Boudreaux v. State of Louisiana

Catterson, J. (dissenting).

Because I believe that the motion court erred in sua sponte vacating the plaintiffs’ CPLR 5402 filing of a judgment against the State of Louisiana and in denying their motion for technical corrections to that filing, I respectfully dissent.

The facts of the underlying action brought in Louisiana are undisputed but should be noted nonetheless. In April 1983, a “devastating flood” occurred in Tangipahoa Parish, damaging the plaintiffs’ property.1 (Boudreaux v State, Dept. of Transp. & Dev., 906 So 2d 695, 698 [La Ct App 2005], writ denied 924 So 2d 1018 [La 2006].) A year later, the plaintiffs brought a class action in Louisiana state court, alleging that the Louisiana Department of Transportation designed and built a bridge for Interstate 12 over the Tangipahoa River in a negligent and improper manner which prevented the river’s floodwaters from escaping through their natural flood channel. The plaintiffs prevailed on liability (Boudreaux v State, Dept. of Transp. & Dev., 780 So 2d 1163 [La Ct App 2001], writ dismissed 815 So 2d 7 [La 2002]), and, after appeal, were awarded $91,846,957.04, plus interest from April 10, 1984.

Louisiana’s Constitution waives sovereign immunity. (La Const, art XII, § 10 [A].) However, it also states that “no public property or public funds shall be subject to seizure ... No judgment against the state . . . shall be exigible, payable, or paid except from funds appropriated therefor by the legislature.” (Id. § 10 [C].) To date, the Louisiana Legislature has failed to appropriate funds to pay the Boudreaux judgment.

On August 11, 2006, the plaintiffs attempted to file the Louisiana judgment in New York pursuant to CPLR 5402. However, the clerk of the court informed the plaintiffs’ counsel that: (1) the portions of the judgment which were in favor of the class (as opposed to the individual plaintiffs) could not be docketed and that it would be appropriate to docket the judgment in favor of the attorneys for the class; and, (2) the clerk could not compute and enter prejudgment interest on a non-New York judgment. The plaintiffs then moved by order to show cause to correct these two technical problems.

The defendant opposed the motion, arguing that the plaintiffs’ only remedy was to wait for the Louisiana Legislature to ap*245propriate funds to pay the judgment. The plaintiffs then attempted to file reply papers to address the factual averments and legal arguments raised by the defendant, but the court refused to accept any submissions on the issue.2

Relying solely on article XII, § 10 (C) of the Louisiana Constitution, the motion court denied the plaintiffs’ attempt to correct the two technical defects and ordered the clerk of the court to vacate the filing of the judgment. The court construed section 10 (C) as a stay of enforcement. The court then characterized the motion as “a waste of time” and “frivolous,” saying that it would sanction the plaintiffs if it were not (the anniversary of) September 11.

The plaintiffs contend that the motion court should have granted their motion for technical corrections to the judgment and should not have vacated the filing of the Louisiana judgment. I submit that the plaintiffs are correct.

CPLR 5402 (a) states:

“A copy of any foreign judgment authenticated in accordance with . . . the statutes of this state may be filed within ninety days of the date of authentication in the office of any county clerk of the state. The judgment creditor shall file with the judgment an affidavit stating that the judgment was not obtained by default in appearance or by confession of judgment, that it is unsatisfied in whole or in part, the amount remaining unpaid, and that its enforcement has not been stayed, and setting forth the name and last known address of the judgment debtor.”

The only requirement of CPLR 5402 (a) that is in dispute is whether enforcement of the Louisiana judgment has been stayed. Indeed, that appears to be the sole basis for the court’s ruling. It is plain, however, that article XII, § 10 (C) of the Louisiana Constitution is not a stay. In New York, a stay is ordinarily a judicial act: “a direction of the court.” (1544-48 Props. v Maitre, 184 Misc 2d 984, 985 [App Term, 2d Dept 2000] [emphasis added]; see also CPLR 2201 [“the court in which an *246action is pending may grant a stay of proceedings” (emphasis added)].) No Louisiana court has stayed enforcement of the Boudreaux judgment; on the contrary, we must presume, in the absence of authority to the contrary, that the Louisiana courts expect that their judgment will be enforced. (See Baudoin v Acadia Parish Police Jury, 702 So 2d 715, 720 [La Ct App 1997], writ denied 706 So 2d 458 [La 1997] [governmental defendant’s refusal to pay if able to do so disrespected court’s judgment].)

The defendant contends and the majority agrees that the Louisiana judgment should not be given greater effect in New York than it would in Louisiana. This argument is similarly unavailing as it conflates two different concepts: the effect of a domestic judgment on state assets versus the ability to enter a foreign judgment pursuant to the Full Faith and Credit Clause.

The U.S. Supreme Court has made it plain that “[a] final judgment in one State, if rendered by a court with adjudicatory authority over the subject matter and persons governed by the judgment, qualifies for recognition throughout the land.” (Baker v General Motors Corp., 522 US 222, 233 [1998].) Furthermore, “[f]ull faith and credit . . . does not mean that States must adopt the practices of other States regarding the time, manner, and mechanisms for enforcing judgments. Enforcement measures do not travel with the sister state judgment . . . ; such measures remain subject to the . . . control of forum law.” (Id. at 235.)

