir. 5/11/05, 902 So.2d 1187, 1189. ("[T]he question of sufficiency of service on a non-resident defendant may not be raised for the first time on appeal; the issue should be raised in a suit to annul judgment.") Because the issues of personal ...


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