Opinion
NO. 2021-CA-0200
10-27-2021
GREGORY SWAFFORD FAMILY TRUST v. GRAYSTAR MORTGAGE, LLC, JB 430 Holdings LLC, and The Honorable Marlin H. Gusman in this Official Capacity as The Orleans Parish Sheriff
Gregory Swafford, ATTORNEY AT LAW, 4734 Franklin Avenue, New Orleans, LA 70122-6112, COUNSEL FOR PLAINTIFF/APPELLANT C. Michael Pfister, Jr., Andrew D. Weinstock, DUPLASS ZWAIN BOURGEOIS PFISTER & WEINSTOCK, 3838 North Causeway Blvd., Suite 2900, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE, JB 430 HOLDINGS, LLC Steven A. Watts, LAW OFFICE OF STEVEN A. WATTS, LLC, 3925 N. I-10 Service Rd., Suite 230, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE, GRAYSTAR MORTGAGE, L.L.C.
Gregory Swafford, ATTORNEY AT LAW, 4734 Franklin Avenue, New Orleans, LA 70122-6112, COUNSEL FOR PLAINTIFF/APPELLANT
C. Michael Pfister, Jr., Andrew D. Weinstock, DUPLASS ZWAIN BOURGEOIS PFISTER & WEINSTOCK, 3838 North Causeway Blvd., Suite 2900, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE, JB 430 HOLDINGS, LLC
Steven A. Watts, LAW OFFICE OF STEVEN A. WATTS, LLC, 3925 N. I-10 Service Rd., Suite 230, Metairie, LA 70002, COUNSEL FOR DEFENDANT/APPELLEE, GRAYSTAR MORTGAGE, L.L.C.
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge Rosemary Ledet )
Judge Edwin A. Lombard This appeal is from the district court judgment of December 18, 2019, maintaining the plaintiff's exception of res judicata and dismissing with prejudice the defendant's petition for injunctive relief with regard to the property located at 4734 Franklin Avenue in New Orleans. After review of the record in light of the applicable law, we find that the motion for appeal was filed prematurely and, therefore, is moot requiring dismissal of this appeal.
Relevant Facts and Procedural History
This matter originated in 2018 as an executory proceeding in Orleans Parish Civil District Court wherein Graystar Mortgage, L.L.C. ("Graystar"), obtained a Writ of Seizure and Sale ordering the Civil Sheriff of Orleans Parish to seize and sell the property located at 4734 Franklin Avenue due to the failure of the Gregory Swafford Family Trust (Swafford) to make payments under the terms of a promissory note secured by a collateral mortgage on the property, to provide proof of insurance, and to pay property taxes. The actual sale was delayed by litigation but in July 2019, the property was purchased by JB 430 Holdings, LLC. ("JB 430"). The Sheriff's Sale Deed was recorded on September 22, 2020.
After unsuccessfully filing a petition to annul the sale of the property, Swafford filed the instant lawsuit on October 16, 2019, naming as defendants Graystar, JB 430, and Marlin Gusman in his capacity as the Sheriff of Orleans Parish (Sheriff Gusman). In addition, Swafford sought a temporary restraining order (TRO) and injunctive relief to prevent Sheriff Gusman from recording the sale.
On October 22, 2019, Graystar responded, filing a motion to dissolve the TRO and a peremptory exception of res judicata , asserting that the district court's ruling in July 2019 that the executory process was not defective and the sale could proceed excluded Swafford from litigating the issue again.
After a hearing on November 14, 2019, the district court issued a judgment on December 18, 2019, maintaining Graystar's exception of res judicata and dismissing with prejudice Swafford's petition for injunctive relief.
On January 1, 2020, Swafford filed a motion for a new trial.
On January 22, 2020, JB 430 filed its opposition to Swafford's motion for a new trial, as well as motions to compel inspection of the property and for Swafford to vacate the property, for Swafford to post security, and for sanctions. After a contradictory hearing on September 8, 2020, the district court ruled orally, denying Swafford's motion for a new trial, granting JB 430's motion to compel and ordering Swafford to allow inspection of the property and vacate the premises by September 15, 2020. Swafford did not comply. Instead, on September 22, 2020, Swafford filed a motion to set aside the district court judgment of September 8, 2020 (denying its motion for a new trial), a notice of intent to file a writ application, and a request for a stay.