The New York Court of Appeals has reached a similar result. In Morris Plan Indus. Bank of N.Y. v Gunning (295 NY 324 [1946]), the plaintiff held an unsatisfied Pennsylvania judgment against the defendant, who lived and worked in Pennsylvania. (Id. at 327.) Pennsylvania law did not permit the plaintiff to garnish or attach the defendant’s wages. (Id. at 328.) However, New York law allowed the plaintiff to garnish 10% of the defendant’s wages. (Id.) The Court stated “questions of garnishment and attachment are decided by the law of the forum since they deal with remedies. Therefore, the Pennsylvania law forbidding garnishment of wages has no effect in New York, although the wages attached were earned in Pennsylvania.” (Id. at 331-332 [citations omitted];3 see Restatement [Second] of Conflict of *247Laws § 99 [“(t)he local law of the forum determines the methods by which a judgment of another state is enforced”].)4

“Every state has jurisdiction to determine for itself the liability of property within its territorial limits to seizure and sale under the process of its courts.” (Clark v Williard, 294 US 211, 213 [1935] [emphasis added].) Thus, the defendant has every right to exempt its property in Louisiana from seizure. However, if the defendant chooses to hold a bank account or real property in New York, it simply cannot dictate that its New York-sited property must be exempt from seizure. The majority cites no authority to the contrary. Indeed, the cases cited by the majority are Louisiana state court decisions concerning the effect of a judgment on property of the state located within the state. (See also Baker, 522 US at 232 [“The Full Faith and Credit Clause does not compel ‘a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate’ ” (quoting Pacific Employers Ins. Co. v Industrial Accident Comm'n, 306 US 493, 501 [1939])].) There simply is no basis in law to hold that New York must give Louisiana’s Constitution extraterritorial effect.

De Nunez v Bartels (241 AD2d 414 [1st Dept 1997]), cited by the defendant, is not to the contrary. There, the Louisiana district court judgment that the petitioner sought to enforce in New York was modified by a Louisiana appellate court. (Id. at 415-416.) By contrast, in the case at bar, the Supreme Court of Louisiana has denied writs of certiorari (924 So 2d 1018 [La 2006], 924 So 2d 174 [La 2006]), so there is no danger that the judgment sought to be enforced will be modified.

The defendant also contends that, as a matter of comity, New York should decline to enforce the judgment against it. I disagree on two grounds.

First, the procedure under CPLR article 54 is clear. It requires immediate recognition of a final sister state judgment rendered with jurisdiction. (Siegel, Practice Commentaries, McKinney’s *248Cons Laws of NY, Book 7B, CPLR C5402:2, at 570; see Fauntleroy v Lum, 210 US 230 [1908].) Louisiana has no more right to object to the docketing of this judgment on the grounds of comity than it would have to the docketing of any judgment, by any party, against it. Such judgments are subject to immediate filing and docketing in accordance with CPLR article 54, without notice being sent to Louisiana until 30 days after filing. Certainly, the ministerial corrections requested by plaintiffs, even if unremedied, are mere “ defect [s]” or “irregularities]” which do not “stay[ ], impair[ ] or affect[ ]” the validity or enforceability of the judgment. (CPLR 5019 [a].) Indeed, under similar circumstances it appears uncontroverted that Louisiana itself would require docketing under its Enforcement of Foreign Judgments Act. (Littleton v Moss, 914 So 2d 51, 55 [La Ct App 2005].)

Second, public policy of this state requires enforcement of the judgment. “[W]here there is a conflict between our public policy and application of comity, our own sense of justice and equity as embodied in our public policy must prevail.” (J. Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, 228 [1975], cert denied 423 US 866 [1975].) Surely it is just and equitable for the plaintiffs, who were injured more than 20 years ago, due to the malfeasance of an agent of the defendant, to be compensated for their losses.

The defendant’s public policy is that it is for the legislature to decide when a valid judgment rendered against it is satisfied from the public fisc. However, this public policy can necessarily apply only to property of Louisiana that remains in the state. If the defendant chooses to do business here, it should not expect treatment other than that accorded by state law in New York.

