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.

Ho v. Nee

Court of Appeals of Louisiana, Fifth Circuit

November 13, 2019

MAN CHING HO
v.
JIMMY W. NEE

          ON APPEAL FROM THE TWENTY-FOURTH JUDICIAL DISTRICT COURT PARISH OF JEFFERSON, STATE OF LOUISIANA NO. 509-555, DIVISION "N" HONORABLE STEPHEN D. ENRIGHT, JR., JUDGE PRESIDING

          COUNSEL FOR PLAINTIFF/APPELLEE, MAN CHING HO Andrew T. Lilly Jeffrey W. Bennett Michelle M. Bennett

          COUNSEL FOR DEFENDANT/APPELLANT, JIMMY W. NEE Jimmy Nee

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

          G. GRAVOIS JUDGE

         In this community property partition proceeding between appellant, Jimmy Nee, and appellee, Man Ching Ho, his ex-wife, Mr. Nee appeals the trial court's December 21, 2018 judgment which, following a trial on October 16, 2018, granted Ms. Ho's exception of res judicata regarding the classification of two pieces of immovable property, granted and denied various reimbursement claims of the parties, and ordered that Mr. Nee make an equalizing payment of $42, 565.26 to Ms. Ho. For the following reasons, we affirm.

         FACTS AND PROCEDURAL HISTORY

         In this community property partition proceeding, prior rulings and judgments were appealed by Mr. Nee. In our first opinion, Ho v. Nee, 17-495 (La.App. 5 Cir. 5/30/18), 249 So.3d 1002 ("Nee I"), this Court set forth the lengthy factual and procedural history of the case. Briefly, the parties married in 1980 and had one daughter who was born in 1981. Ms. Ho filed for divorce against Mr. Nee in 1997, which was granted in 1999. Mr. Nee filed a petition to partition community property on March 23, 2012. Following lengthy proceedings to partition the community property, the trial court rendered several judgments that Mr. Nee appealed. In Nee I, this Court affirmed various aspects of the judgments, reversed in part, and remanded the matter for trial on the merits of various pending claims between the parties, decreeing the following:

For the reasons stated above, we affirm in part the August 26, 2015 judgment signed February 24, 2016, regarding the trial court's denial of Mr. Nee's March 12, 2015 objection and judgment maintaining the domestic hearing officer's recommendations that the family home located at 2721 David Drive, the 1993 Ford van, and the 1996 Ford van were community property, and that Bonnie Nee's personal checking account was not a community asset. We reverse in part, and remand for a trial on the merits, the August 26, 2015 judgment signed February 24, 2016, maintaining the domestic hearing officer's March 12, 2015 recommendations concerning the following assets and claims that required a trial on the merits: 1) bank accounts, "if existing on May 27, 1997," specifically, First National Bank of Commerce account # 2022-66796, First National Bank of Commerce account # 1104-61619, First National Bank account # 3009107774, and First National Bank of Commerce accounts # 6013-31087 and # 2022-66796; 2) the retail merchandise and jewelry stored at 3008 19th Street; 3) "all money that Man Ching Ho sent out of the United States in a 3 year period"; and 4) a determination as to whether the family business, MC Trading, or the miscellaneous household items were separate or community property, and their respective values, if any. We also vacate in part, the August 26, 2015 judgment signed February 24, 2016, partitioning the community property regime, determining Ms. Ho's reimbursement claim, and ordering Mr. Nee to pay an equalizing payment. We further vacate the August 26, 2015 judgment signed June 3, 2016. This matter is remanded for further proceedings consistent with this opinion.

         Accordingly, the only matters before the trial court on remand were those four items specifically referenced in the above decree. The record reflects that the matters on remand were originally set for trial on the merits on September 4, 2018. An interpreter was present to assist Mr. Nee, whose first language is Mandarin.[1]

         Prior to the September 4, 2018 hearing, Ms. Ho filed an exception of res judicata, arguing that the issues raised in Mr. Nee's "petition to revoke authentic act of intervenor(s)" regarding two pieces of immovable property he sought to have classified as community property and which he sought to include for decision in the proceedings on remand, should not be set for trial and were res judicata because a final judgment on those issues had been rendered by the hearing officer on September 19, 2014, Mr. Nee having not timely objected to the ruling, as noted in this Court's opinion in Nee I. Ms. Ho also filed a motion in limine seeking to exclude any documents that Mr. Nee might seek to introduce into evidence because of his "longstanding failure to identify in his discovery responses even one of the exhibits that he intends to use at trial." (Emphasis in original.)

         At the trial on September 4, 2018, the trial judge determined that because Mr. Nee had only been served with Ms. Ho's exceptions and motion in limine in late August, he would continue the matter to October 16, 2018 in order for Mr. Nee to have an opportunity to review the new pleadings and prepare for the hearing.

         The trial judge advised Mr. Nee that on October 16, 2018, they would be taking up "those matters that are contained in the opinion that the Fifth Circuit rendered," as well as Ms. Ho's exceptions of prescription and res judicata. The trial judge also advised Mr. Nee that if he intended to rely on any documents in his case, he must give copies of those documents to opposing counsel by October 5, 2018, or the documents would not be allowed into evidence. The interpreter stated that Mr. Nee understood.

         At the hearing on October 16, 2018, where Mr. Nee again had the services of the same interpreter, Mr. Nee did not bring any documentary evidence to court, nor had he sent any evidence that he may have intended to use to opposing counsel prior to trial. The trial court granted Ms. Ho's exception of res judicata from the bench, finding that the classification of two houses as Ms. Ho's separate property had previously been adjudged and was not timely objected to or appealed, and was therefore final. Ms. Ho's exception of prescription was thus ruled moot. The trial court additionally heard testimony from both parties, considered evidence that was introduced, and took the matters under advisement, ultimately issuing a judgment and reasons for judgment on December 21, 2018.

         On appeal, Mr. Nee argues the following assignments of error:

1. The trial court committed manifest error when the trial judge used his own particular false reasons and didn't apply real facts for the judgment;
2. The trial court committed manifest error when it dismissed Mr. Nee's petition to revoke authentic act of intervenor(s) and petition for injunction against alienation or encumbrance of community property, only considered Ms. Ho's one-sided argument, and refused Mr. Nee's real fact response;
3. The trial court committed manifest error when it concluded that Mr. Nee owes Ms. Ho $42, 565.26, being all funds were community funds from the beginning;
4. The trial court committed manifest error when it ruled First National Bank of Commerce accounts #2022-66796, #1104-61619, #3009107774, #6013-31087, and #2022-66796, and all money Ms. Ho spent and sent out of United States in 3-year period, and that Mr. Nee failed to offer evidence at trial to support his argument; and
5. The trial court committed manifest error when it ruled that the retail merchandise and jewelry stored at 3008 19th Street, Metairie, Louisiana and miscellaneous household items including stove, dinette set, bedroom sets, computer, printer, piano, washer and dryer, sofa, living room sets, garden sets, and MC Trading was a ...

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.