
    SHIELDS MOTT LUND, L.L.P. v. P.R. CONTRACTORS, INC., and Cedric Patin.
    No. 2012-CA-1327.
    Court of Appeal of Louisiana, Fourth Circuit.
    March 27, 2013.
    Opinion on Rehearing May 1, 2013.
    Lloyd N. Shields, Jeffrey K. Prattini, Shields Mott Lund, LLP, New Orleans, LA, for Plaintiff/Appellee.
    Jonathan B. Andry, Kailey L. Leboeuf, The Andry Firm, L.L.C., New Orleans, LA, for Defendant/Appellant.
    (Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).
   MAX N. TOBIAS, JR., Judge.

| jThe JC Patin Group, LLC (“Patin Group”) appeals a judgment granting the motion of the plaintiff, Shield Mott Lund L.L.P. (“SML”), to enforce an agreement that required Cedric Patin (“Cedric”) and Patin Group to pay SML the money due them from an open account collection lawsuit judgment that had been rendered against Cedric and P R Contractors Inc. (“PRC”). For the reasons that follow, we dismiss the appeal and remand this case for further proceedings.

A judgment was rendered on 27 February 2002 in SML’s favor and against Cedric and PRC for $29,641.36, plus judicial interest, and costs. In 2008, in an effort to collect the judgment, SML sought to garnish Cedric’s interests in and compensation from Patin Group. When Patin Group failed to answer SML’s interrogatories, SML sought a judgment pro confesso against Patin Group. Patin Group avoided the judgment pro confesso by filing its answers to the interrogatories. The answers, captioned “Garnishee’s Answers to Interrogatories,” were filed on 20 April 2009 by Patin Group’s attorney, Jonathan B. Andry (“Andry”); therein Andry stated that he was counsel of record for Patin Group. (Thereafter, Andry never filed a motion to withdraw as counsel of record for Patin Group; ergo, his legal representation of Patin Group continued throughout these proceedings and remains in effect today.)

l2In anticipation of a court hearing to be held on 15 December 2011, SML’s counsel prepared a written agreement, styled “Guaranty,” to be signed by Patin Group and Andry. At that 15 December 2011 hearing, .Cedric, Mr. Andry, and SML’s counsel, Jeffrey K. Prattini, appeared. Andry represented Patin Group thereat by virtue of his previous enrollment as counsel for that entity. Cedric represented himself. A La. C.C. art. 3071 compromise was read into the record by Andry, also who introduced a copy of the unsigned agreement into evidence. That agreement was received into evidence without objection. At that time, Andry represented that he was holding Cedric’s first installment payment of $5,000 pursuant to the agreement in his attorney’s trust/escrow account. Cedric and SML’s counsel confirmed on the record that they consented and assented to the agreement. The agreement obligated Patin Group to pay the full amount of the judgment of 27 February 2002, judicial interest from date of judicial demand (7 September 2001), and costs if Cedric did not make the installment payments on the dates and for the amounts indicated.

Although the first installment was paid, Cedric did not deliver the second payment timely; that is, he delivered a second check for $5,000 on 4 January 2012 to Andry. Andry advised SML’s counsel that day that he was depositing the check |sin his firm’s trust/escrow account and that SML would receive payment “[a]s soon as the funds are available.” In response, SML sent a letter to Patín Group and Joseph C. Patín, Cedric’s father and a member of Patín Group, declaring that Cedric was in default for failure to make the timely installment payment and that Patín Group was now liable for the full amount of the judgment (“$29,641”), attorney’s fees and costs of $14,412.50, judicial interest of $17,748.81, subject to a credit of $5,000 for the first installment payment under the agreement. Although Andry sent a $5,000 check to SML on 9 January 2012, SML rejected the payment, returned the check, and reiterated that it was owed the full amount per their previous letter. SML further indicated that it would only accept the check for $5,000 as a payment towards the full judgment, attorney’s fees costs, and judicial interest, and not as an installment pursuant to the agreement.