The written judgment was signed on October 1, 2020.
The district court held that the motion to compel Swafford to post security was moot and deferred the motion for sanctions.
That same date, the Sheriff's Sale Deed transferring the property to JB 430 was recorded.
On October 1, 2020, the district court denied Swafford's motion to set aside the judgment of September 8, 2020, granted Swafford thirty days (until October 30, 2020) to file a writ application for review of the judgment, and denied Swafford's request for a stay of the orders to inspect and vacate pending this court's decision in the matter. On October 21, 2020, Swafford filed its writ application, requesting expedited consideration, seeking review of the district court's denial of its motion to set aside the judgment and granting JB430's motion to compel. That same day (October 21, 2020), this court denied Swafford's writ application.
However, Swafford filed its motion and order for a suspensive appeal on October 19, 2020, while the writ application for review was pending. Because Swafford's writ application was still pending, the underlying judgment (of res judicata ) was not final. Accordingly, Swafford's motion for an appeal was premature and, therefore, moot. Swafford did not file a subsequent timely motion for appeal after the judgment of res judicata was final and the time period in which a motion for appeal could be filed has lapsed.
Applicable Law
An appeal may only be taken from a final judgment. La. Code Civ. Proc. art. 2083(A).
"It is well-settled under Louisiana law that a motion for appeal taken while a timely filed motion for new trial or request for rehearing is pending is premature and subject to dismissal, because the filing of a motion for a new trial suspends the operation of the final judgment being appealed." Old Republic Life Insurance Company v. TransWood Inc., 2016-0552, p. 6 (La. App. 1 Cir. 6/2/17), 222 So.3d 995, 1000-01 (citations omitted).
Discussion
Based on the failure of Swafford to make payments under the terms of a promissory note secured by a collateral mortgage on the property, to provide proof of insurance, and to pay property taxes, the mortgage company (Graystar) initiated the executory proceeding in 2018 to seize and sell the property at 4734 Franklin Avenue. Since then, Swafford's repetitive pleadings have served to delay but not overturn the process. The sale of the property took place in July 2019 and the Sheriff's Sale Deed was recorded on September 22, 2020.
Swafford filed the motion for appeal while his writ application was pending. Because the judgment was not yet final, the motion for appeal was premature and, therefore, moot.
Subsequent to this court's denial of Swafford's writ application, Swafford could have sought further review in the Louisiana Supreme Court or returned to the district court to file a timely motion for appeal. In the absence of a valid motion for appeal, this court does not have jurisdiction to hear the appeal. Accordingly, because Swafford failed to file a timely motion for appeal, the district court judgment maintaining the exception of res judicata and dismissing Swafford's petition is final.
As the analysis of the merits of this case set forth in Judge Ledet's concurrence makes clear, if we had jurisdiction to hear the appeal and review the merits of the case, the outcome would be the same: the district court judgment maintaining the exception of res judicata and dismissing Swafford's petition (which is now the final judgment in this case and can no longer be appealed) would be affirmed.
Conclusion
This appeal is dismissed. All time periods for further filings have expired and, accordingly, the district court judgment maintaining Graystar's exception of res judicata and dismissing Swafford's petition is the final.
APPEAL DISMISSED
BELSOME, J., CONCURS IN THE RESULT
LEDET, J., CONCURS WITH REASONS
Although I agree with the finding that the trial court's judgment sustaining the peremptory exception of res judicata should be affirmed, I would reach that result for different reasons.
The Gregory Swafford Family Trust's ("Swafford") appeal is taken from the trial court's September 8, 2020 judgment, which included the ruling sustaining the peremptory exception of res judicata filed by Graystar Mortgage, LLC ("Graystar") and dismissing Swafford's petition for injunctive relief. This is a final, appealable judgment. See La. C.C.P. art. 1915(A)(1) ; see also White v. Cox Operating, LLC , 16-0901, pp. 3-4 (La. App. 4 Cir. 4/5/17), 229 So.3d 534, 537-38 (observing that a judgment granting a defendant's exception of res judicata and dismissing a plaintiff's claims is a final, appealable judgment, notwithstanding a pending reconventional demand). Swafford's filing of a supervisory writ application neither forestalled the finality of the trial court's judgment nor postponed the deadline to file a motion for appeal. See Johnson v. Montero, 17-0274, p. 1 (La. App. 4 Cir. 3/29/17), 215 So. 3d 479, 481 (observing that the appellate court had jurisdiction over trial court's judgment despite a pending supervisory writ application seeking review of same judgment). I would find that Swafford filed a timely motion for appeal of the trial court's judgment and would reach the substantive merits of this appeal.
