Carmouche v. Carmouche et al
Filing
118
ORDER AND REASONS: IT IS ORDERED that the 113 motion to vacate garnishment is GRANTED, subject to reconsideration upon a showing of good cause if a motion to that effect is filed within 20 days. Moreover, this order is null and void if it is inconsistent with the parties' agreement as alluded to in the Magistrate Judge's 110 order dated 11/23/2011. Signed by Judge Ivan L.R. Lemelle on 10/4/2021. (CC via USPS and email) (pp)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
RICKY JOE ALFORD
CIVIL ACTION
VERSUS
NO. 07-552
ROBERT HOLLIS CARMOUCHE, ET AL.
SECTION “B”(4)
ORDER AND REASONS
Before the Court is Defendant Kevin Carmouche’s Motion to
Vacate
Garnishment.
Rec.
opposition to that motion.
IT
IS
ORDERED
that
Doc.
113.
There
is
no
record
of
garnishment
is
For the following reasons,
the
motion
to
vacate
GRANTED, subject to reconsideration upon a showing of good cause
if a motion to that effect is filed within 20 days. Moreover, this
order is null and void if it is inconsistent with the parties’
agreement as alluded to in the Magistrate Judge’s order dated
November 23, 2011. Rec. Doc. 110.
I.
FACTS OF THE CASE AND PROCEDURAL HISTORY
This action arose from a judgment against defendants and a
subsequent garnishment order. Rec. Docs. 79, 90, 110. Plaintiff,
Ricky
J.
Alford
(“Ricky”),
was
adopted
by
Robert
Carmouche
(“Robert”) at the age of five, and lived with Robert and Robert’s
biological son, Kevin Carmouche (“Kevin”). Rec. Doc. 38 at 2. Ricky
lived with Robert and Kevin until he was around sixteen years old.
Rec. Doc. 38 at 2. According to the Amended Complaint, shortly
after the adoption, Robert began to beat Ricky, and once he reached
the age of six years old, “Robert began to regularly sexually
molest and assault him. These acts included oral and genital sexual
intercourse.” Rec. Doc. 38 at 3. Kevin, on multiple occasions,
would assist Robert “in sexually molesting and assaulting Ricky by
holding Ricky down so that Robert could rape Ricky and also by
periodically beating Ricky himself.” Rec. Doc. 38 at 3. Both Robert
and Kevin would take pictures of Ricky while he was standing naked,
which were then published by Robert on the internet. Rec. Doc. 38
at 4. Additionally, when standing naked, Robert would sometimes
severely beat him. Rec. Doc. 38 at 4. Then in the fifth grade,
“Robert began to falsely imprison [Ricky] by soldering shut all
windows in the house, padlocking his bedroom door, and refusing to
allow him to have contact with the outside world.” Rec. Doc. 38 at
4. Ricky also claimed that Kevin aided in the soldering of his
bedroom window. Rec. Doc. 73 at 3.
“The
assaults,
batteries,
and
illegal
sexual
contacts
described herein caused Ricky to run away from home, attempt
suicide, seek medical care, seek therapy, and be involuntarily
admitted to various mental health institutions.” Rec. Doc. 38 at
5.
After disclosure of these events to a social worker, Robert
was arrested on February 7, 2005, and charged with oral sexual
battery of Ricky and molestation of a juvenile. Rec. Doc. 73 at 3.
After the arrest of Robert, a second search warrant was issued for
the Carmouche residence, which was executed on March 4, 2005. Rec.
Doc. 73 at 4. This led to the seizure of Kevin’s laptop, multiple
CD’s, adult and child pornography, and information on how to beat
a polygraph examination. Rec. Doc. 73 at 4. Kevin was then arrested
and
charged
with
2,440
counts
of
possession
of
pornography
involving a juvenile, where the juvenile was Ricky in many images.
Rec. Doc. 73 at 4; Rec. Doc. 38 at 6. At the time of arrest Kevin
worked as a fifth-grade teacher. Rec. Doc. 73 at 5.
