STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT

2022 CA 01 NO 06 NO. 2021 CW 1509

TOWER CREDIT, INC

VERSUS CHAD J. WILLIAMS

Judgment Rendered.-

Appealed endered.

Appealed from the City Court ofBaton Rouge In and for the Parish of East Baton Rouge

State of Louisiana Case No. 17-06564-E 

### SEP 16 2022

The Honorable Judy Moore Vendetto,Judge Presiding

Gerald A. Melchiode Counsel for Garnishee/Appellant Renee S. Melchiode Louisiana Fish Fry Products, LTD Taylor L. Somerville New Orleans, Louisiana Richard D. Bankston Counsel for Plaintiff/ Appellee Baton Rouge, Louisiana Tower Credit, Inc. Chad J. Williams Defendant/Appellee Baton Rouge, Louisiana Pro Se

BEFORE: THERIOT, CHUTZ, AND HESTER, JJ. 

## j d214s'qt. d—THERIOT, J. This appeal arises from a judgment pro confesso taken against a garnishee 

### following the garnishee' s failure to answer garnishment interrogatories. For the
reasons set forth herein, 

### we affirm the trial court judgment and deny the 

### application forsupervisorywrit. FACTS AND PROCEDURAL HISTORY Plaintiff,Tower Credit, Inc. (" Tower Credit"), 

### filed a suit ontwo promissory notes against Chad J. Williams on July 25, 2017, and obtained a defaultjudgment against Williams on October 3, 2018 in the amount of $18,396.67, together with interest on $6,075. 15 ofthat amount from the date ofjudicial demand at the rate of 18. 00% 

### peryear, until satisfied; interest onthe remaining $ 12,321. 52 from the date ofjudicial demand at the rate of 27.00% 

### peryear, until satisfied; an attorney fee of 25% 

### ofthe principal and interest; and all costs, including but not limited to, any money paid to a private process server to serve documents in this suit, and court

costs. Tower Credit filed a Petition for Garnishment on September 29, 2020, 

### requesting thatWilliams' employer, Louisiana Fish Fry Products, LTD (" Louisiana Fish Fry"), be made garnishee. Service of the petition and garnishment 

### interrogatories was made on Louisiana Fish Fry through its registered agent for service ofprocess, CT Corporation System, on November 6, 2020. 

### Louisiana Fish Fry did not answer the garnishment interrogatories, and on March 18, 2021, Tower Credit moved for a judgment pro confesso against 

### Louisiana Fish Fry pursuant to La. C.C.P. art. 2413. A hearing was held on the motion on October 6, 2021. 

### Louisiana Fish Fry did not appear at the October 6 

### hearing, although the record reflects that personal service ofthe motion was made
on April 23, 

### 2021 through Louisiana Fish Fry's registered agent for service of

process, CT Corporation System. 

### At the hearing, counsel for Tower Credit

01

### informed the trial court that Louisiana Fish Fry had been served with the

garnishment, but failed to file an answer to the interrogatories or return phone calls, and thereafter, counsel presented ajudgment to the trial court for signature. 

### Thejudgment signed bythe trial court states:

This Court, after considering the evidence presented, finds in favor ofthe plaintiff,Tower Credit, Inc.; accordingly: IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that there be judgment herein in favor of Tower Credit, Inc. and 

### against Louisiana Fish Fry Products, LTD in the full sum of 18,396.67, together with interest on $ 6,075. 15 of that amount from the date ofjudicial demand ( 

### July 25, 2017) at the rate of 18% per 

### year, until satisfied;together with interest on the remaining amount of 12,321. 52 from the date ofjudicial demand ( July 25, 2017) at the rate of 27.00% per year, until satisfied; together with 25% of the 

### aggregate of principal and interest due as attorney' s fee, all costs of these proceedings, 

### and an additional attorney's fee of [$400.00] pursuant to La. C.C.P. art. 2413. Notice of the October 6, 2020 judgment was mailed on October 7, 2021 and 

