ANTHONY STRAUGHTER DERON ALEXANDER AND RUSSELL BICKHAM v. OCCIDENTAL FIRE CASUALTY COMPANY OF NORTH CAROLINA THE TRINITY SYSTEM INC AND AARON MATTHEW WHITE (2023)

While I share the dissent's concern that the justice system should never be used as an instrumentality of fraud, I write separately to point out that the allegations of fraud in this case are, at this point, no more than that: allegations. Furthermore, the allegations are unsupported allegations at best, as defendants have offered no evidence in this record, outside of speculation, that plaintiffs in this case are the subjects of a criminal investigation.

Rather than create a remedy based on unsupported allegations (as defendants request), the codal law of this state provides a remedy for defendants should their allegations have merit. Defendants have availed themselves of that remedy by filing a petition to annul the judgment for fraud and ill practices. See La. C.C.P. art. 2004.¹ The codal law also provides guidance with respect to the issue presented here: whether the appeal should be stayed pending the resolution of the nullity action. Louisiana C.C.P. art. 2005 explains that “[a] judgment may be annulled prior to or pending an appeal therefrom” and that “[a]n action of nullity does not affect the right to appeal.” (Emphasis added.) The codal law must be respected. The circumstances of this case, particularly in light of the dearth of evidence presented to support the allegations of fraud, do not warrant a departure from our written laws of procedure. To grant defendants’ request under these circumstances would depart from the laws as enacted by the legislature and have the effect of delaying the appeal for an indefinite period of time based merely on speculation that criminal charges might be filed against plaintiffs at some point in the future or that the nullity action will be decided in defendants’ favor.

Because defendants have perfected a suspensive appeal, there is no danger of plaintiffs executing the judgment. Moreover, the court of appeal has expressly reserved to defendants the right to renew their motion to stay in the future, should plaintiffs become the subjects of a criminal prosecution. Under these circumstances, I see no error in the court of appeal's denial of defendants’ motion to stay their suspensive appeal and/or suspend briefing and no basis for this court's exercise of its “plenary powers over the courts” when the law as written already provides remedies and procedural guidance.

FOOTNOTES

1.   Plaintiffs contend defendants have taken no steps to expedite that proceeding.

WEIMER, C.J., concurring in writ denial.