IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 99-31099 Summary Calendar _____________________

FEDERAL DEPOSIT INSURANCE CORPORATION, ET AL.,

Plaintiffs,

GULF COAST BANK & TRUST COMPANY,

Plaintiff-Appellee,

versus

ALTON OCHSNER, JR.,

Defendant-Appellant.

_______________________________________________________

Appeal from the United States District Court for the Eastern District of Louisiana (USDC No. 88-CV-1684-C) _______________________________________________________ November 28, 2000

Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges.

PER CURIAM:*

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. Appellee Gulf Coast Bank & Trust Co. (the bank) brought this suit to revive a

money judgment against appellant Alton Ochsner, Jr. The judgment had been assigned to

the bank, whose need for a revived judgment under Louisiana law arose as the ten-year

anniversary of the underlying judgment approached. See La. Civ. Code Ann. art. 3501

(West 1994); La. Code Civ. Proc. Ann. art. 2031 (West 1990). The same federal district

court which entered the original judgment granted a summary judgment in favor of the

bank and accordingly entered a new judgment in the pending revival action. Ochsner

appeals the summary judgment.

Summary judgment is appropriate if the record discloses “that there is no genuine

issue as to any material fact and that the moving party is entitled to a judgment as a

matter of law.” Fed. R. Civ. P. 56(c). An appellate court applies the same standard in

reviewing the grant or denial of a summary judgment as that used by the trial court

initially. See Melton v. Teachers Ins. & Annuity Ass’n of Am.,

(5th

Cir. 1997).

We agree with the district court that the action to revive the judgment was a

proceeding “supplementary to and in aid of a judgment” and “on and in aid of execution”

of a money judgment under Fed. R. Civ. P. 69(a), which further provides that such

proceedings are governed by state law. See United States v. Fiorella,

(11th Cir. 1989) (reasoning that, pursuant to Rule 69(a), state law governed issue of

revival of judgment).

2 We also agree with the district court that Ochsner was unable to raise a material

issue of fact as to any valid defense against revival of the judgment. He asserted defenses

to the note which was the basis of the underlying suit and default judgment. However, in

a revival action, no defense short of absolute nullity of the original judgment can be

raised. See McCutchen v. Askew,

(1882); Romero v. Sunseri,

(La. Ct. App. 1978).

The asserted defenses to the note, such as failure of consideration and accord and

satisfaction, are not the sort of defenses which would establish the absolute nullity of the

original judgment under Louisiana law. An absolute nullity would occur only if there

were some fundamental defect in the judgment such as the absence of citation or the lack

of jurisdiction of the court which entered the judgment. See Bruno v. Oviatt,

(1896) (stating that “want of citation, manifestly, is a defense” in a revival action);

Theriot v. Bayard,

(1885) (holding that defendant in revival action could

not raise defense that court which entered judgment lacked personal jurisdiction over

defendant where defendant had waived this defense in the underlying action, but

suggesting that absence of subject matter jurisdiction of court which entered judgment

might be a valid defense in revival action); Folger & Son v. Slaughter,

(1881) (“No judgment absolutely void, as for want of citation or other like radical defect,

can be revived, because it is considered in law as never having been rendered; but

nullities which are not absolute, but relative, cannot be invoked in such proceeding.”);

McStea v. Rotchford, Brown & Co.,

(1877) (stating that “a total and

3 entire absence of citation upon any one might” qualify as a defense in a revival action);

Texaco, Inc. v. Finegan,

(La. Ct. App. 1960) (“A judgment rendered

against a party who has neither been cited nor appeared is an absolute nullity. . . . The

nullity of a judgment rendered without citation or voluntary appearance may be

interposed as a defense to an action to revive the judgment.”). A defense to the note

would not in our view render the underlying judgment an absolute nullity. See Bruno,

(holding, in suit to revive judgment on note, that defendant could not raise

defenses that note had been obtained by fraud and without consideration); McCutchen, 34

La. Ann. at 340 (holding in suit to revive judgment on a note that defense of compromise

and settlement of the note obligation could not be raised); Romero,

(holding, in suit to revive judgment on a note obtained by default judgment, that defense

of alteration of note was not properly raised).

A closer question concerns Ochsner’s argument that if he were mentally

incompetent at the time of the default judgment in 1988, due to early symptoms of

Parkinson’s disease, he lacked the capacity to be sued absent the appointment of a

guardian ad litem. See La. Code Civ. Proc. Ann. art. 733 (West 1999) (providing that

“[a] mental incompetent has no procedural capacity to be sued” and that, with certain

exceptions, “the curator appointed by a court of this state is the proper defendant in an

action to enforce an obligation against a mental incompetent or an interdict.”). However,

even if such incapacity would render the underlying judgment an absolute nullity under

4 Louisiana law, Ochsner (now represented by competent legal representatives) offered no

summary judgment proof of such incapacity at the time.

AFFIRMED.

5