### received by Louisiana Fish Fry's registered agent, CT Corporation System, on October 13, 2021. On October 22, 2021, 

### Louisiana Fish Fry filed a Motion to Reopen the Garnishment and Motion to Vacate the Garnishment Judgment Against Louisiana 

### Fish Fry Products, LTD. 

### In its motion, Louisiana Fish Fry argued that it does not 

### employ the debtor, Williams, nor has it employed him since November 5, 2020.1 In addition to its memorandum, Louisiana Fish Fry submitted a number ofexhibits in support ofits motion, including: the affidavit of its Human Resources Manager, Meagan Price Durand, who attested that Williams' last shift worked at Louisiana 

### Fish Fry before his termination was prior to service of the garnishment interrogatories; Williams' personnel file; the garnishment citation, petition, Although Louisiana Fish Fry states in its motion that it has not employed Williams since November 5, 2020 before service ofthe garnishment interrogatories was made), the record reflects that he was terminated by Louisiana Fish Fry on November 30, 2020. Service of the garnishment interrogatories on Louisiana Fish Fry was made on November 6, 2020. On November 16, 2020, Louisiana Fish Fry issued a " Final Written Warning" letter to Williams, noting that he had failed to report to work as scheduled on November 6, 2020, and informing him that he needs to take hisjob seriously ifhe wants to stay employed and that any further issues with his performance " will result in termination from the company." A separation notice terminating Williams' employment with Louisiana Fish Fry was ultimately issued on November 30, 2020, listing Williams' last date worked as November 5, 2020. 3interrogatories, and order; 

### and the notice of signing of the October 6, 2021



### judgment pro confesso against Louisiana Fish Fry. 

### Louisiana Fish Fry requested an expedited hearing on its motion to reopen/vacate the garnishmentjudgment, due 

### to the short suspensive appeal deadline provided by La. C.C.P. art. 5002 for 

### judgments rendered by a city court. 2 Also on October 22, 2021, but after the 

### motions to reopen/vacate and for expedited hearing were filed, Louisiana Fish Fry filed a motion for suspensive appeal from the October 6 judgment. On November 3, 2021, the trial court denied the motion for expedited 

### hearing and also denied Louisiana Fish Fry's motion to reopen/vacate ex parte, without contradictory hearing. Thereafter, Louisiana Fish Fry filed an application 

### for supervisory writs with this court, arguing thatthe court erred in failing to grant its motion to reopen the case pursuant to La. R.S. 13: 3923. The writ was referred to the appeal panel. 

### On appeal, Louisiana Fish Fry argues thatthe trial court erred in entering the 

### October 6 judgment for the entire amount ofthe debt and without any evidence submitted in the record, 

### as well as in failing to reopen the proceedings when 

### evidence was presented that Louisiana Fish Fry was not a stakeholder of the debtor' s wages. DISCUSSION 

### A garnishment proceeding is a streamlined legal process for a creditor to 

### seize property ofajudgment debtor in the hands of a third party. Tower Credit, Inc. v. Carpenter, 2001- 2875, p. 3 ( La. 9/4/02), 825 So.2d 1125, 1127. 

### Garnishment proceedings generally are governed by La. C.C.P. arts. 2411- 2417. Id. 

### Garnishment ofwages is governed by La. R.S. 13:3921, etseq. Zurich Ins. Co. 

### v. Harmon, 95-0297, p. 2 ( 

### La.App. 1 Cir. 10/6/95), 671 So.2d 383, 384. Service
2 Louisiana Code ofCivil Procedure article 5002(A) providesthat an appeal from ajudgment rendered by a city court may only be taken within ten days from the date ofthejudgment or from the service ofnotice ofjudgment,when such notice is necessary. Mupon the garnishee of the garnishment petition, citation, and interrogatories



### operates to seize any property of or credit due the judgment debtor held by the garnishee at the moment of service, though the amount and kind ofsuch property will not be known until the garnishee answers. 