On 30 January 2012, Andry, on behalf of Cedric and PRC, filed a motion to enforce the agreement of 15 December 2011, asserting that SML had been arbitrary and capricious in declaring the agreement breached. On 9 February 2012, SML filed a countermotion to enforce the agreement; their motion sought (1) a declaration that the agreement was valid and (2) a money judgment against Patín Group for the full amount due under the 2002 judgment. On 29 February 2012, Andry filed a motion to withdraw Cedric’s and PRC’s motion of 30 January 2012 to enforce, and an ex parte motion to declare the judgment of 27 February 2002 null and void because it was prescribed and had not been revived within ten years of its rendition. See La. C.C. art. 3501; La. C.C.P. art. 2031. Cedric and Patín Group also contended that the agreement was a contract of suretyship and was extinguished by virtue of SML’s failure to revive the 27 February 2002 judgment, citing La. C.C. art. 3061. The ex parte motion was denied by the trial court. On 1 | ¿March 2012, Cedric and PRC, filed a contradictory motion to declare the judgment a nullity; a rule to show cause was entered setting a hearing. Ultimately, the motions were contradictorily heard to determine whether the 2002 judgment was null and void and whether the agreement was enforceable.

The trial court ruled that the agreement of 15 December 2011 was a second obligation that bound Patín Group to timely make the scheduled payments under the agreement in the event Cedric did not do so. Because the payments were not timely, the court concluded and rendered judgment (and notice of judgment) on 3 May 2012 that SML was entitled to enforce the new agreement and that the judgment of 27 February 2002 was null and void. On 24 May 2012, Patín Group filed a motion to clarify the 3 May 2012 judgment. The record before us reflects no ruling on the motion and no ruling was required; however, if the motion was intended to be a motion for new trial, it is untimely and the trial court could not rule upon it because the court had been divested of jurisdiction. La. C.C.P. art. 1974; see also La. C.C.P. art. 2088.

From that 3 May 2012 judgment declaring that the 2002 judgment was null and void and granting enforcement of the agreement, Patin Group filed a motion to appeal on 10 July 2012. However, we find that Patin Group’s motion for devolutive appeal is untimely, having been filed more than sixty-seven days from the date of the notice of judgment. La. C.C.P. art. 2087. To have been timely, Patin Group would have had to file its appeal on 9 July 2012.

|BThe failure of a party to timely file a motion of appeal, regardless of when an order of appeal is granted, deprives this court of jurisdiction to review the issues raised on appeal. However, we note that the trial court never rendered a judgment on that part of SML’s motion to enforce the agreement wherein SML sought a money judgment against Patin Group. A remand for further proceedings in order to do so.

Accordingly, the appeal of JC Patin Group, L.L.C. is dismissed. This case is remanded to the trial court for further proceedings.

APPEAL DISMISSED; REMANDED.

BAGNERIS, J., concurs.

BAGNERIS, J.,

concurs.

hi concur in the result reached to dismiss the appeal as untimely.

(Court composed of Judge DENNIS R. BAGNERIS, SR., Judge MAX N. TOBIAS, JR., Judge JOY COSSICH LOBRANO).

MAX N. TOBIAS, JR., Judge.

ON APPLICATION FOR REHEARING

hln our original opinion, we found that the defendants/appellants had untimely appealed the trial court’s decision. In their application for rehearing, which is incorrectly described by counsel as an application for “reconsideration,” Patin Group, asserts that they did appeal timely because the notice of judgment sent to them by the minute clerk of Judge Paulette R. Irons is dated 3 May 2012, a Thursday, yet the envelope in which the notice was mailed bears a postmarked date of 7 May 2012, a Monday. Upon receipt of Patin Group’s application, we directed an order to the parties to document and explain with affidavits and/or depositions their assertions.

Affidavits of Rosalind E. Lobrano, a paralegal to Jonathan Andry, Esq. (“An-dry”) and Kailey L. LeBeouf, Esq., an attorney for Patin Group, were submitted. Ms. Lobrano asserts in her affidavit that she opened the letter with the notice of judgment on 8 May 2012, the date the letter was received, and date stamped the envelope in which the notice was enclosed to reflect the date it was received. However, no copy of the envelope with the date stamp of the receipt has been furnished to this court. Ms. LeBeouf asserts in her affidavit that on 10 April 2013 she met with Kelly Brossette, the minute clerk of Judge Irons, requesting her |gto sign an affidavit attesting to the policy by which judgments rendered by Judge Irons are mailed. Ms. Brossette refused to sign an affidavit. Ms. LeBeouf further asserts she met with the deputy clerk of court for Judge Irons in the clerk of court’s office requesting that the clerk sign an affidavit attesting to the policy by which judgments rendered by Judge Irons are mailed; that unidentified deputy clerk also refused to sign an affidavit.

