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Coretta McMillon and Roosevelt Norman v. European Service, Inc., d/b/a European Motors and Ali Moghimi
Case Number: 53,479-CA
Judge: Frances Pitman
Court: COURT OF APPEAL
STATE OF LOUISIANA
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Coretta McMillon and Roosevelt Norman filed suit in Monroe City
Court against European Service, Inc., d/b/a European Motors and Ali
Moghimi to rescind the sale of an automobile. The trial court concluded that
European Motors and Ali Moghimi violated the Unfair Trade Practices Act
and were liable for damages in the amount of $22,855.25 plus attorney fees
of $5,650.00. See McMillon v. European Serv., Inc., 52,701 (La. App. 2 Cir.
5/22/19), 275 So. 3d 375.
On May 29, 2019, Norman filed a rule to show cause and made Elham
Moghimi a defendant. Norman stated that he is a judgment creditor of
European Motors and Ali Moghimi and that Elham Moghimi is the wife of
Ali Moghimi and is living with him in community. Norman requested that
Elham Moghimi show cause why he should not be allowed to execute his
judgment against any or all community property of the Moghimis, including
the garnishment of her wages. He also requested that Elham Moghimi be
cast for all costs, including attorney fees.
A hearing was held on August 1, 2019, and the parties discussed the
Moghimis’ prenuptial separate property agreement that is recorded in Iran.
The trial court found that the prenuptial agreement was not relevant and
questioned its validity. It ordered that McMillon and Norman be allowed to
execute their judgment against any and all community property of European
Motors and the Moghimis, including the garnishment of Elham Moghimi’s
wages under a writ of fieri facias in the amount of $22,855.25, together with
interest and attorney fees in the amount of $5,650 and for all court costs.
On August 1, 2019, Ali Moghimi filed a pro se motion to remove and
transfer the case to federal court, pursuant to 28 U.S.C. § 1446. He stated
that pursuant to La. C.C.P. art. 4843, the damages prayed for and the
possible breach of a prenuptial agreement will exceed the jurisdictional
limits of Monroe City Court. He stated that his wife Elham Moghimi is not
a citizen or a resident of the United States and that they entered into the
prenuptial agreement in Iran.
On August 5, 2019, the trial court denied the motion to transfer.
The Moghimis appeal.
Transfer to Federal Court
In their first assignment of error, the Moghimis argue that the trial
court erred in denying the motion to transfer. They contend that the federal
court is better suited to adjudicate a case concerning a prenuptial agreement
recorded in a foreign country. They state that because the agreement was
executed between a United States citizen (Ali Moghimi) and a foreign
national (Elham Moghimi), a federal court has diversity jurisdiction over the
matter. They also contend that, due to its limited jurisdiction, Monroe City
Court is not equipped to determine the validity of the prenuptial agreement.
McMillon and Norman argue that the Moghimis did not follow the
proper procedure to remove this case to federal court, which is set forth in
28 U.S.C. § 1446. The Moghimis’ filing of a motion to transfer in Monroe
City Court fails to comply with the procedure detailed in that statute. The
record does not indicate that the Moghimis filed their removal action in U.S.
District Court within 30 days of service of the initial pleading.
Accordingly, this assignment of error lacks merit.
Choice of Laws/Conflict of Laws
In their second assignment of error, the Moghimis argue that the trial
court erred in denying the motion to transfer without knowing if choice of
laws and conflict of laws dictate that a prenuptial agreement executed
between a foreign national and a United States citizen and recorded in a
foreign country takes precedence over Louisiana’s community property
statutes. Under choice of laws doctrine, they contend that Islamic/Iranian
law should determine the validity of the agreement. Under conflict of laws
doctrine, they argue the validity of the agreement should be determined
where the contract was made and not in Monroe City Court.
McMillon and Norman argue that the trial court correctly rendered
judgment against the community property of the Moghimis. They note that
the Moghimis were married in Ouachita Parish in 2005 and could have
entered into a matrimonial agreement under Louisiana law or petitioned the
court to recognize the agreement executed in Iran.
Although the Moghimis married in Louisiana, they did not avail
themselves of the opportunity to live under separate property regimes
pursuant to Louisiana law. See La. C.C. art. 2334, et seq. Instead, they
presented to the trial court a copy of a prenuptial agreement purportedly
from the Iranian “Ministry of Vital Statistics and Internal Affair.” The copy
provided to the court contains no seal, stamp or other means of
authentication. The Moghimis’ argument that this alleged prenuptial
agreement prevails over the Louisiana community property regime is not
supported by Louisiana law.
Accordingly, this assignment of error lacks merit.
Counsel for McMillon and Norman states that the Moghimis failed to
provide a copy of their appellate brief to her and that they falsely certified
that she was served with the brief. Counsel argues that she incurred an
unnecessary waste of time, effort and expense responding to this appeal
because this appeal does not concern her. Therefore, McMillon and Norman
seek sanctions pursuant to La. C.C.P. art. 2164 for the Moghimis’ pattern of
deceptive and misleading actions. They also seek to enjoin the filing of
future pro se pleadings by the Moghimis.
La. C.C.P. art. 2164 states:
The appellate court shall render any judgment which is just,
legal, and proper upon the record on appeal. The court may
award damages, including attorney fees, for frivolous appeal or
application for writs, and may tax the costs of the lower or
appellate court, or any part thereof, against any party to the suit,
as in its judgment may be considered equitable.
This provision is penal in nature and is to be strictly construed. Straughter
v. Hodnett, 42,827 (La. App. 2 Cir. 1/9/08), 975 So. 2d 81, writ denied,
08-0573 (La. 5/2/08), 979 So. 2d 1286, citing Pratt v. Louisiana State Med.
Ctr. in Shreveport, 41,971 (La. App. 2 Cir. 2/28/07), 953 So. 2d 876.
Appeals are always favored and, unless the appeal is unquestionably
frivolous, damages will not be allowed. Hampton v. Greenfield, 618 So. 2d
859 (La. 1993), citing City of Shreveport v. U.S. Fid. & Guar. Co., 131 La.
933, 60 So. 621 (1913). Damages for frivolous appeal are only allowed
when it is obvious that the appeal was taken solely for delay, that the appeal
fails to raise a serious legal question or that counsel is not sincere in the view
of the law he advocates, even though the court is of the opinion that such
view is not meritorious. Straughter v. Hodnett, supra; Hampton v.
Greenfield, supra, citing Parker v. Interstate Life & Acc. Ins. Co., 248 La.
449, 179 So. 2d 634 (1965).
We note that Ali Moghimi has a lengthy history of self-representation
in Monroe City Court, and many of these cases have been further litigated
before this court and the Louisiana Supreme Court as appeals or writs. See
Davis v. European Motors, 51,522 (La. App. 2 Cir. 8/9/17), 243 So. 3d
1100. Although it appears that the Moghimis employed tactics to delay this
matter, we note that appeals are favored and that this appeal is not
Accordingly, we do not award damages for a frivolous appeal under
the facts of this case.
Outcome: For the foregoing reasons, we affirm the judgment of the trial court
denying the motion to transfer of Defendants-Appellants Ali Moghimi and
Elham Moghimi. Costs are assessed against Defendants-Appellants Ali
Moghimi and Elham Moghimi