### It is the garnishee' s duty to answer 

### all proper interrogatories and to make all properdisclosures concerning property of the debtor in its possession. Wynnco Const., 

### LLC v. Bergeron, 2013-0250, p. 3 

### La.App. 1 Cir. 11/4/ 13), 136 So.3d 823, 825; La. C.C.P. art. 2411( B). The garnishee must file his sworn answers to the interrogatories within fifteen days from the date ofservice. La. C.C.P. art. 2412(D).3 If the garnishee fails to answer the interrogatories propounded within the delays provided, 

### the judgment creditor may proceed by contradictory motion against the garnishee for a judgment pro confesso, i.e., a judgment against the garnishee for the full amount of the judgment, plus interest and costs. Wynnco Const., 

### LLC, 2013-0250 at p. 4, 136 So.3d at 826; La. C.C.P. art. 2413(A). A 

### contradictory hearing is required in order for a judgment pro confesso to be rendered against the garnishee. Houma Mortgage & Loan, Inc. v. Marshall, 94- 0728, p. 7 ( 

### La.App. 1 Cir. 11/ 9/95), 664 So.2d 1199, 1204. 

### Failure by the 

### garnishee to answer is prima facie proofthat the garnishee has property of or is indebted to the judgment debtor. 

### This prima facie case may be rebutted by the garnishee by presenting evidence ofits actual debt or lack thereofto thejudgment debtor. Id. 

### Following the contradictory hearing,judgment will then be rendered against the garnishee unless the garnishee proves that he has no property ofand is not indebted to the judgment debtor. La. C.C.P. art. 2413( B). 

### Stated anotherway, pursuant to La. C.C.P. art. 2413, the garnishee is liable to the judgment creditor for the full amount ofthe unpaid debt when the garnishee fails to answer and fails to 

### prove at a contradictory hearing that he has no property of and is not indebted to s This provision has since been amended by 2022 La.Acts No.265, effective 8/1/ 22, to provide a thirty - day period for a garnishee to answer garnishment interrogatories.
5the judgment debtor. Houma Mortgage & Loan, 94-0728 at p. 8, 664 So.2d at

1205. 

### Additionally, regardless of the decision on the contradictory motion, the court shall renderjudgment against the garnishee who failed to answer forthe costs 

### and a reasonable attorney fee forthe motion. La. C.C.P. art. 2413( C). Specialized procedures exist for the garnishment ofwages. La. R.S. 13: 3921 et seq. Louisiana Revised Statutes 13: 39234 provides: 

### It shall not be necessary that more than one writ ofgarnishment or one set of interrogatories be served in such cases, but the court shall 

### render judgment for the monthly, semimonthly, 

### weekly or daily 

### payments to be made to the seizing creditor according to the manner best suited to the circumstances, until the indebtedness is paid. The garnisher shall serve upon the garnishee the citation, the petition, the garnishment interrogatories, the notice of seizure, and a statement of sums due under the garnishment, such statement to include, but not be limited to, the principal, interest, court costs incurred to date, and 

### attorney's fee due underthejudgment.The court, in its discretion, may reopen the case upon the motion ofany party concerned for evidence affecting the proper continuance ofsuchjudgment, and the court shall 

### retainjurisdiction to amend or set aside itsjudgment at any time in its discretion; however, 

### all effects of the seizure by garnishment shall cease upon the termination of employment of the debtor with the garnishee, unless the debtor is reinstated or reemployed within one 

### hundred eighty days afterthetermination. Shouldjudgment bydefault be taken against anyparty garnishee, he may obtain a reopening of the case upon proper showing and within the discretion ofthe court. Emphasis added.) 