By law, a minute clerk of a judge of the Civil District Court is appointed by the judge for whom he or she will work and is a deputy clerk of the Civil District Court for all purposes. La. R.S. 13:1211; 12:1136 F.,La. C.C.P. art. 256 states:

The minute clerk of. a court shall keep the minutes of the court daily when in session and transcribe them into the minute book, as required by Article 254; shall file all pleadings and documents tendered for filing in open court; and shall perform such other duties as are assigned to him by law, the court, and the clerk with the approval of the court.
The minute clerk of a trial court shall administer the oath to jurors and witnesses and shall file all exhibits offered in evidence, when directed to do so by the court. If there are two or more judges on a trial court, its rules may require a minute clerk for each division thereof.
When a court has no minute clerk, and there is no deputy clerk available for such duty, the clerk shall perform all of the duties of the minute clerk.

And La. R.S. 13:1 states:

The minute clerks of the court of appeals and of the civil and criminal district courts of the parish of Orleans shall attend the sessions of the court for which they are appointed, and shall, under the supervision of the judge or judges of the courts, keep the minutes of the court, issue all notices, copies of rules and orders entered on the minutes, which are required to be issued, and make due entries on the dockets of the causes and of the proceedings therein, and shall perform such other duties as the judges may direct. [Emphasis supplied.]

|sThe failure of a minute clerk to accurately and precisely perform his or her duties is misfeasance per se and may, under certain circumstances, be malfeasance and/or subject the clerk and court to claims of damages.

The failure of a minute clerk to correctly state the date of the actual mailing of a notice of judgment as required by La. C.C.P. art. 1914 D is misfeasance, because section D states “The clerk shall file a certificate in the record showing the date on which, and the counsel and parties to whom, notice of the signing of judgment was mailed.”

We take judicial notice of the fact the second weekend of the New Orleans Jazz and Heritage Festival, an extremely popular and well-attended New Orleans cultural event, occurred on 3-6 May 2012. Although lacking any evidence in the record before us precisely, it is certainly possible that employees of the Civil District Court may have departed the courthouse in haste on 3 May 2012 and delayed the actual mailing of the notice of judgment in this case until Monday, 7 May 2012, not realizing the harm that such inaccuracy of the date stated in the notice of judgment could create.

Appeals are favored in the law. We find that it is more likely than not that the notice of judgment in this case bears the incorrect date of 3 May 2012 and should have borne the date of 7 May 2012. We find that it is more likely than not that the notice of judgment was actually mailed on 7 May 2012. Accordingly, Patín Group’s appeal of the judgment in this case is timely and we have jurisdiction in this matter. Accordingly, we vacate our earlier holding dismissing the appeal of Patín Group as .untimely and proceed to address the merits of Patín Group’s appeal.

|4We reaffirm our statement of facts as contained in our original opinion of 27 March 2013.

On appeal, Patin Group asserts that the trial court erred by enforcing the agreement they entered into with SML because the agreement was merely an accessory obligation, a guaranty, and therefore a contract of suretyship, to the 27 February 2002 judgment which was extinguished when the judgment prescribed on 27 February 2012 having not been timely revived. See La. C.C. arts. 1973, 3035, 3059, and 3060. We disagree.

We find that a meeting of the minds occurred between the parties and a new agreement independent of the laws of suretyship was formed whereby Patin Group became bound to pay the full indebtedness of Cedric to SML if Cedric did not pay as agreed.