Ricky was unable maintain steady employment in his adult life,
and “after three psychological examinations and two years of
appeals, [he] was granted Social Security disability benefits on
the
basis
personality
of
the
following
disorder;
severe
impairments:
schizo-affective
disorder;
borderline
and
post-
traumatic stress disorder.” Rec. Doc. 73 at 6.
On February 1, 2011, the Court rendered judgment “in favor of
plaintiff, Ricky Joe Alford and against defendants Robert Hollis
Carmouce [sic] and Kevin Carmouce [sic] in solido, in the amount
of FOUR HUNDRED SIXTEEN THOUSAND NINE HUNDRED THIRTY DOLLARS AND
SIXTY THREE CENTS ($416,930.63) . . . .” Rec. Doc. 79 at 1. The
Court
further
rendered
judgment
against
Kevin
Carmouche
for
$500,000.00 for physical and mental pain and suffering. Rec. Doc.
79 at 1-2.
On July 11, 2011 the Court granted Plaintiff’s Petition for
Garnishment
and
cited
Westside
Credit
Corporation
as
the
garnishee. Rec. Doc. 90 at 1. On November 23, 2011 the Court
granted in part and denied in part the Opposition to Garnishee’s
Claim of Indebtedness by Debtor (Rec. Doc. 94). Rec. Doc. 110 at
6. The Court ordered:
[T]hat Garnishee Westside Credit Corporation,
Inc. shall collect $114.49 monthly or $57.25
bi-weekly from Defendant Kevin Carmouche’s
paycheck, as agreed under the parties’
promissory note, and that all garnishable
amounts up to twenty-five percent of [Kevin]
Carmouche’s nonexempt disposable earnings
shall be paid to Plaintiff Ricky Joe Alford
until such time as Carmouche’s debt to
Westside is paid off . . . [O]nce Carmouche’s
debt to Westside is paid off, Westside shall
pay Plaintiff the full garnishable amount
until such time as the judgment amount against
Carmouche is paid in full.
Rec. Doc. 110 at 6. Now, Defendant Kevin Carmouche moves to vacate
the garnishment. Rec. Doc. 113.
II.
LAW AND ANALYSIS
Federal Rule of Civil Procedure 69 governs the execution of
money judgments. Fed. R. Civ. P. 69. Rule 69(a)(1) states:
A money judgment is enforced by a writ of
execution, unless the court directs otherwise.
The procedure on execution—and in proceedings
supplementary to and in aid of judgment or
execution—must accord with the procedure of
the state where the court is located, but a
federal statute governs to the extent it
applies.
Fed. R. Civ. P. 69(a)(1) (emphasis added). The U.S. Court of
Appeals for the Fifth Circuit has held that “Rule 69(a)(1) requires
parties
to
judgments
follow
and
in
state
law
proceedings
procedure
in
supplementary
execution
to
and
of
in
money
aid
of
judgment or execution (which includes the revival of judgments),
with one important exception—that a federal statute governs where
it applies.” FDIC v. SLE, Inc., 722 F.3d 264, 272 (5th Cir. 2013)
(citing Fed. R. Civ. P. 69(a)(1)) (holding that federal law did
not preempt Louisiana law regarding the revival of judgments, and
where proper state law was followed, revival was proper).
In ruling on a Motion to Revive sn Amended Judgment, this
court recognized that “[t]he execution and revival of federal
judgments are governed by the law of the forum state.” Jackson v.
Duncan, No. 08-cv-4292, 2021 WL 2579788, at *3 (E.D. La. June 23,
2021) (citing In re Clarke, No. 89-81395, 2012 WL 4634557, at *4
(Bankr. W.D. La. Sept. 28, 2012) (citing Sobranes Recovery Pool I,
LLC v. Todd & Hughes Constr. Corp., 509 F.3d 216, 219 (5th Cir.
2007); Fed. R. Civ. P. 69)).
Because the forum state is Louisiana, Louisiana law governs
consideration
of
the
instant
motion
to
vacate
garnishment.
