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Bankers Insurance Co. v. State

Court of Appeals of Louisiana, Second Circuit

November 20, 2019

BANKERS INSURANCE COMPANY Appellant
v.
STATE OF LOUISIANA Appellee

          Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana Trial Court No. 610, 340 Honorable Michael A. Pitman, Judge

          KENNETH J. BECK Counsel for Appellant

          TOMMY J. JOHNSON Assistant District Attorney Counsel for Appellee

          Before STONE, COX, and THOMPSON, JJ.

          COX, J.

         This nullity of judgment appeal arises out of the First Judicial District Court (First JDC), Caddo Parish, Louisiana. Bankers Insurance Company ("Bankers") brought a petition for nullity against a judgment of bond forfeiture in favor of the State of Louisiana ("State"). Bankers seeks review of the district court's decision to grant the State's exception of res judicata. We respectfully reverse the district court's ruling on the exception of res judicata, but affirm the ruling on the exception of no cause of action.

         FACTS

         On September 7, 2016, Bankers wrote a bond in the amount of $50, 000 for a defendant named Claude McQueen. On February 22, 2017, Mr. McQueen failed to appear in the First JDC. On March 28, 2017, Bankers was notified of Mr. McQueen's failure to appear. At the time, Mr. McQueen was incarcerated in Dallas County Jail. In its initial petition for nullity, Bankers claimed that it notified the State of this information on May 2, 2017. In the same petition, Bankers also asserted that on November 2, 2017, it provided the Caddo Parish District Attorney's Office the costs of transporting Mr. McQueen.

         On February 12, 2018, the State moved for forfeiture of the bond. The trial court issued a judgment of forfeiture. Bankers failed to appear at the hearing and did not offer any objection to the forfeiture. Bankers did not appeal the judgment of bond forfeiture.

         On July 27, 2018, Bankers filed a petition for nullity. In its petition, Bankers claimed that it notified the Caddo Parish District Attorney's Office that Mr. McQueen was in jail in Dallas, Texas and met the requirements of constructive surrender. Bankers claimed that these facts entitled it to a nullity.

         The State answered the petition for nullity on August 14, 2018. In its answer, the State denied the allegations. The State filed exceptions of res judicata and no cause of action. In its exception of res judicata, the State argued that the initial bond forfeiture judgment was valid and final, the cause of action existed at the time of the final judgment, and the cause of action asserted in the nullity action arose out of the transaction or occurrence that was the subject matter of the initial bond forfeiture. The State claimed that Bankers was precluded from arguing constructive surrender because it could have raised the issue in the initial bond forfeiture case, but failed to do so. In the State's exception of no cause of action, it argued that Bankers did not assert a viable cause of action as it was based upon La.C.Cr.P. art. 349.5, which was repealed as of January 1, 2017. On December 3, 2018, Bankers filed an opposition to the exception of res judicata. In Bankers' opposition to the res judicata exception, Bankers argued that La. C. C. P. arts. 2001-2003 provided an avenue to circumvent res judicata. Bankers did not mention the exception of no cause of action in its opposition.

         On December 3, 2018, the district court granted the exceptions of res judicata and no cause of action. Bankers now appeals the district court's ruling.

         DISCUSSION

         Bankers seeks review of the district court's ruling regarding the exception of res judicata. It is important to emphasize that Bankers did not seek review of the other exception granted by the district court for no cause of action. Bankers argues ...


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