The motion court ruled on the basis of its understanding of sovereign immunity. However, Louisiana has, by its constitution, waived sovereign immunity. The Louisiana Constitution is clear—the state has “[n]o [immunity in [c]ontract and [t]ort.” (La Const, art XII, § 10 [A].)5 The judgment in question arises out of torts committed by the state and, therefore, immunity has been waived. The underlying action was tried by a Louisiana state court and affirmed by the Louisiana Court of Appeal. A writ of certiorari was denied by Louisiana’s Supreme Court. The motion court erred in characterizing this as an exercise of *249sovereign immunity, when it is nothing more than an exemption from execution for assets of the state. (See La Const, art XII, § 10 [C].)6

In Nevada v Hall (440 US 410 [1979]) and Ehrlich-Bober & Co. v University of Houston (49 NY2d 574 [1980]), the U.S. Supreme Court and the New York Court of Appeals made clear that exceptions or limitations on the obligation of the state to pay a judgment need not be recognized as a matter of full faith and credit, nor deferred to as a matter of sovereign immunity. In Nevada v Hall, Nevada waived sovereign immunity as to tort suits against the state provided that they were expressly limited to a judgment cap of $25,000. The Supreme Court upheld a California judgment against Nevada which ignored the damage cap on the ground that any alleged sovereign immunity did not apply in California, and California was not required to enforce Nevada’s limitation on damages.

Similarly, in Ehrlich-Bober & Co., the State of Texas waived sovereign immunity provided that any suit against the state was required to be brought in the State of Texas courts. The Court of Appeals disregarded the Texas public policy and upheld a judgment entered in an action brought in the New York Supreme Court in complete disregard of Texas’s claim of sovereign immunity. Thus, Louisiana’s claim of sovereign immunity does not automatically provide it with a defense in a New York court as it would in Louisiana. (See also Deutsche Bank Sec., Inc. v Montana Bd. of Invs., 7 NY3d 65, 73 [2006], cert denied 549 US —, 127 S Ct 832 [2006].)

The size of the judgment—$270,837,526.85 as of August 9, 2006, when interest is included—may seem daunting. However, *250there are 1,286 plaintiffs. (Boudreaux, 906 So 2d at 703.) Moreover, the amount of interest ($178,990,569.81 as of August 9, 2006) is partly defendant’s fault: it chose to appeal multiple times. (Boudreaux v State, Dept. of Transp. & Dev., 690 So 2d 114 [La Ct App 1997] [class certification]; Boudreaux v State, Dept. of Transp. & Dev., 780 So 2d 1163 [La Ct App 2001], writ dismissed 815 So 2d 7 [La 2002] [liability]; Boudreaux v State, Dept. of Transp. & Dev., 906 So 2d 695 [La Ct App 2005], writ denied 924 So 2d 1018 [La 2006] [damages].) In any event, finding in the plaintiffs’ favor on the instant motion does not necessarily mean that the defendant will immediately have to pay $270 million; it merely means that the plaintiffs can begin discovery into the defendants’ assets in New York.

Williams, Buckley and McGuire, JJ., concur with Nardelli, J.P.; Catterson, J., dissents in a separate opinion.

Order, Supreme Court, New York County, entered September 18, 2006, affirmed, without costs.

. From April 6 through April 9, 1983 a torrential rain fell in southern Louisiana, eventually causing the worst flooding in the history of Washington-St.Tammany-Tangipahoa Parish areas. Indeed, the Tangipahoa River reached record flood stage, higher than that seen in the Great Mississippi Flood of 1927, which coincidentally, put Herbert Hoover in the White House.

. While I recognize that the decision to allow reply papers ordinarily rests in the sound discretion of the motion court, the court’s decision to sua sponte vacate the foreign judgment filed pursuant to CPLR 5402 certainly entitled plaintiffs to be permitted to respond to the arguments raised by the defendant. To not allow the plaintiffs that opportunity was, I believe, a clear abuse of discretion.

. The defendant seeks to distinguish Morris on the basis that a New York statute was involved in that case. However, that distinction is immaterial to the application of a different New York statute: CPLR 5402.

. The Restatement sections cited by the defendant (§§ 111 and 115) and adopted by the majority are inapplicable. Section 111 says, “A judgment will not be enforced in other states if the judgment is not subject to enforcement in the state of rendition because the judgment is subject to a condition not yet performed.” An example of a condition is that “A shall recover $10,000 against B when A has tendered B a good and sufficient deed conveying certain land.” (Restatement [Second] of Conflict of Laws § 111, Comment c, Illustration 2.) Section 115 says, “A judgment will not be recognized or enforced in other states if upon the facts shown to the court equitable relief could be obtained against the judgment in the state of rendition.”

. Article XII, § 10 (A) provides: “No Immunity in Contract and Tort. Neither the state, a state agency, nor a political subdivision shall be immune from suit and liability in contract or for injury to person or property.”

. Article XII, § 10 (C) provides:

“Limitations; Procedure; Judgments. Notwithstanding Paragraph (A) or (B) or any other provision of this constitution, the legislature by law may limit or provide for the extent of liability of the state, a state agency, or a political subdivision in all cases, including the circumstances giving rise to liability and the kinds and amounts of recoverable damages. It shall provide a procedure for suits against the state, a state agency, or a political subdivision and provide for the effect of a judgment, but no public property or public funds shall be subject to seizure. The legislature may provide that such limitations, procedures, and effects of judgments shall be applicable to existing as well as future claims. No judgment against the state, a state agency, or a political subdivision shall be exigible, payable, or paid except from funds appropriated therefor by the legislature or by the political subdivision against which the judgment is rendered.”