As SML (the judgment creditor) closed in on successful collection efforts respecting their 27 February 2002 judgment by virtue of garnishment of Cedric’s compensation as an employee of Patin Group, Andry filed as counsel of record for Patin Group on 20 April 2009 the “Garnishee’s Answers to Interrogatories.” This was done in an apparent effort to protect Patin Group from being cast in judgment for Cedric’s and P R Contractor Inc.’s (“PRC”) debt to SML commemorated by the 2002 judgment. Thereafter, Andry never filed a motion to withdraw as counsel of record for Patin Group; ergo, his legal representation of Patin Group continued throughout these proceedings and remains in effect today. An agreement was reached shortly before the proceedings in open court on 15 December 2011 as to how Cedric would pay a portion of the judgment in lieu of the principal amount, |saccrued judicial interest, and costs. An-dry apparently negotiated with SML’s counsel on behalf of Patin Group.

At the 15 December 2011 hearing in open court, Cedric, Andry, and counsel SML were present. Andry clearly represented Patin Group thereat by virtue of his previous enrollment as counsel for that entity. Cedric represented himself. Jeffrey Prattini, Esq., represented SML. A compromise in strict conformity with La. C.C. art. 3071 was read into the record. Andry was holding Cedric’s first installment payment pursuant to the agreement in his attorney’s trust/escrow account that day. Andry makes a statement at that hearing that “I hope to be appearing as a friend of the Court and the parties trying to resolve the case.... ” That statement, however, does not permit Andry to argue that he appeared in court that day not formally representing anyone; he appeared before the trial court as counsel and mandatory for Patin Group by virtue his formal appearance as counsel of record never withdrawn. See Rule 1. 16, Louisiana Rules of Professional Conduct.

On 30 January 2012, Andry filed a “Motion to Enforce Settlement” wherein he represented that he was now counsel of record for PRC and Cedric Patin,” appearing in the proceedings to enforce the agreement (compromise) dictated into the record on 15 December 2011. Andry continued to represent Cedric and PRC and continues to represent them in these proceedings today. Andry thereafter filed | fipleadings on behalf of Cedric and PRC (“Defendants”) and appeared in open court on their behalf.

When Cedric failed to pay strictly in accordance with the agreement as dictated on 15 December 2012, SML had the right to enforce the dictated agreement. The trial court did not err as a matter of law or fact in rendering its judgment; the trial court judgment is not manifestly erroneous or clearly wrong. Patín Group is now liable for the full amounts owed by Cedric. We affirm the trial court’s judgment of 3 May 2012 as it confirmed the settlement dictated in open court on 15 December 2011.

As we noted in our original opinion, the trial court never rendered a judgment on that part of SML’s motion to enforce the agreement wherein SML sought a money judgment against Patín Group. A remand for further proceedings is in order to do so.

REHEARING GRANTED; JUDGMENT AFFIRMED; REMANDED.

BAGNERIS, J., dissents.

LOB RANO, J., concurs in the result.

BAGNERIS, J.,

dissents.

|,1 respectfully dissent. Based upon my review of the record, there was no meeting of the minds between Joseph C. Patín, in his capacity as managing partner of the Patín Group, and SML to form a contract.

Under Louisiana law, four elements are necessary to form a valid contract. They include: 1) the parties must have the capacity to contract; 2) the parties must freely give their mutual consent to the contract; 3) the parties must have a cause or reason for obligating themselves; and 4) the contract must have a lawful purpose. See La. C.C. arts. 1918, 1927, 1966, 1971, 2029.

The second element — mutual consent— is outlined in La. C.C. art. 1927 which provides in part that:

A contract is formed by the consent of the parties established through offer and acceptance.
Unless the law prescribes a certain formality for the intended contract, offer and acceptance may be made orally, in writing, or by action or inaction that under the circumstances is clearly indicative of consent.

Clearly, the Patín Group, Cedric Patín, and SML now dispute the purpose, intent, and obligations created by the guaranty agreement. This dispute alone raises questions as to whether or not the parties had a meeting of the minds. However, of greater import is that I find the evidence fails to establish that the |2Patin Group, the party compelled to make the payments under the Motion to Enforce Guaranty, consented to the contract, either orally, in ■writing, or by its actions.