### Thus, while a defaultjudgment for the full amount ofthe unpaid debt may be rendered against an employer who fails to timely answer wage garnishment 

### interrogatories and fails to rebut the prima facie case presented at the contradictory hearing, the court thereafter has discretion to reopen the case upon a proper 

### showing pursuant to La. R.S. 13: 3923. Houma Mortgage & Loan, Inc. v. 

### Marshall,94-0728, p. 8 (La.App. 1 Cir. 11/9/95), 664 So.2d 1199, 1205. 

### Louisiana Fish Fry argues on appeal thatthe trial court erred in rendering the judgmentpro confesso forthe entire amount ofthe debtor' s debt, in advance ofany 

### wages earned, regardless ofwhether Louisiana Fish Fry held any property ofthe 4This provision has been amended by 2022 La.Acts No. 265, effective 8/1/ 22, to, among otherthings, provide that Nothing in this Section is meant to affectjudgments rendered pursuantto Code ofCivil Procedure Article 2413 Effect ofgarnishee' s failure to answer]."debtor. This argument lacks merit. Article 2413(A) provides that where the

garnishee fails to answer the garnishment interrogatories within the time provided 

### by law, thejudgment creditor may seek ajudgment against the garnishee for the amount of the unpaid judgment, with interest and costs. 

### At the contradictory 

### hearing, the garnishee is given an opportunity to present evidence of the actual indebtedness, employment of the debtor, character of the employment, prior garnishments, and other facts relevant to the garnishment proceedings. Tower Credit, Inc.,

### 2001-2875 at p. 4, 825 So.2d at 1128. 

### Louisiana Fish Fry did nottake advantage of this opportunity, 

### and the trial court did not err in rendering the judgment forthe entire amount as provided by Article 2413(A). Louisiana Fish Fry also argues on appeal, as well as in its application for 

### supervisory review, that the trial court erred in failing to reopen the garnishment 

### proceedings and vacate the judgment pro confesso after Louisiana Fish Fry demonstrated ( via attachments to its motion) that the debtor was no longer employed. 

### Louisiana Revised Statutes 13: 3923 provides that wherejudgment by default is taken against the garnishee, he may obtain a reopening ofthe case upon proper showing and within the discretion ofthe court. Although the trial court 

### certainly could have, in its discretion, reopened the garnishment proceeding against 

### Louisiana Fish Fry and vacated thejudgmentpro confesso, Louisiana Fish Fry was not entitled to the relief under the clear language of the statute. Appellate review 

### of discretionary decisions by a trial court is conducted under the " abuse of discretion" standard of review. 

### Quality Environmental Processes, Inc. v. IP 

### Petroleum Company, Inc., 2016-0230, p. 22 ( La.App. 1 Cir. 4/ 12/ 17), 219 So.3d 349, 375. 

### Generally, an abuse of discretion results from a conclusion reached capriciously or in an arbitrary manner. Id. The word " arbitrary" implies a disregard of evidence or of the proper weight thereof. Id. A conclusion is capricious" when there is no substantial evidence to support it or the conclusion is

7contrary to substantiated competent evidence. Id. 

### Considering the circumstances

of this case, 

### especially that Louisiana Fish Fry was served with both the garnishment interrogatories and the rule on the motion forjudgment pro confesso 

### and failed to respond in any way or appear until a judgment pro confesso was rendered against it, we cannot say that the trial court acted capriciously or in an arbitrary manner. Although the result in this matter is harsh, under the facts ofthis case, the trial court did not abuse its discretion when it declined to reopen the garnishment proceedings and vacate the judgmentpro confesso. 

### Finally, Louisiana Fish Fry argues that the trial court erred in granting the judgment pro confesso without any evidence admitted in the record. Louisiana 

### Fish Fry cites La. C.C.P. art. 4904, which governs defaultjudgments in parish and city courts. 

### However, the controlling statute in this case, La. C.C.P. art. 2413, 

### provides that the failure of the garnishee to answer prior to the filing of the contradictory motion is prima facie proofthat he has property ofor is indebted to the judgment debtor to the extent of the judgment, interest, and costs, and that judgment shall be rendered against the garnishee unless he appears and makes an 

### appropriate showing to rebut the prima facie case. The record before the court in 

### this case clearly shows that no answer was filed by Louisiana Fish Fry to the 

### garnishment interrogatories,thereby creating a prima facie case underthe statutory provisions, which Louisiana Fish Fry failed to put forth any evidence to rebut. This assignment oferror lacks merit. We recognize that the result of the judgment pro confesso is harsh. However, the language of La. C.C.P. art. 2413 is clear. 