Moreover, given the time-sensitive nature of the trial court's interlocutory rulings at issue, it was appropriate for Swafford to seek more expedient review by a supervisory writ application. The trial court's interlocutory rulings ordered that Swafford permit inspection of the subject property and vacate it within one week of the trial court's ruling. Any complaints as to these orders would become moot by the time Swafford's appeal was submitted.
Turning to the merits of this appeal, I would find no error in the trial court's judgment sustaining Graystar's peremptory exception of res judicata. In Countrywide Home Loans Servicing, LP v. Thomas , 12-1304 (La. App. 4 Cir. 3/20/13), 113 So.3d 355, this court set forth the following elements necessary to dismiss an action on the basis of res judicata:
(1) the judgment in the executory process lawsuit is valid; (2) the judgment is final; (3) the parties are the same; (4) the cause or causes of action asserted in the present suit existed at the time of the final judgment; and (5) the cause or causes of action asserted in the present petition arose out of the transaction or occurrence that was the subject matter of the executory process lawsuit.
Id ., 12-1304, p. 7, 113 So.3d at 359 (quoting Regions Bank v. Rauch , 12-0232, p. 3 (La. App. 1 Cir. 12/21/12), 2012 WL 6677790 (unpub .)).
Swafford only disputes the existence of the second of these foregoing elements. Swafford argues that the judgment in the executory process lawsuit is not final, because he pursued an unsuccessful injunction of the seizure and sale and an appeal of the order of seizure and sale, which was dismissed as abandoned. In support, Swafford points to dicta in Countrywide Home Loans , in which the court, in its conclusion that the order of seizure and sale was a final judgment, observed that the debtor had neither appealed the order nor filed an injunction to arrest the seizure and sale. Id ., 12-1304, pp. 7-8, 113 So.3d at 359-60. According to Swafford, because he, unlike the debtor in Countrywide Home Loans , attempted to enjoin the seizure and sale and unsuccessfully appealed the order of seizure and sale, the order is not final for res judicata purposes.
Swafford's argument presents a distinction without a difference. Following the denial of Swafford's attempted injunction of the seizure and sale and the dismissal of Swafford's appeal in the executory process lawsuit, the order of seizure and sale became final for purposes of res judicata. To hold otherwise would contravene the intent of the doctrine of res judicata, which "promotes judicial efficiency and final resolution of disputes." Johnson v. Orleans Par. Sch. Bd ., 14-0277, p. 9 (La. App. 4 Cir. 4/26/17), 219 So.3d 452, 462 (quoting Ave. Plaza, L.L.C. v. Falgoust , 96-0173, p. 4 (La. 7/2/96), 676 So.2d 1077, 1079 ).
Additionally, I would find that the remaining elements necessary to dismiss an action for res judicata are present. As to the first element, the order of seizure and sale was a valid judgment. The court in the executory process lawsuit possessed jurisdiction over both the subject matter and parties, and the order of seizure and sale was rendered after proper notice was given. See Burguieres v. Pollingue , 02-1385, p. 8 (La. 2/25/03), 843 So. 2d 1049, 1053. Regarding the third element, Swafford and Graystar were both parties to the order of seizure and sale and the instant action. Turning to the fourth element, the cause of action stated in the instant lawsuit existed, and was unsuccessfully pursued, at the time of the executory process lawsuit. Lastly, the cause of action asserted here arose out of the same occurrence that was the subject matter of the executory process lawsuit, namely, Swafford's default on the promissory note held by Graystar.
Accordingly, I would affirm the trial court's judgment sustaining Graystar's peremptory exception of res judicata. For these reasons, I respectfully concur.