Neither Joseph C. Patín nor any other representative of the Patín Group signed the Guaranty Agreement. Joseph C. Pa-tín was not present in court when the terms of the agreement were read and offered into the record. Although the majority notes that Attorney Andry was still, as a matter of law, enrolled as counsel of record for the Patín Group at the time the agreement was read into the record, Attorney Andry represented in open court that he was not acting in his capacity as attorney for the Patín Group or Cedric, but rather as a “friend” of the parties and the Court. Based on this representation and the potential conflict of interest between Cedric Patín and the Patín Group, in that the terms of the agreement created substantial obligations on the Patín Group in the event of Cedric’s default, I do not think this Court can say, as a matter of fact, that the Patín Group had the benefit of counsel. The record is simply devoid of any direct evidence that the Patín Group actually consulted with counsel or that any representative of the Patín Group read, understood, or agreed to the contract terms. Instead, the record suggests that Cedric Patín was the only party with whom SML conferred with concerning the terms of the guaranty agreement; and Cedric Patín was the only party who represented in open court that he understood the agreement.

Consent of the parties is necessary to form a valid contract. Where there is no meeting of the minds between the parties, a contract is void for lack of consent. Philips v. Berner, 2000-0103, p. 5 (La.App. 4 Cir. 5/16/01), 789 So.2d 41, 45. Based on the record before me, I do not find that a meeting of the minds existed between the Patín Group and SML to form an enforceable contract.

|sFor the foregoing reasons, I conclude the trial court erred in granting SML’s Motion to Enforce Guaranty, and therefore, I would reverse the judgment. 
      
      . The Garnishee’s Answers begins with the language, “NOW COMES Garnishee, J.C. Pa-tin Group, L.L.C., through undersigned counsel ...," and is "Respectfully Submitted” by Andry. [Emphasis in original.]
     
      
      . Andry makes a statement at that hearing that "I hope to be appearing as a friend of the Court and the parties trying to resolve the case....” That statement, however, does not permit Andry to argue that he appeared in court that day not formally representing anyone; he appeared before the trial court as counsel and mandatory for Patin Group by virtue of his formal appearance as counsel of record. See Rule 1.16, Louisiana Rules of Professional Conduct.
     
      
      . Although the formal document that had been prepared had a caption reading "Guaranty,” it is well-séttled law that a caption does not govern what a document actually is. A reading of the document clearly indicates that it was not intended to be a suretyship agreement; rather it was intended to be a separate and distinct agreement between Patin Group, Cedric, and SML, each having respective duties and obligations thereunder.
     
      
      . The agreement required Cedric to pay to SML $5,000 on the 10th day after the agreement was agreed to; $5,000 on or before 3 January 2012; $10,000 on or before 2 February 2012; and $9,641.36 on or before 4 March 2012.
     
      
      . Although the trial court found the 27 February 2002 judgment null and void, it actually meant that the judgment was prescribed and unenforceable. A prescribed judgment is not a nullity; rather it creates a natural obligation. La. C.C. arts. 1760-1762.
     
      
      . We express no opinion whether the matter can be heard as summary matter or must proceed by ordinary proceedings.
     
      
      . The Garnishee’s Answers begins with the language, "NOW COMES Garnishee, J.C. Pa-tin Group, L.L.C., through undersigned counsel ... ” and is "Respectfully Submitted" by Andry.
     
      
      . Although the formal document that had been prepared had a caption reading "Guaranty,” it is well-settled law that a caption does not govern what a document actually is. A reading of the document (which is different than what was formally read into the record in open court) clearly indicates that it was not intended to be a suretyship agreement; rather it was intended to be a separate and distinct contract.
     
      
      .Any argument that Andry exceeded his mandate from Patin Group and Joseph C. Patin (Cedric’s father) is not an issue before this court.
     
      
      . These pleadings and other documents and their dates of filing include as follows:
      "Motion to Withdraw Motion to Enforce Settlement” 29 February 2012
      "Ex Parte Motion to declare Judgment Null and Void” 29 February 2012
      "Motion for Expedited Hearing” 1 March 2012
      "Memorandum in Support of Motion to declare Judgment Null and Void and Reply to Plaintiff's Opposition to Motion to Declare Judgment Null and Void” 19 April 2012
      "Opposition to Plaintiff's Motion to Enforce Guaranty And Opposition to Plaintiff’s Supplemental Memorandum in Support of Motion to Enforce Guaranty” 19 April 2012
     
      
      . We express no opinion whether the matter can be heard as summary matter or must proceed by ordinary proceedings,
     