### Any relief from the harshness ofthis result must come from the legislature. CONCLUSION For the reasons set forth herein, we are constrained to affirm the October 6, 2020 judgment of the trial court. Louisiana Fish 

### Fry's supervisory writapplication, 

### seeking review of the November 3, 2020 denial of its motion to

reopen/vacate, is likewise denied. Costs of this appeal are assessed to appellant, 

### Louisiana Fish Fry Products, LTD. AFFIRMED; WRIT DENIED.

9TOWER CREDIT, INC.

VERSUS

CHAD J WILLIAMS CHUTZ, J.,

### dissenting. STATE OF LOUISIANA COURT OF APPEAL FIRST CIRCUIT NUMBERS 2022 CA 0106 2021 CW 1509

Irrespective ofwhether appellate review is based on an appeal ofthejudgment 

### pro confesso or the writ taken in conjunction with the city court's denial of the garnishee' s motions to reopen the garnishment and vacate the judgment pro 

### confesso, I believe the city court abused its discretion in refusing to reopen the case. 

### Thus, the city court'sjudgment should be reversed and the matter remanded for a hearing to ascertain what amount, if any, of the judgment debtor' s garnishable 

### propertythe garnishee had atthe time ofservice ofthe garnishment interrogatories. After Tower Credit, Inc. (Tower Credit) obtained a defaultjudgment against its debtor, Chad J. Williams, it proceeded against Williams' alleged employer garnishee, 

### Louisiana Fish Fry ( Fish Fry). 

### Tower Credit served Fish Fry with 

### garnishment interrogatories and, afterFish Fryfailedto answer,soughtandobtained a defaultpro confessojudgment bycontradictoryhearing against Fish Fry.Although Fish Frywas duly notified priortothe hearing, itdid nothingto represent itself.Only after the imposition ofa moneyjudgment in the amount ofover $18,000.00, along with interest, costs, 

### and attorney fees, 

### did Fish Fry appreciate its inaction had resulted in a significantjudgment against it. At that point, through legal counsel, 

### Fish Fry attempted to reopen the 

### garnishmentproceeding and havethe moneyjudgment rendered against it inthe full amount that Williams owed Tower Credit vacated, alleging that Williams had not 

### worked for Fish Fry since the date that the garnishment interrogatories had been served. Attached to its motion to reopen were documents supporting Fish Fry' sassertions. 

### The city court denied Fish Fry' s motions without a hearing or an

explanation as to the basis for its denial. 

### As noted bythe majority, in this garnishment context,two statutory systems are implicated. La. C.C.P. arts. 2411- 2417 set forth the general garnishment rules. 

### And specific revised statute articles, addressing the garnishment ofwages, salaries, and commissions, are provided for in La. R.S. 13:3921-3928. It is the interplay of these two sets ofgarnishment articles before us. La. C.C. art. 2413, entitled " Effect ofgarnishee' s failure to answer," states in

relevant part: 

### Ifthe garnisheefailsto answerwithinthe delayprovided by [La.C.C.P. art.] 2412 [ fifteen days from service of the interrogatories], the 

### judgment creditor may proceed by contradictory motion against the garnishee for the amount of the unpaid judgment, with interest and costs. 

