Gegenheimer v. Galan ( 1999 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-31354
Summary Calendar
LARRY GEGENHEIMER; SHEILA GEGENHEIMER,
Plaintiffs-Appellees,
VERSUS
RAOUL A. GALAN, JR.,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Louisiana
(87-CV-1294)
June 3, 1999
Before DAVIS, DUHÉ, and PARKER, Circuit Judges.
PER CURIAM:*
Appellant Raoul A. Galan, Jr. (“Galan”) appeals from the
district court’s order of November 4, 1998 reviving a judgment
originally entered against him on June 29, 1988. The 1988
judgment was entered after a jury found Galan liable for wrongfully
dismissing the plaintiffs. Galan initially filed an appeal from
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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the underlying judgment, but later abandoned it. This appeal is
limited to the district court’s order granting the revival.
I. Background
The district court revived the 1988 judgment after conducting
a bench trial. Our standard of review for bench trials is well
established: findings of fact are reviewed for clear error; legal
conclusions de novo. See Seal v. Knorpp, 957 F.2d 1230, 1233 (5th
Cir.1992).
Article 2031 of the Louisiana Code of Civil Procedure (“LSA-
C.C.P.”) provides that “[a] judgment shall be rendered in such a
proceeding reviving the original judgment, unless the defendant
shows good cause why it should not be revived.” LA. CODE CIV.
PROC. ANN. art. 2031 (West 1990). Therefore, the burden is on Mr.
Galan to show good cause why the 1988 judgment should not be
revived. Early case law establishes that the only acceptable
defense that qualifies as a “good cause” is an absolute nullity
of the original judgment. See McCutchen v. Askew, 1882, 34
La.Ann. 340. LSA-C.C.P.Article 2002 sets forth the exclusive
list of grounds to declare a judgment an absolute nullity, or in
other words, “annulled for vices of form.” See Hebert v. Hebert,
700 So. 2d 958 (La.App. 1 Cir.1997). Article 2002 provides in
pertinent part:
A final judgment shall be annulled if it is rendered:
(1) Against an incompetent person not represented
as required by law;
(2) Against a defendant who has not be served with
process as required by law and who has not entered a
general appearance, or against whom a valid judgment by
default has not been taken; or
(3) By a court which does not have jurisdiction
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over the subject matter of the suit.
LA. CODE CIV. PROC. ANN. art. 2002 (West 1990). That a judgment may
be an absolute nullity judgment may be attacked collaterally in any
court and at any time. See Estate of Bradford v. Thomas, 700 So. 2d
1030 (La.App. 2 Cir.1997). However, in a proceeding to revive a
judgment, defenses that merely attack the merits of the underlying
cause of action will not be revisited. See Bruno v. Oviatt, 1896,
48 La.Ann. 471, 19 So. 464; McCutchen v. Askew, 1882, 34 La.Ann.
340; McStea v. Rotchford, 1877, 29 La.Ann. 69; Carondelet Canal
Nav. Co. v. De St. Romes, 1871, 23 La.Ann. 437.
II. Analysis
Construing Galan’s pro se brief liberally, he brings five
issues on appeal.
First, he attacks the original 1988 judgment on the grounds
that the district court lacked jurisdiction in bringing a judgment
against him when the plaintiffs were his “appointees,” and not his
employees. Because the Civil Rights Act of 1964 has provisions in
it defining the confines of an employer-employee relationship,
Galan contends that the plaintiffs’ alleged status of “appointees”
defeats the district court’s subject matter jurisdiction over the
wrongful termination suit. The fact that Galan characterized this
issue as a jurisdictional one is not determinative. While an
employer-employee relationship may be an element that needs to be
proved to prevail on a wrongful termination suit, this issue should
have been addressed either at trial or on appeal from the original
judgment. Because this issue does not properly raise one of the
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exclusive grounds for attacking the underlying judgment, we must
pass on its merits.
Second, Galan alleges that the district court erred in
upholding the jury’s award of compensatory and punitive damages to
the plaintiffs. This again goes to the merits of the underlying
judgment and again does not fall within one of the three enumerated
grounds to attack it.
Third, Galan asserts that his procedural due process rights
were violated because he was improperly served with the 1988
judgment. Section two of LSA-C.C.P. Article 2002 provides that a
judgment may be declared an absolute nullity if the “defendant was
not properly served with process ... and [the defendant] has not
entered a general appearance...”. (Emphasis added) Regardless of
any perceived improprieties in the service of the judgment, Galan
has failed to show a defect in the service of process. Regardless,
Galan entered a general appearance in his defense of the suit.
Therefore, we must again pass on the merits of this issue on
appeal.
Fourth, Galan argues that the plaintiff has admitted by
stipulation that he was an assistant supervisor, and thus “he is
excluded and waives his right against debtor-defendant.” Whatever
merit this argument presents to us, Galan has failed to address it
in his briefs. Matters not raised or argued in the brief are
considered waived and will not be entertained by this Court on
appeal. See Melton v. Teachers Ins. & Annuity Assoc. of America,
114 F.3d 557, 561 (5th Cir.1997).
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Finally, Galan again attacks the underlying judgment on the
basis that the “Fifth Circuit Court of Appeals for the State of
Louisiana has ruled that the Office of the Clerk of the Court is
responsible and liable for the actions of the elected individual
person.” Once again, on this appeal from the district court’s
order granting revival, we will not consider challenges to the
underlying judgment absent an absolute nullity. Whatever claim for
indemnification Galan may have is not properly before us at this
time.
III. Conclusion
Because Galan has failed to raise any issue directed at the
order from which he appeals, and because his challenges to the
underlying judgment do not persuade us that it should be declared
an absolute nullity, we AFFIRM.
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