Louisiana Civil Code article 3501 provides for “Prescription and
revival of money judgments[.]” That codal article states:
A money judgment rendered by a trial court of
this state is prescribed by the lapse of ten
years from its signing if no appeal has been
taken, or, if an appeal has been taken, it is
prescribed by the lapse of ten years from the
time the judgment becomes final . . . Any party
having an interest in a money judgment may
have it revived before it prescribes, as
provided in Article 2031 of the Code of Civil
Procedure. A judgment so revived is subject to
the prescription provided by the first
paragraph of this Article. An interested party
may have a money judgment rendered by a court
of this state revived as often as he may
desire.
La. Civ. Code art. 3501. However, “an ongoing garnishment does not
constitute an interruption of the ten-year liberative prescription
against the judgment debtor under Article 3464 of Civil Code,
because it is not a voluntary payment or acknowledgment by the
debtor.” Brunston v. Hoover, 06-970 (La.App. 3 Cir. 12/6/06); 945
So.2d
852,
856
(internal
quotations
omitted)
(quoting
trial
court). Louisiana Code of Civil Procedure article 2031 provides
for the requirements of revival of judgments. That article states:
A money judgment may be revived at any time
before it prescribes by an interested party by
the filing of an ex parte motion brought in
the court and suit in which the judgment was
rendered. The filing of the motion to revive
interrupts the prescriptive period applicable
to the judgment. The motion to revive judgment
shall be accompanied by an affidavit of the
holder and owner of the judgment, stating that
the original judgment has not been satisfied.
A judgment shall thereupon be rendered
reviving the original judgment. No citation or
service of process of the motion to revive
shall be required. The court may order the
judgment debtor to pay additional court costs
and reasonable attorney fees in connection
with the judgment revival action. Notice of
signing of the judgment of revival shall be
mailed by the clerk of court to the judgment
debtor at his last known address as reflected
in the suit record.
La. Code Civ. P. art. 2031(A).
Therefore,
based
on
Louisiana
Civil
Code
article
3501,
Plaintiff’s money judgment prescribed ten years from the final
judgment unless revived pursuant to the requirements set forth in
Louisiana Code of Civil Procedure article 2031(A). See Bahan v.
Youngstown Sheet & Tube Co., 191 So.2d 668, 671 (La. Ct. App. 2
Cir. 1966) (holding that “The rule stated by LSA-C.C.Art. 3547
[Louisiana Civil Code article 3501 is based on Article 3547 of the
Louisiana Civil Code of 1870], as amended, and Arts. 2031 and 5091
of the Code of Civil Procedure is that the exclusive method by
which the running of prescription on a money judgment may be
prevented is by revival of the judgment in an action instituted
within 10 years.”).
Thus, Louisiana law requires (1) an interested party to bring
“an ex parte motion brought in the court and suit in which the
judgment was rendered”; (2) “accompanied by an affidavit of the
holder
and
owner
of
the
judgment,
stating
that
the
original
judgment has not been satisfied”; and (3) “[n]otice of signing of
the judgment of revival shall be mailed by the clerk of court to
the judgment debtor at his last known address as reflected in the
suit record.” La. Code Civ. P. art. 2031(A). Here, none of the
requirements have been met by plaintiff or an interested party.
Because the requirements set forth in Louisiana Civil Code
article 3501 and Louisiana Code of Civil Procedure article 2031
were not satisfied before the prescriptive period, and the mere
continued
act
of
garnishment
does
not
suffice
to
interrupt
prescription, the money judgement has prescribed and Defendant’s
garnishment
provisos
should
relative
be
to
vacated
subject
reconsideration
to
the
and/or
aforementioned
the
Magistrate’s
November 2011 order.
Since plaintiff is no longer represented by record counsel in
this matter and it appears he may be involved in another action
with representation, 1 the Clerk of Court is directed to notify
plaintiff at the address provided in record document 114-2 and
Taylor Christopher Bartlett, Heninger, Garrison & Davis, LLC, 2224
First Avenue North, Birmingham, AL 35203 (205-326-3336), Email:
taylor@hgdlawfirm.com, along with counsel of record remaining in
this action.
New Orleans, Louisiana this 4th day of October, 2021
_______________________________________
SENIOR UNITED STATES DISTRICT JUDGE
See “Rickey Alford, et al v. Janssen Research & Development, LLC, etc., et al”, CA No. 19-09297 (MDL No.14-md02592 (EDLA).
1
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