### Whenthe garnishee failsto answerbeforethejudgmentcreditorfiles acontradictory motion, it is prima facie proofthat the garnishee has the property of debtor to the extent ofthe judgment. In Subsection B, Article 2413 states: Judgment shall be rendered against the garnishee on trial ofthe motion 

### unless he proves thathe had no property ofandwas not indebted tothe judgment debtor. Ifon the trial ofsuch motion,the garnishee proves the 

### amount of such property or indebtedness, the judgment against the garnishee shall be limited to the delivery ofthe property orpayment of the indebtedness, as provided in Article 2415. [ Emphasis added.] La. C. C.P. art. 2415(B) 

### expressly states that the remedy is not available in 

### cases involvingthe garnishmentofwages, salaries orcommission. "Thus[,] the Code of Civil Procedure prohibits a default judgment in such instances and the Revised Statutes provide for relief when the article is misapplied. [ La.] R.S. 13: 3923." Commercial Sec. Co., Inc. v. Corsaro, 417 So.2d 1346, 

### 1350 ( La. App. 3d Cir. 1982).

NA

### According to La. R.S. 13: 3923, specifically addressing the garnishment of

wages, salaries, and commissions, the city court, " 

### in its discretion may reopen the case upon motion of any party concerned for evidence affecting the proper continuation of [a] judgment" 

### rendered in favor ofthe creditoras fixed bythe court as to the debtor's nonexempt portion; and "all effects ofthe seizure by garnishment shall cease upon the termination of employment ofthe debtor with the garnishee." 

### Noticeably absent is anyprovision setting forth the effectto be given the garnishee's failure to answer the served interrogatories. Thus, where an employer fails to timely answer wage garnishment 

### interrogatories a default judgment may be rendered against him pursuant to La. C.C.P. Art. 2413, but the court has discretion thereafter to reopen the case pursuant to La. R.S. 13: 3923. Corsaro, 417 So.2d at 1350 ( citing Beneficial Finance 

### CompanyofLouisiana v. Haviland,411 So.2d 1102 (La.App.4th Cir. 1982)). The 

### provisionsofArticle 2413, allowingforattorneyfees andcostsagainstthe garnishee, are consistent with the statutes pertaining to wage garnishment and amply protect 

### the seizing creditor against the inconvenience occasioned by the failure of the garnishee to answer the interrogatories. See Corsaro, 417 So.2d at 1351. See also La. C.C.P. art. 2413( C) (" 

### Regardless ofthe decision on the contradictory motion, the court shall renderjudgment against the garnishee for the costs and a reasonable 

### attorneyfee forthe motion."). The purpose and intent ofthe statutes addressing the garnishment ofwages, 

### salaries, and commissions are quite clearly reflected from its provisions. La. R.S. 13: 3923 was designed to give to a creditor the right to seize and have paid to him a 

### fair portion ofthe wage or salary accruing to his debtor so long as such debtor is employed. In such a case, the statute does not attempt to go further. When the employment ceases, thejudgment ordering the garnishee to pay over a part ofthe

K

### employee' s salaryto hisjudgment creditoralso ceases to have effect. Ifthe lawwere otherwise, garnishees could be, and would often be, mulcted for the benefit of 

### persons to whom they are due nothing. Corsaro, 417 So.2d at 1350 (citing Julius Aaron and Son v. Berry, 165 So. 496 ( 

### La. App. 2d Cir. 1936)). 

### Allowing the garnishee who failed to respond to garnishment interrogatories and permitted rendition of a judgment pro confesso against it to reopen the garnishment proceedings and present evidence is consistent with the purpose of the wage garnishment statutes. Therefore, as the law stands, the garnishee cannot be penalized forthe benefit 

### ofthe debtor due to its failure to answer by imposing the totaljudgment upon the one who is merely a stakeholder. The garnishee has established a prima facie 

### showing of a meritorious defense—the improperly rendered default judgment. Corsaro, 417 So.2d at 1351. As such, I would reverse the city court's denial ofFish 

### Fry's motions to reopen and vacate and would remand for the hearing permitted under La. R.S. 13:3923. Accordingly, I dissent.

0